SAG v Department for Social Development (ESA)

Factual and Procedural Background

The Appellant claimed Employment and Support Allowance (ESA) beginning 22 August 2009. To assess capability for work, the Appellant completed a questionnaire on 27 August 2009 and was medically examined on 17 November 2009 by a healthcare professional of the Department. On 10 December 2009, a decision-maker determined the Appellant scored zero points on the work capability assessment and thus was not entitled to ESA from 15 December 2009. The Appellant appealed this decision on 7 January 2010, which was reconsidered on 8 March 2010 without change. A tribunal hearing on 10 May 2010 upheld the decision to disallow ESA. The Appellant’s representative sought leave to appeal on 28 August 2010, which was granted by a legally qualified member of the tribunal on 22 September 2010. The central legal question concerned the extent to which variability of symptoms can be considered in applying physical and mental descriptors for ESA entitlement.

Legal Issues Presented

1. Whether the tribunal erred in law by failing to take into account the possibility that the Appellant’s variable condition could entitle her to points under the work capability assessment.
2. Whether the scoring system for ESA properly accounts for variability in symptoms, particularly in conditions such as fibromyalgia.
3. Whether the tribunal failed to adequately explain why it preferred the medical evidence over the Appellant’s evidence.

Arguments of the Parties

Appellant's Arguments

• The ESA scoring system does not allow for variability in a condition, which may prevent claimants from accumulating sufficient points despite fluctuating symptoms.
• The zero-point score was inaccurate given the acknowledged diagnosis of fibromyalgia, making the Department’s decision to disallow ESA perverse.
• There was a breach of natural justice as the tribunal’s reasons implied the appeal was doomed to fail from the outset, undermining fairness.
• At the hearing, the Appellant refined the argument to focus on the tribunal’s failure to consider awarding points despite evidence of symptom variability.

Department's Arguments

• The tribunal’s statement that the scoring system does not take account of symptom variability is legally erroneous.
• Precedent from Commissioners in Northern Ireland and Great Britain shows that variability has been appropriately considered in incapacity benefit decisions and applies equally to ESA.
• The tribunal should have applied a broad brush approach to assess the Appellant’s overall condition and symptom variability over time, as set out in prior decisions.
• Reliance on a recent Upper Tribunal decision confirmed that the absence of 'sometimes' descriptors does not exclude consideration of whether activities can be repeatedly performed.
• The tribunal erred by not making findings on the Appellant’s ability to perform activities with some degree of repetition, particularly relevant for fibromyalgia.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework of the limited capability for work assessment under the Welfare Reform Act (Northern Ireland) 2007 and the Employment and Support Allowance Regulations (Northern Ireland) 2008, which require claimants to score at least 15 points on prescribed physical or mental descriptors to qualify for ESA.

The tribunal had upheld the decision-maker’s zero-point assessment despite the Appellant’s fibromyalgia and symptom variability. The court accepted the Department’s argument that the tribunal’s conclusion—that the scoring system does not account for symptom variability—was legally incorrect. The court referenced established precedent emphasizing that decision-makers must assess the claimant’s condition over time and consider the ability to repeatedly perform activities.

The court further held that the tribunal erred by failing to make explicit findings explaining why it preferred the medical evidence over the Appellant’s evidence, a necessary element of judicial reasoning to ensure fairness and transparency.

Consequently, the court concluded that the tribunal had erred in law both by not properly considering symptom variability in the work capability assessment and by failing to provide adequate reasoning for its evidential findings.

Holding and Implications

The court ALLOWED the appeal, set aside the tribunal’s decision, and remitted the case for re-determination by a differently constituted tribunal.

The new tribunal is directed to consider the issue of symptom variability in light of the broad brush approach established in the cited precedents, including R2/04(IB)(T) and AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61 (AAC), and to provide clear reasons when preferring evidence.

This decision affects only the parties by requiring a reconsideration of the claim with proper legal analysis; it does not establish new precedent beyond applying existing principles to the facts.