Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C11_08_09(IB) (16 June 2009)

Decision No: C11/08-09(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 20 March 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.
2. The decision of the appeal tribunal dated 20 March 2008 is in error of law. The error of law identified will be explained in more detail below.
3. 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.
4. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given, as there are further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
5. 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 incapacity benefit (IB) 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.

Background

6. On 7 January 2008, a decision-maker of the Department decided to supersede an earlier decision of the Department, dated 11 October 2005, and which refused entitlement to IB credits from and including 7 January 2008.
7. The appeal against the decision dated 7 January 2008 was received in the Department on 16 January 2008.
8. On 11 February 2008, the decision dated 7 January 2008 was looked at again but was not changed.
9. The appeal tribunal hearing took place on 20 March 2008. The applicant attended and was represented. A presenting officer from the Department attended.
10. The appeal tribunal disallowed the appeal, and confirmed the decision dated 7 January 2008.
11. On 6 June 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. The grounds cited in the application were that:

(i) the appeal tribunal failed to give adequate reasons for its decision; and

(ii) the appeal tribunal failed to address the issue of whether the Departmental decision-maker had grounds, on 7 January 2008, to supersede the earlier decision of the Department, dated 11 October 2005.

12. On 25 June 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

The proceedings before the Social Security Commissioner

13. On 1 August 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners. The grounds cited were the same as those which had been submitted in the application for leave to the LQPM.
14. On 3 September 2008 observations were sought from Decision Making Services (DMS) and these were received on 24 September 2008. DMS opposed the application.
15. Observations were shared with the appellant, and her representative, on 30 September 2008.
16. On 23 February 2009, I granted leave to appeal. In so doing, I stated, as a reason, that an arguable issue arose as to whether the statement of reasons for the appeal tribunal's decision was adequate to explain how the appeal tribunal assessed the evidence which was before it.

Errors of law

17. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.
18. In R(I)2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I)2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."

19. The present appeal is concerned with the adequacy of the appeal tribunal's reasons for its decision.

Reasons

20. Regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

'(4) Subject to paragraph (4A), a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal's decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54 and following that application the chairman or, in the case of a tribunal which has only one member, that member, shall record a statement of the reasons and a copy of that statement shall be sent or given to every party to the proceedings as soon as may be practicable.'

21. In Miss H v East Sussex County Council and others ([2009] EWCA Civ 249), the Court of Appeal for England & Wales has reviewed the nature of the requirement on appeal tribunals to give reasons for their decisions. Lord Justice Waller, at paragraphs 16 to 17 of his judgement stated:

'16. The requirement to give reasons is concerned with fairness and as far as guiding principles are concerned I agree with what Wall LJ said in W v Leeds City Council and SENDIST [ 2006] ELR 617. After referring to four first instance decisions specifically relating to Special Educational Needs Tribunals and the giving of reasons, including Grigson J's decision in R(M) v Brighton and Hove City, he said at paragraph 53 to 54 as follows:-

"53. I do not think it necessary for this court to add to the already substantial jurisprudence on this topic. Speaking for myself, I have always regarded the judgment of Sir Thomas Bingham MR (as he then was) in this court in Meek v Birmingham City Council [1987] IRLR 250 (even though it substantially antedates the incorporation into English Law of ECHR) as the definitive exposition of the attitude superior courts should adopt to the reasons given by Tribunals. Whilst, of course some aspects of the reasoning processes of different specialist tribunals are unique to the particular speciality which is engaged, I see no reason, in this context, to distinguish between Employment Tribunals and what are now SENDISTs. Sir Thomas said:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises . . ."

54. The Master of the Rolls added:

"Nothing that I have said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v Brain [1981] IRLR 225, Lord Justice Donaldson (as he then was) said at p 227:

"Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law . . . their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given."""

17. I would merely add to those dicta, the dictum of Baroness Hale in Secretary of State for the Home Department v AH (Sudan) and Others [2008] 1 AC 678 where she paraphrased a view she had previously expressed on expert Tribunals in these words:-

"30. . . This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. I cannot believe that this eminent Tribunal had indeed confused the three tests or neglected to apply the correct relocation test."

22. As was noted by the Lord Justice himself, there is considerable case-law on the requirement by appeal tribunals to give adequate reasons for its decisions.
23. In Re Poyser and Mills' Arbitration [1964] 2 QB 467, 478, Megaw J. said:

"Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons that will not only be intelligible, but which deal with the substantial points that have been raised."

24. In R(A)1/72, the then Chief Commissioner for Great Britain, considering an appeal from a delegated medical practitioner acting on behalf of the Attendance Allowance Board, said:

"The obligation to give reasons for the decision in [a case involving a conflict of evidence] imports a requirement to do more than only to state the conclusion, and for the determining authority to state that on the evidence the authority is not satisfied that the statutory conditions are met, does no more than this. It affords no guide to the selective process by which the evidence has been accepted, rejected, weighed or considered, or the reasons for any of these things. It is not, of course, obligatory thus to deal with every piece of evidence or to over elaborate, but in an administrative quasi-judicial decision the minimum requirement must at least be that the claimant, looking at the decision should be able to discern on the face of it the reasons why the evidence has failed to satisfy the authority. For the purpose of the regulation which requires the reasons for the review decision to be set out, a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all."

25. In R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 66 (The Times, January 24, 2003), the Court of Appeal considered the approach Sedley J had taken in R v Higher Education Funding Council Ex p Institute of Dental Surgery [1994] 1 WLR 242 to the question of whether there was a duty to give any reasons at all and held that, where there is a duty to give reasons, the same approach should be taken to the question whether reasons were adequate. Sedley J's approach required the balancing of a number of considerations, which might vary from case to case. He said:

"The giving of reasons may among other things concentrate the decision-maker's mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed and how the result has been reached or alternatively alert the recipient to a justiciable flaw in the process. On the other side of the argument, it may place an undue burden on decision makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge."

26. In R(DLA) 3/08, a Tribunal of Commissioners in Great Britain stated, at paragraphs 9 to 10:

'9. In a well known passage in South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36], Lord Brown of Eaton-under-Heywood said:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

10. Those comments were made in the context of planning decisions, but they apply equally to social security cases. …'

27. The requirement for an appeal tribunal to give adequate reasons for its decision includes a requirement to an explicit explanation as to why it prefers, accepts or rejects relevant evidence. In R2/01(IB)T, a Tribunal of Commissioners stated, at paragraph 17:

'However, where, as in this case, there is a conflict of crucial evidence the Tribunal should give some indication of its evidential preference and the reasons for that preference. To give a hypothetical example, if it considers that a claimant is overstating his or her case, whether consciously or otherwise, it should clearly say so. The assessment of evidence is a matter for the Tribunal as the fact finding body and it is quite entitled to exercise its judgment in making that assessment. It must, however, give adequate reasons for its decision and in this case we do not consider that it has done so. The reasons do not adequately explain to the claimant why she lost her case.'

28. Further, at paragraphs 38 to 39, the Tribunal of Commissioners noted the decision of the Commissioner in the Great Britain case CI/5880/1999:

'We also note that Mr Commissioner Williams quotes from the judgment of Lord Lane C.J. in R v Immigration Appeal Tribunal, ex parte Khan [1983] QB790. The passage from which the quotation is taken when read in full is as follows:-

"… The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence on which they have come to their conclusions.

Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

While we agree with Mr Commissioner Williams that an appellant is entitled to know the basis of fact upon which a decision has been reached, the above passage (which has already been approved by the Chief Commissioner in R5/99(IB)) sets out explicitly the implications of this entitlement. The Khan decision clearly indicates that while a claimant is entitled to know the basis of fact for a conclusion, there is no absolute and universal requirement for this basis to be expressly stated. All will depend on the case. Express statement may be necessary in some cases, it may not be so necessary in others. The Khan case is not authority for the view that in every case the basis of fact must be expressly stated.'

29. In C8/08-09(IB), I stated, at paragraph 60:

'… there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.'

The appeal tribunal's reasons in the present case

30. In the present case the reasons for the appeal tribunal's decision are brief. The reasons read as follows:

'The claimant has not had any referrals for physiotherapy, orthopaedic investigation or for psychiatric treatment. Her General Practitioner manages her condition. The Tribunal felt her evidence was overstated and accepts only what is vouched by the medical examination. The General Practitioner letter states she had depression with poor concentration and memory problems and makes no reference to her other conditions.

The Tribunal is not persuaded to interfere with the Department's decision.'

31. I should say, at the outset of the analysis of the adequacy of the appeal tribunal's reasons, that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.
32. In this regard, I would add that the assessment of the credibility of an appellant's own evidence, given to an appeal tribunal, is for the appeal tribunal to make.
33. In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

' … there is no universal rule that a Tribunal must always explain its assessment of credibility. It will usually be enough for a Tribunal to say that it does not believe a witness.'

34. Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

'We do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility. We disagree with CSIB/459/97 in that respect. There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done. If a Tribunal makes clear that it does not believe a claimant's evidence or that it considers him to be exaggerating this will usually be sufficient. The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.'

35. This reasoning was confirmed in CIS/4022/2007. After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:

'In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".

The adequacy of the reasons in the present case

36. The reasons for the appeal tribunal's decision are problematic, in two respects.
37. Firstly, the appeal tribunal concludes that the appellant's own evidence was 'overstated'. The appeal tribunal, however, has gone on to state that the evidence of the appellant which is accepted is 'only what is vouched by the medical examination'. Although it is nowhere stated in the reasons, I am assuming that 'the medical examination' refers to the report of the medical examination, conducted by a medical officer of the Department, and which formed the basis of the decision under appeal.
38. It is important to note that the medical officer of the Department, in the report of the medical examination, undertook an assessment of the extent to which the appellant could perform certain of the activities as prescribed. That included the application of relevant descriptors to relevant activities, which resulted in a conclusion that the appellant had restrictions in functional ability with respect to sitting, bending and kneeling, standing, walking and walking up and down stairs. Further, the medical officer concluded that the appellant's mental condition prevented her from undertaking leisure activities previously enjoyed; and that she preferred to be left alone for six hours or more each day.
39. The assessment undertaken by the medical officer of the Department formed the basis on which the decision-maker of the Department decided that the appellant was not incapable of work in accordance with the personal capability assessment and, accordingly, was not entitled to IB credits. In arriving at this decision, the decision-maker found that the appellant scored nine points in relation to the personal capability assessment accepting, as had the medical officer of the Department, that the appellant had restrictions in functional ability with respect to sitting, bending and kneeling, standing, walking and walking up and down stairs, and that the appellant's mental condition prevented her from undertaking leisure activities previously enjoyed; and that she preferred to be left alone for six hours or more each day.
40. In relation to the decision of the appeal tribunal, a personal capability assessment 'score-sheet' was completed in which, in relation to the physical descriptors, it is recorded that the appellant was awarded three points each for walking, standing and bending and kneeling, although no specific descriptor for these activities was separately recorded. In relation to the mental descriptors, it is recorded that the appellant was awarded one point each for completion of tasks and interaction with other people. On this page, however, the specific descriptors of '15(e)' and '18(e)' were separately recorded.
41. It is clear, therefore, that the appeal tribunal differed from the decision- maker in respect of walking up and down stairs (or because, if descriptors from both 'walking' and 'walking up and down stairs' apply, only one descriptor can count towards the final score, the appeal tribunal concluded that it had only to record one of the two descriptors).
42. More significantly, anyone reading the reasons for the appeal tribunal's decision, and that includes the appellant, would, in my view, be justified in wondering which aspects of the 'medical examination' did 'vouch' her oral evidence, and which did not. Put a different way, the appellant would be justified in wondering why the appeal tribunal accepted, as it apparently did, the evidence in respect of the activities where it determined there was a limitation, why it rejected, as over-stated, the remainder of the evidence, and why it considered there was a difference.
43. In C8/08-09(IB), at paragraphs 60 to 61, I said the following about the duty on an appeal tribunal to explain its assessment of the evidence:

'60. … there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

61. In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

' … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect. It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason. Indeed, it will sometimes be its duty to do so. However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant. It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short. We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal. That body must have regard to the whole of the evidence, including the medical evidence. Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so. Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.'

44. The second respect on which reasons for the appeal tribunal's decision are problematic is in connection with the evidence which the appeal tribunal had before it, from the appellant's general practitioner (GP).
45. As was noted above, the reasons record that 'Her General Practitioner manages her condition' and 'The General Practitioner letter states she had depression with poor concentration and memory problems and makes no reference to her other conditions.' Nowhere else in the reasons does the appeal tribunal explain what it made of the evidence from the GP, nor is there an explanation as to how the appeal tribunal assessed the evidence concerning poor concentration and memory problems in light of its duty to consider whether the appellant satisfied the personal capability assessment and, as part of that assessment, the extent to which the appellant could perform certain of the activities as prescribed.
46. As has already been noted, the appeal tribunal did award one point each for 'completion of tasks' and 'interaction with other people', and recorded escriptors of '15(e)' and '18(e)' in connection with these activities. It may be the case that the appeal tribunal was accepting that the evidence from the General Practitioner was supportive of its conclusion that the specific descriptors '15(e)' and '18(e)' were applicable to the appellant. In the Statement of Reasons the references to the evidence of the GP is nothing more than a record that the evidence was before the appeal tribunal. Once again, the appeal tribunal has not given an indication of what it made of that evidence. In this regard it is important to note that the appeal tribunal had before it a written submission from the appellant's representative which linked the evidence from the GP to the potential application of other mental health descriptors.
47. In CDLA/544/2009, Judge Wikeley of the Upper Tribunal in Great Britain warns appeal tribunals against the practice of simply reciting the evidence which was before it rather than weighing and assessing that evidence, making sufficient findings of fact, and providing adequate reasons for the appeal tribunal's conclusions. At paragraph 19 he stated:

'As Gibbs J explained pithily in LJ v Devon County Council [2001] EWHC (Admin) 958, "mere recitation of evidence is no substitute for the giving of reasons" (at paragraph 50). This is not a new principle for tribunals. Some 25 years ago, in R(SB) 42/84, Mr Commissioner Mitchell explained that the statutory requirements for statements of reasons (albeit then expressed in slightly different terms) meant that "it was incumbent upon the tribunal to make findings upon the matters material [to the question in issue] and not merely to record contentions or statements made in that connection" (at paragraph 6).'

48. Having found that the appeal tribunal was under a duty to explain why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal, and having failed so to do in its statement of reasons, I find that the decision of the appeal tribunal is in error of law.

The appellant's other grounds for seeking leave to appeal

49. In the application for leave to appeal to the Social Security Commissioner, the appellant's representative states that the appeal tribunal had 'failed to address whether the Department had grounds to supersede the original decision awarding Incapacity Benefit rather than simply failing to interfere with their decision.'
50. Having found that the decision of the appeal tribunal is in error of law on the basis of the reasoning noted above, I do not have to consider this ground in detail. I would refer, however, to what I said in C7/08-09(IB) at paragraphs 41 to 53, and repeated in C9/08-09(IB), at paragraphs 42 to 46, about the duty on an appeal tribunal, particularly in an IB appeal, to address the decision under appeal, and to deal with the supersession issue which, in turn, includes a requirement to be satisfied that the correct ground for supersession has been identified, and that the supersession decision takes effect from the correct date.

Disposal

51. The decision of the appeal tribunal dated 20 March 2008 is in error of law.
52. 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.
53. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given, as there are further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
54. It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.
55. It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(Signed): K Mullan

COMMISSIONER

16 June 2009