MM-v-Department for Communities (ESA) [2018] NICom 18

Decision No:  C23/17-18(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 2 December 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 2 December 2016 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

2.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access.  An appeal tribunal which has a Medically Qualified Panel Member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.  In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to Employment and Support Allowance (ESA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

4.	On 21 January 2016 a decision maker of the Department decided that the appellant had limited capability for work but did not have limited capability for work-related activity and could not be treated as having limited capability for work-related activity.  Accordingly the appellant was not entitled to the support component of ESA from and including 21 January 2016.

5.	An appeal against the decision dated 21 January 2016 was received in the Department on 29 January 2016.  On 10 March 2016 the decision dated 21 January 2016 was reconsidered but was not changed.

6.	On 8 April 2016 a completed Form Reg2(i)(d) was received in the Appeals Service (TAS).  On this form, the appellant ticked a box to indicate that she was content for the appeal to proceed without an oral hearing.

7.	The appeal tribunal hearing took place on 2 December 2016.  The appeal tribunal disallowed the appeal and confirmed the decision dated 21 January 2016.  The appellant was provided with a copy of the statement of reasons for the appeal tribunal’s decision on 9 June 2017.

8.	On 15 June 2017 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 23 June 2017 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

9.	On 7 July 2017 a further application for leave to appeal was received in the office of the Social Security Commissioners.  On 20 July 2017 observations on the application for leave to appeal were requested from Decision Making Service (DMS).  In written observations dated 8 August 2017, Mr Kirk, for DMS, supported the application for leave to appeal on certain grounds.

10.	The written observations were shared with the appellant on 8 August 2017.  Correspondence was received from the appellant on 14 August 2017 which was shared with Mr Kirk on 18 August 2017.  On the same date correspondence was forwarded to the appellant by the Legal Officer clarifying with her the nature of proceedings before the Social Security Commissioner.  Further correspondence was received from the appellant on 5 September 2017 which was shared with Mr Kirk, DMS on 18 September 2017.  On the same date the Legal Officer wrote to the appellant in order to provide additional clarification of the nature of proceedings before the Social Security Commissioner.

11.	On 31 October 2017 I granted leave to appeal.  When granting leave to appeal I gave as a reason that an arguable issue had arisen as to whether the appeal tribunal had properly applied the principles in IM v SSWP ([2014] UKUT 412 (AAC)).  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

12.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

13.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)	failing to give reasons or any adequate reasons for findings on material matters;

(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)	giving weight to immaterial matters;

(v)	making a material misdirection of law on any material matter;

(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Analysis

14.	In his careful and detailed written observations on the application for leave to appeal, Mr Kirk made the following submissions:

‘As the tribunal has made reference to regulation 35 I believe that it would be useful to consider this legislative provision.  Regulation 35 of the Employment and Support Allowance (Regulations) (NI) 2008 (the ESA regs) states:

35 – (1) A claimant is to be treated as having limited capability for work related activity if-

  (a)	– the claimant is terminally ill:

  (b)	the claimant is-

(i)	receiving treatment for cancer by way of chemotherapy or radiotherapy,

(ii)	likely to receive such treatment within 6 months after the date of determination of capability for work related activity, or

(iii)	recovering from such treatment.

	and the Department is satisfied that the claimant should be treated as having limited capability for work related activity: or

  (2)	A claimant who does not have limited capability for work related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work related activity if – 

  (a)	the claimant suffers from some specific disease or bodily or mental disablement: and–

  (b)	by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work related activity.

This is the Regulation the tribunal were considering at paragraph 17 as noted above.  In (the appellant’s) case I believe that the issue for the tribunal was whether she would satisfy the provisions contained at Regulation 35 (2).  It is noticeable that there is nothing contained in the provisions of Regulation 35 that would lead to a consideration as to whether reasonable adjustments could be made which would remove the substantial risk *(that provision is contained in Regulation 29 of the ESA regs which allows the Department to treat some claimants who have failed to achieve the requisite score to be treated as having limited capability for work.).  The tribunal’s reasoning as noted by (the appellant) would appear to indicate that it found that the substantial risk could be alleviated by a number of adjustments in relation to hairdressing.  That is not the correct test and for that reason I would submit that the tribunal has erred in its consideration of Regulation 35 of the ESA regs and that there is merit in this ground of appeal.

Other issue

(The appellant) had appealed the decision by the Department dated 21 January 2016.  The Department had found that Mrs M…… had limited capability for work but did not find her to have limited capability for work related activity.  Therefore the issue for the tribunal was whether (the appellant) would satisfy the legislative provisions contained in Schedule 3 of the ESA regs or in the alternative if regulation 35 of the same regulations could apply.  As noted above the tribunal applied the wrong test when considering if that Regulation could apply.

…

Finally I would refer to the tribunal’s reasoning upon the issue of whether (the appellant) had limited capability for work related activity.  I have noted the tribunal’s comments at paragraph 17 as above.  In the first line of that paragraph the tribunal made reference to a GB upper tribunal decision in MT V DDHD [2013] UKUT 0545.  In that decision upper tribunal judge P Gray set out the duty of the Secretary of State to provide some information as to the types of work related activity a claimant may be expected to do if they were placed in the work related activity group.  Judge Gray also noted the difficulties a tribunal may have if the Secretary of state failed to provide such information and suggested some ways a tribunal could proceed if that information was not provided.

This issue was further considered in a subsequent GB upper tribunal decision.  A three judge tribunal considered this issue in IM V Secretary of State for Work and Pensions (ESA) [2014] UKUT 412 (AAC).  At paragraphs 104,110,111 and 118 of that decision the tribunal of Judges stated:

“104.	It will be apparent from what we have said above that, at least while the legislation is administered in the current fashion, the First-tier Tribunal needs to know not only what the least demanding types of work-related activity are but also what the most demanding types are in the area where the claimant lives.  As Judge Jacobs pointed out in AH, that information can come only from the Secretary of State.

110.	The issue under regulation 35(2) is not whether the claimant could carry out all forms of work-related activity or even whether he or she might inappropriately be sanctioned.  Satisfaction of regulation 35(2) requires a substantial risk to health to be identified (in the sense of a risk that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case).  Being unable to carry out an activity does not necessarily imply that there will be a substantial risk to anyone’s health if the claimant is required to engage in the activity.  Nor does the risk of being sanctioned.  Therefore, it may be fairly obvious in most cases that the claimant does not have any realistic argument under regulation 35 and indeed, if made aware of the issues, the claimant may often accept that that is so.  But where there turns out to be a serious argument in relation to regulation 35, the provision of the basic information about the more demanding types of work-related activity would enable the First-tier Tribunal to make the necessary predictions by reference to possible outcomes for the particular claimant.

111.	In some cases the First-tier Tribunal may be able to conclude that the regulation 35(2) risk does not exist because it is sufficiently obvious that the claimant will not be required to do anything by the work-related activity decision-maker that will cause such a risk to materialise.  That will certainly be so where the First-tier Tribunal is satisfied that none of the types of work-related activity available in the relevant area would give rise to a substantial risk to anyone’s health if the claimant were required to undertake it.

118.	Thus, to the extent that they differ, we broadly prefer the approach of Judge Gray in MT to that of Judge White in AK.  However we do not agree with Judge Gray that the Secretary of State is obliged to provide evidence as to what the claimant would be required to do by way of engagement in work-related activity; our view is that he is merely required to provide evidence as to work-related activity that is available in the relevant area and therefore what the claimant might be required to do.”

At paragraph 17 as noted above the tribunal appeared to focus upon whether reasonable adjustments would enable (the appellant) to continue working in her previous occupation which was hairdressing.  That is not a correct consideration of work related activity.  Attached to the Departments additional submission dated 17 September 2016 was a booklet (appendix 1) and a menu of services available to people in the employment and support allowance work related activity group (appendix 2) setting out some of the activities a person in the work related activity group could be asked to do.  At page 3 of appendix 1 there is a list of typical work related activities and those include:

•	Writing a diary of things you do each day.
•	Checking what jobs are available in your local area.
•	Taking part in activities organised by local community groups aimed at helping you to feel better.
•	Learning how to write a CV.
•	Attending training courses to learn new skills.

This appendix provided basic information as to the types of work related activity (the appellant) may have been expected to engage in.  It is not extensive however as noted in IM V Secretary of State for Work and Pensions (ESA) [2014] UKUT 412 (AAC) it does provide some basic information regarding work related activity.  The tribunal in its reasoning make no reference to the information provided by the Department nor does it consider if any other type of work related activity would be appropriate.  It may well be that the tribunal as noted above confused itself as to the issue under consideration and were concluding that (the appellant) did not have limited capability for work however this was not the correct test.

In view of that I would further submit that the tribunal has erred in law for the reasons stated above.’

15.	I accept Mr Kirk’s analysis and for the reasons which he has set out agree that the decision of the appeal tribunal is in error of law.  I endorse the principles set out by the three-Judge Panel in IM and commend them to decision makers and appeal tribunals.  I also recommend that consideration be given by appeal tribunals to the further definitive analysis by the authors of Volume 1 of Social Security Legislation 2017/2018.

	Disposal

16.	The decision of the appeal tribunal dated 2 December 2016 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

17.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

	(i)	The decision under appeal is a decision of the Department, dated 21 January 2016 in which a decision maker of the Department decided that the appellant had limited capability for work but did not have limited capability for work-related activity and could not be treated as having limited capability for work-related activity.  Accordingly the appellant was not entitled to the support component of ESA from and including 21 January 2016.

	(ii)	The appeal is to be listed as an oral hearing.

	(iii)	The Department is directed to provide details of any subsequent claims to ESA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to ESA into account in line with the principles set out in C20/04-05(DLA).

	(iv)	It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.

	(v)	It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Chief Commissioner

21 May 2018