AMcC-v-Department for Social Development (ESA) [2012] NICom 270
Decision No:  C17/11-12(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 9 June 2010

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 application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 9 June 2010 is not in error of law.  Accordingly, the decision of the appeal tribunal that the appellant does not have limited capability for work in accordance with the work capability assessment and, accordingly, is not entitled to employment and support allowance (ESA) from and including 2 December 2009, is confirmed.

2.	This decision will come as a disappointment to the appellant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.

	Background

3.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 2 December 2009, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 13 June 2009, and which had awarded an entitlement to ESA, from and including 21 April 2009; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 2 December 2009.

4.	The appeal was received in the Department on 8 December 2009.  On 5 February 2010 the decision dated 2 December 2009 was looked at again but was not changed.

5.	Following an earlier adjournment, the substantive oral hearing of the appeal took place on 9 June 2010.  The appellant was present.  No departmental presenting officer was present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 2 December 2009.

6.	On 16 June 2010 correspondence from the appellant was received in the Department.  In this correspondence, the appellant stated:

‘To whom it may concern.

I want to appeal the decision made on the 2/6/10 concerning ESA benefit because the assessment was all around physical abilities and not around my mental stability.’

7.	On 12 July 2010 the correspondence from the appellant was placed before the legally qualified panel member (LQPM) who decided that the correspondence should be ‘treated’ as an application for leave to appeal against the decision of the appeal tribunal.  On 4 August 2010 the appellant was informed that his correspondence received on 16 June 2010 was being treated as an application for leave to appeal to the Social Security Commissioner.  On 6 August 2010 the application for leave to appeal was rejected by the LQPM.

	Proceedings before the Social Security Commissioner

8.	On 6 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 4 November 2010 the appellant was requested to seek a copy of the record of proceedings for the appeal tribunal hearing.  The record of proceedings was forwarded to the appellant on 15 December 2010.  On 7 February 2011 correspondence was forwarded to the Appeals Service (TAS) seeking clarification of the post appeal tribunal action which had been taken.  On 12 April 2011 observations were sought from Decision Making Services (DMS) and these were received on 21 April 2011.  In these written observations, Mr Toner, for DMS, opposed the application.  Observations were shared with the appellant on 17 May 2011.  On 5 October 2011 further clarification was sought from TAS concerning correspondence which had been forwarded to the appellant.  On 25 October 2011 a reply was received from TAS.  Further clarification was sought on 31 October 2011 and a further reply was received on 8 November 2011.

Errors of law

9.	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.

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

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

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

	Was the decision of the appeal tribunal in the instant case in error of law?

	The appeal tribunal hearing

11.	I have no doubt that the proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.  The record of proceedings is comprehensive and it is clear from its detail that the appeal tribunal explored all of the issues which had been raised by the appeal and that the appellant was given every opportunity to present his evidence in connection with the issues raised and make submissions to the appeal tribunal in connection with his disabilities.  Accordingly, I find no error of law in how the appeal tribunal proceedings were conducted.

The post-appeal action in TAS

12.	As was noted above, on 16 June 2010 correspondence from the appellant was received in the Department.  On 12 July 2010 the correspondence from the appellant was placed before the LQPM who decided that the correspondence should be ‘treated’ as an application for leave to appeal against the decision of the appeal tribunal.  On 4 August 2010 the appellant was informed that his correspondence received on 16 June 2010 was being treated as an application for leave to appeal to the Social Security Commissioner.  On 6 August 2010 the application for leave to appeal was rejected by the LQPM.

13.	Accordingly, it would appear that the appellant was not re-directed to make an application for the statement of reasons for the appeal tribunal’s decision, when it was clear on receipt of the correspondence from him that the statement of reasons had not been requested.

14.	I am aware that the procedural guide for clerks to TAS contains a section which makes provision for administrative action to be taken in a situation where an application for leave to appeal has been received but a statement of reasons has not yet been requested.  Where a statement of reasons has not yet been requested, the clerk is instructed to forward a template letter ‘Comm 1d’ to the applicant, to retain the application in the file and bring the file forward for 14 days.  The template letter ‘Comm1d’ instructs the applicant to make a request for the statement of reasons.  As was noted above, it would appear that Comm1d was never issued in this case.

15.	I have to ask whether the appellant has been disadvantaged as a result of these problematic aspects of the post-appeal actions.

16.	Following the hearing of an appeal, an appellant is entitled, under regulation 53(3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended to be sent a copy of the decision notice which contains the decision of the appeal tribunal, and be informed of his right:

(a)	to apply for a statement of reasons for the appeal tribunal’s decision; and

(b)	to the conditions governing appeals to a Social Security Commissioner.

17.	The conditions governing appeals to a Social Security Commissioner are to be found in regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended.

18.	It seems to me that an appellant is also entitled to be informed of his right to apply for the record of proceedings for the appeal tribunal hearing, and of his right to make an application to have the decision of the appeal tribunal set aside.

19.	In the instant case, it appears to be the case that the appellant was given a copy of the decision notice on 11 June 2010, together with the details of the regulation 53(3) requirements.  Those requirements would include the need to apply for a statement of reasons for the appeal tribunal’s decision.  The appellant was, however, not re-directed to make an application for the statement of reasons for the appeal tribunal’s decision, when it was clear on receipt of the correspondence from him that the statement of reasons had not been requested.

20.	The details in the decision notice (Form AT3D’SSAT), and the accompanying regulation 53(3) requirements which was sent to the appellant on 11 June 2010, and which he did receive, are, on balance, sufficient to inform the appellant of his rights to apply for the decision of the appeal tribunal to be set aside; of his right to make an application for leave to appeal to the Social Security Commissioner; and of his right to apply for a statement of reasons for the appeal tribunal’s decision.  The appellant did take certain action based on that correspondence, namely to make an application for leave to appeal to the Social Security Commissioner.  Accordingly, I am of the view that the appellant was aware of the requirement to request a statement of reasons but failed nonetheless to make such a request.

21.	I am of the view, however, and it is a view which I have expressed on a number of occasions, that consideration should be given by TAS as to the proper procedures to be applied in the circumstances where post-appeal correspondence from an appellant is unclear as to what the true intentions of the appellant are.

	Was the decision to reject the application correct?

22.	Regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

‘58(1)  Subject to paragraph (1A), an application for leave to appeal to a Commissioner from a decision of an appeal tribunal under Article 15 of the Recovery of Benefits Order or under Article 13 or 14 shall—

(a)	be sent to the clerk to the appeal tribunal within the period of one month of the date of the applicant being sent a written statement of the reasons for the decision against which leave to appeal is sought; and

(b)	be in writing and signed by the applicant or, where he has provided written authority to a representative to make the application on his behalf, by that representative;

(c)	contain particulars of the grounds on which the applicant intends to rely;

(d)	contain sufficient particulars of the decision of the appeal tribunal to enable the decision to be identified; and

(e)	if the application is made late, contain the grounds for seeking late acceptance.’

23.	An appeal tribunal has no jurisdiction to consider an application for leave to appeal to a Social Security Commissioner if there is no written statement of reasons for the appeal tribunal’s decision.  That principle was established in the decision of the Commissioner in Great Britain in R(IS)11/99 in connection with the former procedural rules for decision-making and appeals – the Social Security (Adjudication) Regulations 1995, as amended, which had an equivalence in Northern Ireland in the Social Security (Adjudication) Regulations (Northern Ireland) 1995, as amended.  The principle remains valid, however, in connection with regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  On a simple construction of regulation 58(1)(a), the time for sending an application for leave to appeal to the Social Security Commissioner commences with the date on which a written statement of reasons for the decision has been sent to the applicant.

24.	Accordingly, although I have found that the proper post-appeal procedures were not followed by TAS, the LQPM was correct to reject the application for leave to appeal to the Social Security Commissioner.

25.	In other applications for leave to appeal and in appeals themselves, I have noted that there is in existence a template form which is utilised by LQPMs to record determinations in connection with applications for leave to appeal to the Social Security Commissioner.  At section 4 of that form, the LQPM may choose one of three reasons for rejecting the application for leave to appeal.  The first of those three options, in its current version, reads as follows:

‘Reasons for decision were not sent to the applicant as required by Regulation 58(1)(a)’

26.	I am of the view that this wording does not properly reflect the reason why a LQPM has the power to reject an application for leave to appeal to the Social Security Commissioner, where there is no written statement of reasons for the appeal tribunal’s decision.  The true reason for the rejection in these circumstances is that the applicant has not applied for a written statement of reasons under regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended and, accordingly, the time for bringing an application for leave to appeal, under regulation 58(1)(a) has not started to run.  I have, in the past, recommended that consideration is given to the alteration of this form to reflect the proper position.  I would repeat that recommendation here.

	Consideration of the application by the Social Security Commissioner

27.	Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides that an application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.  The latter emphasis is mine.

28.	Regulation 10 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, requires an application to a Social Security Commissioner for leave to appeal to be made by notice in writing and to have with it, inter alia, a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought.

29.	The application in the instant case does not fulfil that requirement in that it does not have a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought.  Nonetheless, I have exercised the power conferred on me by regulation 27 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, and waive the absence of a copy of full written statement of the reasons for the appeal tribunal’s decision as an irregularity.  The exercise of this power permits me to consider the application.

30.	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.  In the absence of a full statement, the error of law must appear from the documents before me or from the circumstances of the case.  As was noted in R3/02(IB)(T) and R(IS) 11/99, it is evidently not possible to challenge an appeal tribunal’s decision on the grounds of inadequacy of reasoning in circumstances where there is no written statement of reasons available.  The lack of adequate reasons cannot constitute an error of law, because a statement of reasons was not requested in time.

31.	The appellant’s application for leave to appeal to the Social Security Commissioner amounts to a further very general submission on factual issues rather than questions of law.  It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.

	Disposal

32.	The decision of the appeal tribunal dated 9 June 2010 is not in error of law.  Accordingly, the decision of the appeal tribunal that the appellant does not have limited capability for work in accordance with the work capability assessment and, accordingly, is not entitled to ESA from and including 2 December 2009, is confirmed.

(signed):  K Mullan

Chief Commissioner

26 March 2012