Northern Ireland - Social Security and Child Support Commissioners' Decisions

TMB-v-Department for Social Development (ESA) [2016] NICom 48

 

Decision No:  C3/16-17(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 13 August 2015

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Cookstown.

 

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

 

3.     For the reasons I give below, I grant leave to appeal.  I allow the appeal and under Article 15(8)(a)(i) of the Social Security (NI) Order 1998, I make the decision the tribunal should have made without making further findings of fact.

 

4.     I decide that the applicant is entitled to employment and support allowance (ESA) from and including 4 July 2014.  The amount of ESA already paid should be offset against the arrears of ESA awarded, under regulation 5 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations (NI) 1988.

 

REASONS

 

         Background

 

5.     The applicant claimed ESA from the Department for Social Development (the Department) from 2 July 2013 by reason of low back pain and insomnia.  On 22 August 2013 the applicant completed and returned a questionnaire to the Department regarding ability to perform various activities.  On 8 October 2013 a health care professional (HCP) examined the applicant on behalf of the Department. On 18 November 2013 the Department considered all the evidence and determined that the applicant did not have limited capability for work (LCW) from and including 18 November 2013, and made a decision superseding and disallowing the applicant’s award of ESA.  The applicant appealed.  The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 23 May 2014 but the tribunal disallowed the appeal.

 

6.     The applicant then made a new claim for ESA from 4 July 2014.  By a decision dated 17 July 2014 the Department awarded ESA from and including 7 July 2014.  The applicant appealed.  Following an oral hearing on 13 August 2015, that appeal was also disallowed.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 7 October 2015.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was refused by a determination issued on 3 December 2015.  On 29 December 2015 the applicant applied for leave to appeal from a Social Security Commissioner.

 

         Grounds

 

7.     The applicant submits that the tribunal has erred in law on the basis that the tribunal had focussed wrongly on the issue of whether the applicant would be subject to a three-day waiting period, rather than the question of whether her claim should have been backdated to 17 April 2014.

 

8.     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 in relation to the three-day waiting period, but not as alleged in relation to any application in April 2014, and indicated that the Department supported the application.

 

         The tribunal’s decision

 

9.     The tribunal observed that the decision under appeal was that made by the Department on 17 July 2014, awarding ESA from and including 7 July 2014.  It observed that the applicant had been awarded ESA from 7 July 2014 on the basis that she was not entitled to ESA until three “waiting days” had expired.  The tribunal noted that the submission of the applicant was that she had contacted the Department in April 2014, to advise that she was suffering from a new condition - depression and stress as the result of domestic violence.  I pause here to note one unusual circumstance.  The applicant did not attend the tribunal hearing, as she was represented by her ex-husband who was the subject of an injunction not to be in contact with her, having also been convicted of assault occasioning actual bodily harm against her.

 

10.   The case advanced to the tribunal was that, as the applicant had contacted the Department in April 2014, her award should have been superseded from that date.  The tribunal had adjourned to have papers which were before the appeal tribunal on 23 May 2014.  It observed that a condition reported to the HCP was depression.  The tribunal found that the applicant had been treated for depression by way of medication and had been seeing a counsellor at the time of the HCP examination in October 2013.  The tribunal found that the applicant was not making the case that the incident of domestic violence in April 2014 triggered a worsening of her existing depression, but rather that the trauma associated with domestic violence was a new condition.

 

11.   However, the tribunal found no record of contact between the applicant and the Department in April 2014.  It found that no decision had been taken arising from any such contact which could give rise to appeal rights.  It found that it could only deal with the issue before it, namely, the claim giving rise to the decision of 17 July 2014.  It found the new claim to be subject to the three-day waiting period and upheld the Department’s decision.

 

         Assessment

 

12.   The basis of Mr Collins’ support for the appeal is, in short, that since the applicant was treated as having LCW pending her appeal within 12 weeks of the new claim, she should have been entitled to ESA for the three waiting days in issue.  He submits that I should set aside the tribunal’s decision and make the decision that the applicant is entitled to ESA from and including 4 July 2014.

 

13.   That course of action would have the effect of concluding matters in the applicant’s favour on the issue of the three-day period formerly treated by the Department as waiting days.  However, it does not deal with the question of whether the applicant’s entitlement should be considered from the earlier date of 17 April 2014 as submitted by her.

 

14.   I accept the submissions of Mr Collins on the first issue.  He points out that Schedule 2, paragraph 2 to the Welfare Reform Act (NI) 2007 states that except in prescribed circumstances a person is not entitled to ESA in respect of a prescribed number of days at the beginning of a period of LCW.  Regulation 144 (1) of the ESA Regulations (NI) 2008 provides that a claimant is not entitled to ESA in respect of three days at the beginning of a period of LCW.  Regulation 144 (2) provides for specific exceptions where regulation 144(1) does not apply and regulation 145 (1) states that any period of LCW which is separated from another such period by not more than 12 weeks is to be treated as a continuation of the earlier period.

 

15.   As the applicant had a pending appeal, she had an award of ESA in place until such times as the appeal could be determined, and was treated as having LCW under regulation 30(3) of the ESA Regulations.  As the claim leading to the award in July 2014 was within twelve weeks of the award of ESA made pending the appeal, which had been decided in May 2014, it was not appropriate to apply the three waiting days at the start of the current claim.

 

16.   In this respect Mr Collins accepted that the tribunal was misdirected by the Department in its submission dated 12 December 2014 and that it erred by following the Department’s submission.  On this basis he supports the application for leave to appeal.  I accept Mr Collins’ submissions. I grant leave to appeal and I allow the appeal for that reason.

 

17.   The applicant nevertheless has advanced a different case.  She submits that an earlier application for supersession should have been taken into account by the tribunal.

 

18.   The tribunal found that the decision under appeal was that made by the Department on 17 July 2014 awarding ESA from and including 7 July 2014.  That decision had been made following a telephone claim which appears to have been made on 16 June 2014.  The applicant seeks to link this decision to an earlier course of events.  The case made is that the Department was asked to take into account new circumstances on 23 April 2014.  However, there was no evidence to establish the communication with the Department which had been claimed, and no decision by the Department had been made on the basis of any such communication.

 

19.   The tribunal has jurisdiction arising from the making of an appeal under Article 13(2) of the Social Security (NI) Order 1998.  This gives rise to a right of appeal in relation to specified decisions of the Department.  However, any communication with the Department in April 2014, even if it could be established that such communication occurred, did not result in a decision by the Department.

 

20.   The only matters over which the tribunal had jurisdiction were those which arose from the Department’s decision dated 17 July 2014.  The tribunal correctly identified that it had no jurisdiction over any application in April 2014, whether or not it could be established that such an application had been made.  It did not err in law by finding that no determination was made arising from any contact between the applicant and the Department in April 2014 which would give rise to appeal rights.

 

21.   For the reasons I have given above, I set aside the decision of the appeal tribunal.  I make the decision that the tribunal should have made and I find that the applicant was entitled to ESA from and including 4 July 2014.  The amount of ESA already paid should be offset against the arrears of ESA awarded, under regulation 5 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations (NI) 1988.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

4 July 2016