EEB v Department for Communities (ESA) ((Not Applicable))

The decision of the appeal tribunal dated 22 January 2018 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.

For further reasons set out below, 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.

It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to Employment and Support Allowance (ESA) 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.

On 2 February 2017 a decision maker of the Department decided that the appellant was not entitled to ESA from and including 24 June 2015. Following a request to that effect, on 11 May 2017 the decision dated 2 February 2017 was reconsidered but was not changed. An appeal against the decision dated 2 February 2017 was received in the Department on 9 June 2017.