THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

Before: Douglas J. May, QC, Judge of the Upper Tribunal

 

Attendances:

 

For the Appellant: Mr Orr, City of Glasgow Council

 

For the Respondent: Mr MacGregor, Advocate, instructed by Miss Henderson, Solicitor, of the Office of the Solicitor to the Advocate General

 

The appeal is allowed.

 

The decision of the tribunal given at Glasgow on 30 June 2010 is set aside.

 

The case is referred to the First-Tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out below.

 

 

REASONS FOR DECISION

 

 

1.               The claimant has appealed against the decision of the tribunal which is in the following terms

 

“The appeal is disallowed

 

The decision of the Secretary of State issued on 16/04/10 is confirmed.

 

[The claimant] is not entitled to Employment and Support Allowance (ESA).

 

The claim for ESA has become invalid as the Appellant was successful in his Incapacity Benefit/Credit appeal today (ref. 100/10/00616).”

 

The decision of the 16 April 2010 which was said to be confirmed by the tribunal was in the following terms

 

“I have superseded the decision of the Decision Maker awarding Employment and Support Allowance (Cont) from and including 07/11/09.

 

On 03/03/10 [the claimant] was examined by a HealthCare Professional of the Medical Services in connection with the Work Capability Assessment.

 

The Decision Maker has considered the HealthCare Professional’s report and the other available evidence and has decided that he has not achieved 15 points from the appropriate descriptors.

 

[The claimant] is no longer assessed as having Limited Capability for Work therefore Limited Capability for Work is not accepted from and including 16/04/10 and he is not entitled to Employment and Support Allowance (Cont) from that date.”

 

The tribunal in addition to the claimant’s appeal in relation to employment and support allowance also had an appeal by the claimant against a decision in relation to an award of Incapacity Benefit.  As expressed by the tribunal the issue before them was

 

“The appellant had in receipt of Incapacity Benefit from February 2009.  Following an Incapacity Benefit Assessment in October 2009 a decision was taken on 4^th November 2009 to the effect that he was no longer entitled to Incapacity Benefit. The tribunal required to consider whether or not as at the date of the decision grounds existed to supersede the existing award of Incapacity Benefit.”

 

The tribunal in the Incapacity Benefit appeal decided that there were no grounds to supersede the award of Incapacity Benefit and in these circumstances the claimant’s appeal was successful and the award of Incapacity Benefit which had been made from February 2009 stood.  They then went on to say in the reasons for their decision

 

“5. The appellant had two appeals one concerning his Incapacity Benefit (ref 100/10/00616) and one regarding his Employment and Support Allowance (ref 100/10/04483)  If he was successful in his Incapacity Benefit appeal the Employment and Support Allowance appeal was no longer valid if he remained entitled to Incapacity Benefit.”

 

2.               Mr Orr on behalf of the claimant indicated that he accepted that the tribunal erred in law for the reasons given by the Secretary of State in his written submission.  In that submission the Secretary of State said

 

“8. As far as Employment and Support Allowance (ESA) is concerned, where a person is entitled to Incapacity Benefit (IB), Severe Disablement Allowance (SDA) or Income Support (IS) on the grounds of disability, or who can make a linked claim for that benefit, that person is prevented from claiming ESA by regulation 3 of the Employment and Support Allowance (Transitional Provisions) Regulations 2008.

 

9. However, a person who has had their IB disallowed and is appealing against that decision is not prevented by reg 3 of the ESA (TP) Regs 2008, or by any provision of the Welfare Reform Act or the ESA Regulations 2008, from making a claim for ESA. If ESA is awarded before the IB appeal is heard, then there is no provision to prevent the payment of that award, whether it is contributory-based or income-related.

 

10. If IB is re-instated by the decision of the FtT, then what happens next depends on the type of ESA in payment.  If it is ESA(IR), then the IB is treated as income and is taken into account as such in accordance with ESA Regulation 104.  If ESA (Cont) is in payment, then Regulations 2(1) and Regulation 4(5) of the Social Security (Overlapping Benefit) Regulations 1979 should be followed to determine which benefit is to be adjusted.  I submit though that it will not normally be necessary for the FtT to consider this.  If the FfT awards IB, then it will be for the DM to consider the impact of that award on any other benefit in payment.

 

11. Why is it then that ESA(TP) reg 3 might no apply?  Clearly reg 3(1) didn’t apply at the time of the DM’s original decision because the claimant was not entitled to an existing award of benefit.  As far as reg 3(2) is concerned, it is highly unlikely that the DM would have made an award of IB on a further claim having just terminated the previous award.  At the time of the original decision in November 2009, there was no evidence either or any deterioration in the claimant’s condition or that he was suffering from any new condition that would have enabled the DM to treat the claimant as incapable of work under reg 28 of the Social Security (Incapacity for Work) (General) Regs 1995.  Thus, in my opinion, the DM was not wrong to conclude that reg 3(2) did not apply.

 

12. Are there any grounds to revise the decision to award ESA on the ground that reg 3(2) does now apply?  Following the decision to allow the IB appeal, I would argue that there were no such grounds for the DM to do this since, as held by the then Commissioner Jacobs in CJSA/2375/00, a tribunal’s decision is a relevant change of circumstances, albeit with retrospective effect, and revision on these grounds is prevented by reg 3(1)(a) of the Social Security and Child (Decision and Appeals) Regs 1999 in conjunction with reg 3(9)(a) of the same regulations.

 

13. A further consideration is s12(8)(b) of the Social Security Act 1998 which precludes a tribunal from taking into account any circumstance not obtaining at the time when the decision appealed against was made.  The case that Commissioner Jacobs was dealing with concerned JSA and there is a specific provision of revision that would have enabled the DM to take account of the earlier tribunal decision on the period of the sanction even though the case involved a change of circumstance.  That provision is not available in the instant case.  Thus, s12(8)(b) prevents a tribunal from taking into account its earlier IB decision.

 

14. It can be seen, therefore, that not being able to call upon s12(8)(b) would clearly create anomalies if a tribunal was able to take account of a change that the DM could not and would also make a distinction between those claimants who appealed and those who did not - in the latter scenario, the awards of IB and ESA continuing.

 

15. The question of an injustice may also arise if the claimant is not permitted to pursue his ESA appeal, as there is the possibility that he may be awarded ESA and be placed in the support group.

 

16. Basically, therefore, there are no grounds for the Department to interfere with a customer’s right to appeal against a decision to terminate a claim to benefit that has been legitimately made.  Accordingly, it is not for a tribunal either to determine that the outcome of an appeal on one benefit has a bearing on an appeal relating to another.”

 

3.               Regulation 3(1) of the Employment and Support Allowance Regulations 2008 provides

 

“3(1) A person who is entitled to an existing award is excluded from making a   claim for Employment and Support Allowance.”

 

It was accepted by both parties and myself that the words “existing award” encompassed an existing award of Incapacity Benefit by virtue of schedule 4 paragraph 11 of the Welfare Reform Act 2007.

 

4.               The decision of the tribunal was inherently contradictory.  On the one hand it purported to confirm a decision superseding an existing award of Employment and Support Allowance. On the other hand it purported to make a decision on the validity of the claim for Employment and Support Allowance under regulation 3(1) of the regulations quoted above upon the basis that before them the claimant was successful in his separate Incapacity Benefit appeal.  In confirming the decision of the Secretary of State issued 16 April 2010, the tribunal did not reach any conclusions upon the satisfaction of the grounds to supersede the existing award of Employment and Support Allowance, nor did it deal with the merits as to whether the conditions for the allowance were satisfied on the grounds that the awarding decision had been properly superseded.   It simply dealt with the question as to the validity of the claim for Employment and Support Allowance.  In these circumstances the decision of the tribunal was erroneous in law.  Further the reasoning given by the tribunal was also contrary to its decision.  The decision as indicated found that the claim for Employment and Support Allowance had become invalid whereas in the reasons their position was that his appeal in respect of the decision on Employment and Support Allowance was no longer valid.  The proposition set out in the statement of reasons is clearly erroneous in law.  The appeal made to the tribunal was an appeal against a supersession decision under section 10 of the Social Security Act 1998 and was in these circumstances one provided for in section 12 of the same Act. 

 

5.               The question also arises as to whether the tribunal erred in law in respect of the basis stated in the decision notice that the claim for Employment and Support Allowance had become invalid because the claimant was successful in his Incapacity Benefit appeal before them.  The decision on the Employment and Support Allowance claim, which was adjudicated upon by the Secretary of State and determined in the claimant’s favour, was a final decision under section 8 of the Act and one which could not be disturbed unless appealed, revised or superseded under sections 9, 10 or 12 of the Act.  What the tribunal did when making a decision on the supersession of the awarding decision under section 10 of the Act was on to make a decision on the award of Employment and Support Allowance upon the basis that the claimant for it had become retrospectively excluded.  That in my view was outwith their jurisdiction.  That was accepted by both the claimant and the Secretary of State in this appeal.  I am satisfied that the tribunal ought to have determined the appeal before them on the basis as to whether or not there were grounds to supersede the existing award of Employment and Support Allowance and in the event that they were so satisfied the merits as to whether the claimant satisfied the conditions for the allowance.  The failure of the tribunal to approach the appeal in that way rendered their decision erroneous in law on these grounds also. 

 

6.               The validity of the claim and whether or not he could do anything about it by way of revising or superseding his adjudication on it when the tribunal made a decision favourable to the claimant in the incapacity appeal is a matter to be left to the Secretary of State and should  not have been determined by the tribunal.  The Secretary of State’s position is that it is possible for awards of Incapacity Benefit and Employment and Support Allowance to be made to the same claimant over the same period in circumstances such as the present.  It is his position, which Mr Orr accepted, that a claimant could not be paid both but there is a mechanism by which payment can be adjusted on the awards.  It is not necessary for me to reach any concluded view on this having regard to the manner in which I have determined the appeal nor is it necessary for me to determine the issue raised by the Secretary of State as to the application of regulation 3(1) as set out in paragraphs 11 to 15 of his written submission.

 

7.               In the circumstances I will do as parties wish which is to remit the case to a freshly constituted tribunal for a rehearing.  The directions I give the freshly constituted tribunal are to satisfy themselves as to whether or not grounds for supersession of the existing award of Employment and Support Allowance have been made out on the statutory grounds advanced, namely 6(2)(r) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and if so satisfied to make a decision on the merits of the appeal.  It is for the Secretary of State to determine what he wishes to do following upon the freshly constituted tribunal’s decision.  They are directed not to deal with the question of the validity of the decision on the claim and whether or not the claimant was excluded from making a claim for the reasons I have set out above. 

 

 

 

 

 

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 8 February 2011