ESD-v-Department for Social Development (ESA) [2011] NICom 191
Decision No:  C1/11-12(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 9 June 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 9 June 2010 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.

2.	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.  My substituted decision is that the appellant is not entitled to employment and support allowance (ESA) from and including 18 November 2009.

	Background

3.	The appellant claimed ESA from 19 May 2009 on the basis that she suffers from lower back pain and depression.  The appellant completed an ESA50 medical questionnaire on 5 August 2009 addressing the activities and descriptors within the limited capability for work assessment.

4.	On 14 October 2009 the claimant was examined by a health care professional on behalf of the Department.  The health care professional identified her medical conditions as sciatica and depression.  The health care professional considered the history of her conditions and recorded the description of her typical day and duly completed the medical report form (ESA85) addressing the activities and associated descriptors for limited capability for work and limited capability for work-related activity.

5.	On 17 November 2009 a decision-maker of the Department applied the limited capability for work assessment and determined that the appellant did not have limited capability for work.  On 18 November 2009 the decision-maker superseded the decision which had made the initial award of ESA and removed entitlement from 17 November 2009.

6.	On 4 December 2009 a letter of appeal from the appellant was received in the Department.  In this letter of appeal, the appellant indicated she can be in a lot of pain from her back and that she was going to a six week course of physiotherapy to help her lower back.  She also mentioned again that she had depression and was on tablets.

7.	On 10 February 2010 a decision-maker of the Department reconsidered the decision of 18 November 2009 and revised that decision due to an official error.  The error was that the effective date of the supersession should have been 18 November 2009 (the date the decision was made) and not 17 November 2009 (the date of the determination on limited capability for work).  The decision-maker maintained, however, that the appellant did not have limited capability for work and an appeal submission was drafted by the Department and forwarded to the Appeals Service (TAS).

8.	An appeal tribunal hearing was held on 9 June 2010.  The appellant was present and was represented.  The appeal tribunal disallowed the appeal.

9.	On 21 July 2010 an application for leave to appeal was received in TAS.  On 30 July 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

10.	On 16 September 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.

11.	On 5 January 2011 observations were sought from Decision Making Services (DMS) and these were received on 27 January 2011.  Mr Young, for DMS, opposed the application on the grounds submitted by the appellant but supported the application on another identified ground.  Observations were shared with the appellant and her representative Mr McLarnon on 22 February 2011.  On 14 April 2011 the appellant’s representative was requested to provide additional information in connection with the application for leave to appeal.  No reply was received to that communication or any further communication with the appellant’s representative.

12.	On 12 May 2011 the Chief Commissioner determined that the application could properly be determined without a hearing and granted leave to appeal.  His determination reads as follows:

‘Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.

I grant leave to appeal on the limited grounds set out in the last paragraph herein.

REASONS

There is no arguable case that the tribunal’s decision was wrong in law, except for the error set out in the last paragraph herein.

The tribunal was properly constituted.  The tribunal analysed the evidence rationally and in accordance with common sense.  It made all necessary findings of fact material to its decision.  There was evidence to support each of those findings.  On those findings of fact, the tribunal was entitled to make the decision that it did.  There is nothing to suggest that the tribunal misunderstood or misapplied the law save for the matter set out in the last paragraph herein.  The full statement of the tribunal’s decision contains a detailed explanation of the reasons why the tribunal made the decision that it did.  There was no breach of the principles of natural justice.

In particular, it is not reasonably arguable that the tribunal erred in law by failing to consider the medical evidence fully.  It is noteworthy that the claimant’s representative has failed to set out the medical evidence that the tribunal allegedly failed to consider, despite an opportunity being given to him so to do.

It must also be borne in mind that, in this and every similar case, a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset that tribunal’s conclusions unless:

(a)	there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

(b)	the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

In this case I neither express disagreement nor agreement with the tribunal’s inferences and conclusions.  However, even if I were in disagreement, that does not render the decision erroneous in point of law as the tribunal’s conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion.

However, it is arguable that there is a technical defect in the tribunal’s decision and therefore the decision is wrong in law because the tribunal might have erred by stating in its decision that the effective date of the supersession decision was 17 November 2009 as opposed to 18 November 2009 as set out in the reasons for decision.’

	Errors of law

13.	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.

14.	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?

15.	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 the appeal tribunal did not ‘ … fully consider all of the medical evidence available to them.’

16.	The reasons of the Chief Commissioner for granting leave to appeal were set out above.  He refined the basis for granting leave to appeal to the narrow point concerning the recorded effective date of supersession.  He rejected the other grounds for seeking leave to appeal and set out, in some detail, his reasons for that rejection.  I am in complete agreement with what was set out by the Chief Commissioner and concur 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?

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

‘I have noticed that the appeal tribunal in its decision of 9 June 2010 indicated that the claimant was not entitled to ESA from and including 17 November 2009.  I would submit that this date should have read 18 November 2009 in line with the rules governing the effective date of supersession.

The effective date of supersession rules are set out in Articles 11(5) and (6) of the Social Security (Northern Ireland) Order 1998, and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.

Articles 11(5) & 11(6) of the Social Security (Northern Ireland) Order 1998 state:

(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 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 specifies the date from which a decision superseded under Article 11 takes effect in certain circumstances.

In this case neither the provisions of Article 27 nor any of the provisions in regulation 7 apply.  Therefore the effective date of supersession is determined in accordance with the provision in Article 11(5) of the 1998 Order i.e. the date of decision.

However the Department had on 10 February 2010 revised its supersession decision of 18 November 2009 to rectify this initial error and confirm that the effective date of the supersession decision was 18 November 2009 (the date the decision was made) and not 17 November 2009 (the date the determination on limited capability for work).

Although the incorrect date was written on the appeal tribunal’s decision the tribunal did correctly confirm in its reasons for decision that the relevant date was 18 November 2009.  I would submit therefore that the tribunal was aware of the effective date and correctly stated that it could only examine circumstances up to that date and made a minor error in inserting the date of 17 November 2009 in its written decision of 9 June 2010.

I would respectfully ask that the Commissioner rectify this error in giving his decision as no fresh or further findings of fact are required.’

18.	I accept this submission from DMS, and the basis upon which it was made, in its entirety.  Accordingly, I find that the decision of the appeal tribunal is, technically, in error of law.

	Disposal

19.	The decision of the appeal tribunal dated 9 June 2010 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.

20.	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.  My substituted decision is that the appellant is not entitled to ESA from and including 18 November 2009.

(signed):  K Mullan

Chief Commissioner

26 July 2011