BO’N-v-Department for Communities (ESA) [2018] NICom 11

								Decision No: C25/17-18(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 21 March 2017

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	As will be explained in greater detail below, both parties have expressed the view that the decision appealed against was erroneous in point of law.

2.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to Employment and Support Allowance (ESA), for a particular period, remains to be determined by another appeal tribunal. 

4.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 2 October 2016, which decided that grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 5 March 2016 and the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 2 October 2016;
 
(ii)	the Department is directed to provide details of any subsequent claims to ESA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent claims to ESA into account in line with the principles set out in C20/04-05(DLA);

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and 

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it. 

Background

5.	On 2 October 2016 a decision maker of the Department decided that grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 5 March 2016, and the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 2 October 2016. Following a request to that effect, the receipt of additional evidence and the making of an ‘Outbound Reconsideration’ telephone call, the decision dated 2 October 2016 was reconsidered on 14 November 2016 but was not changed.  An appeal against the decision dated 2 October 2016 was received in the Department on 1 December 2016. 

6.	The appeal tribunal hearing took place on 21 March 2017. The appellant was present and was represented by Mr McGlade of the Citizens Advice organisation. There was a Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the decision dated 2 October 2016.

7.	On 4 July 2017 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS). On 17 July 2017 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

Proceedings before the Social Security Commissioner

8.	On 1 August 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 8 August 2017 observations on the application for leave to appeal were requested from Decision Making Services (‘DMS’). In written observations dated 23 August 2017, Ms Robb, for DMS, supported the application for leave to appeal on the grounds submitted on behalf of the appellant. Written observations were shared with the appellant and Mr McGlade on 23 August 2017. 

9.	On 20 December 2017 I granted leave to appeal. In granting leave to appeal, I gave as a reason that it was arguable that the appeal tribunal had failed to address an issue which had been raised in the appeal, namely, the potential applicability of Regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended. On the same date I determined that an oral hearing of the appeal would not be required.

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. What is an 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.” 

Analysis

12.	In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, Mr McGlade made the following submissions on behalf of the appellant:

‘In the record of Proceedings, at part 2, paragraph 2, it is stated:

‘Representative

Health Care Professional could have enquired more into mental health as it is affected by the physical conditions. We would like the panel to consider regulation 29 if insufficient points scored. For physical descriptors, we would like the panel to consider consciousness as an issue and all descriptors in the mental health section.’  

In the Statement of Reasons, at part 3, paragraph 3, it is stated:

‘The panel heard from the Appellant, her husband and her representative and we had the benefit also of a Presenting officer. The date that the panel had to consider was 2 October 2016 as the Department decided on that date, having received medical evidence, that they had grounds to supersede the decision awarding Employment and Support Allowance. At the hearing the appellant’s representative, Mr McGlade, asked the panel to consider all mental health issues, whilst in respect of the physical issues he asked us to reconsider consciousness. Mobilising was indicated as a problem also.’

We are of the opinion that it is clearly recorded in the above paragraph from the Record of Proceedings that the applicability, or otherwise, of regulation 29, was explicitly raised as an issue for consideration by the Tribunal.

In the above paragraph from the Statement of Reasons, we note that regulation 29 is not referred to.

Having checked the Statement of Reasons in its entirety, it appears to us that there is no reference whatsoever to regulation 29 within that document.

	We submit the following to constitute an Error of Law:

We submit that, as the applicability, or otherwise of regulation 29 was explicitly raised as an issue before the Appeal hearing, as is attested to by the above paragraph from the record of proceedings, it was incumbent upon the tribunal to consider its applicability or otherwise.

We respectfully submit that, in the statement of reasons, the Tribunal failed to explain why it believed that regulation 29 did not apply, and upon what evidence it relied when coming to its conclusions in this matter.

We submit, further that, by failing to address the applicability, or otherwise, of regulation 29, the tribunal made an error of law, in that it failed to give reasons or any adequate reasons for findings on a material matter.’

13.	As was noted by Ms Robb, in her written observations on the application for leave to appeal, Mr McGlade cited case law in support of his contention, namely, paragraphs 47-51 (specifically paragraph 48) of NS v Secretary of State for Work and Pensions (ESA) [2014] UKUT 115 (AAC), paragraphs 20-26 (specifically paragraphs 25-26) of HA v Department for Social Development (ESA) [2011] NICom 213 and paragraphs 7-10 (specifically paragraphs 9-10) of CAF v Department for Social Development (ESA) [2012] NICom 248.

14.	Ms Robb made the following submissions:

‘On reading the tribunal’s statement of reasons in its entirety, I can see nothing to indicate that Regulation 29 was considered. In the Northern Ireland decision HA v Department for Social Development (ESA) [2011] NICOM 213, Chief Commissioner Mullan discussed practices with regards to Regulation 29. In paragraphs 25-26 he states:-

’25. In the majority of cases in which an appeal tribunal is considering whether the appellant has limited capability for work in accordance with the work capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 29, will not be relevant. Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered. Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 29 was considered but was discounted. That will not be an onerous duty for appeal tribunals. Where regulation 29 is not relevant a simple statement to that effect is sufficient

26. In C5/08-09(IB), it was clear, on the facts of the case, that the issue of the possible application of regulation 27 was one of the issues that was raised by the appeal and was one which required to be addressed by the appeal tribunal. The appeal tribunal was in error of law in failing to address what was a real issue arising in the appeal.’

Regulation 27 in this case relates to the Social Security (Incapacity for Work) (General) Regulations (NI) 1995. Commissioner Mullan commented that his conclusions relating to this regulation also applied in respect to the potential applicability of Regulation 29 of the Employment and Support Allowance Regulations (NI) 2008. I would submit that it is quite clear from Commissioner Mullan’s statements that the tribunal’s failure to make reference to Regulation 29 in the current case constitutes an error in law. I would submit that in failing to address an issue explicitly raised at appeal, the tribunal’s statement of reasons is inadequate and as such I support the contention put forward by (the appellant) and her representative.’

15.	It is clear, therefore, that both parties have expressed the view that the decision appealed against was erroneous in point of law.

16.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

								(signed)
Kenneth Mullan
Chief Commissioner

12 April 2018