EF -v- Department for Social Development (ESA) ((Not Applicable))

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.

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.

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.

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.

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: