Social Security Case Law - Spring 2024

Headnote

A Tribunal has a duty to undertake a thorough assessment of work-related activities and what, precisely, those activities entailed in relation to the PIP descriptors.  Should a Tribunal fail to do it will have materially erred in law.

Background

The Applicant made a claim for PIP in 2021 on the basis of needs arising from fibromyalgia.  The Applicant completed a PIP 2 questionnaire and attended a telephone consultation with a healthcare professional.  The Department decided that the Applicant did not satisfy the conditions of PIP.  The Applicant requested a reconsideration and submitted further evidence.  The decision was not revised and the Applicant appealed, waiving her right to attend an oral hearing of the appeal.  The Applicant’s appeal Tribunal was unsuccessful, and the Applicant then applied to the Social Security Commissioner for leave to appeal.

In the meantime, the Applicant made a fresh claim for PIP in 2022, again on the basis of needs arising from fibromyalgia.  The Department decided that the Applicant was not entitled to PIP.  The Applicant requested a reconsideration and when this was not successful, requested an appeal Tribunal.  The Applicant again waived the right to attend an oral hearing.  The Appeal Tribunal was unsuccessful and the Applicant applied to the Social Security Commissioner for leave to appeal.  The Commissioner joined the two cases.  The Applicant appealed on the basis that the Tribunal proceedings were unfair as she has a disability and that she felt she had been judged on the issue that she goes to work.

Legal Issue

Whether the Tribunal properly explored the Applicant’s employment duties in depth in relation to the PIP descriptors.

Decision

The Commissioner allowed the appeal and set aside the decision of the Appeal Tribunal.  The case will be considered before a differently constituted Tribunal.

In terms of employment, the Commissioner noted that Chief Commissioner Mullan had stated that:

‘tribunals are entitled to consider the work roles carried out by appellants. He cautions, however, that if such an approach is taken, there is a duty to undertake a thorough assessment of the work-related activities and what, precisely, those activities entailed.’

The Commissioner noted that the Applicant was not present at the Tribunal to discuss her employment activities:

‘The appellant was not present to discuss her employment activities, and the tribunal had no specific evidence of them.  While a tribunal may have general knowledge of what particular jobs may entail, I consider that it cannot make assumptions in individual cases.  It cannot know what adjustments may have been made to employment duties in the light of an individual appellant’s circumstances.  While it can directly ask an appellant who is present at a hearing about an employment role, it cannot do so where there is no appellant present as in this case.

The Commissioner noted that while the Tribunal did not place total reliance on the Applicant’s employment, it was a factor that was material to the outcome of the appeals.  The Commissioner found that because the Tribunal had failed to investigate the nature of the employment duties it had materially erred in law.