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Neutral Citation Number:	2014 UKUT 125 AAC
Reported Number:
File Number:	CE 3994 2012
Appellant:	MC
Respondent:	Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	17/03/2014
Date Added:	03/04/2014
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal jurisdiction
Secondary Category:	Employment and support allowance
Secondary Subcategory:	contributory ESA
Notes:	Reported as [2014] AACR 35. Tribunal jurisdiction – whether tribunal entitled to consider issues not considered by the Secretary of State when superseding an award Employment and support allowance – contributory – whether claimant entitled to appeal against termination of award after 365 days The claimants appealed to the First-tier Tribunal (F-tT) against the ending of their awards of contributory employment and support allowance (ESA) after they had been entitled to ESA for 365 days without being in the support group, each submitting that they had limited capability for work-related activity and so should have been in the support group. The F-tT struck out their appeals on the ground that there had not been an appealable decision and in the first case also refused to extend the time for appealing against an earlier decision that the claimant had limited capability for work, made after a work capability assessment even though the claimant was already entitled to ESA on that basis, because it considered that the claimant did not wish to appeal against the decision. On their appeals to the Upper Tribunal (UT), the Secretary of State conceded that the ending of the awards had involved supersession decisions that were appealable but argued that the claimants were not entitled to raise in those appeals the question whether they had had limited capability for work-related activity. He also conceded that the F-tT had erred in its reasons for not allowing the claimant in the first case to appeal out of time against the earlier decision. Held, allowing the appeals, that: 1. the Secretary of State’s practice of issuing a decision following a work capability assessment, even if the decision did not alter the current award of benefit, was permissible and the decisions were appealable (paragraphs 29 to 31); 2. the F-tT erred when deciding not to extend time for appealing against the earlier decision in the first case because it should have been clear to it from the documents before it that she had wished to appeal against the decision insofar as it was a decision that she did not have limited capability for work-related activity (paragraph 32); 3. there was a right of appeal against the termination of the awards and the F-tT erred in deciding otherwise in both cases (paragraphs 33 to 34); 4. the Secretary of State was entitled to rely on the last work capability assessment, rather than referring the claimant for a new assessment, when making a termination decision, but he was not bound to do so and therefore the question whether the claimant had limited capability for work-related activity fell within the scope of an appeal against a termination decision (paragraphs 35 to 41). The judge set aside the F-tT’s decisions in the first case and substituted decisions admitting the late appeal against the earlier decision and not striking out the appeal against the termination decision. He did not set aside the F-tT’s decision in the other case.
Decision(s) to Download:	[2014] AACR 35bv.doc