LMH v Department for Social Development (ESA)

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.�

I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

My substituted decision is that the appellant is not entitled to employment and support allowance (ESA) from and including 18 August 2009.

The appellant claimed ESA from and including 3 March 2009. A questionnaire was completed by the appellant on 20 March 2009. On 6 July 2009 a medical officer of the Department examined the appellant. On 17 August 2009 a decision-maker of the Department determined that the appellant did not have limited capability for work. The decision-maker on 18 August 2009 superseded the award of ESA and decided that the appellant was not entitled to ESA from and including 17 August 2009.� This decision is the subject of further analysis below.

A letter of appeal against the decision dated 18 August 2009 was received in the Department on 28 August 2009. On 4 November 2009 the decision dated 18 August 2009 was reconsidered but was not changed. An appeal tribunal hearing took place on 9 February 2010 and was adjourned in order that the appellant�s general practitioner records could be before the appeal tribunal. The substantive appeal tribunal hearing took place on 18 May 2010. The appeal tribunal disallowed the appeal.