MMcK-v-Department for Social Development (ESA) [2015] NICom 23

 				Decision No: C6/15-16(ESA)

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

	Application by the claimant for leave to appeal
	and appeal to a Social Security Commissioner
	on a question of law from a Tribunal’s decision
	dated 11 March 2010

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  

2.	The decision of the appeal tribunal dated 11 March 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. 

3.	For further reasons set out below, I am unable to exercise the power conferred on me 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 detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access. An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal. Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination. 

4.	As will be noted in greater detail below, this appeal has a long and complicated background. The decision on the appeal was stayed pending developments in other cases before the Social Security Commissioners. For various reasons the appellant has not engaged in the present proceedings. I have been unable to give the decision which the appeal tribunal ought to have given as the appellant must be afforded the opportunity to give evidence on the issues which arise in the appeal. As she has not participated in the proceedings before me, and did not attend the oral hearing of the application for leave to appeal, I was not in a position to adduce that evidence myself.  It is not clear whether she will participate in the proceedings when the appeal is re-listed for determination before the differently constituted appeal tribunal to which it is being remitted. The appellant is urged to attend the further oral hearing of her appeal and to seek representation from one of the usual sources of advice.

5.	The remittal of the appeal will also cause difficulties for the Department who will have to prepare a new submission setting the historical decision-making process giving rise to the decision under appeal into the context of any further decision-making in connection with entitlement to employment and support allowance (ESA) which has taken place since. The re-hearing of the appeal will also be problematic for the differently constituted appeal tribunal who will be seeking to adduce evidence concerning the appellant’s circumstances pertaining some time ago.       

Background

6.	This appeal has a long and complicated background.

7.	The initial decision-making process was set out by Mrs O’Connor from DMS, in her initial written observations on the application for leave to appeal to the Social Security Commissioner, as follows:

‘(The claimant) became unfit for work on 11 December 2008 by reason of post operation and was awarded employment and support allowance.

In connection with the work capability assessment, (the claimant) completed a questionnaire on 20 February 2009 on which she stated she had difficulties in the activities of walking and using steps, standing and sitting, bending and kneeling, reaching, picking up and moving things on the same level, manual dexterity, controlling bowel and bladder, execution of tasks, initiating and sustaining personal tasks, coping with change, going out and coping with social situations.  

On 1 April 2009 a health care professional examined (the claimant) on behalf of the Department. The doctor diagnosed her medical conditions as blood pressure, toe operation, depression, and bowel operation and expressed the opinion that the claimant could not bend, kneel or squat as if to pick up a light object of the floor and straighten up again without the help of another person.

On 11 May 2009 the decision-maker considered whether (the claimant) had limited capability for work and awarded her 6 points for the activity of bending or kneeling and determined that she did not have limited capability for work from that date while on 28 May 2009 the decision-maker superseded the award of benefit and decided that (the claimant) was not entitled to benefit from that date. (The claimant’s) appeal against that decision was received on 10 June 2009 and on 5 July 2009 a further award of employment and support allowance was made pending the outcome of the appeal.

On 11 September 2009 the tribunal upheld the decision that (the claimant) was not entitled to employment and support allowance from and including 28 May 2009.

On 30 September the decision maker decided that (the claimant) did not have limited capability for work from 11 September 2009 while on 1 October 2009 the decision maker superseded the decision dated 5 July 2009 (the award made pending the outcome of the appeal) and decided that (the claimant) was not entitled to benefit from and including 11 September 2009 (later revised to not entitled from and including 1 October 2009).  The decision maker’s decision was upheld on appeal by the tribunal on 11 March 2010.’ 

8.	The substantive oral hearing of the appeal took place on 11 March 2010. The record of proceedings for the appeal tribunal hearing notes that the appellant had written to the Appeals Service (TAS) indicating that she was unable to attend the oral hearing and requesting that the appeal tribunal proceed in her absence. In the file of papers which is before me is a copy of a Form REG2(i)d completed and signed by the appellant on 5 February 2010 and date-stamped as received in TAS on 8 February 2010 which confirms that the appellant was content for the appeal to proceed in her absence. There is also a copy of a further form completed and signed by the appellant on 19 February 2010 and date-stamped as received in TAS on 22 February 2010. On this form the appellant has ticked a box indicating that she is unable to attend the appeal tribunal and consenting to the appeal tribunal proceeding in her absence. She also ticked a box indicating that she had enclosed a letter which she wished the appeal tribunal to consider. In the record of proceedings for the appeal tribunal hearing it is noted that the appeal tribunal had before it a copy of correspondence from the appellant’s General Practitioner (GP) dated 4 February 2010. A copy of that correspondence is in the file of papers which is before me. 

9.	On 4 August 2010 correspondence from the applicant, which itself was undated, was received in TAS. In that correspondence the appellant indicates that she wishes ‘… to appeal again.’ I am assuming that that correspondence was put to the legally qualified panel member (LQPM) of the appeal tribunal as an application for leave to appeal to the Social Security Commissioner. On 21 August 2010 the LQPM refused leave to appeal.       

Proceedings before the Social Security Commissioner

10.	On 13 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC). On 17 November 2010 the Department was requested to provide written observations on the application for leave to appeal and these were received on 9 December 2010. In these initial written observations, Mrs O’Connor, for DMS, opposed the application on the grounds submitted by the appellant. Written observations were shared with the appellant on 18 January 2011. 

11.	On 11 May 2011 the Legal Officer wrote to Mrs O’Connor in the following terms:

‘1.	Did the tribunal make it clear what was the basis of the supersession decision?

2.	Did the tribunal explain adequately why the award was removed?’

12.	On 19 May 2011 a reply to the correspondence dated 11 May 2011 was received from Mr Toner of DMS. Mr Toner began by clarifying the initial claim and decision-making process, as follows:

‘(The claimant) claimed employment and support allowance from 11 December 2008 and, on 20 May 2009, was awarded the benefit from and including 14 December 2008.

On 11 May 2009 the decision maker determined that (the claimant) scored 6 points for the work capability assessment and could not be treated as having limited capability for work from and including 11 May 2009. 

On 28 May 2009, under the provisions of regulation 6(2)(q) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, the decision maker superseded the award of employment and support allowance dated 20 May 2009 and decided that (the claimant) was not entitled to benefit.  

(The claimant’s) appeal against the decision maker’s decision dated 28 May 2009 was received on 10 June 2009.

By applying regulation 3(j) of the Claims and Payments Regulations  (NI) 1987 and regulation 30(1), 2(a) and (3) of the Employment and Support Allowance Regulations (NI) 2008 the decision maker, on 5 July 2009, awarded employment and support allowance from and including 28 May 2009 pending pursuit of the appeal received on 10 June 2009.

On 11 September 2009 the appeal tribunal disallowed the appeal.

On 30 September 2009 the decision maker determined that (the claimant) scored 6 points for the work capability assessment and could not be treated as having limited capability for work from and including 11 September 2009 (later revised to 1 October 2009). 
On 30 September 2009 the decision maker superseded the award of employment and support allowance dated 5 July 2009 and decided that (the claimant) did not have limited capability for work and was not entitled to benefit from and including 11 September 2009 (later revised to 1 October 2009). – This is the decision under appeal to the appeal tribunal in this case. 

(The claimant’s) appeal against the decision maker’s decision dated 30 September 2009 was received on 10 November 2009.

By applying regulation 3(j) of the Claims and Payments Regulations  (NI) 1987 and regulation 30(1), 2(a) and (3) of the Employment and Support Allowance Regulations (NI) 2008 the decision maker, on 16 November 2009, awarded employment and support allowance from and including 11 September 2009 pending pursuit of the appeal received on 7 October 2009.

On 11 March 2010 the appeal tribunal decided that the claimant did not have limited capability for work from 1 October 2009, upheld the decision of the department dated 22 January 2010 (which revised the determination and supersession decision dated 30 September 2009 to run from 1 October 2009 rather than 11 September 2009) and disallowed the appeal.’

13.	In relation to the two specific questions which had been posed by the Legal Officer, Mr Toner made reference to my decision in C12/08-09(DLA) and, more particularly paragraph 52 of that decision, where I stated:

‘The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so.  It is not sufficient for it to be, ….., implicit from the appeal tribunal’s documentation that the supersession was addressed. That consideration must be explicit from the decision notice, the statement of reasons or a combination of both…….’

14.	Reference was also made to the decision of a Tribunal of Social Security Commissioners in Great Britain in R(IB) 2/04 and, more particularly, paragraph 73 of that decision, where the Tribunal stated:

‘….. the appeal  tribunal  has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct.  This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.’        

15.	Mr Toner also referred to my own decision in C3/09-10 (IB) and, more particularly, paragraph 41, where I stated:

‘…..  It is arguable that in IB cases, the regulation 6(2)(g) ground is intrinsic to the benefit decision itself and that, subject to the necessary and sufficient fact- finding, a confirmation of the benefit decision by the appeal tribunal will be sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision.  All will depend on the circumstances of each individual case, however.’
 
16.	Mr Toner went on to submit:

‘Regulation 6(2)(q) is similar to regulation 6(2)(g) in that it provides grounds for supersession on receipt of medical evidence from a health care professional and provides for supersession where the decision – 

“is an employment and support allowance decision where, since the decision was made, the Department has received medical evidence from a health care professional approved by the Department for the purposes of regulation 23 or 38 of the Employment and Support Allowance Regulations;”

In this case the medical evidence from the health care professional was dated 1 April 2009 and received before 5 July 2009, the date of the decision to be superseded.  I submit that it was therefore not open to the decision maker to supersede the decision dated 5 July 2009 under the provisions of regulation 6(2)(q) and that if supersession was required in this case it would have only have been appropriate under regulation 6(2)(a)(i) due to a relevant change of circumstances, namely it had been determined on 30 September 2009 that (the claimant) did not have limited capability for work.

In paragraph 15 of the Department’s submission reference is made to the decision dated 5 July 2009 being superseded on receipt of medical evidence following an examination by a health care professional (under regulation 6(2)(q) and in paragraph 20 it was submitted that the award of employment and support allowance was correctly superseded.  In paragraph 21(ii) the tribunal was invited to decide “whether the Department, following receipt of medical evidence from a health care professional approved by the Department, had grounds to supersede the decision awarding Employment and Support Allowance from and including 1 October 2009.”  

The record of proceedings shows that the appeal tribunal considered the Department’s submission while the decision notice confirms the decision from 1 October 2009.  In the reasons for decision, the tribunal found “….. that the Department had grounds for supersession based on the facts of this case …..” and in the decision notice upheld the Department’s (decision maker’s) decision dated 22 January 2010 (the decision which revised the determination and supersession decision dated 30 September 2009 to run from 1 October 2009 rather than 11 September 2009).

In paragraph 52 of unreported decision C12/08-09(DLA) the Commissioner held that it was the appeal tribunal’s duty not only to consider the supersession issue, including grounds, entitlement and effective date but also to make clear that it has done so.’

17.	In response to the question as to whether the appeal tribunal had made clear the basis of the supersession decision, Mr Toner submitted:

‘In this case the tribunal appear to have relied on regulation 6(2)(q), namely the report from the health care professional as grounds to supersede the award of employment and support allowance rather than supersede the award under regulation 6(2)(a)(i) because of a relevant change of circumstances, namely the determination that (the claimant) did not have limited capability for work.

The tribunal have also applied an incorrect effective date because under the provisions of paragraphs 2 and 3(a) of Schedule 2C the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 the effective date is 30 September 2009, the date the relevant change occurred.’

18.	Mr Toner’s further submission was shared with the appellant on 2 June 2011.

19.	On 31 August 2011 the Legal Officer requested Mrs O’Connor to clarify whether the error which she had identified in her further observations of 19 May 2011 was one which ought to be rectified by the Social Security Commissioner. In reply, dated 9 September 2011, Mrs O’Connor submitted:

‘On consideration of all the evidence in this case and for the reasons previously stated, while I do not support the application on the grounds raised by (the claimant), it is my submission that the tribunal decision of 11 March 2010 is erroneous in law as it upheld a decision which was erroneous in law on two points,

1.	the decision awarding employment and support allowance was superseded on incorrect grounds, and 

2.	the effective date of the supersession decision was incorrect.

If the Commissioner accepts my submission and grants leave to appeal I would respectfully ask the Commissioner to exercise the power conferred by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given i.e. that there had been a relevant change since the decision awarding employment and support allowance was made and therefore the Department had grounds to supersede the decision under the provisions of regulation 6(2)(a)(i) of the Decisions and Appeals Regulations.  [The change was that on 30 September 2009 it had been determined that (the claimant) did not have limited capability for work and the reasons for the decision indicate that the tribunal preferred the clinical findings and observations of the Healthcare Professional who examined (the claimant) on 1 April 2009 and the Department’s findings based thereon i.e. that she did not have limited capability for work].  As a consequence, under the provisions of paragraphs 2 and 3(a) of Schedule 2C to the Decisions and Appeals Regulations, the effective date of the supersession decision is 30 September 2009 (the date the relevant change occurred).’

20.	This further submission was shared with the applicant on 29 December 2011.

21.	On 3 January 2012 I directed an oral hearing of the application. The application was listed for oral hearing on 15 February 2012. On 30 January 2012 correspondence was received from the appellant in which she indicated that due to health problems she would not be able to attend the scheduled oral hearing. Nonetheless, I directed that the oral hearing should continue. At the oral hearing, the Department was represented by Mr Toner of DMS. I am grateful to Mr Toner for his detailed and constructive observations, comments and suggestions.

22.	Following the oral hearing of the application, I determined that it was appropriate to stay further consideration of this application pending the decision of a Tribunal of Commissioners in two decisions. The decisions of the Tribunal of Commissioners in MMcK v Department for Social Development (ESA) ([2014] NICom 6 (‘MMcK’), C14/11-12 (ESA(T) and TMcC v Department for Social Development (ESA) ([2014] NICom 7, were promulgated in February 2014. On 20 February 2014, copies of the two decisions of the Tribunal of Commissioners were forwarded to Mrs O’Connor who was requested to provide comments on their relevance to the issues arising in the present appeal. On 5 March 2014 a further submission was received from Mr Toner. I will refer to Mr Toner’s additional submissions below. 

23.	On 3 April 2014 the Legal Officer wrote to the appellant enclosing copies of the two decisions of the Tribunal of Commissioners. The Legal Officer indicated that the appellant was being provided with an opportunity to provide comments on the relevance of the decisions to the issues arising in the appeal. In addition, the appellant was advised that given the complexity of the issues arising in the appeal she should consider seeking advice from an appropriate advice agency. On 9 April 2014 a further response was received from the appellant. From the detail of that response it was clear that the appellant had thought that the decisions of the Tribunal of Commissioners had been sent to her in error and was concerned that details of the cases of others had been placed in the public domain. On 30 April 2014 the Legal Officer wrote to the appellant to clarify the context of the two decisions of the Tribunal of Commissioners and to provide another copy of Mr Toner’s submissions in connection with those decisions. The Legal Officer also reminded the appellant that she had a further opportunity to provide final submissions arising in the appeal and that she should, if thought appropriate, contact him to discuss matters further. There has been no further contact from the appellant. 

24.	There then followed a delay in the promulgation of this decision. That delay was for reasons which were largely unavoidable but apologies are, nonetheless, extended to the parties.  

Errors of law

25.	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.

26.	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.” 

How was the decision-making process described in the original appeal submission?

27.	Paragraphs 11 to 16 of Section 4 of the original appeal submission were in the following terms:

‘11.	On 30/09/2009 the Department considered whether sufficient appropriate evidence was held to make a further determination on whether (the claimant) had Limited Capability for Work and determined that (the claimant) no longer had Limited Capability for Work [Tab no. 9 and 10] (A typing error was detected on Tab no. 10 as indicated and corrected on the document)

12.	The decision dated 05/07/2009 awarding Employment and Support Allowance from and including 28/05/2009 was superseded on 01/10/2009. (The claimant) does not have Limited Capability for Work and therefore is not entitled to Employment and Support Allowance from and including 30/09/2009. [Tab no. 11]

13.	The Department issued a letter to (the claimant) on 01/10/2009 advising her that this claim for Employment and Support Allowance had been disallowed. [Tab no. 12] (A typing error was detected on Tab no. 12 as indicated and corrected on this document)

14. 	(The claimant’s) appeal was received in the Department on 07/10/2009. [Tab no. 13]

15.	The decision dated 01/10/2009 was looked at again and on 22/01/2010 it was decided that the decision contained an official error in that Employment and Support Allowance should have been disallowed from the date on which the decision was made. The Decision dated 01/10/2009 disallowing Employment and Support allowance from and including 30/09/2009 should have disallowed (the claimant) from and including 01/10/2009 [Tab no. 14]

16.	Notification of the revised decision was issued to (the claimant) on 22/01/2010/ [Tab no. 15]’

28.	I would pause there to note that the decision dated 5 July 2009 referred to in paragraph 12 of the quoted section was described by Mr Toner, in his correspondence of 19 May 2011, as follows:

‘By applying regulation 3(j) of the Claims and Payments Regulations (NI) 1987 and regulation 30(1), 2(a) and (3) of the Employment and Support Allowance Regulations (NI) 2008 the decision maker, on 5 July 2009, awarded employment and support allowance from and including 28 May 2009 pending pursuit of the appeal received on 10 June 2009.’  

29.	In more popular decision-making language the decision dated 5 July 2009 could be termed a ‘pending appeal’ award. The nature and validity of such awards were considered in some detail by the Tribunal of Commissioners at paragraphs 40 to 48 of the decision in MMcK.   

What did the appeal tribunal decide?

30.	The appeal tribunal issued a decision notice in the following terms:

		‘Appeal disallowed.

The Appellant does not have limited capability for work from and including 1.10.09. The Tribunal upheld the Department’s Decision dated 22.1.10.’

31.	In the statement of reasons for its decision, the appeal tribunal set out the following decision-making background to the appeal:

‘The Appellant who was born on 11.3.1955, claimed Employment and Support Allowance (“ESA”) from 11.12.2008. By decision dated 30.9.2009 the Department determined that the Appellant no longer has limited capability for work and by supersession decision dated 1.10.2009 decided that she was no longer entitled to ESA from 28.5.2009. This date of disallowance was later corrected to from and including 1.10.2009. The Appellant appeals against the supersession decision of 1.10.2009.’

32.	In the final sentence of the statement of reasons for its decision, the appeal tribunal states:

‘Accordingly the Tribunal finds that the Department had ground for supersession based on the facts of this case and dismisses this appeal.’

Analysis

33.	In C3/09-10(IB), I said the following, at paragraphs 37 to 41 of my decision:

          ‘37.	As was noted above, where the decision under appeal is a supersession decision, it is important that the appeal tribunal considers whether the decision-maker had grounds to supersede, and to determine the effective date from which any supersession decision should take effect. It is important to note that the grounds on which a decision may be superseded, under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are varied. Each ground will have its own requirements, legal and evidential. Further, while most regulation 6 grounds have a general relevance to all social security benefit decision-making, some grounds will have a more specific relevance to decision-making in respect of particular social security benefits.

38.	For example, the principal ground for supersession in IB cases is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. Regulation 6(2)(g) reads as follows:

‘(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) 	and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a doctor referred to in paragraph (1) of that regulation;’

39.	Regulation 6(2)(g) was introduced through amendments introduced in 1999 through the Social Security and Child Support (Decisions and Appeals) (Amendment No. 2) Regulations (Northern Ireland) 1999, as amended. The purpose of the amendment was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession. Previously, case-law had held that the obtaining of a new medical opinion did not itself amount to a change of circumstances justifying a supersession on that ground – R(IS) 2/97 and R(DLA) 6/01.

40.	While regulation 6(2)(g) has been, since its introduction, the principal basis on which decisions relating to IB have been superseded, it is important to note that this does not mean that there cannot be a supersession on any other ground contained in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. It is possible to supersede, for example, on the basis that there had been a relevant change of circumstances, under Regulation 6(2)(a)(i). To do so, however, would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.   

           41.	Accordingly, depending on the ground relied on by the decision-maker, and the desired effect in respect of social security entitlement, the analysis of the supersession issue, including grounds, entitlement and effective date which may be required may vary. It is arguable that in IB cases, the regulation 6(2)(g) ground is intrinsic to the benefit decision itself and that, subject to the necessary and sufficient fact-finding, a confirmation of the benefit decision by the appeal tribunal will be sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision. All will depend on the circumstances of each individual case, however.’

34.	Those comments were made, of course, in the context of the decision-making process in connection with entitlement to IB. I made similar comments about the parallel decision-making process relevant to entitlement to ESA in my decision in MJW-v-Department for Social Development ((ESA) [2011] NICom 174, C4/10-11(ESA)). At paragraphs 12 to 15 I stated:

12.	Paragraph 15 of section 5 of the submission prepared for the appeal tribunal hearing reads as follows:

‘The law says that the Department may supersede a decision awarding Employment and Support Allowance on receipt of medical evidence following an examination by a healthcare professional of the Department. In this case a report was received following an examination on 05/01/2010 and the Department, on consideration of all evidence, determined that (the claimant) does not have Limited Capability for Work in accordance with the Work Capability Assessment.² As such the decision dated 22/07/2009 awarding Employment and Support Allowance was superseded on 22/01/2010 disallowing Employment and Support Allowance from and including 22/01/2010.’

13.	There is a footnote to paragraph 15 which reads as follows:

‘Article 11(1), (5) of the Social Security (Northern Ireland) Order 1998, The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, regulation 6(1), 6(2)(a)(i) and 6(2)(q).’

14.	Article 11 of the Social Security (Northern Ireland) Order 1998, as amended, makes general provision for the supersession of decisions. Regulation 6(2)(q) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, allows for supersession where the decision:

‘… is an employment and support allowance decision where, since the decision was made, the Department has received medical evidence from a health care professional approved by the Department for the purposes of regulation 23 or 38 of the Employment and Support Allowance Regulations’

15.	Regulation 6(2)(q) is worded similarly to regulation 6(2)(g) of the same Regulations which allows for supersession where the decision:

‘… is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a health care professional referred to in paragraph (1) of that regulation’

35.	After setting out my reasoning in C3/9-10(IB), as noted above, I added, at paragraph 17:

‘17.	That reasoning was in the context of regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, but I am of the view that it applied equally to the duties of an appeal tribunal with respect to regulation 6(2)(q) in the context of an appeal involving ESA …’

36.	In the instant case, it is clear that the appeal submission which was provided in connection with the original appeal tribunal hearing ‘sets up’ the decision under appeal in a particular manner. Paragraph 18 of the appeal submission is in the following terms:

‘The law says that the Department may supersede a decision awarding Employment and Support Allowance on receipt of medical evidence following an examination by a healthcare professional of the Department. In this case a report was received following an examination on 01/04/2009 and the Department, on consideration of all evidence, determined that (the claimant) does not have Limited Capability for Work in accordance with the Work Capability Assessment …’

37.	At this stage in the paragraph there was a footnote reference. The footnote read:

‘Article 11(1)(5) of the Social Security (Northern Ireland) Order 1998, the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, regulation 6(1), 6(2)(a)(i) and 6(2)(q)’

38.	Paragraph 18 continued:

‘… As such the decision dated 05/07/2009 awarding Employment and Support Allowance was superseded on 01/10/2009 disallowing Employment and Support allowance from and including 30/09/2009. This decision was subsequently revised on 22/01/2010 due to an official error, in that the original disallowance was effective from and including 30/09/2009.  The Revised decision is that Employment and Support Allowance is disallowed from and including 01/10/2009.’ [Tab nos. 11 & 14]’

39.	At paragraph 21 the following questions are listed for the appeal tribunal to decide:

‘(i)	whether (the claimant) does not have Limited Capability for Work in accordance with the Work Capability Assessment, and 

(ii)	whether the Department, following receipt of medical evidence from a healthcare professional approved by the Department, had grounds to supersede the decision awarding Employment and Support Allowance; or 

(iii)	whether (the claimant) has Limited Capability for Work in accordance with the Work Capability Assessment and is entitled to Employment and Support Allowance from and including 01/10/2009.’

40.	The key question is that at (ii). The narrative suggests that the decision under consideration is a regulation 6(2)(q) decision. The very general statement in the statement of reasons for the appeal tribunal’s decision that ‘…the Department had grounds for supersession based on the facts of this case and dismiss this appeal’ is equivocal on the legal basis for the supersession decision but I am satisfied that the appeal tribunal had it in mind that it was confirming a regulation 6(2)(q) decision. 

41.	As was noted above, in a submission which I accept in its entirety, Mr Toner asserted that:

‘In this case the medical evidence from the health care professional was dated 1 April 2009 and received before 5 July 2009, the date of the decision to be superseded.  I submit that it was therefore not open to the decision maker to supersede the decision dated 5 July 2009 under the provisions of regulation 6(2)(q) and that if supersession was required in this case it would have only have been appropriate under regulation 6(2)(a)(i) due to a relevant change of circumstances, namely it had been determined on 30 September 2009 that (the claimant) did not have limited capability for work.’

42.	The difference between a supersession under regulation 6(2)(q) and one under regulation 6(2)(a)(i) is significant. Supersession under regulation 6(2)(a)(i) require findings of a change of circumstances. It is clear that in this case no such findings were made by the appeal tribunal. The appeal tribunal’s failure to identify the correct ground for supersession and to make findings in connection with that ground renders its decision as being in error of law. I accept, however, that the appeal tribunal may have been misled by the contents of the appeal submission and the manner in which the supersession issue was addressed therein. 
 
43.	As was also noted by Mr Toner, there was a further error in the date identified by the appeal tribunal as the effective date of supersession. 

44.	I am unable to exercise the power conferred on me by Article 15(8)a of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. For various reasons the appellant has not engaged in the present proceedings. The appellant must be afforded the opportunity to give evidence on the issues which arise in the appeal, more particularly, whether there has been a relevant change in her circumstances sufficient to permit a supersession of the decision awarding her entitlement to ESA. As she has not participated in the proceedings before me, and did not attend the oral hearing of the application for leave to appeal, I was not in a position to adduce that evidence myself. It is clear, however, that the appellant is asserting that there has been no such change in her circumstances. In her original letter of appeal, a copy of which was attached to the appeal submission as Tab No 13, the appellant asserts that there has been no change in her medical conditions and that the effects of those medical conditions remain the same. 

Disposal

45.	The decision of the appeal tribunal dated 11 March 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.   

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

(i)	the Department is to prepare a further appeal submission which sets out the legal and evidential basis for the decision under appeal and which provides details of any subsequent decision-making which has taken place in connection with entitlement to ESA;

(ii)	the appellant is encouraged to seek representation before the further oral hearing of the appeal and, in any event, should attend the further oral hearing to give evidence on issues which are relevant to her potential entitlement to ESA; and 

(iii)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on the issues arising in the appeal, 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

10 July 2015