Social Security Case Law - Spring 2025

Headnote

Appellants with learning disabilities should not be disadvantaged by a lack of corroborative or medical evidence. Confirms the approach of SG v DfC [2024] NICom7 when looking at work type when assessing LCWRA under Regulation 35.

Background

The appellant had been in receipt of Employment and Support Allowance (ESA) from June 2014 because of their epilepsy. Following a healthcare assessment in March 2020, the Department in June 2021 determined that the claimant had limited capability for work and work-related activity. In May 2022, the appellant completed and returned an ESA50 questionnaire and participated in a telephone consultation with a HCP. The Department then made a decision that superseded and disallowed the appellant’s ESA award from and including the 20 February 2023.

The appellant appealed the decision in January 2024, but it was disallowed with the Tribunal reasoning that there was no evidence of learning difficulties, and that there was no ‘substantial risk’ to the appellants that was related to their epilepsy.

Legal Issue

The Commissioner was asked to consider whether the Tribunal erred in law for a number of potential reasons, the main issues included:

• Their failure to take into account previous evidence of a Severe Disablement Allowance (SDA) claim, despite it only being a slim part of the appellant’s evidence.
• The tribunal had failed to apply the correct legal test for “substantial risk” under regulation 29 and 35 of the ESA Regulations, by failing to consider aspects like the link between stress and epileptic seizures, or difficulties in travelling to work.

Decision

The Commissioner allowed the appeal and remitted it to a freshly constituted Tribunal recognising that both parties were in agreement that the Tribunal had erred in law. Both parties agreed that existing evidence should have been sufficient to prove the appellant’s learning disability:

‘Where the parties agreed was that the tribunal should have relied on the admittedly slim evidence before it, and accept that the appellant had learning disabilities, rather than discount this on the basis of a lack of corroboration in incomplete medical records.’ [para 24]

The Commissioner also cited the previous decision of SG v Department for Communities [2024] NICom7, highlighting that the Tribunal had failed to address the question of what work related activity the appellant could be expected to undertake given their epilepsy under Regulation 35.

Relevant Legislation

• Welfare Reform Act (NI) 2007, Section 1 & 8
• The Employment and Support Allowance Regulations (NI) 2008, Reg 19(2) & Sch.2 & Reg.35

Relevant Case Law

• SG v Department for Communities [2024] NICom47