AES-v-Department for Social Development (ESA) [2011] NICom 176

Decision No:  C2/11-12(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 30 December 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

2. The decision of the appeal tribunal dated 30 December 2009 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.  I would emphasise, however, that no blame can be attached to the appeal tribunal in respect of this error, as the appeal submission, prepared for the appeal tribunal, is misleading and inaccurate.  As the hearing of the appeal was on the basis of the papers alone, the appellant having chosen not to attend an oral hearing, there was no possibility of the error being identified by a Departmental presenting officer at an oral hearing.

 

3. I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

 

4. My substituted decision is that the appellant is not entitled to employment and support allowance (ESA) from and including 12 August 2009.

Background

 

5. The appellant claimed ESA from and including 12 February 2009.  A questionnaire completed by the appellant was received in the Department on 27 April 2009.  On 19 June 2009 a medical officer of the Department examined the appellant.  On 7 August 2009 a decision-maker of the Department determined that the appellant did not have limited capability for work from and including 20 February 2009.  The decision maker on 12 August 2009 superseded the award of ESA and decided that the appellant was not entitled to ESA from and including 7 August 2009.  This decision is the subject of further analysis below.

 

6. A letter of appeal against the decision dated 12 August 2009 was received in the Department on 2 September 2009.  On 28 October 2009 the decision dated 12 August 2009 was reconsidered but was not changed.  An appeal tribunal hearing was held on 30 December 2009.  The appeal tribunal disallowed the appeal.

 

7. On 14 May 2010 an application for leave to appeal was received in The Appeals Service.  On 10 June 2010, the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

8. On 9 August 2010 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

9. On 9 September 2010 observations were sought from Decision Making Services (DMS) and these were received on 28 September 2010.  DMS opposed the application on most of the grounds submitted by the applicant but supported the application on another identified ground.  Observations were shared with the applicant on 7 October 2010.

 

Errors of law

 

10. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

11. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)             failing to give reasons or any adequate reasons for findings on material matters;

 

(iii)            failing to take into account and/or resolve conflicts of fact or opinion on material matters;

 

(iv) giving weight to immaterial matters;

 

(v)             making a material misdirection of law on any material matter;

 

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

Was the decision of the appeal tribunal in the instant case in error of law?

 

12. In the application for leave to appeal to the Social Security Commissioner, the appellant submitted that the decision of the appeal tribunal was in error of law on the basis that her health had deteriorated since she had been examined, on 19 June 2009, by a healthcare professional in connection with her claim to ESA.

 

13. In written observations on the application for leave to appeal, Mr McKendry, for DMS, has responded to the applicant’s grounds for appealing, as follows:

 

‘The question for the Tribunal to decide was did (the claimant) have limited capability for work in accordance with the limited capability for work assessment (section 8(2) of the Welfare Reform Act (NI) 2007 and regulation 19 of the Employment and Support Allowance Regulations (NI) 2008).  The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities as prescribed in Schedule 2 to the Employment and Support Allowance Regulations (NI) 2008.  To have limited capability for work (the claimant) would have to have scored 15 points, whether for physical disabilities, mental, cognitive and intellectual function assessment or a combination of both.  The Tribunal awarded (the claimant) nil points.

 

In her grounds of appeal to the Tribunal (the claimant) contended that the decision to disallow her claim for employment and support allowance had caused a great deal of worry and stress, that she intended to return to work when her health was restored but that at present her doctor would not sign her off as being able to return to work.  In support of her appeal she forwarded a letter dated 25/08/09 from her general practitioner (GP) which stated that she was suffering from chronic ill-health due to the effects of psychological stress, she was currently taking medication for her condition and continued to be unwell.  She made no mention of her health having deteriorated since the examination and the letter from her GP made no mention of any deterioration in her condition.

 

The Tribunal considered (the claimant’s) appeal by way of a paper hearing on 30 December 2009.  The Record of Proceedings shows that it considered the submission and accompanying documents, including her grounds of appeal and the letter from her GP.  The Tribunal in its Reasons for Decision found that (the claimant) had:

 

“no significant functional impairment due to the ganglion on her right wrist”.

 

It further added that:

 

“there was no evidence to support any other physical limitation.”

 

In relation to (the claimant’s) mental condition the Tribunal considered all the evidence provided by (the claimant), by way of her ESA50 form, letter from her doctor and the report of the healthcare professional following (the claimant’s) examination of 19/06/09.  The Tribunal further found that it may be that (the claimant):

 

“is less capable in these areas than she used to be and she may suffer from some areas of fatigue at times following her illness but, taking the signs into account and taking into account that the claimant is on minimal medication and has not been referred for any psychiatric investigation or treatment the Tribunal finds she is not affected to the extent that would attract points under the Work Capability Assessment in relation to any of the mental health descriptors”

 

It is my submission that the Tribunal considered all the relevant evidence, applied the appropriate legislation and was entitled to conclude that (the claimant) was not entitled to employment and support allowance.  On (the claimant’s) application of leave to appeal of 12/05/10 she has contended that her condition had:

 

“deteriorated since the medical assessment last year”.

 

However, I would submit that the Tribunal could not have erred in this regard given that she did not make this contention when appealing against the decision of 12/08/09 and therefore this evidence would not have been before it.

 

Accordingly it is my submission that (the claimant) has not identified an error of law in the tribunal decision.’

 

14. I accept the response from Mr McKendry in its entirety and agree that the appellant has not, in her application for leave to appeal to the Social Security Commissioner, identified a ground or basis on which it could be said that the decision of the appeal tribunal is in error of law.

 

A possible error of law?

 

15. In the written observations on the application for leave to appeal, Mr McKendry has submitted that the decision of the appeal tribunal was in error of law on the following basis:

 

‘Although (the claimant) has not identified an error of law in the decision of the Tribunal, I believe, that the Tribunal has erred in relation to the effective date of decision.

 

Article 11 of the Social Security (NI) Order 1998 (the 1998 Order) provides the power that enables a decision to be superseded.  In particular 11(3) allows for the regulations to specify the cases and circumstances which may be superseded.  The effective date of any supersession decision falls to be determined under Article 11(5) and (6) which provide:

 

(5)  Subject to paragraph (6) and Article 27, a decision under this Article shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.

 

(6)  Regulations may provide that, in prescribed cases or circumstances, a decision under this Article shall take effect as from such other date as may be prescribed.

 

Regulation 6(2) of the Decision and Appeals Regulations (NI) 1999 provides for the various circumstances under which a decision may be superseded.  Regulation 6(2)(q) further provides:

 

is an employment and support allowance decision where, since the decision was made, the Department has received medical evidence from a health care professional approved by the Department for the purposes of regulation 23 or 28 of the Employment and Support Allowance Regulations

 

This is the provision under which (the claimant’s) award of employment and support allowance was superseded.

 

Regulation 7 of the above regulations also provides for the date from which a decision superseded under Article 11 takes effect.  As none of the circumstances of that regulation apply, the effective date of supersession is determined in accordance with Article 11(5) of the 1998 Order, i.e. the date of decision.

 

In this case the Tribunal was advised that on 07/08/09 a determination was made by the Department that (the claimant) did not have limited capability for work.  On 12/08/09 a decision maker terminated (the claimant’s) award of employment and support allowance from 07/08/09.  The effect of this decision was to remove entitlement from 07/08/09 (the date of determination) when this should have been 12/08/09, the date of the supersession decision.  I have enclosed at Appendix B a screen print which shows the date of supersession as being 13/08/09 however, I have investigated this matter further and have confirmed that the supersession decision was made on 12/08/09 (the reason for the date being the 13/08/09 was because the case had been chosen at random for a pre-payment check and this was not cleared by the supervisor until 13/08/09.  Nevertheless, the DMA1 dated 07/08/09 shows that the action to supersede the decision and terminating entitlement was carried out by the SSO2 (processor) on 12/08/09 and (the claimant) was notified on form ESA65 of this decision on the same date.

 

Regulation 1(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 [the Decisions and Appeals Regulations] defines the meaning of a limited capability for work determination and an employment and support allowance decision as follows:

 

“limited capability for work determination” means a determination whether a person has limited capability for work by applying the test of limited capability for work or whether a person is to be treated as having limited capability for work in accordance with regulation 20 of the Employment and Support Allowance Regulations

 

And

 

“employment and support allowance decision” means a decision to award a relevant benefit or relevant credit embodied in or necessary to which is a determination that a person has or is to be treated as having limited capability for work under Part 1 of the Welfare Reform Act

 

The distinction between decisions and determinations was considered by Commissioner Jacobs in decision CIB/2338/2000.  […] In this decision he concluded that a determination is a building block of a decision, it has no direct effect on the money the claimant receives and a determination only has effect on the money the claimant receives when incorporated into an outcome decision which the claimant is able to challenge on appeal – … .

 

In view of the above it is my submission that the tribunal erred in law in deciding that the effective date of supersession was 07/08/09.’

 

16. Once again, I accept this submission from Mr McKendry, and the basis upon which it was made, in its entirety.  Accordingly, I find that the decision of the appeal tribunal is in error of law.  I would emphasise, however, that no blame can be attached to the appeal tribunal in respect of this error, as the appeal submission, prepared for the appeal tribunal, is misleading and inaccurate.  As the hearing of the appeal was on the basis of the papers alone, the appellant having chosen not to attend an oral hearing, there was no possibility of the error being identified by a Departmental presenting officer at an oral hearing.

 

Postscript

 

17. In the written observations on the application for leave to appeal, DMS have added the following:

 

‘(The claimant) appealed the decision that she was not entitled to employment and support allowance from and including 07/08/09.  When a claimant is pursuing an appeal against a decision that they are not entitled to employment and support allowance because they do not have limited capability for work a new award is made from the date of disallowance on the basis that they are treated as having limited capability for work.  This award is made under the provisions of regulation 30 of the Employment and Support Allowance Regulations (NI) 2008.  In these circumstances benefit is paid at the assessment phase rate and a claim for benefit is not required (regulation 3(j) of the Social Security (Claims and Payments) Regulations (NI) 1987).  Accordingly (the claimant) was awarded and paid employment and support allowance from and including 07/08/09.’

 

Disposal

 

18. The decision of the appeal tribunal dated 30 December 2009 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

19. I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

 

20. My substituted decision is that the appellant is not entitled to ESA from and including 12 August 2009.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

6 June 2011