[2025] UKUT 132 (AAC)

Appeal No. UA-2023-001896-ESA

Between:

LB

Appellant

- v -

The Secretary of State for Work and Pensions

Respondent

Before: Upper Tribunal Judge Butler

Decided on consideration of the papers

Representation:

Appellant: Not represented

Respondent: Egle Smith and R J Whitaker, Decision Making and Appeals

(DMA) Leeds

On appeal from:

Tribunal: First-tier Tribunal (Social Entitlement Chamber)

Tribunal Case No: SC246/23/00205

Digital Case No.: 1673-0247-8842-2958

Tribunal Venue: Wakefield Civil Justice Centre

Decision Date: 11 July 2023

SUMMARY OF DECISION

40.31 Contributory ESA, 34.2 Tribunal procedure (fair hearing)

The Upper Tribunal allowed LB’s appeal on the basis of several material errors of law.

The First-tier Tribunal (Social Entitlement Chamber) uses a computer appeals system called Judicial Case Manager (“JCM”). This provides a digital decision notice tool for generating Decision Notices.

At the time of the Tribunal’s decision about LB, where used for employment and support allowance (“ESA”) appeals, the digital decision notice tool in JCM automatically wrote references to the Employment and Support Allowance Regulations 2008 into Decision Notices. It would do so even if the appeal in question was about new style ESA (where the applicable regulations are the Employment and Support Allowance Regulations 2013 instead). The JCM tool would not allow a Tribunal to amend the automatically generated Decision Notice to remove incorrect references to the 2008 regulations.

The Upper Tribunal decided that the fact the First-tier Tribunal issued a Decision Notice generated by JCM that referred to the incorrect ESA regulations for LB, did not, of itself, amount to a material error of law.

However, where a First-tier Tribunal deciding a new style ESA appeal refers in its Statement of Reasons to the incorrect set of ESA regulations, it risks making an error of law by materially misdirecting itself in law.

The Upper Tribunal recommends that when explaining its decision about a new style ESA appeal, a First-tier Tribunal takes appropriate steps to demonstrate that it has actually applied the correct regulations in practice.

The Upper Tribunal also recommends that DWP clarifies in its Responses to ESA appeals whether the appeal in question relates to new style ESA.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.

DECISION