EF-v-Department for Social Development (ESA) [2015] NICom 49
Decision No:  C3/15-16(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 9 January 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	The decision of the appeal tribunal dated 9 January 2014 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.	I would ask the legally qualified panel member (LQPM) of the appeal tribunal to note that the error which has been identified arose from a misleading submission by the appeal writer as to the effective date of submission.  The Department has acknowledged, and I agree with such an acknowledgement, that no fault can be attributed to the appeal tribunal for the error which arose.

4.	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 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.  In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

5.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of the payability of employment and support allowance (ESA) to him, for a particular period, 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.

	Background

6.	The background to the proceedings before the appeal tribunal was set out by Mr McKendry from Decision Making Services (DMS) in his written observations on the application for leave to appeal, as follows:

‘(The claimant) claimed employment and support allowance (ESA) (contribution based (C) only) from and including 01/04/12.  (The claimant) was previously employed and form SSP1 was received in support of his application.  Form SSP1 confirmed that no further statutory sick pay was due to (the claimant) due to his employment being terminated.

On 14/06/12 (the claimant) attended a medical examination.  Following this on 21/08/12 a decision maker (DM) determined that (the claimant) did not have limited capability for work.  Mr F appealed this decision.

On 30/08/12 (the claimant) completed review form ESA3 in which the Department first became aware of him being in receipt of an occupational pension.

On 23/01/14 a decision was made to disallow (the claimant’s) award of ESA(C) due to his occupational pension having exceeded the prescribed limits.  This decision took effect from 24/04/12 ((The claimant) received his first payment of occupational pension on 30/04/12).  (The claimant) did not appeal this decision.

(The claimant’s) appeal against the work capability decision dated 21/08/12 was heard on 30/04/13 and was successful.  On 01/07/13 the DM implemented the decision of the tribunal and awarded the work-related activity component.  Any arrears, as such, were however withheld due to a possible overpayment.

On 19/07/13 (the claimant) appealed the decision of 01/07/13.  This was received by the Department on 22/07/13.  On 07/08/13 (the claimant) forwarded a second letter of appeal.  This was received by the Department on 08/08/13.  This was referred to a DM who, on 07/11/13 reconsidered the decision of 01/07/13.  The decision, however, remained unaltered.  The appeal writer in their submission stated that the rate of (the claimant’s) occupational pension extinguished (the claimant’s) entitlement to ESA(C) from and including 01/04/12.’

7.	The appeal tribunal hearing took place on 9 January 2014.  The appeal proceeded by way of a ‘paper’ hearing.  This was because the appellant had returned Form REG2(i)d, signed and dated 9 December 2013, to indicate that he was content for the appeal to proceed without an oral hearing.

8.	The appeal tribunal disallowed the appeal and confirmed the decision dated 1 July 2013.  On 13 June 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 7 July 2014 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

9.	On 13 June 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 10 November 2014 observations on the application for leave to appeal were requested from DMS.  As was noted above, written observations were received from Mr McKendry on 8 January 2015.  In these observations, Mr McKendry opposed the application on the grounds submitted by the appellant but submitted that the decision of the appeal tribunal was in error of law on the basis of a further identified ground.

10.	The written observations were shared with the appellant and his representative on 14 January 2015.  On 8 February 2015 written observations in reply were received from the appellant which were shared with Mr McKendry on 12 February 2015.

11.	On 12 June 2015 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that it was arguable that the appeal tribunal had erred in relation to the effective date of supersession.  On 23 June 2015 the Legal Officer requested that Mr McKendry provided an additional submission on two further matters which arose.  The further submission was received on 8 July 2015 and was shared with the appellant and his representative on 9 July 2015.

	Errors of law

12.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

13.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Analysis

14.	In his written observations on the application for leave to appeal Mr McKendry made the following submission:

‘Although (the claimant) has not identified an error of law in the decision of the Tribunal, I believe, that the Tribunal has erred in relation to the effective date of decision.

The appeal writer, in the Departmental decision, again at paragraph 4 of section 4 documented that (the claimant’s) entitlement to ESA(C) should be extinguished from 01/04/12 due to excess income.

The tribunal, in its decision of 09/01/14 held that from:

“1st April 2012 Claimant’s ESA entitlement is nil because his pension income extinguishes the applicable personal rate.”

I would respectfully submit that the appeal writer, in this instance had misled the tribunal in the date that (the claimant’s) entitlement to ESA(C) should have ceased.  The correct date, (and I have confirmed with the branch) was 24/04/12.  This is the date that the DM, on 23/01/13 initially terminated (the claimant’s) award of ESA(C).  I would further submit that it was the payability of ESA(C) and (the claimant’s) entitlement that the appeal writer should have addressed.  I would, however, submit that the tribunal could not have been faulted in any way in relation to this.’

15.	I agree with Mr McKendry’s submission and for the reasons which he has set out agree that the decision of the appeal tribunal is in error of law.

	The appellant’s other grounds for appeal

16.	Having found that the decision of the appeal tribunal is in error of law on the basis of its confirmation of an erroneous effective date of decision, I do not have to consider the appellant’s other grounds for appealing.  It is clear from the detail of the application for leave to appeal and the further additional submission which has been received from him that the appellant has raised issues of principle which are of importance to him.  As the appeal is remitted to a differently-constituted appeal tribunal the appellant will be given a further opportunity to articulate those submissions and present his arguments.

	The requirement for the Department to provide a revised submission

17.	As was noted above, Mr McKendry has acknowledged that the appeal tribunal was misled by an erroneous statement as to the effective date of submission.  On that basis alone, the Department will have to prepare a revised submission for the remitted appeal before the differently constituted appeal tribunal.  Two other issues arise, however.  In his original written observations on the application for leave to appeal Mr McKendry added the following:

‘I would also add that the ESA3 (review form in which the Department first became aware of (the claimant’s) occupational pension) has been mislaid.  Given that this is a review form there may well have been evidence of a possible application for help with his mortgage although as I have already stated above the mortgage team within ESA has no record of any application for assistance.’

18.	In his further submission dated 30 June 2015 Mr McKendry has provided the following update:

‘I have contacted the branch and have been informed that there was an unsuccessful full office search carried out in January of this year.  The branch also contacted (the claimant) directly on 15/01/15 in relation to the completion of a second ESA3 which, as (the claimant) has alluded to in his comments of 08/02/15, (the claimant) has refused to complete.’

19.	The issue of the missing ‘ESA3’ review form will need to be addressed in the revised submission.  Further the question of whether there has or has not been an application for mortgage assistance will also become an issue arising in the appeal.  It is, of course, for the appellant to decide whether to complete a further review form and he has set out, in his submission of 8 February 2015, his genuine reasons why he is reluctant so to do.  I would ask the appellant, however, to note the comments of Baroness Hale in Kerr v Department for Social Development ([2004) UKHL 23, reported as R1/04(SF)).  When speaking about the nature of the social security benefit process she stated, at paragraph 62:

‘What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part.  The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met.  The claimant is the one who generally speaking can and must supply that information.’

	Disposal

20.	The decision of the appeal tribunal dated 9 January 2014 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.  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 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.

(signed)  K Mullan

Chief Commissioner

25 August 2015