TMcM-v-Department for Social Development (ESA) [2016] NICom 24

Decision No:  C28/15-16(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 9 February 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Belfast.

2.	An oral hearing of the application has been requested.  However, I consider that the proceedings can properly be determined without a hearing.

3.	For the reasons I give below, I grant leave to appeal.  I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.

4.	I direct that the appeal shall be determined by a newly constituted tribunal who shall have regard in particular to the decision of the Upper Tribunal in JC v Secretary of State for Work and Pensions [2015] AACR 6 at paragraphs 32-35 in deciding the appeal.

REASONS

	Background

5.	The applicant claimed incapacity benefit (IB) and income support (IS) from the Department for Social Development (the Department) from 22 March 2001 by reason of gout and back pain.  On 13 August 2013 the applicant was notified by the Department that his existing claim was to be converted into a claim for employment and support allowance (ESA) under the regulations implementing the Welfare Reform Act (Northern Ireland) 2007.  The applicant was issued with and completed a Departmental questionnaire, form ESA50.  He was examined by a healthcare professional (HCP) on 22 October 2013, who prepared a report for the Department.  On the basis of all the evidence, on 4 November 2013, the Department decided that the applicant did not satisfy the limited capability for work assessment (LCWA) and that his award of IB and IS did not qualify for conversion into an award of ESA from 28 November 2013, resulting in an end to his entitlement.  The applicant appealed.

6.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 9 February 2015.  The tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 23 April 2105.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 3 June 2015.  On 30 June 2015, the applicant requested a Social Security Commissioner to grant leave to appeal.

	Grounds

7.	The applicant, represented by Ms Loughrey of Law Centre (NI), submits that the tribunal has erred in law on the basis that:

(i)	the reasons were inadequate to explain the decision regarding Activity 1 (Mobilising);

(ii)	the reasons were inadequate to explain the decision regarding Activity 15 (Getting about) and Activity 16 (Coping with social engagement) when considered together;

(iii)	on different grounds, the reasons were inadequate to explain the decision regarding Activity 16 (Coping with social engagement).

18.	The Department was invited to make observations on the appellant’s grounds.  Mr Collins of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had erred in law as alleged and indicated that the Department supported the application as regards the submissions made in relation to Activity 16.

	The tribunal’s decision

19.	The tribunal heard evidence from the applicant and had sight of his medical records.  It accepted that he suffered from a number of health conditions, including asthma, diabetes, arthritis, vertigo-tinnitus, diverticular disease, a groin abscess and depression.  The tribunal found that there was no clinical reason why the applicant could not mobilise more than 200 metres repeatedly.  It further found no physical reason why the applicant could not, for the majority of the time, remain at a work station either standing or sitting for more than an hour. 

20.	In terms of mental health, the tribunal accepted that the applicant had become withdrawn and dependent on family members due to low mood.  It accepted that he would have limitations in “Getting about” as it applied to unfamiliar places, awarding 6 points for descriptor 15(c).  In terms of “Coping with social engagement” the tribunal found that the applicant did not go to formal social occasions but could engage in social contact in the course of everyday life.  It observed that he can shop alone in the Park Centre and “pass himself” in the supermarket.  On this basis it awarded no points for activity 16.

	Submissions and assessment

21.	The applicant submits that the tribunal had not dealt adequately with evidence in the form of a letter-questionnaire completed by the applicant’s general practitioner (GP) in hand-writing.  One question in this read:

“2. In your opinion would his medical condition reduce his ability to repeatedly mobilise more than 50 metres in a reasonable timescale because of significant discomfort or exhaustion?” 

22.	The answer, as I read it, and as the tribunal read it, is: 

“Yes. Due to right thigh and knee pain and blisters on feet”. 

23.	However, the hand-writing is difficult to interpret and I observe that the applicant’s representative submits that this says:

“Yes. Due to right thigh and knee pain arthritis on feet”. 

24.	I note that the record of proceedings includes an exchange about blisters.  The claimant said that he gets water blisters on his heel and soles.  The tribunal has observed that, whereas the applicant described back, leg and knee pain, there had been no referral for assessment, diagnosis or treatment.  I see no formal evidence of a diagnosis of arthritis.  Although the tribunal appears to accept that there has been a diagnosis of arthritis, I conclude that the interpretation of the handwriting as a reference to blisters, rather than arthritis, is correct.

25.	Regardless of this difference, the question is whether the tribunal has dealt with this evidence in a way which is erroneous in law.  The tribunal noted that the GP confirmed a problem with knee pain.  The tribunal found no clinical reason for the applicant being unable to mobilise 200 metres repeatedly.  It says that “his asthma is controlled, his feet are general [sic] in good condition and his arthritis is not sufficiently serious to warrant specialist attention.  The primary medical evidence outweighs his account of his mobility difficulties”.

26.	Ms Loughrey submits that the tribunal has erred in law by failing to explain why it has not accepted the GP’s evidence to the effect that the applicant could not repeatedly mobilise more than 50 metres.  I accept that the tribunal has not given reasons for rejecting the particular evidence.  For my part, I consider that the question asked of the GP is a highly “leading” question – that is to say one where the question suggests its own answer.  While there is no rule of evidence in a tribunal which would exclude such a question, a question which suggests its own answer can legitimately be afforded less weight in a tribunal context than an open question.  The tribunal has not addressed itself to the weight to be given to the GP’s statement, however. Had it done so, it would clearly not have erred in law.  It simply does not refer to it.

27.	Similarly, Ms Loughrey submits that the tribunal says, in its reasons for considering that the activity 16 did not apply, that “it relied upon the absence of medication …”.  She points to the evidence of the GP in the same document which reads “his mood remains low, he is very anxious and depressed, numerous medications have had little help and have side effects plus limitations”.  She submits that the tribunal did not address the evidence that the applicant had tried a variety of medication without a positive outcome, when taking the absence of current medication into account as a factor against the applicant.

28.	Ms Loughrey’s second ground submits that the tribunal’s reasons for its findings in activity 16 (Coping with social engagement) are inadequate in the light of its reasons for its findings in activity 15 (Getting about).  This is premised on the submission that it is unclear why the tribunal awarded points for activity 15, despite the absence of medication for anxiety or depression, yet reasoned that he could shop alone for the purpose of activity 16 in the absence of medication.  As I understand it, the tribunal applied activity 15 to the applicant in the context of getting to unfamiliar places.  The consideration of activity 16 was in the context of a familiar place.  The lack of medication was a constant.  However, the variable which made the difference between activity 15 and 16 was the familiarity or unfamiliarity of the setting.  I see no merit in this point.

29.	Ms Loughrey further submits that the tribunal has not dealt with the issue of social contact adequately.  She refers to the finding that he could “pass himself” and questions what the tribunal meant by this.  Implicit in her criticism is that “passing himself” did not amount to social contact.  She questions the tribunal’s treatment of the applicant’s inability to attend family social occasions.  She questions the applicability of the applicant’s attendance at his HCP examination and the tribunal hearing to the “Coping with social engagement” activity.

30.	For the Department, Mr Collins did not accept the second of Ms Loughrey’s grounds.  He did, however, accept that there were merits in her first ground, as it applied to activity 16 and that there were merits in the last ground.  He refers to the decision of the three-judge panel of the Upper Tribunal in JC v Secretary of State for Work and Pensions [2014] UKUT 352 (AAC).  He submitted that the tribunal had not asked, in its consideration of the element of social contact with persons unfamiliar to the applicant, whether that social contact had the necessary elements of reciprocity, give and take, initiation and response required in social contact.  He questioned whether it was sufficient for the applicant to have the ability to “pass himself” in the supermarket.

31.	I observe that the tribunal recorded, in the context of someone unfamiliar to the applicant, “If in supermarket, just nods if someone speaks to him … can shop in Park Centre alone”.  It accepted that he would not attend formal social occasions.  It relied on his attendance at the HCP examination and attendance at the tribunal.  It found that he had a fairly full range of weekly activities and that he can engage in social contact in the course of everyday life.  Nevertheless, the parties in the present case each submit that the tribunal has taken into account evidence of contacts which do not amount to social engagement.

32.	In JC v SSWP, now reported as [2015] AACR 6, the three-judge panel gave guidance on the interpretation of social contact for the purposes of activity 16. From paragraph 32-35, they said:

32.	“In our view, “coping” and “engagement” and the underlying statutory purposes introduce elements of reciprocity, give and take, initiation and response. Such qualities exist in contact that is marked or characterised by friendliness, geniality or companionship but, in our view, they can arise and can be demonstrated without those elements (and the choices they involve) being present and this is often the case in the workplace and elsewhere albeit that a number of relationships there will include (or at least not exclude) them.

33.	A number of examples were addressed in the course of the hearing including those mentioned in [29] of Judge Ward’s decision (eg buying a ticket or groceries), contact with a medical examiner or other professional or a First-tier Tribunal and conversation with a stranger on a park bench. In our view, all of these examples could demonstrate the necessary degree of reciprocity, give and take, initiation and response.

34.	As Judge Parker pointed out there is a range of possibilities from no response and then on through monosyllabic or unresponsive answers and, in our view, it is open to a decision-maker to base his decision on an example or examples chosen from a wide range of situations. Whether the evidence and findings relating to the claimant’s communications with others and behaviour in the chosen example or examples have the necessary degree of reciprocity, give and take, initiation and response raises issues of fact and degree and of judgment having regard to all the circumstances relating to them. As with other such issues, the authorities show that it is not practical or appropriate to identify the statutory criterion by reference to abstract examples or by reference to a general classification or description other than the statutory test. 

35.	Rather, these are the type of issues that the authorities show are eminently suitable for consideration by a tribunal charged with considering the evidence whose approach to determining the application of the activities and their descriptors in each individual case should be to consider and determine how:

The nature and quality of the examples of communications and behaviour they take into account (and thus the reciprocity, give and take, initiation and response shown thereby) would, for the reasons given in the activities and their descriptors, be likely to be an effective barrier to the claimant working”.

33.	It follows from JC v SSWP that the tribunal was entitled to take into account the element of the applicant’s response to the HCP and to the tribunal itself in determining the applicability of activity 16. Nevertheless, it has to be acknowledged that there is an element of artificiality to those situations.  In the particular case, Ms Loughrey points out that the applicant was accompanied to the tribunal by an experienced representative and by his daughter.  He was accompanied to the HCP examination by his daughter, who stayed in the waiting room.  I consider that the potentially supportive presence of others can affect the ability to cope with social engagement in a context such as a tribunal and should be taken into account in assessing functional ability.

34.	Mr Collins supports the applicant’s case on two grounds.  The first is the issue of the tribunal taking the lack of medication into account in addressing activity 16 without commenting on the GP’s evidence that the applicant had tried a variety of medication but that these were of “little help”.  The implication of the tribunal’s finding is that the applicant’s problem with anxiety and depression was not sufficiently severe to warrant treatment by medication.  However, it is therefore unclear whether the tribunal has overlooked the evidence of the GP, or has found that the lack of medication was a relevant factor notwithstanding the treatment history.  I consider that this is an instance where it would have been preferable for the tribunal to have given an indication of how it viewed the GP’s evidence.

35.	Mr Collins further agrees with Ms Loughrey that the evidence of social engagement lacked the necessary qualities to determine the appeal.  He submits that the example of being able to shop and of nodding to people in a supermarket does not necessarily give evidence of the degree of “reciprocity, give and take, initiation and response” which the Upper Tribunal has looked for in JC v SSWP.  I accept the submissions of the parties on this issue.  I further consider that, although not strictly speaking bound by it, I should follow the decision of the three-judge panel of the Upper Tribunal in the interests of comity (see further in this regard the decision of Upper Tribunal Judge Ward in EC v SSWP [2015] UKUT 618 (AAC)).

36.	It appears to me that the tribunal’s decision is flawed to the extent that it is erroneous in law.  Firstly, it has not given any indication that the evidence of the GP regarding medication has been addressed.  Secondly, it has relied on examples from the context of shopping which do not give social engagement the meaning which the three-judge panel of the Upper Tribunal in JC v SSWP gives to it.

37.	Ms Loughrey has submitted that the tribunal cannot legitimately rely on the presence of the applicant at the tribunal and his interaction with it as an example of social engagement.  In the light of JC v SSWP I do not accept that submission.  However, it does seem to me that a tribunal is an artificial situation and that it is not a straightforward example of social engagement.  In the present case, I take the view that there was likely to have been some supportive effect from the presence of the applicant’s daughter and representative at the hearing in enabling his engagement with the tribunal.  I consider that some allowance should be made for the presence of others, and appropriate care exercised in such a context, as the functional ability of the applicant in terms of social engagement is properly an assessment of his ability in isolation of any support.

38.	I grant leave to appeal.  I allow the appeal and I remit the case to a newly constituted tribunal for determination.

39.	I direct that the new tribunal shall in particular have regard to the decision of the Upper Tribunal in JC v SSWP, and the passages at paragraphs 32-35 in particular.

(signed):  Odhrán Stockman

Commissioner

30 March 2016