CK-v-Department for Social Development (ESA) [2013] NICom 28

Decision No:  C17/12-13(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 13 February 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of a tribunal sitting at Enniskillen on 13 February 2012.

2.	For the reasons I give below, I grant leave to appeal and I allow the appeal.  I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and refer the case to a newly constituted tribunal for determination.

REASONS

	Background

3.	The appellant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) on the basis of angina and chronic obstructive pulmonary disease (COPD).  He was awarded ESA.  He subsequently completed a pro forma Departmental questionnaire, the ESA50.  He was examined by a healthcare professional on behalf of the Department on 16 September 2011.  On the basis of all the evidence the Department decided that the appellant did not score any points on the limited capability for work assessment (LCWA).  The decision awarding ESA was superseded on 19 October 2011, and it was decided that the applicant was not entitled to ESA from and including 19 October 2011.  He appealed.

4.	The appeal was heard on 13 February 2012 by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member (MQM).  The appeal was disallowed and the appellant requested a statement of reasons from the LQM.  This was issued to him on 21 May 2012, enclosing also a record of the tribunal proceedings.  The appellant applied to the LQM for leave to appeal to the Social Security Commissioner.  This was refused on 26 June 2012.  By an application received on 24 July 2012 the appellant applied to a Social Security Commissioner for leave to appeal.

	Submissions

5.	The grounds of application, submitted on the appellant’s behalf by Mr McIntyre of Fermanagh Citizens Advice Bureau, were that the tribunal had erred in point of law by:

	(i)	failing to take into account and resolve conflicts of opinion in relation to material matters – namely by failing to indicate why it rejected a report from the appellant’s general practitioner;

	(ii)	giving inadequate reasons for rejecting each descriptor and limitations in sitting in particular;

	(iii)	misdirecting itself as to the law in the activity of mobilising;

	(iv)	taking irrelevant matters into account and in particular the fact of the appellant’s smoking;

	(v)	failing to explain what it meant by “normal spirometry” on the basis of test figures.

6.	The Department was invited to make observations on the grounds of application.  Mr Collins replied for the Department.  He supported the application.  His support is grounded on two matters – firstly that the tribunal did not apply the decision of Upper Tribunal Judge Gamble in DM v SSWP [2012] UTUK 376 (AAC) and secondly that in referring to the test for mobilising the tribunal used the term “severe discomfort” whereas the relevant statutory test refers to “significant discomfort”.

	The tribunal decision

7.	The tribunal addresses the “Mobilising” descriptor as follows:

“Having considered all the evidence in the round, the Tribunal concluded that the Appellant’s limitations in mobilising fell outside the scope of the relevant descriptors.  It felt that he would be able to walk repeatedly in excess of 200 metres without severe discomfort or exhaustion; and if he were not able to walk, he would be able to mobilise by means of a manual wheelchair, the Tribunal being satisfied that any difficulties he might have with breathlessness or using his hands would not be sufficient to bring him within the relevant criteria”.

	Relevant legislation

8.	The activity in issue in this appeal was brought into operation from 28 March 2011.  It reads:

‘SCHEDULE 2 Regulation 19(2) and (3)
Assessment of whether a claimant has limited capability for work
PART 1
PHYSICAL DISABILITIES

(1)	(2)	(3)
Activity	Descriptors	Points

1. Mobilising unaided by	(a) Cannot either— 	15
another person with or	(i) mobilise more than 50
without a walking stick,	metres on level ground
manual wheelchair or 	without stopping in order to
other aid if such aid can	avoid significant discomfort
reasonably be used.	or exhaustion, or

	(ii) repeatedly mobilise 50
	metres within a reasonable
	because of significant
	discomfort timescale or 
	exhaustion.

	(b) Cannot mount or descend	9
	two steps unaided by another
	person even with the support
	of a handrail.

	(c) Cannot either—	9

	(i) mobilise more than 100
	metres on level ground without
	stopping in order to avoid
	significant discomfort or 
	exhaustion, or

	(ii) repeatedly mobilise 100 
	metres within a reasonable 
	timescale because of 
	significant discomfort or 
	exhaustion.

	(d) Cannot either—	6

	(i) mobilise more than 200 
	metres on level ground without 
	stopping in order to avoid 
	significant discomfort or 
	exhaustion, or

	(ii) repeatedly mobilise 200 
	metres within a reasonable 
	timescale because of 
	significant discomfort or 
	exhaustion.

	(e) None of the above apply.	0’

	Assessment

9.	I consider that an arguable case of error of law has been made out on the grounds raised by Mr McIntyre and supported by Mr Collins and I grant leave to appeal.  With no disrespect to the other points raised by Mr McIntyre, I will focus on the two grounds which have the support of the Department.

10.	In relation to the first of those grounds, it is correct to say that the tribunal did not follow DM v SSWP [2012] UTUK 376 (AAC).  However, I have given a decision in MG v DSD [2013] NICom 8 which disagrees with the approach adopted by Judge Gamble in DM v SSWP.  As a decision of a Northern Ireland Commissioner, this is to be followed in precedence to that of the Upper Tribunal Judge.  For the reasons I give in MG v DSD, it appears to me that the decision of the tribunal is erroneous in law, as the tribunal did not consider whether the appellant was someone who would normally use a manual wheelchair to overcome his particular disabilities.  Nevertheless, as the tribunal in the present case found that the appellant could mobilise the requisite distance without using a wheelchair, I consider that there is not a material error of law arising from that.

11.	However, turning to the second ground supported by Mr Collins, the tribunal refers in its reasons to a test of walking without “severe” discomfort.  This term is a familiar one.  It appears within the test relevant to the assessment for the high rate of the mobility component of disability living allowance.  It was also the term used in the pre-28 March 2011 version of the descriptors relevant to the activity of “Walking”.  However, since 28 March 2011 and the introduction of the “Mobilising” descriptor, the relevant descriptors now use the term “significant” discomfort.

12.	I consider that there is a qualitative difference between the concepts of “severe discomfort” and “significant discomfort”.  It appears to me that “significant discomfort” denotes a degree of discomfort which does not necessarily reach the threshold of “severe discomfort”.  Each of the terms refers to something which is of its nature subjective to a claimant, and which is not clearly defined by legislation.  Tribunals apply their relevant specialist experience to such questions.  In resolving them, an element of judgment is required which could only be challenged to a Social Security Commissioner on the grounds that it was exercised unreasonably.  However, by referring to a test of “severe discomfort” when the correct test involves “significant discomfort” there is an obvious implication that the tribunal has addressed its mind to the wrong question before exercising its judgment.  I consider that the tribunal has made a material error of law as a consequence.

13.	I set aside the decision of the appeal tribunal and I direct that the case should be reconsidered by a newly constituted tribunal.

(signed):  O Stockman

Commissioner

17 April 2013