MMcK-v-Department for Social Development (ESA) [2014] NICom 6
Decision No:  C14/11-12(ESA)(T)

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 20 May 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 20 May 2011 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on us by Article 15(8) of the Social Security (Northern Ireland) Order 1998, we set aside the decision appealed against.

2.	We are unable to exercise the power conferred on us by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is evidence relevant to the issues arising in the appeal to which we have not had access.  Further, there may be further findings of fact which require to be made and we do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, we refer the case to a differently constituted appeal tribunal for re-determination.  In referring the case to a differently constituted appeal tribunal for re-determination, we direct that the appeal tribunal takes into account the guidance set out below.

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), under the decision of 14 May 2010, remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.  

	What is this appeal about?

4.	This appeal is about the sequential decision-making process in the Department pursuant to:

(i)	an initial claim to and award of entitlement to ESA;
(ii)	a subsequent determination that a claimant does not have limited capability for work and is no longer entitled to ESA;

(iii)	an appeal against the decision at (ii) above;

(iv)	the determination of that appeal.

5.	The appeal is concerned with the interaction of the specific legislative provisions relating to claims to social security benefits and the discrete conditions of entitlement to ESA.  As will be noted below, those provisions, as they applied at the relevant dates, sought to implement a Departmental policy intention to permit entitlement to ESA to continue pending the making and pursuing by an appellant of an appeal against a decision that he no longer has an entitlement following a determination that he does not have limited capability for work.

6.	We are conscious that the appeal tribunal below was genuinely motivated to rectify what it perceived to be an anomaly in the decision-making process for entitlement to ESA.  As it appeared to the appeal tribunal that anomaly was that a claimant to ESA could have a continuous entitlement to that payment by making repeat appeals against decisions of the Department refusing entitlement to that benefit and was being facilitated in that process by specific legislative provisions relating to claims to ESA or, more specifically, where a claim is not required.  We have concluded, however, that the appeal tribunal has misinterpreted the relationship between the general rules relating to claims to social security benefits and the specific rules of entitlement to ESA.

7.	We are also aware that there have been subsequent amendments to the specific legislative provisions which are considered in this appeal.  Some of those amendments are considered below.  It is the case, therefore, that the issue which is active and tangible in the instant case has now been dissipated by those ensuing legislative developments.

8.	Finally, this appeal is linked to the appeal in C11/11-12(ESA(T) where the issues arising are parallel.

	Decision-making in the Department

9.	As was noted above, this appeal is concerned with the validity of the decision-making process giving rise to the appeal before the appeal tribunal below.  Accordingly, that decision-making process will be explored in greater detail below.  For the moment, however, the following summary is sufficient.

10.	On 23 July 2009 a decision-maker of the Department awarded the respondent an entitlement to ESA from and including 26 March 2009.  The respondent was requested to complete a questionnaire outlining her ability to perform various activities.  The respondent completed this form on 20 July 2009 and returned it to the Department where it was received on 22 July 2009.  On 2 December 2009 the respondent was examined by a healthcare professional on behalf of the Department.  On 22 December 2009 a decision-maker determined that the respondent did not have limited capability for work.  Further, on 4 January 2010, the decision-maker superseded the decision dated 23 July 2009 and disallowed entitlement to ESA from and including 4 January 2010.

11.	The respondent appealed against the decision dated 4 January 2010 by way of completion of appeal form GL24 which was received in the Department on 13 January 2010.  On 23 March 2010 a decision-maker decided that the respondent should have an entitlement to ESA from and including 4 January 2010.  On 6 May 2010 the respondent’s appeal against the decision dated 4 January 2010 was disallowed by an appeal tribunal.  On 13 May 2010 the decision-maker determined that the respondent did not have limited capability for work.  On 14 May 2010 the decision-maker superseded the decision dated 23 March 2010 and disallowed entitlement to ESA from and including 14 May 2010.  That decision is not in evidence.

12.	The respondent appealed against the decision dated 14 May 2010 by way of correspondence dated 17 May 2010.  On 19 May 2010 a decision-maker awarded an entitlement to ESA from 14 May 2010.  That decision is also not in evidence but was presumably made, like the decision of 23 March 2010, on the footing that there was an appeal pending.

	Proceedings before the appeal tribunal below

13.	On 20 May 2011 the appeal tribunal disallowed the appeal against the decision dated 14 May 2010.

14.	On 7 September 2011 an application for leave to appeal against the decision dated 20 May 2011 was received in the Appeals Service.  The application was made by Mr Toner on behalf of the Decision Making Services Unit (‘DMS’) of the Department.  On 23 September 2011 leave to appeal was granted by the legally qualified panel member (LQPM).  In granting leave to appeal, the LQPM identified, as a point of law:

‘Whether an award of Employment and Support Allowance is extended by regulation 6 of the Employment and Support Allowance Regulations 2008 following an appeal against a disallowance by the claimant?

If there is such an extension of benefit entitlement, can a further award of Employment and Support Allowance be made by the Department to the appellant under Regulation 3(j) of the Claims and Payments Regulations (NI) 1987 pending the hearing and decision in the appeal?

If a further award can be made under regulation 3(j) of the Claims and Payments Regulations (NI) 1987, can a similar mechanism be used to continue benefit entitlement indefinitely by appealing against every subsequent disallowance?’

	Proceedings before the Social Security Commissioners

15.	On 20 October 2011 the appeal was received in the Office of the Social Security Commissioners.  On 25 October 2011 written observations on the appeal were sought from the respondent.  Written observations were received from Mr Hatton, the respondent’s representative, on 24 November 2011 and were shared with Mr Toner on 5 December 2011.  On 25 January 2012 the Chief Commissioner directed that under the provisions of Article 16(7) of the Social Security (Northern Ireland) Order 1998, the appeal involved a question of law of special difficulty and that it should, accordingly, be dealt with by a Tribunal consisting of three Commissioners.  The Chief Commissioner also directed an oral hearing of the appeal.

16.	The oral hearing took place on 29 March 2012.  The appeal was heard at the same time as the appeal in C11/11-12(ESA)(T).  The Department was represented by Mr Young from DMS and the respondent was represented by Mr Hatton of the Law Centre (Northern Ireland).  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

17.	Following the oral hearing of the appeal, the decision of the Upper Tribunal Judge in Great Britain in TW v Secretary of State for Work & Pensions (ESA) ([2012] UKUT 152 AAC, CE/1147/2011) was promulgated.  The parties to the proceedings were asked to provide further written observations on the extent to which the principles in that decision were relevant to the issues arising in the present appeal.  There then followed a further delay in the promulgation of this decision for which apologies are extended to the parties to the proceedings.

	The relevant legislative background

	Claims, decision-making and appeals

18.	Section 1 of the Social Security Administration (Northern Ireland) Act 1992, as amended, provides that:

‘1(1) Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied—

(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or

(b) he is treated by virtue of such regulations as making a claim for it.’

Articles 9(1) and (2) of the Social Security (Northern Ireland) Order 1998, as amended, (hereinafter the 1998 Order) provide that:

‘9 (1) Subject to the provisions of this Chapter, it shall be for the Department—

(a) to decide any claim for a relevant benefit;

(b) to decide any claim for a social fund payment mentioned in section 134(1)(b) of the Contributions and Benefits Act; and

(c) subject to paragraph (5), to make any decision that falls to be made under any relevant statutory provision.

(2) Where at any time a claim for a relevant benefit is decided by the Department—

(a) the claim shall not be regarded as subsisting after that time; and

(b) accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.’

Articles 11(1) and (3) of the 1998 Order provide that:

‘11(1) Subject to paragraph (3) and Article 36(3), the following, namely—

(a) any decision of the Department under Article 9 or this Article, whether as originally made or as revised under Article 10; and

(b) any decision under this Chapter of an appeal tribunal or a Commissioner, 

may be superseded by a decision made by the Department, either on an application made for the purpose or on the Department’s own initiative.

…

(3) Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this Article.’

Regulation 6(2)(q) of the Social Security and Child Support (Decisions and Appeals) (Northern Ireland) Regulations 1999 (hereinafter the 1999 Regulations) provides that:

‘(q) is an employment and support allowance decision where, since the decision was made, the Department has—

(i) received medical evidence from a health care professional approved by the Department, or

(ii) made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 20, 25, 26 or 33(2) of the Employment and Support Allowance Regulations;’

Regulation 3(j) of the Social Security (Claims and Payments) (Northern Ireland) Regulations 1987, as amended, (hereinafter the Claims and Payments Regs 1987), and as it applied at the relevant date, provides that:

‘Claims not required for entitlement to benefit in certain cases

3. It shall not be a condition of entitlement to benefit that a claim be made for it in the following cases—

…

(j) in the case of an employment and support allowance where the beneficiary has made and is pursuing an appeal against the decision of the Department that he does not have limited capability for work..’

ESA

Section 1(1)-(4) of the Welfare Reform Act (Northern Ireland) 2007 (hereinafter WRA 2007) provides that:

‘1(1) An allowance, to be known as an employment and support allowance, shall be payable in accordance with the provisions of this Part.

(2) Subject to the provisions of this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and either—

(a) the first and the second conditions set out in Part 1 of Schedule 1 (conditions relating to national insurance) or the third condition set out in that Part of that Schedule (condition relating to youth), or

(b) the conditions set out in Part 2 of that Schedule (conditions relating to financial position).

(3) The basic conditions are that the claimant—

(a) has limited capability for work,

(b) is at least 16 years old,

(c) has not reached pensionable age,

(d) is in Northern Ireland,

(e) is not entitled to income support, and

(f) is not entitled to a jobseeker's allowance (and is not a member of a couple who are entitled to a joint-claim jobseeker's allowance).

(4) For the purposes of this Part, a person has limited capability for work if—

(a) his capability for work is limited by his physical or mental condition, and

(b) the limitation is such that it is not reasonable to require him to work.’

Sections 2 and 4 of the WRA 2007 provide that:

‘Amount of contributory allowance

2—(1) In the case of a contributory allowance, the amount payable in respect of a claimant shall be calculated by— 

(a) taking such amount as may be prescribed,
(b) if in his case the conditions of entitlement to the support component or the work-related activity component are satisfied, adding the amount of that component, and
(c) making prescribed deductions in respect of any payments to which section 3 applies.

(2) The conditions of entitlement to the support component are—

(a) that the assessment phase has ended,
(b) that the claimant has limited capability for work-related activity, and
(c) that such other conditions as may be prescribed are satisfied.

(3) The conditions of entitlement to the work-related activity component are—

(a) that the assessment phase has ended,
(b) that the claimant does not have limited capability for work-related activity, and
(c) that such other conditions as may be prescribed are satisfied.

(4) Regulations may—

(a) prescribe circumstances in which paragraph (a) of subsection (2) or (3) is not to apply;
(b) prescribe circumstances in which entitlement under subsection (2) or (3) is to be backdated;
(c) make provision about the amount of the component under subsection (2) or (3).

(5) For the purposes of this Part, a person has limited capability for work-related activity if—

(a) his capability for work-related activity is limited by his physical or mental condition, and
(b) the limitation is such that it is not reasonable to require him to undertake such activity.

…

Amount of income-related allowance

4—(1) In the case of an income-related allowance, the amount payable in respect of a claimant shall be—

(a) if he has no income, the applicable amount;

(b) if he has an income, the amount by which the applicable amount exceeds his income.

(2) Subject to subsection (3), the applicable amount for the purposes of subsection (1) shall be calculated by—

(a) taking such amount, or the aggregate of such amounts, as may be prescribed, and

(b) if in the claimant's case the conditions of entitlement to the support component or the work-related activity component are satisfied, adding the amount of that component.

(3) Regulations may provide that, in prescribed cases, the applicable amount for the purposes of subsection (1) shall be nil.

(4) The conditions of entitlement to the support component are—

(a) that the assessment phase has ended,
(b) that the claimant has limited capability for work-related activity, and
(c) that such other conditions as may be prescribed are satisfied.

(5) The conditions of entitlement to the work-related activity component are—

(a) that the assessment phase has ended,
(b) that the claimant does not have limited capability for work-related activity, and
(c) that such other conditions as may be prescribed are satisfied.

(6) Regulations may—

(a) prescribe circumstances in which paragraph (a) of subsection (4) or (5) is not to apply;
(b) prescribe circumstances in which entitlement under subsection (4) or (5) is to be backdated;
(c) make provision about the amount of the component under subsection (4) or (5).’

Section 8(5) of the WRA 2007 provides that:

‘(5) Regulations may provide that, in prescribed circumstances, a person in relation to whom it falls to be determined whether he has limited capability for work, shall, if prescribed conditions are met, be treated as having limited capability for work until such time as

(a) it has been determined whether he has limited capability for work, or
(b) he falls in accordance with regulations under this section to be treated as not having limited capability for work.’

Regulations 4 and 6 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 (hereinafter ESA Regs 2008) provided at the material time that:

‘The end of the assessment phase

4.—(1) Subject to paragraph (2) and regulations 5 and 6, the assessment phase in relation to a claimant ends on the last day of a period of 13 weeks beginning on the first day of the assessment phase as determined under section 24(2)(a) of the Act. 

(2) If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet been determined whether the claimant has limited capability for work—

(a) the claimant having been assessed in accordance with a limited capability for work assessment; or
(b) as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or 33(2),

the assessment phase shall end when the limited capability for work determination is made.

…

The assessment phase – claimants appealing against a decision

6.  Where the period for which the claimant is entitled to an employment and support allowance commences and the claimant has made and is pursuing an appeal against a decision which embodies a determination that that claimant does not have limited capability for work, the assessment phase in relation to that claimant ends when the appeal is determined by an appeal tribunal constituted under Chapter 1 of Part 2 of the 1998 Order.’

Regulation 30 of the ESA Regs 2008 provides that:

‘Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made

30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined—

(a) whether or not the claimant has limited capability for work;
(b) whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or
(c) whether the claimant is to be treated as not having limited capability for work in accordance with regulation 22 or 23.

(2) The conditions are—

(a) that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and
(b) that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work in accordance with regulation 22 or 23 unless—

(i)	the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination,
(ii)	a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened, or
(iii)	in the case of a claimant who was treated as not having limited capability for work in accordance with regulation 22, the claimant has since provided the information requested under that regulation.

(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by an appeal tribunal constituted under Chapter 1 of Part 2 of the 1998 Order.’

	The 2010 and 2011 amendments to the legislation

19.	The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010, (hereinafter the 2010 Regs), made alterations to the Claims and Payments Regs 1987 and the ESA Regs 2008, with effect from 28 June 2010 (thus after the appeal made by the claimant with which we are concerned), as follows.  A new regulation 3(j), which, it will be recalled, deals with when claims were not required for entitlement to benefit, was substituted in the Claims and Payments Regs 1987, as follows:

‘(j) in the case of an employment and support allowance where— 

(i)	the beneficiary has made and is pursuing an appeal against a decision of the Department that embodies a determination that the beneficiary does not have limited capability for work, and

(ii)	that appeal relates to a decision to terminate or not to award a benefit for which a claim was made.’

Regulation 6 of the ESA Regs 2008 was omitted.  A new regulation 147A was inserted into the ESA Regs 2008, as follows:

‘Claimants appealing a decision

147A.—(1) This regulation applies where a claimant has made and is pursuing an appeal against a decision of the Department that embodies a determination that the claimant does not have limited capability for work.

(2) Subject to paragraph (3), where this regulation applies, a determination of limited capability for work by the Department under regulation 19 shall not be made until the appeal is determined by the appeal tribunal.

(3) Paragraph (2) does not apply where either—

(a) the claimant suffers from some specific disease or bodily or mental disablement from which the claimant was not suffering when entitlement began; or
(b) a disease or bodily or mental disablement from which the claimant was suffering at that date has significantly worsened.

(4) Where this regulation applies and the Department makes a determination—

(a) in a case to which paragraph (3) applies (including where the determination is not the first such determination) that the claimant does not have or, by virtue of regulation 22 or 23, is to be treated as not having limited capability for work; or
(b) subsequent to a determination that the claimant is to be treated as having limited capability for work by virtue of a provision of these Regulations other than regulation 30, that the claimant is no longer to be so treated,

this regulation and regulation 30 apply as if that determination had not been made.

(5) Where this regulation applies and—

(a) the claimant is entitled to an employment and support allowance by virtue of being treated as having limited capability for work in accordance with regulation 30;

(b) neither of the circumstances in paragraph (3) applies, or, subsequent to the application of either of those circumstances, the claimant has been determined not to have limited capability for work; and

(c) the claimant’s appeal is dismissed, withdrawn or struck out,

the claimant is to be treated as not having limited capability for work with effect from the beginning of the first day of the benefit week following the date on which the Department was notified by the appeal tribunal that the appeal is dismissed, withdrawn or struck out.

(6) Where a claimant’s appeal is successful, subject to paragraph (7), any finding of fact or other determination embodied in or necessary to the decision of the appeal tribunal or on which the appeal tribunal’s decision is based shall be conclusive for the purposes of the decision of the Department, in relation to an award made in a case to which this regulation applies, as to whether the claimant has limited capability for work or limited capability for work-related activity.

(7) Paragraph (6) does not apply where, due to a change of circumstances after entitlement to which this regulation applies began, the Department is satisfied that it is no longer appropriate to rely on such finding or determination.’

20.	The new regulation 147A was itself amended by the Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2011, (hereinafter the 2011 Regs).  A new paragraph 5A was inserted, which took effect from 31 October 2011, as follows:

‘(5A) The day specified for the purposes of paragraph (5) is the first day of the benefit week following the date on which the Department either—

(a) receives the clerk of the appeal tribunal’s notification that the appeal is dismissed, withdrawn or struck out, or
(b) discontinues action on an appeal in the circumstances to which regulation 33(9) (Decisions and Appeals) Regulations applies.

	What did the appeal tribunal decide?

21.	The statement of reasons for the appeal tribunal’s decision reads as follows:

‘The tribunal concluded that the effect of the operation of Regulation 6 of the general regulations was to suspend the termination of the assessment phase under regulation 4 pending the hearing of the appeal.  The claimant therefore remained entitled to Employment and Support Allowance at the assessment phase rate.  When the appeal was disallowed by the tribunal on the 6th May 2010, the claimant had no longer any entitlement to benefit.  The decision on ESA570/10 was followed.

The tribunal concluded that there could not be two assessment phases in respect of the same claimant running at the same time and the Department was therefore precluded from exercising its discretion to make a further award under regulation 3(j).  Consequently, the decision made by the Department was a nullity and there was therefore no valid appeal.

The argument in relation to Article 9(2) of the 1998 [sic] was noted.  However, it was rejected because regulations 4 and 6 of the general regulations are essentially procedural in character and do not relate to substantive entitlement.

The tribunal did not accept the argument that there was one assessment period in this case as argued by the claimant in her submission.  It was concluded that section 23(2) applies to each claim and the first day of the period of entitlement is the first day in relation to that claim.’

22.	The reference to ‘ESA570/10’ is to an earlier decision of an appeal tribunal.  A copy of the statement of reasons for the decision of the appeal tribunal in that case is in the file of papers which is before us and is attached to this decision as Schedule 1.  In summary the appeal tribunal concluded that:

•	there was no legislative basis for the making of a second claim during an existing assessment phase;
•	any award made on a second claim during an existing assessment was, accordingly, void;
•	there could be no right of appeal against any decision making an award on foot of a second claim made during an existing assessment phase.

	The submissions of the parties

23.	In the appeal which was received in the Office of the Social Security Commissioner and Child Support Commissioners (OSSC) on 20 October 2011, Mr Toner, for DMS, submitted the following:

‘… as the conditions of regulation 30(1), (2)(a) and (3) of the Employment and Support Allowance Regulations were satisfied that the decision maker, on 23 March 2010, under the provisions of regulation 3(j) of the Claims and Payments Regulations, had the power to make an award of employment and support allowance from 4 January 2010 and that the appeal tribunal erred in law by finding that the decision of 26 March 2010 (should be 23 March 2010) was a nullity.

Regulation 4 of the Employment and Support Allowance Regulations (NI) 2008 provides for the ending of the assessment phase whereas regulation 6, until its revocation on 28 June 2010, provided for the ending of the assessment phase where a claimant is pursuing an appeal.  I submit that the tribunal erred in law by finding that the ending of the assessment phase by the limited capability for work assessment on 22 December 2009 was suspended under regulation 6 with the pursuance of an appeal.’

24.	In the case summary prepared for the oral hearing of the appeal, Mr Toner continued to submit that the decision of the appeal tribunal was in error of law on the basis of the ground cited in the original appeal.

25.	In his response to the appeal, Mr Hatton indicated that he was in agreement with Mr Toner that the decision of the appeal tribunal was in error of law.  Mr Hatton enclosed a copy of the legal submission which he had made to the original appeal tribunal and made the following additional points:

(i)	He submitted that what appeared to be a literal interpretation of the legislation did seem to produce what he described as an ‘anomalous situation’.

‘A claimant who has claimed ESA and then is appealing the decision that is made pursuant to Regulation 3(j) of the Social Security (Claims and payments) Regulations 1987 can appeal the decision which is made pursuant to Regulation 3(j) of the Social Security (Claims and Payments) Regulations 1987 … continuously.’

(ii)	The legislation operates so as to require a regulation 3(j) decision to be made when a claimant appeals.  Regulation 3(j) was the mechanism which was put in place to ensure that a claimant continues to receive ESA while waiting for determination of an appeal.  Mr Hatton submitted that he could understand the appeal tribunal’s view that this produced an ‘absurd result.’

(iii)	The intention of Parliament was to ensure that while appealing a determination on capability for work, a claimant should continue to be entitled to ESA while waiting for the appeal to be determined.  The legislative mechanism created by Parliament was through regulation 3(j) which removes the requirement for a claim to be made while appealing an adverse ESA determination.  Parliament could have chosen alternative mechanisms and, in fact, had retained this legislative mechanism through the 2010 and 2011 amendments to the legislative provisions.

(iv)	The appeal tribunal had found that the mechanism through which a claimant continues to receive ESA while appealing was under regulation 6 of the ESA Regs 2008.  This reasoning was problematic, in two respects:

‘Firstly, Article 9(2) of the Social Security (NI) Order states that a claim shall not be regarded as subsisting after it has been determined by the Department and a claimant shall not be entitled to benefit on the basis of circumstances not obtaining at the time.  The circumstances which exist to allow a person to continue to be entitled to ESA under the operation of Regulation 6 only exist if the person appeals and meets the other conditions under Regulation 30 so as to be treated as having limited capability for work. Article 9(2) specifically refers to making a further claim, which would seem to be the purpose of Regulation 3(j).  Secondly, in making the amendments to this legislation, it was Regulation 6 that was removed and Regulation 3(j) retained which would lend support to our argument that Regulation 6 was not the intended mechanism by which entitlement continued once an appeal was lodged.  In our view, therefore, the tribunal erred by finding that entitlement continued by Regulation 6 extending the assessment phase when this would appear to be contrary to the primary legislation in Article 9(2) and, using the later amendments as an aid to construction, does not appear to have been the intention of the legislators.’

(v)	The appeal tribunal had concluded that the decision made pursuant to the operation of regulation 3(j) was a ‘discretionary’ decision.  Mr Hatton could not agree that a regulation 3(j) decision could be a discretionary decision.  The provisions of section 1 of the Administration Act 1992 and Article 9(1) of the 1998 Order meant that if an individual made a claim to a social security benefit then a decision had to be made on that claim.  The requirement in Article 9(2) was mandatory.  Even though Regulation 3(j) removed the requirement, arising from section 1(1) of the Administration Act 1992, for the making of a claim, Article 9(1) still imposed a requirement on the Department to make a decision on that claim.  The appeal tribunal had not identified any legislative mechanism for the exercise of a discretionary power to make a decision.

(vi)	The appeal tribunal had found that it was impossible to have two assessment phases existing concurrently.  The assessment phase is not a condition of entitlement to ESA but operates to dictate the rate of payment.

26.	In his case summary, Mr Hatton reiterated the submissions which he had made on the appeal.  In addition, Mr Hatton submitted that the amendments to the relevant legislation which had taken place in 2010 and 2011 could be used as an aid to the interpretation of the legislative provisions which are relevant in the instant appeal.  He restated that the fact that regulation 6 of the ESA Regs 2008 had been revoked lent weight to his submissions that the interpretation which the appeal tribunal had given to the relevant legislative provisions was incorrect.

	Analysis

27.	We begin by considering the sequence of decisions, determinations and appeals which were made leading to the decision which was under appeal to the appeal tribunal.

(i)	The decision of 23 July 2009

The decision of 23 July 2009 was a decision made under Article 9(1) of the Social Security (Northern Ireland) Order 1998, as amended, on a claim to ESA made on 26 March 2009.  The effect of the decision on the claim was, for the purpose of Article 9(2) of the 1998 Order, that the claim no longer subsisted after that date.

Under the provisions of section 24(2)(a) of the WRA 2007, the assessment phase, in relation to the respondent, was the period beginning with the first day of the period for which she was entitled to ESA, namely 26 March 2009.  Under the provisions of regulation 4(1) of the ESA Regs 2008 the assessment phase would be expected to last for a period of 13 weeks from 26 March 2009.  By the end of the period of 13 weeks from 26 March 2009, however, it had not been determined whether the respondent had limited capability for work in accordance with the limited capability for work assessment.  Accordingly, under the provisions of regulation 4(2) the assessment phase continued and would end when the limited capability for work determination was made.

To be entitled to ESA, the respondent would have to satisfy, inter alia, the basic condition for limited capability for work under section 1(3)(a) of the WRA 2007.  The respondent satisfied that condition because under the provisions of regulation 30(1) of the ESA Regs 2008 she was to be treated as having limited capability for work until such time as it was determined whether or not she had limited capability for work, as long as that she continued to satisfy the condition that she provided evidence of limited capability for work in accordance with the Medical Evidence Regulations, as set out in regulation 30(2)(a) of the ESA Regs 2008.  It is clear that the Department accepted that the respondent satisfied the condition of providing evidence of limited capability for work.  Indeed, at Tab No 1 there is a copy of a certificate which amounts to such medical evidence.

(ii)	The determination of 22 December 2009

On 22 December 2009 a decision-maker of the Department determined that the respondent did not have limited capability for work.  That determination had no effect on the respondent’s entitlement to ESA.  Entitlement was to be altered by the further decision of 4 January 2010.  The determination should, however, under the provisions of regulation 4(2) of the ESA Regs 2008, ordinarily, bring to end the assessment phase in connection with the respondent.  A further decision, however, and the respondent’s actions in connection with that decision, altered that position.

(iii)	The decision of 4 January 2010

On 4 January 2010 a decision-maker superseded the decision dated 23 July 2009 and disallowed entitlement to ESA from and including 4 January 2010.  The decision of 4 January 2010 was made under the provisions of Article 11 of the 1998 Order and regulation 6(2)(q) of the 1999 Regulations.  Regulation 6(2)(q) permits supersession, where, since the decision was made, the Department has received medical evidence from a healthcare professional approved by the Department.

(iv)	The appeal of 13 January 2010

This was an appeal against the decision dated 4 January 2010.  As was noted above, it had a consequence for what would ordinarily be the effect of the determination of 22 December 2009.  The ordinary effect of that determination should have been that, under the provisions of regulation 4(2) of the ESA Regs 2008, the assessment phase in connection with the respondent should have come to an end.  However, under the provisions of regulation 6 of the ESA Regs 2008 because the respondent had now made and was pursuing an appeal against a decision which embodied a determination that she did not have limited capability for work, the assessment phase in relation to the respondent would now end when the appeal was determined by an appeal tribunal constituted under Chapter 1 of Part 2 of the 1998 Order.

(v)	The decision of 23 March 2010

The decision of 23 March 2010 was a decision that the respondent had an entitlement to ESA from and including 4 January 2010.  Because the respondent had made an appeal against the decision dated 4 January 2010, the Department implemented its policy of making a ‘pending appeal’ award of entitlement to ESA.  In the appeal which was received in OSSC on 20 October 2011, Mr Toner submitted that ‘…as the conditions of regulation 30(1), (2)(a) and (3) of the Employment and Support Allowance Regulations were satisfied that the decision maker, on 23 March 2010, under the provisions of regulation 3(j) of the Claims and Payments Regulations, had the power to make an award of employment and support allowance from 4 January 2010.’

(vi)	The decision of the appeal tribunal dated 6 May 2010

On 6 May 2010 an appeal tribunal disallowed the appeal against the decision dated 4 January 2010.  A copy of the decision notice for the appeal tribunal’s decision was attached to the original appeal submission as Tab No 9.  The appeal tribunal decided that the respondent was not entitled to ESA from and including 4 January 2010.  Under the provisions of regulation 6 of the ESA Regs 2008 the assessment phase in relation to the respondent, which commenced on 26 March 2009, would now come to an end as the appeal was determined by an appeal tribunal constituted under Chapter 1 of Part 2 of the 1998 Order.

(vii)	The determination dated 13 May 2010

On 13 May 2010 a decision-maker of the Department determined that the respondent did not have limited capability for work in accordance with the work capability assessment.  That determination had no effect on the respondent’s entitlement to ESA.  Entitlement was to be altered by the further decision of 14 May 2010.

The decision dated 14 May 2010

On 14 May 2010 a decision-maker of the Department superseded the decision dated 23 March 2010 and decided that the respondent had no entitlement to ESA from and including 14 May 2010.  There is no copy of the decision dated 14 May 2010 in the file of papers which is before us.  In the case summary prepared for the oral hearing of the appeal Mr Toner submitted that the supersession decision had been made on the ground that there had been a relevant change of circumstances since the decision dated 23 March 2010 had been made.  The relevant change of circumstances was stated to be that the appellant no longer had limited capability for work.  We will further discuss the nature of the decision to supersede below.

(viii)	The appeal dated 17 May 2010

On 17 May 2010 an appeal against the decision dated 14 May 2010 was received in the Department.

(ix)	The decision dated 19 May 2010

The decision of 19 May 2010 was a decision that the respondent had an entitlement to ESA from and including 14 May 2010.  Once again and because the respondent had made an appeal against the decision dated 14 May 2010, the Department implemented its policy of making a ‘pending appeal’ award of entitlement to ESA.  Again, we will further discuss the nature of this decision below.

28.	We turn now to the reasoning of the appeal tribunal in the instant case.  We are of the view that the reasoning is problematic in two respects – the import of the ‘assessment’ phase and the proper application of regulation 3(j) of the Claims and Payments Regs 1987.

29.	In our opinion, the appeal tribunal has misinterpreted the legislative provisions in connection with entitlement to ESA and, in so doing, placed an inappropriate emphasis on the significance of the ‘assessment phase’ in connection with entitlement to ESA.  In his original appeal to the appeal tribunal, Mr Hatton had made the following submission, in connection with the ‘assessment phase’, and which referred to the reasoning of the earlier appeal tribunal decision in ‘ESA 570/10’:

‘… It is useful to consider the purpose of the assessment phase.  It is not a condition of entitlement to ESA that a person is in the assessment phase.  The conditions of entitlement to ESA are set out in Section 1 of the 2007 Act.  In an appeal such as this, the main condition in dispute is whether the person has limited capability for work.  When appealing, the question of limited capability for work is addressed by the provisions of Regulation 30.  The person is treated as having limited capability for work while appealing, providing they continue to supply medical evidence in accordance with Regulation 30(2)(a). Regulation 3(j) requires a decision to be made as to their entitlement when the appeal is lodged, and Regulation 30 treats the person as having limited capability for work while appealing.  As a result of these two provisions, the person appealing meets the conditions of entitlement until at least the appeal is resolved.

… It is only at this stage that the assessment phase needs consideration.  The assessment phase operates so as to dictate the rate of payment as the additional work- related activity component or support component can only be included in a person's claim when the assessment phase has ended.  Regulation 6 operates so as to ensure that when appealing the person is entitled only to the assessment phase rate of ESA.  In our view, it is immaterial if there is one or two assessment phases running and there is no need to look for express provision which would allow for a second claim during the extended assessment phase.  The tribunal's findings attached too much weight to the significance of the assessment phase to the extent that it would render invalid a decision which the legislation requires to be made under Regulation 3(j).  This cannot be correct when the assessment phase operates only to dictate the rate of payment and is not a condition of entitlement.  Again, the fact that Regulation 6 has been removed but the assessment phase continues through the new provisions, along with the retention of Regulation 3(j), lends support to our submissions.’

30.	We agree with Mr Hatton that it is not a condition of entitlement to ESA that a person is in the assessment phase.  As noted by him, the conditions of entitlement to ESA are set out in section 1 of the WRA 2007.  One of the principal conditions of entitlement is that a person has limited capability for work.  It is inevitable, however, that following the making of a claim to ESA, it will take a period of time before a decision-maker can determine whether the claimant has limited capability for work and, accordingly, entitled to ESA.  The decision- maker has to gather evidence which, invariably, includes the completion of a questionnaire by the claimant and the compilation of a report by a healthcare professional following an examination of the claimant.  One possibility might have been for the legislative scheme to defer any payment of ESA pending the determination of limited capability for work and, accordingly, entitlement to ESA and back-date any payment to the date of claim where the decision-maker was satisfied that the condition of limited capability for work was satisfied for the entirety of that period.

31.	Instead, regulation 30(1) of the ESA Regs 2008 permits a claimant to be treated as having limited capability for work until such time as it is determined whether or not he has limited capability for work, as long as he continues to satisfy the condition that he provides evidence of limited capability for work in accordance with the Medical Evidence Regulations, as set out in regulation 30(2)(a) of the ESA Regs 2008.  The period between claim and determination of limited capability for work is the assessment phase.  Regulation 4(1) of the ESA Regs 2008 provides that the assessment phase is expected to last for a period of 13 weeks.  By the end of the period of 13 weeks if it has not been determined whether the respondent had limited capability for work in accordance with the limited capability for work assessment, then under the provisions of regulation 4(2) the assessment phase continues and ends when the limited capability for work determination was made.  During the assessment phase - whether for up to 13 weeks under regulation 4(1) or extended under regulation 4(2) - the claimant will be paid ESA at the relevant assessment phase rate.  That is the real and effective significance of the assessment phase.

32.	As was noted above, the legislative provisions pertaining to entitlement to ESA pending the making of an appeal were amended in 2010 and were the subject of further amendment in 2011.  In the Explanatory Memorandum to the Social Security (Miscellaneous Amendments No. 4) Regulations 2010 some guidance was given, at paragraphs 3.3 and 3.4, as to the background and purpose of ESA and the place and effect of the assessment phase:

‘3.3	Employment and Support Allowance has two phases, with different rates of benefit payable: the assessment phase rate and the high, main phase, rates.  Where an Employment and Support Allowance award is disallowed following a medical assessment and the claimant appeals, where that person continues to provide medical evidence of limited capability for work, Employment and Support Allowance will continue to be paid at the assessment rate, without the need for a further claim, pending the outcome of the appeal (the “pending appeal award”).

3.4	The intention of the pending appeal award is to provide some sort of payment of benefit while an appeal tribunal considers whether or not the decision maker was correct to find that the claimant did not have limited capability for work.  In itself this award is not intended to count as a period of limited capability for work in terms of qualifying for the higher main phase rates of benefit (the work-related activity component or the support component).  It is the determination of limited capability for work which establishes continuing entitlement to benefit and if higher rates are payable after 13 weeks of entitlement.’

33.	The emphasis is on rates of benefit payable.  In our view, the ending of an assessment period in respect of a claimant does not affect further entitlement to ESA provided that the claimant continues to satisfy the conditions of entitlement to ESA.  That latter rider is important because the conditions of entitlement to any social security benefit include the requirement under section 1 of the Administration Act to make a claim to it.

34.	The 2010 amendments were introduced to attempt to rectify certain problematic aspects of the original ESA Regs 2008.  One of these was the inconsistency and tension between the original regulation 6, regulation 3(j) of the Claims and Payments Regs 1987 and sections 2(2)(a), 2(3)(a), 4(4)(a) and 4(5)(a) of the WRA 2007.  Those latter provisions imposed a condition of entitlement to either the support or work-related activity component of ESA that the assessment period had ended.  The problem was the determination of the appropriate date for back-dating the support or work-related activity component where the pending appeal was successful.  Part of the solution was to create a new regulation 147A to the ESA Regs 2008 and the insertion of a new regulation 3(5E)) into the 1999 Regulations.  The latter permitted revision of the pending appeal award where the appeal was successful and payment of the relevant higher rate support or work-related activity component.  The removal of regulation 6 confirms, therefore, that it had no significance in connection with the conditions of entitlement to ESA but, rather, dictated that the rate of payment of ESA during a pending appeal award would continue to be the assessment phase rate.

35.	The decision of the appeal tribunal relied, in part, on an interpretation of the relevant legislative provisions and on a conclusion that there could not be ‘… two assessment phases in respect of the same claimant running at the same time.’  The appeal tribunal agreed that the making of the appeal, on 13 January 2010, against the decision dated 4 January 2010 had the effect of extending the assessment phase which ordinarily would have ended on 22 December 2009.  The appeal tribunal went on to conclude that the Department had no power, on 23 March 2010, to make a further award of entitlement to ESA during the period of an extant single assessment phase and which extended entitlement beyond the termination of that assessment phase.  We are of the view that that reasoning is erroneous.  It is based on a supposition that the extension of the assessment period equates to an extension of entitlement.  The effect of the decision of 4 January 2010 was that the respondent had no entitlement to ESA.  She could not gain any such entitlement simply by the extension of the assessment period through the making of an appeal against the decision dated 4 January 2010.  Entitlement had to be by some other method.

36.	In the record of proceedings for the appeal tribunal hearing, it has been noted that:

‘It was conceded in this case, however, that payments were made from January 4th 2010 as soon as the appeal was made.’

37.	The decision-making process was such that it was only on 23 March 2010 that it was decided that the appellant should have an entitlement to ESA pending the appeal made on 13 January 2010 and that the entitlement should be from 4 January 2010.

38.	A further consequence of the appeal tribunal’s thinking is as follows.  The appeal tribunal reasoned that the appellant remained entitled to ESA at the assessment phase rate because the making of an appeal against the decision dated 4 January 2010 had the effect of extending the assessment phase.  That would last, according to the appeal tribunal, until at least 6 May 2010.  The subsequent decision of the appeal tribunal, on 6 May 2010, was that the appeal against the decision dated 4 January 2010 was to be disallowed and that the appellant would have no entitlement not from 6 May 2010 but from 4 January 2010.  Where would that leave the entitlement based, as the appeal tribunal reasoned, on the extension of the assessment phase to the date of the appeal tribunal hearing on 6 May 2010?  Was the benefit, accordingly, overpaid?

39.	We are of the view that, to the extent that the appeal tribunal’s reasoning was based on an erroneous interpretation of the significance of regulation 6 and an inappropriate emphasis on the assessment period as a condition of entitlement to ESA, its decision is in error of law.

40.	That is not the end of the matter, however.  We have stated that it is axiomatic that entitlement to a social security benefit is dependent on a claimant satisfying the conditions of entitlement to that benefit.  As was noted above, section 1(1) of the Social Security Administration (Northern Ireland) Act 1992, as amended, imposes a condition that ‘… no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied … he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit.’  We have to be certain, therefore, that in connection with the decision giving the respondent entitlement to ESA the ‘claim’ condition has been satisfied.

41.	In this case, the decision which requires close examination is the decision dated 23 March 2010.  As described above, this was a decision that the respondent had an entitlement to ESA from and including 4 January 2010.  On 14 May 2010 a decision-maker of the Department superseded the decision dated 23 March 2010 and decided that the respondent had no entitlement to ESA from and including 14 May 2010.  It was the decision dated 14 May 2010 which was on appeal to the appeal tribunal.  Nonetheless, the appeal tribunal concluded that the decision dated 23 March 2010 was a ‘nullity’ as the Department could not make a decision awarding entitlement to ESA during the period of an extant assessment phase and which extended entitlement beyond the termination of that phase.

42.	In the appeal which was received in OSSC on 12 October 2011, Mr Toner submitted that ‘…as the conditions of regulation 30(1), (2)(a) and (3) of the Employment and Support Allowance Regulations were satisfied that the decision maker, on 23 March 2010, under the provisions of regulation 3(j) of the Claims and Payments Regulations, had the power to make an award of employment and support allowance from 4 January 2010.’  That submission requires a closer examination of the provisions of regulation 3(j) of the Claims and Payments Regs 1987.

43.	The requirement in section 1(1) of the Social Security Administration (Northern Ireland) Act 1992, as amended, that entitlement to a social security benefit is predicated on the requirement for the claimant to make a claim to it, in a prescribed time and manner is subject to the exception for ‘such cases as may be prescribed’.  As was noted above, regulation 3(j) of the Claims and Payments Regs 1987, and as it applied at the relevant date, provided that:

‘Claims not required for entitlement to benefit in certain cases

3. It shall not be a condition of entitlement to benefit that a claim be made for it in the following cases—

…

(j) in the case of an employment and support allowance where the beneficiary has made and is pursuing an appeal against the decision of the Department that he does not have limited capability for work..’

44.	This version of regulation 3(j) was inserted into the Claims and Payments Regs 1987 by regulation 13(3)(b) of the Employment and Support Allowance (Consequential Provisions) Regulations (Northern Ireland) 2008.

45.	We have noted above that on the introduction of ESA it was the policy intention of the Department to permit entitlement to ESA to continue pending the making and pursuing by an appellant of an appeal against a decision that he does not have limited capability for work.  That policy intention is set out in some detail in paragraph 3.4 of the Explanatory Memorandum to the Social Security (Miscellaneous Amendments No. 4) Regulations 2010, noted above.  The determination that the claimant does not have limited capability for work will, inevitably, have resulted in the ending of an existing entitlement to ESA.  Accordingly, for there to be a further award of ESA pending the appeal, the conditions of entitlement to ESA would have to be satisfied.  The usual conditions of entitlement to any social security benefit include the making of a claim to that benefit.  The legislative mechanism adopted by the Department was to obviate the requirement to make a claim by prescribing that a claim should not be required in these circumstances.

46.	The important point to note, however, is that an existing entitlement to ESA will have ended and, accordingly, a new decision making a new award of entitlement would have to be made.  In the instant case, the effect of the decision of 4 January 2010 was that the respondent had no entitlement to ESA from and including that date.  To gain an entitlement to ESA pending the appeal against the decision dated 4 January 2010 a decision would have to be made that she had an entitlement to ESA.  That decision was made on 23 March 2010.  It gave a new entitlement to ESA from and including 4 January 2010.

47.	The appeal tribunal, as is evidenced by the record of proceedings, was concerned to know how a decision-maker of the Department could be clear that, in considering whether to make a ‘pending appeal’ decision, all of the other conditions of entitlement to ESA are satisfied.  More particularly, the appeal tribunal referred to the requirement, imposed by regulation 30 of the ESA Regs 2008, to continue to provide evidence of limited capability for work (medical certificates) and to residence, presence and age requirements.  We agree that a decision-maker should be satisfied that the conditions of entitlement to a social security benefit are met.  It seems to us, however, that, in the circumstances of a case such as this, it would be relatively easy for the decision-maker to check whether the other conditions of entitlement to ESA are satisfied.  There would, for example, be an existing claim to ESA where details such as age, residence and presence could be checked.  Further, there may be an extant medical certificate covering part of the ‘pending appeal’ period.  If so, then the advice to decision-makers, as set out in the Decision Makers’ Guide is to make the award from the ‘… last date of the award which is the subject of the appeal’ or, if not, from the date ‘… the medical evidence begins if later.’

48.	It is clear to us that the enabling power in section 1(1) of the Social Security Administration (Northern Ireland) Act 1992, as amended, is sufficiently broad to allow for the making of regulations which remove the requirement for the making of a claim.  Regulation 3 of the Claims and Payments Regulations 1987 has become, in our view, a repository for exclusions from the requirement to make a claim as a condition of entitlement to a social security benefit.  It is arguable that each prescribed case in regulation 3 is discrete and that it is not possible to draw common themes of construction from the regulation as a whole.  It seems to us that regulation 3(j) permits entitlement to ESA, without the requirement for a claim, providing the circumstances set out continue to exist and providing that such other conditions of entitlement to ESA as are applicable in the circumstances of that case, are satisfied.  Applying that interpretation to the facts of the instant case, the decision-maker, on 23 March 2010 was satisfied that the relevant conditions of entitlement to ESA were satisfied in that the appellant had, at that stage, made and was pursuing an appeal against a decision of the Department that she did not have limited capability for work.

49.	As was noted above, on 14 May 2010 a decision-maker of the Department superseded the decision dated 23 March 2010 and decided that the respondent had no entitlement to ESA from and including 14 May 2010.  There is no copy of the decision dated 14 May 2010 in the file of papers which is before us.  In the case summary prepared for the oral hearing of the appeal Mr Toner submitted that the supersession decision had been made on the ground that there had been a relevant change of circumstances since the decision dated 23 March 2010 had been made.  The relevant change of circumstances was stated to be that the appellant no longer had limited capability for work.

50.	We had asked for submissions on the approach taken to the issue of supersession by Judge Jupp in the case of TW v Secretary of State for Work and Pensions [2012] UKUT 154.  We subsequently became aware of the decision of Judge Turnbull in CG v Secretary of State for Work and Pensions [2011] UKUT 384.  Judge Jupp accepted that, in order to terminate a Departmental award of ESA based on treating a person as having limited capability for work pending an appeal, the Department would have to supersede on the basis that the claimant no longer had limited capability for work under regulation 30(1)(a) of the ESA Regulations (paragraph 16).  By contrast, Judge Turnbull held that the Department was entitled to supersede on the basis that the claimant no longer satisfied the conditions for being treated as not having limited capability for work (paragraph 9).  While we have not heard argument on this point, we prefer the approach of Judge Turnbull on this issue.

51.	Neither judge referred to the decision of Judge Howell QC in R(IB)8/04; however, we consider that the circumstances of that case are to be distinguished from the situation where an award has been made without a claim under regulation 3(j) of the Claims and Payments Regulations 1987.

52.	We do not accept Mr Toner’s submission that the Department’s decision of 14 May 2010 should have been made on the ground that the appellant no longer had limited capability for work.  Rather, it would have been more properly made on the ground that the appellant no longer satisfied the conditions for being treated as having limited capability for work.  This analysis addresses what Mr Hatton described as the ‘anomalous situation’ of the potential for a series of continuous appeals.  Any further appeal, brought against the supersession decision, would not be an appeal from a decision that embodies a determination that the claimant does not have limited capability for work.  Rather, as we indicate, it would be an appeal from a decision that the claimant can no longer be treated as having limited capability for work.  Therefore, regulation 3(j) of the Claims and Payments Regulations 1987 would not have application.  In our view, this has the implication for the present case that the Department’s purported decision of 19 May 2010 had no lawful basis.

	Other issue arising

53.	We deal with one other issue arising, as follows.

54.	In his original submission to the appeal tribunal, and in response to the direction to comment on the decision in ‘ESA 570/10’, Mr Hatton submitted, at paragraph 21:

‘Finally, we would agree with the Department that Regulation 6 is not made under Sections 8 and 9 of the 2007 Act as found by the tribunal ‘(in ESA 570/10)’.  Section 24(2)(b) of the 2007 Act states that the assessment phase will end on such day as may be prescribed.  This would be the more likely source of Regulation 6.  However, 24(2)(b) is sufficiently widely worded that it is likely the same conclusions reached by the tribunal as to regulation 6 not being ultra vires would still apply.’

55.	We agree with this submission by Mr Hatton.

	Disposal

56.	The decision of the appeal tribunal dated 20 May 2011 is in error of law.  Pursuant to the powers conferred on us by Article 15(8) of the Social Security (Northern Ireland) Order 1998, we set aside the decision appealed against.

57.	We 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 14 May 2010 in which a decision-maker of the Department superseded the decision dated 23 March 2010 and decided that the respondent had no entitlement to ESA from and including 14 May 2010;

(ii)	the Department is directed to produce a copy of this decision, identifying grounds of supersession;

(iii)	alternatively, the Department is directed to review and remake the decision in accordance with the guidance we have given; any appeal rights should be unaffected by this as the resulting decision is unlikely to be more advantageous to the appellant than the decision before it was revised;

(iv)	the Department is directed to prepare a further submission which sets out the decision-making history relevant to this appeal, which provides 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);

(v)	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

(vi)	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.

(signed)  K Mullan

Chief Commissioner

O Stockman

Commissioner

C Ward

Deputy Commissioner (NI)

18 February 2014

Schedule 1 – the statement of reasons in ESA570/10

‘There are a number of issues arising from the analysis of the decision making by the Department.

Assessment phase

The arguments suggest that there were two assessment phases in relation to Employment and Support Allowance in respect of the same person running at the same time, although only one payment was made at any time.  Regulation 4 of the Employment and Support Allowance Regulations 2008 provides that the assessment phase shall end, subject to regulations 5 and 6, when the limited capability for work determination is made.  In this case, there was a determination on May 6th 2009 followed by a disallowance decision on the 27th of May.  However, regulation 6 provides that where the claimant has made, and is pursuing, an appeal, the assessment phase ends when the appeal is determined by an appeal tribunal.  That is what occurred in this case and for this reason, the assessment phase commencing on December 8th 2008, was extended by regulation 6 to September 21st 2009.

Regulations concerning entitlement to Employment and Support Allowance are made under sections 8, 9 of the Welfare Reform Act 2007 and the Employment and Support Allowance Regulations 2008.  The regulation making power is very wide, but there is no provision for a second claim during the continuance of an existing assessment phase.  Thus, the decision made pursuant to regulation 3(j) of the Claims and Payments Regulations is unsustainable if there is a valid continuance of the assessment phase under regulation 6.  We have concluded that there was a current assessment phase in respect of the award made on December 8th 2008.  The second award, starting another assessment phase, is therefore void.  We note that the further award was supported by a medical certificate issued by the claimants [sic] General Practitioner on the 20th of May 2009.  There is a discrepancy in the name and address in the certificates provided – rather than   and   and   . The national insurance number on both certificates is the same, as is the date of birth.  It is therefore assumed that it is the same person.  However, no issue turns on this point in view of our conclusions above.

Validity of Regulation 6

Is regulation 6 validly made?  The relevant power is contained in Section 8 (5) and (6) of the Welfare Reform Act.  In our view, the terms of 8(5) are sufficiently wide to permit the making of regulation 6 of the Employment and Support Allowance Regulations.  The claimant can be treated as having limited capability for work until such times as the appeal is determined.  We are satisfied that 'determined' in this instance is a determination by an Appeal Tribunal following an adverse decision by a decision maker.  Regulation 30 (1) and (3) provides that a claimant shall be treated as having limited capability for work if a previous decision of a decision maker embodies a determination by a decision maker that the claimant does not have limited capability for work, and the claimant has made, and is pursuing, an appeal.

Decision under appeal

Taking into account the arguments above, we have concluded that there was a valid continuation of entitlement of the claimant to Employment and Support Allowance after the claimant appealed the disallowance of May 27th 2009 as the assessment period was extended by regulation 6.  The payments made to the appellant were made in respect of that entitlement until the appeal was decided on September 21st 2009.  The appeal was dismissed by the tribunal which upheld the decision of the decision maker that the appellant was not incapable of work.  Entitlement to benefit therefore ceased.  Any payments of Employment and Support Allowance made to the claimant after that date were unlawful as they were made on foot of a decision of June 5th 2009 which the decision maker had no power to make.  Since the decision maker had no power to make the decision of June 5th 2009, there was no right of appeal against the decision of October 8th 2009.’