HA v Department for Social Development (Employment and Support Allowance ) (ESA)

1.��� Having considered the circumstances of the case, 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 15 September 2010 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.

3.��� 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.

4.��� 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.

5.��� On 8 December 2009 a decision-maker of the Department superseded an earlier decision of the Department dated 11 December 2008.� The decision-maker also decided that the appellant did not have limited capability for work and was not entitled to ESA from and including 8 December 2009. �An appeal against the decision dated 8 December 2009 was received in the Department on 22 December 2009. �On 27 February 2010 the decision dated 8 December 2009 was looked at again but was not changed.

7.��� On 23 February 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners, from the appellant�s representative, Ms Loughrey of the Law Centre (Northern Ireland). �On 11 May 2011 written observations were sought from Decision Making Services (DMS) and these were received on 2 June 2011. �In these written observations, Mr Young, for DMS, opposed the application on most of the grounds submitted by the applicant but supported the application on one of those grounds.