BL-v-Department for Social Development (ESA) [2015] NICom 57
Decision No:  C32/14-15(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 28 May 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast.

2.	An oral hearing of the appeal has been requested.  However, I consider that the proceedings may properly be determined without an oral hearing.

3.	For the reasons I give below, I set aside the decision of the appeal tribunal under Article 15(7) of the Social Security (NI) Order 1998, and I direct that the appeal shall be determined by a newly constituted tribunal.

REASONS

	Background

4.	The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 5 January 2012 by reason of arthritis, bronchial catarrh and chronic obstructive pulmonary disease.  On 18 December 2012 the applicant completed and returned a questionnaire to the Department regarding ability to perform various activities.  On 11 February 2013 a health care professional (HCP) examined the applicant on behalf of the Department.  On 19 March 2013 the Department considered all the evidence and determined that the applicant did not have limited capability for work from and including 19 March 2013, and made a decision superseding and disallowing the applicant’s award of ESA.  The applicant appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 28 May 2014.  The tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 16 October 2014.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was granted by a determination issued on 9 January 2015.  Leave to appeal was granted on the basis that it was arguable that the tribunal had incorrectly applied legislation in relation to the activity of Standing and Sitting.  On 9 February 2015 the appeal was sent to the Office of the Social Security Commissioner.

	Grounds

6.	The appellant, represented by Mr Hatton of Law Centre (NI), submits that the tribunal has erred in law on the basis that it incorrectly applied legislation which came into force from 28 January 2013, whereas this was a case to which earlier legislation applied.  Specifically, the submission is that the tribunal applied the version of the Standing and Sitting activity which applied after 28 January 2013 to a case to which the law prior to that date was applicable.  The Department was directed to make observations on the appeal.  Mr Toner of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had erred in law as alleged and indicated that the Department supported the appeal.

	Assessment

7.	The gist of the case is that an ESA50 questionnaire was issued to the appellant on 18 December 2012.  This was the version in use before the amendments to ESA from 28 January 2013.  The decision in the case was made on 19 March 2013, which was after the date of the amendments.  However, by regulation 2(2) of the Employment and Support Allowance (Amendment) Regulations (NI) 2013 (SR 2013, No.2), where a questionnaire was issued before the date of the amendments, the pre-28 January 2013 version of the law continues to apply to a case even after the date of amendments.

8.	It is common case that the tribunal applied the post-28 January 2013 version of the law to the appeal.  This was an error of law.

9.	I have been asked to set aside the decision of the appeal tribunal and to make findings of fact and determine the appeal myself.  However, I do not consider that I have sufficient evidence to make a decision.

10.	As each of the parties submits that the decision of the appeal tribunal is erroneous in point of law, I set aside the decision under Article 15(7) of the Social Security (NI) Order 1998, and I direct that the appeal shall be determined by a newly constituted tribunal.

(signed)  O Stockman

Commissioner

30 September 2015