HA-v-Department for Social Development (ESA) [2015] NICom 13
Decision No:  C8/14-15(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 27 February 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast.

2.	An oral hearing of the appeal has been requested.  However, I consider that the proceedings can properly be determined without a hearing.

3.	I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I direct that the appeal shall be re-heard by a newly constituted tribunal.

	REASONS

	Background

4.	The appellant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 28 February 2009 by reason of “investigations”.  He was examined by a healthcare professional (HCP) on 17 November 2009 on behalf of the Department and was found to have limited capability for work (LCWA).  On 26 October 2012 the appellant completed and returned a questionnaire to the Department regarding his ability to perform various activities.  On 9 November 2012 a report was received from the appellant’s general practitioner (GP).  On 28 November 2012 a further HCP examined the appellant on behalf of the Department.  On 14 December 2012 the Department considered all the evidence and determined that the appellant did not have LCWA from and including 16 January 2013, and made a decision superseding and disallowing the appellant’s award of ESA.  The appellant appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 27 February 2014.  The tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 10 July 2014.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was granted by a determination issued on 3 September 2014, wherein the LQM accepted that the tribunal had failed to provide an adequate statement of reasons.  On 3 October 2014 the appellant submitted his appeal to a Social Security Commissioner.

	Grounds

6.	The appellant submits that the tribunal has erred in law on the basis that:

(i)	its reasons were inadequate, as substantial parts of the statement of reasons appeared to refer to an entirely different case entirely.

7.	The Department was invited to make observations on the appellant’s grounds.  Mr Collins of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had erred in law as alleged and indicated that the Department supported the application.

	Assessment

8.	The appellant submits that the statement of reasons in his case, while referring to a number of aspects of his case accurately, contains references which do not appear to be to the appellant’s case at all.

9.	For example, the tribunal note a comment at page 16 of the HCP report that the appellant’s main condition is lung disease.  He does not suffer from this condition and the HCP report in his case did not contain such a reference.  The tribunal further refers to a specific note by the HCP of the appellant being out of breath at examination having rushed up a slight incline from his parking place.  There was no such note in the relevant HCP report and the appellant’s instructions deny the event described.  The tribunal also makes a number of references to a named GP who is not the appellant’s GP.  It further refers to spirometry reports being before the tribunal, whereas there were none.  It records the HCP as being of the opinion that an award of nine points was appropriate.  However, no points were awarded to the appellant.

10.	For the Department, Mr Collins submits that a significant portion of the evidence referred to by the tribunal relates to an entirely different claimant than the appellant.  He submitted that this irregularity constituted an error of law on the part of the tribunal.

11.	It seems clear that the LQM, in writing the statement of reasons, has confused elements of another claimant’s appeal with that of the appellant.  This has the effect of rendering the reasons given for the decision incoherent.  The LQM, who granted leave stating that it is accepted that the tribunal had given an inadequate statement of reasons, clearly accepted as much at an early stage in these proceedings.

12.	Each of the parties submits that the decision of the appeal tribunal is erroneous in point of law.  I agree 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 direct that the appeal shall be determined by a newly constituted tribunal.

(signed)  O Stockman

Commissioner

19 March 2015