ST v Department for Communities (ESA) (Good Cause) [2025] NICom 29 (23 January 2026)

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BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> ST v Department for Communities (ESA) (Good Cause) [2025] NICom 29 (23 January 2026) URL: https://www.bailii.org/nie/cases/NISSCSC/2025/29.html Cite as: [2025] NICom 29 [ New search ] [ Printable PDF version ] [ Help ] ST -v- Department for Communities (ESA) [2025] NICom29 Decision No: C2/25-26(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 19 January 2023

DECISION OF THE SOCIAL SECURITY COMMISSIONER I allow the appeal. I set aside the decision of the Tribunal sitting at Newry on 19 January 2023 as being in error of law. I remake the decision as follows: the appellant has shown good cause for her failure to attend the medical examination on 8 March 2022; there is no basis to treat her as not having limited capability for work.

REASONS Preliminary Matters 1. This decision concerns the question of a continuing entitlement to an Employment and Support Allowance (ESA). An appeal about whether the appellant had good cause for failing to attend a medical appointment on 8 March 2022 was dismissed by the Newry Tribunal on 19 July 2023 following a paper hearing. Reasons for the decision were provided on 15 August 2022, and the legal member refused leave to appeal on 2 October 2023. I have been looking again at that application, and I have granted it; accordingly, I call the applicant the appellant or the claimant. The respondent, the Department for Communities, I call "the Department", or "the DfC". The appeal tribunal I refer to as "the Tribunal".

2. The appellant initially represented herself before the Commissioners, although she had been advised by Mr Owen McCloskey of the Law Centre Northern Ireland following the refusal of her appeal. At the oral hearing before me she was represented by Ms Katie McCabe, counsel, instructed by the Law Centre. Following the hearing Mr McCloskey took over the conduct of the case. Ms Lisa Toner has acted for the Department throughout. I am grateful to them all for their assistance in this difficult and unusual case which, as will become clear, turns on its own facts.

3. An oral hearing was needed to enable all aspects of this appeal to be aired and developed. From that it became clear that there were legal issues raised, requiring me to grant leave to appeal. Both parties were satisfied that, were I to grant leave I should deal with the appeal itself without another hearing. Further submissions, however, were necessary. There was then a delay on my part, for which I apologise. This was due to personal matters including ill health.

4. Thereafter, I called for further information including medical notes which, I anticipated, might make it possible for me to re-decide the matter instead or referring it back to a tribunal. It has been both possible, and the preferential way forward as I later explain. Decision Under Appeal to the Tribunal 5. The tribunal agreed with the Department's decision made on 22 June 2022 that the appellant had no entitlement to ESA from 9 March 2022.

6. The decision was based upon her having failed to attend a medical examination, and the issue below was whether she had reasonable cause for that failure; That is also the essential issue before me, although the arguments have included the question of whether there should have been a compulsion on her to attend. I have not needed to deal to any extent with these, as I have decided the good cause issue in her favour. The Relevant Legislation 7. The statutory provisions relating to entitlement to ESA are in sections 1, 8 and 9 of the Welfare Reform Act (Northern Ireland) 2007 (the 2007 Act). The power to make regulations providing for an assessment to be made arise under sections 8 and 9.

8. The Employment and Support Allowance Regulations (NI) 2008 and the Employment and Support Allowance Regulations (NI) 2016 (the ESA Regulations) provide for a testing regime to calibrate functional capacity to establish whether it amounts to having limited capacity for work.

9. They include the evidence to be provided, and the treating of a person as not having limited capability for work if they fail to provide evidence or attend for examination, including the matters that might be taken into account when assessing good cause for such a failure.

10. It is not in issue that the appellant previously satisfied the conditions of entitlement, and I need not set out the legislative provisions under which she did so: it suffices that I limit the details to the process of reassessment: Claimant may be called for a medical examination to determine whether the claimant has limited capability for work 19.—(1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Department to attend for a medical examination in person, by telephone or by video. (2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination mentioned in paragraph (1), the claimant is to be treated as not having limited capability for work. (3) Paragraph (2) does not apply unless— (a) written notice of the date, time and place for the examination was sent to the claimant at least 7 days in advance; or (b) that claimant agreed to accept a shorter period of notice whether given in writing or otherwise. Matters to be taken into account in determining good cause in relation to regulation 18 or 19 20. The matters to be taken into account in determining whether a claimant has good cause under regulation 18 (failure to provide information in relation to limited capability for work) or 19 (failure to attend a medical examination to determine limited capability for work) include— (a) whether the claimant was outside Northern Ireland at the relevant time; (b) the claimant's state of health at the relevant time; and (c) the nature of any disability the claimant has. The ESA Claim Background 11. The background to the decision under appeal is taken from the submissions of Ms McCab e and Ms Toner.

12. The applicant was awarded ESA from 26 August 2011 on the basis of limited capacity for work (LCW) due to depression.

13. The usual procedure is that, after an assessment period, the decision confirming entitlement from the date of claim is made by a decision maker, having considered the advice of a health care professional (HCP). The HCP advice may have been tendered after their meeting the claimant in person or by telephone or on a video platform; however, it may have been enough for the HCP to consider the application form and any available medical evidence to decide that the applicant was likely to have LCW or even limited capability for work related activity (LCWRA), without the need for a more formal assessment. The latter process is known as 'scrutiny' (or sometimes 'filework') and it is referred to later in this appeal.

14. The appellant was reassessed in 2014, 2016, 2017 and 2018. At least some of those assessments were in person. At some point during this time, she was found to have LCWRA, and was placed in what is known as the Support Group. This is a cohort of people which, owing to the severity of their disabilities, is not expected to engage in Work Related Activities, which are activities designed to improve the likelihood of obtaining work.

15. In 2018 the appellant saw a particular online discussion group on social media. In it she found content that disturbed her. In the course of a group chat the HCP who had assessed her in 2014 engaged in frankly unprofessional conversation with another HCP seemingly also employed by, or previously employed by the DfC Medical Support Services. The print outs of some conversations are in my papers. There are references to the role of the HCP, and to some of the claimants who were assessed. There is nothing that could be related directly to the appellant, but she was concerned by what she had seen and raised the matter with the Department.

16. Over the course of her correspondence about this, she said that the discovery had caused her to lose trust in the medical assessment process. I refer to this going forward as "the trust issue".

17. As a result, she said, she felt unable to attend medical assessments on 6 November 2019, 6 August 2020 and 14 May 2021 . Good cause for her failure to attend was accepted by the Department on each of these occasions. On the first occasion she explained that she had no-one to accompany her, but also mentioned the trust issue. On the other two occasions the trust issue was the reason given, and that was accepted.

18. In February 2022 she was once again asked to attend for medical assessment. That was to be on 8 March 2022, and the appointment was by telephone with a female assessor. She did not attend; that is to say, she did not take the call.

19. She was sent the Form BF223 which asked her to explain that failure. She completed it, saying that she was not willing to take part in the assessment due to "unresolved issues". Those related to her correspondence about the clinician who had assessed her in 2014, and what she saw as the Department's failure to deal with that issue.

20. The Department determined on 22 June 2022 that Mrs Truesdale failed to attend this assessment without good cause. Subsequently a supersession decision was made removing entitlement from 9 March 2022. That process operates because of regulation 19(2) set out above, under which the claimant is to be treated as not having LCW unless good cause is found for the failure to attend.

21. A mandatory reconsideration was requested, and it was carried out on 19 October 2022, but it did not change the original decision. The Appeal Tribunal 22. On 19 July 2023 the tribunal, correctly constituted for this type of hearing as a Legal Member only, held a hearing on the basis of the papers at the appellant's request. It dismissed the appeal on the basis that she had not established good cause for failing to attend the scheduled medical examination on 8 March 2022. The decision was that ESA was not payable from 9 March 2022 as she was treated as not having LCW from that date.

23. Later, the tribunal provided written reasons for its decision. I have set out the material parts of those reasons. There are no paragraph numbers, as in the original.

24. The reasons outlined how the trust issue had arisen, saying: "When the appellant became aware of the context of this conversation which she had been able to access in the public domain she was wary of engagement in the process and did not attend subsequent assessments in 2019, 2020 and 2021. The Department had previously accepted that the appellant had shown good cause for having to attend and in 2021 indicated that the appellant was to be given one final opportunity to attend. ... The appellant in support of her appeal cited the fact that she had a continuing mistrust of the assessment process given the comments posted on social media, that she felt her complaint had not been properly addressed by the Department. She also pointed out that the Department had previously accepted her case as amounting to good cause and so far as she was concerned the matter was unresolved and there was no reason to change the decision." 25. The tribunal continued by setting out the material parts of the legislative provision concerning good cause, which are above, then saying: "The appellant in written correspondence emphasised the impact of the ongoing situation on her health indicating that she felt unable to take part in any medical assessment or indeed in a face-to-face or telephone hearing. There is no additional medical evidence before the tribunal. The Department had attempted to

address the appellant concerns in written correspondence which was before the tribunal. The appellant remained dissatisfied with such explanations. The current work capability assessment referral with reference to this appeal was initiated on 24/06/19 and within this referral there had been three instances of "unable to attend" and four instances of "non-attendance". Although having previously accepted the appellant's reasons for, non-attendance as amounting to good cause the Department took the view that the appellant was not going to attend any medical assessment due to unresolved issues and that good cause could no longer be accepted. Accordingly, the Department superseded the existing award of Employment and Support Allowance and the appellant was treated as not having LCW from and including 9/3/2022. The tribunal was mindful of the legislative requirement that to obtain employment to Employment and Support Allowance the appellant must make herself available for assessment as and when called. The appellant had been made aware of conditionality on previous occasions. Notwithstanding the appellant ongoing issues, the tribunal had to consider the requirement to attend as to reasonableness of the appellants ongoing refusal to attend in the light of her particular circumstances. Taking into account all these circumstances, the tribunal considered that good cause had not been

established for the appellant's continued refusal to engage in the work capability assessment. Accordingly, we accepted the Department's evidence and upheld the decision dated 22/6/22." Discussion 26. An immediate point from above is that the Department's references to 'unable to attend' as opposed to 'non-attendance' is likely to refer to occasions when, in advance of the assessment the appellant explained that she would not be able to attend; typically it would be where a person had another commitment, and the Department agreed to it being rescheduled.

27. The Tribunal was right in reminding itself of the legislative requirement that the appellant must make herself available for assessment as and when called. Testing has been part of the system for many years. When considering a case on Incapacity Benefit in 2001 ( CIB/2011/2001 ) Commissioner Rowland (as he then was), observed that "the integrity of the system depends upon there being appropriate tests in place". Currently, assessments are part of an overall scheme which exists for the dual purpose of identifying those who should not be expected to work, but would be expected to engage in activities that would improve their chances of ultimately returning to work.

28. Nonetheless, there is a discretion in those administering the scheme not to call on a claimant to attend an assessment: regulation 19(1) says that the claimant may be called (my emphasis). Alternatively an HCP may accept on scrutiny that sufficient health issues are identified on the papers that an assessment is not required.

29. Then there is the 'good cause' provision that was under consideration in this appeal, and the issues that must be taken into account under regulation 20(b) and/or (c). It is the appellant's health at the date of the failure to attend that is relevant. To provide good cause for non-attendance there must be a link between that and the conduct in failing to attend.

30. In its reasons the Tribunal has not assessed the appellant's health at that time; rather it has discussed the continuing dispute between the parties about the medical assessor, with the implication that the appellant was choosing not to attend. It mentions her letter emphasising the impact of the ongoing situation on her health and indicating that she felt unable to take part in any medical assessment, and, from the result it rejects that as good cause. This should have been dealt with explicitly.

31. The references in the statement of reasons to the prior decisions accepting good cause for non-attendance suggest approval of the Department's observations that a time must realistically come when something previously accepted as good cause could no longer be accepted. This is an issue for the Department to consider.

32. T he letter issued accepting good cause on the assessment date prior to 22 March 2025 uses words to the effect that the claimant is to be given "a final chance" to attend. This comes across as a pre-emptive decision on any prospective issue of good cause for failing to attend. While multiple failures may suggest deliberate avoidance, the regulation requires the issue of good cause to be determined afresh on each occasion. It is not a 'three strikes and you're out' provision. Someone who has failed to attend on numerous occasions, whether for the same or for different reasons, might yet have an accident or a domestic emergency on the day. Consideration of prior incidences of failure to attend might suggest that a reason is not true; but there cannot be what appears to be an advance decision that failure this time will not be accepted as good cause. Ms Toner accepted this point in her submissions to me, observing that each instance of good cause has to be considered on its own merits. This Tribunal decision, however, appears to be influenced by that other, erroneous mindset. JS v Secretary of State for Work and Pensions 33. In JS v Secretary of State for Work and Pensions (ESA) [2019] UKUT 303 (AAC) Upper Tribunal Judge Jacobs looked at the issue of multiple failures to attend a medical examination. He said at [16] (when considering the identical applicable regulation in

GB): "15. In principle, the significance of previously missed appointments will depend on the circumstances of the case. A decision-maker, and therefore a tribunal, has to consider the circumstances of the failure to attend that led to the decision under appeal. The explanation given and the evidence presented by the claimant will always be relevant. Previously missed appointments may also be relevant to that assessment. As may the evidence available about the claimant's health and disabilities (regulation 24(b) and (c)). The decision-maker and the tribunal are not making an assessment of the claimant's capability for work, but they are entitled to take account of the evidence provided for that purpose when deciding whether the claimant had good cause.

16. Take first a claimant whose explanations refer to the same condition. Much will depend on the nature of that condition. It should come as no surprise if there are repeated failures to attend on account of agoraphobia. There would be no cause for suspicion. Quite the contrary, an ability to attend sometimes but not others could call into question the claimant's asserted disability. In contrast, if the claimant's condition is variable, chronic fatigue syndrome say, variation is to be expected and not of itself a cause for suspicion.

17. The position may be more complicated if the claimant gives different reasons for not attending on successive occasions. By definition, the decision-maker will have accepted good cause on the earlier occasions. There is no question of changing those decisions, but a later decision-maker may conclude, looking back at the history of the case and taking account of evidence now available, that there has been a pattern of avoidance by the claimant. Even then, it is important to focus on the current failure. The previous conduct may justify careful scrutiny of the current failure, with perhaps a request for supporting evidence. But even a claimant with a lengthy history of failing to attend for what appear, in hindsight, to be highly dubious reasons may still be delayed by inclement weather or have a domestic emergency. And a claimant who has more than one disabling condition may be prevented from attending for different reasons on different occasions.

18. In short, it all depends, which means that tribunals need to take care in their reasoning to show whether they took any account of a claimant's previous failures and, if so, how in order to demonstrate that their relevance was assessed rationally, taking account of points both for and against the claimant.

19. The Secretary of State's representative has supported the appeal on the ground that the tribunal misused the evidence of previously missed appointments. I accept the submission that the tribunal made an error of law, but for different reasons.

20. The judge said that the previous history of failures to attend was relevant but not decisive. That was correct. On relevance, he used the claimant's experience as evidence of her knowledge of the importance of attending and of producing evidence to support any failure to attend. He was right about that. But that was not a comprehensive coverage of how the history might be relevant. In particular, he did not show that he had considered whether the history supported the claimant's explanation on this occasion. He knew the reason for the failure to attend in February, because the decision-maker had noted that the claimant had given the same reason on that occasion, taking that as cause for suspicion. But it could equally be supportive of the claimant if it was consistent with the evidence of her disabilities. And the judge knew the reasons for the failure to attend in April, which were in the papers. But that was all; he did not know about the others. Nor did the judge consider what was known of the claimant's disabilities and whether they might support the reasons given by the claimant for not attending. In conclusion, the judge's coverage was incomplete and the tribunal's decision in error of law." 34. I turn to the final matter of concern, the missing medical evidence. That is a procedural error before the tribunal, though not by it. In a letter dated 07/11/2022 the

appellant reported that her GP had said that Medical Support Services had made contact in 2022 and that medical evidence was subsequently provided. The tribunal specifically noted that no medical evidence had been made available to it. I have now been given a copy of the form that was completed by a GP from the practice. I am told that it was in the possession of the Department, but it was not in front of the Tribunal. It may well be that it would not have altered the Tribunal decision, but I know that the appellant has been concerned by its absence. I note her documented mistrust of authority figures. There is a likely perception of injustice from the omission of this evidence.

35. I set aside the decision of the Tribunal because of material errors of law in relation to the lack of apparent assessment of the appellant's health at the relevant time, the approach to the relevance of the previous failures to attend, and the medical evidence that, mistakenly, was not put in the bundle of evidence prepared for the Tribunal. I am satisfied that these were material errors within the principles set out by the Court of Appeal in England and Wales in R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 , which justify my setting aside the decision of the Tribunal. The Way forward 36. Given both the time that has passed, and the likely time that a re-hearing would take, with inevitable further stress to the appellant, leads me to the view that my deciding the issue is the preferable course. Analysis 37. The circumstances of the appellant's failure here are difficult to untangle, but I am better informed than was the Tribunal, because I have had access to more medical information.

38. I am conscious of not being able to assess that with any medical expertise, but note that the usual tribunal composition for this issue does not include a doctor. I am able to use the medical evidence constructively to help me answer the question here.

39. Ultimately the question before the Tribunal, and, given that I have found material errors in its reasons the question before me, turns on one question. Was the appellant's failure to attend a manifestation of her mental ill health, or was she refusing to do so by her making the resolution of the trust issue a condition for her attendance.

40. I have considered the additional evidence the Department held at the time but did not put before the Tribunal; other evidence is in the appellant's medical notes from 2021 to date. Some of that sheds light on what the appellant's mental state is likely to have been in early March 2022. I limit my consideration to that evidence, as under The Social Security (Northern Ireland) Order 1998, section 13 Article (8)(b) the tribunal "shall not take into account any circumstances not obtaining at the time when the decision appealed against was made." It has been settled law in this area since R(DLA)2/01 & R(DLA)3/01 that this means not relying on evidence unless it reflects the situation at that time.

41. I appreciate that there is more than one conclusion that can be drawn from this evidence, and that needs to be borne in mind both by the appellant and those representing her: this outcome is not a template for the future; if she is again called for assessment the position will be looked at afresh, and my findings will not be directly referable to the circumstances then applying.

42. These two reasons for setting aside mean that I need not deal extensively with the arguments of the parties on other issues as my remarks will be superfluous, or at best obiter dicta (by the way observations that do not form the actual reasoning behind my decision). I will first explain the facts that I have established which allow me to take this course. Findings of Fact 43. As follows: (i) From at least 2011, and at the material time the appellant was suffering from depression; her low mood was worsened by anxiety from at the latest 2021. (ii) In 2018 she came across a conversation on an internet chat group between people who appeared to be or have been HCPs employed by the Department of Communities Medical Services section. Without naming anyone, the conversation was belittling of the group of people who had been assessed for ESA. Reading this had a significant effect on the appellant, who recognised the name of one participant as a health care professional who had assessed her in 2014. Her trust in the medical profession, and particularly those involved with the Department, was severely diminished. (iii) She complained to the Department by letter in 2019 and possibly earlier. In 2022 there was a response apologising for the Department's failure to process the complaint, or pass details of it to the Medical Services until after the man, the subject of her complaint, had

left its employ. This diminished her trust yet further. (iv) She was called to a medical assessment on 6/11/2019. She failed to attend, saying on the explanatory form that she had no family member to accompany her, and also that finding the internet chat had exacerbated her mental health problems. The Department accepted that she had shown good cause for her failure to attend. On two other occasions, 6/08/2020 and 14/05/2021 she was called for assessment. On these occasions the reason she gave was the problems with her mental health caused by her discovering the internet chat group. Good cause for failure to attend was accepted on both occasions. (v) The response in 2021 said in terms that she would be given a final chance to attend. (vi) She again failed to attend on 8/3/2022, completing the explanatory form to similar effect. (vii) In assessing whether the appellant had shown good cause for failing to attend the examination on 8/3/2022, I have considered these letters and her medical notes provided through her legal representative Mr McCloskey. They have included notes from NHS counselling which occurred during 2025 but relate to issues both at the material time, and before it. I consider that the notes shed light on the extent of her difficulties at the date of the decision under appeal. (viii) I accept that she failed to attend the index assessment because of mental health

problems, specifically the issue of the internet chat, which had, by the date of the assessment, become an obsessional issue for her. I give my reasons for that conclusion below. Reasons for my Findings 44. As follows: (i) From the date of the last missed assessment and during her appeal to the Tribunal, the appellant expanded on the reason she did not attend, and her approach might be said to be confrontational. I have considered whether she was in fact making her attendance conditional upon the Department dealing with her complaint against the Health Care Professional; that is how I originally read her correspondence. (ii) Although I need not go into the details of her counselling, the GP notes show that, following her agreeing that counselling was a good option for her the process of actually getting her to attend was difficult due to what I have called the trust issue, and the need for a psychiatric assessment was mentioned on a number of occasions. This is significant because prior to that the notes show that treatment for her mental health was limited to a first line approach. The medical professionals were seeing the appellant's mental health problems as increasingly severe. She was missing routine medical appointments such as medicine reviews and blood tests. An initial series of counselling appointments was derailed after about six sessions because of the appellant

mistrusting the counsellor who she had engaged with over some weeks, due to ambiguity around an apparently small point. This was another trust issue, and it is clear to me having read the notes made by the next counsellor that the appellant realised both that she had become obsessional about this mistrust of medical personnel, and that it was governing her life. I note that, although I do not have the dates of the Departmental decisions, during the period 2014-2018 the appellant spent time in the Support Group. That is also recognition of a severe problem. I am satisfied that the failure to attend the medical assessment on 8/3/2022 was due to the appellant's mental health problems, and in particular the obsession which she was, at that stage, unable to resist or control. (iii) What had at first appeared to me as a determination to link her attendance at a medical assessment with an appropriate conclusion to her complaint about the internet chat group, I now accept was conduct in relation to the events of 2018 and other difficult life events leading to the appellant lacking trust in medical professionals and others, as well as becoming socially isolated. The trust issue had by 2021 become obsessional; it was an emanation of her mental health issues, and not a rational attempt to control the Department's response to the situation. (iv) Accordingly, I find that she had good cause for her failure to attend the examination, and she cannot therefore be treated as not having LCW from 9 March 2022. In Conclusion on the Factual Issues 45. I add that the medical notes suggest the appellant was determined to pursue counselling to assist with her obsessional thoughts around the trust issue, realising that her life was being significantly limited by them.

46. These are matters which a later decision maker can consider, but, like the decisions of the Department accepting good cause between 2019 and 2021, my conclusions are not binding. Matters may have changed, but even if they have not, there is room for a different view to be taken of the evidence without that being irrational.

47. Because of this, and generally, I have considered the extent to which I should deal with the other arguments before me on the question of whether it was legally permissible under the Disabilities Discrimination Act 1995 (the DDA), or other provisions, for the Department to compel the appellant's attendance at a medical assessment.

48. I conclude that it is not appropriate for me to come to a view on this.

49. I will briefly set out why I have come to that conclusion. The Arguments of the Parties The appellant 50. I hope my summary below does justice to the matters that Ms McCabe relied upon. I have also tried to encompass Mr McCloskey's further points in his later written submissions. (i) Citing MM & DM v SSWP [2013] UKUT 259 and the Court of Appeal judgment at [2016] AACR 11-I call both cases MM & DM, but to distinguish the two, I will add UKUT or EWCA as appropriate-she asks whether it was reasonable for the Department to expect the appellant to undergo an assessment at all. (ii) Following these cases, she argues that the MM & DM (EWCA) test as to whether it is "unreasonably difficult" for the appellant to undergo a face-to-face assessment (whether in person, by telephone or on a video platform), applies, and that the Department's acceptance of good cause for the same reason in the past shows that it is unreasonably difficult for her to undergo assessment. (iii) She says that the Tribunal should have looked for a change of circumstance in relation to the question of good cause, the Department having accepted it. (iv) The Tribunal should have examined whether there were options to make it possible for her to attend, that is, reasonable adjustments. (v) It should have explained how the Department's adjustment of a telephone assessment with a female HCP facilitated her taking part in the assessment process. (vi) The Tribunal needed the initial scrutiny decision as to whether further medical evidence was required, or whether a face to face to or remote access assessment was needed, in order to determine if a reasonable adjustment had been put in place. (vii) The Department wrongly put a 'time limit' on number of failures: she dubs this "the ultimatum".

51. Her preferred outcome was that I decide good cause issue in the appellant's favour, but if not, she asked me to remit with directions as to the production of the scrutiny reports, and, if the appellant consents, her GP notes to cover the period of both the assessment under consideration, and those when good cause was accepted.

52. She succeeds in the first of those objectives, essentially on "the ultimatum" argument, and the others have been partly dealt with. I will deal succinctly with the scrutiny issue. The respondent 53. Ms Toner relies on the Departmental process which was informed, as she points out, by the changes following the MM & DM decisions in Great Britain, which were adopted also in Northern Ireland. These have been provided to me, and amount to the adoption of the changes made in Great Britain after those decisions.

54. I see that the changes are fully set out in paragraph 23 of PA v Department for Communities (ESA) (T) [2019] NICom 29. I discuss that decision, which I refer to as PA, below. The Tribunal of Commissioners decision in PA 55. Whilst there is overlap, PA is by not on all fours with this case; indeed, it might be said that the facts here fall into the cracks in the paving stones that PA provides.

56. As in PA, this is a statutory appeal under Article 15(1) Social Security (Northern Ireland) Order 1998. The Tribunal of Commissioners (the ToC) saw the question before them as whether in principle the adoption of potentially discriminatory procedures by the Department could constitute an error of law on the part of the Tribunal. A similar question is posed here. I do not need to answer it as I have found flaws in the Tribunal decision which are the more usual considerations under the Iran principles of material error. The scrutiny argument here, and in particular the point contended for that there may be cases (including this one) in which no form of assessment can be justified, demands an examination of the framework of the assessment process.

57. It is clear from PA that there are limitations in these matters being considered in a statutory appeal to the Tribunal, or further appeal to the Commissioners, as opposed to a challenge by way of Judicial Review which is a more apt procedure to deal with such issues. As was said in PA: Were the Departmental procedures generally discriminatory under the DDA?

74. We consider that in order to succeed in the establishing a case that the Department's practice, policy or procedure required adjustment under the section 21E of the DDA, the applicant must establish that the Department's practice, policy or procedures made it impossible or unreasonably difficult for claimants as a whole to be awarded ESA on the basis of mental health conditions.

75. Pausing there, we make the observation that such questions are more appropriately dealt with in judicial review proceedings. Unlike a statutory appeal such as the present one, judicial review proceedings would focus on the Department's practice, policy or procedures rather than the benefit entitlement of a particular individual. It appears to us that the rules of evidence in judicial review proceedings offer a more robust framework for the analysis of the questions arising. Having said that, we nevertheless consider that we have jurisdiction to decide the present proceedings. In Conclusion 58. This is a case about continuing entitlement to benefit, so it is not a mirror of the position in PA. The appellant had succeeded in the claim process; the arguments here centre upon the structural issues of the continuing assessment process including whether the Department should be assessing the appellant at all; yet the appeal before the Tribunal was an appeal against a decision that the appellant failed without good cause to attend a scheduled medical assessment. There was no challenge to the Department's evidence on that: the appellant accepted that she had been properly notified, and had failed to attend. The challenge was to the process of assessment, not interpretation of the substance of the ESA legislation. It seems to me that the factual circumstances of this case are even less suited than those in PA to accommodate that procedural challenge within a statutory appeal.

59. I do not need to resolve all the matters put in issue, and I do not do so. A close-up of a signature AI-generated content may be incorrect. (Signed): P GRAY DEPUTY COMMISSIONER (NI) 6 January 2026 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/nie/cases/NISSCSC/2025/29.html