JD-v-Department for Social Development (ESA) [2013] NICom 36
Decision No:  C2/13-14(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 January 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of an appeal tribunal sitting at Ballymena on 11 January 2012.

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

3.	For the reasons given below, I grant leave to appeal.  As each of the parties is of the view that the tribunal has erred in point of law, I set aside the decision of the appeal tribunal under Article 15(7) of the Social Security (NI) Order 1998 and I refer the case to a newly constituted tribunal for determination.

	REASONS

	Background

4.	The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 28 July 2009 by reason of a lower limb fracture sustained in a fall from a roof.  He completed a Departmental questionnaire and was examined by a healthcare professional on behalf of the Department.  On the basis of the evidence the Department decided that the application did not satisfy the limited capability for work assessment and disallowed his claim on 4 October 2011.  He appealed.  The appeal to a tribunal was unsuccessful.  The applicant requested a statement of reasons for the tribunal’s decision which was issued to him on 22 June 2012.

5.	On 20 July 2012 the applicant made an application to the legally qualified member of the tribunal for leave to appeal to the Social Security Commissioner.  Leave to appeal was refused on 24 July 2012 by a determination issued on 1 August 2012.  The applicant then applied to a Social Security Commissioner for leave to appeal.  His application was received on 31 August 2012.

	Grounds

6.	The applicant, now represented by Ms Loughrey of Law Centre (NI), submits that the tribunal has erred in law on the following grounds:

(i)	inadequacy of reasons for preferring certain medical evidence;

(ii)	failing to follow the guidance of Upper Tribunal Judge Levenson in CE/1217/2011;

(iii)	failing to identify a ground for superseding the applicant’s award of ESA.

7.	The Department was invited to make observations on the grounds of application.  Mr McKendry replied on behalf of the Department.  He accepted that the tribunal had erred in law on the applicant’s first two grounds.

	Assessment

8.	It is arguable that the tribunal has not explained why it preferred the evidence of the healthcare professional in relation to the duration for which the applicant could mobilise without significant discomfort, taking into account the evidence of his general practitioner and his podiatrist.  Therefore, I grant leave to appeal.

9.	It is further arguable that the tribunal has not given sufficient consideration to the question of whether the applicant was someone who would normally and reasonably use a wheelchair.

10.	As the parties are in agreement that the decision of the tribunal is erroneous in law, I set aside the decision of the appeal tribunal.  I remit the appeal to a newly constituted tribunal for determination.  The new tribunal is directed to rehear the appeal and, in doing so, to have regard to my decision in MG v DSD (ESA) [2013] NI Com 8, which gives guidance on the use of aids in respect of the activity of mobilising.

(signed):  O Stockman

Commissioner

28 May 2013