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

The decision of the appeal tribunal dated 2 January 2014 is in error of law. 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.

It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to employment and support allowance (ESA), 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.

On 19 October 2012 a decision-maker of the Department decided that the appellant did not have limited capability for work and that his award of incapacity benefit credits/income support did not qualify for conversion into an award of ESA with effect from 13 November 2012. An appeal against the decision dated 19 October 2012 was received in the Department on 14 November 2012.

On 24 March 2014 an application for leave to appeal was received in the Appeals Service (TAS). On 26 March 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

On 29 April 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 29 May 2014 written observations on the application for leave to appeal were sought from Decision Making Services (DMS). In written observations received on 23 June 2014 Mr Collins, for DMS, opposed the application on the grounds submitted by the appellant.