GH-v-Department for Social Development (IB) [2010] NICom 48

 

Decision No: C7/10-11(IB)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCAPACITY BENEFIT

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 2 June 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

 

2.    I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. 

 

3.    The decision of the appeal tribunal dated 2 June 2009 is in error of law. The error of law identified will be explained in more detail below.

 

4.    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.

 

5.    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. This is because there may be further evidence relevant to the issues arising in the appeal, including medical evidence, which requires further assessment, and there may be 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.

 

6.    In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

7.    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 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

 

8.    The decision under appeal to the appeal tribunal was a decision of the Department, dated 19 March 2009, which decided that:

 

(i)    grounds existed to supersede an earlier decision of the Department, dated 13 December 2007, and which had awarded an entitlement to IB, from and including 17 May 2007; and

 

(ii)   the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 19 March 2009.

 

9.    The appeal was received in the Department on 31 March 2009. On 18 May 2009 the decision dated 19 March 2009 was looked at again but was not changed.

 

10.   The substantive appeal tribunal hearing took place on 2 June 2009. The appeal was by way of a paper hearing.

 

11.   On 9 September 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service (TAS). On 11 September 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

       Proceedings before the Social Security Commissioner

 

12.   On 12 October 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

13.   On 11 January 2010 observations were sought from Decision Making Services (DMS) and these were received on 8 February 2010. In these observations DMS opposed the application on the grounds cited by the appellant, but identified what were submitted to be further errors in law. These observations were shared with the appellant on 19 February 2010. 

 

14.   On 4 May 2010 further correspondence was received from the appellant.

 

       Errors of law

 

15.   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.

 

16.   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.”

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

       The submissions of the parties

 

17.   In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that the decision of the appeal was in error of law on the basis that:

 

(i)    he remained unfit for work; and

 

(ii)   he endeavoured to obtain a letter from his doctor to support his appeal but his doctor would not give him such a letter unless the appeal tribunal requested it. 

 

18.   In written observations on the application for leave to appeal, DMS opposed the application on the grounds cited by the appellant, but identified what were submitted to be further errors in law. These further errors related to how the appeal tribunal dealt with the issues of supersession and the application of regulation 27 of the Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

19.   In the written observations on the application for leave to appeal, DMS also addressed the following question raised by the legal officer:

 

‘… In particular the claimant’s appeal form at Tab 7 appears to end abruptly. Can the Commissioner ascertain if the Tribunal considered all grounds of appeal?’

 

       Analysis

 

20.   As was noted above, in the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that he was endeavouring to obtain a letter from his general practitioner (GP) to support his appeal, but that his doctor would not give him such a letter unless the appeal tribunal requested it. In response to the question raised by the legal officer, DMS have submitted that they have:

 

‘…ascertained that there was a further page attached to the appeal form and this was not with the appeal papers which were sent to the Appeals Service by the Department.  The last two sentences of the letter of appeal state:

 

“Therefore I don’t feel like I can start work because I can’t bend down, or stand for long periods of time.  In my last job it was all heavy lifting and being on my feet all day and”

 

The following is a continuation of the grounds of appeal:

 

“that made my back worse and it got to the stage the pain was so bad I had to come out on the sick.  My back is sore everyday and some days are worse than others.  Therefore I would like to appeal against the decision of my benefits being stopped. 

 

Also I have a doctors appointment for Tuesday 31 March 09 and I will get a letter from my doctor and send it to you with my appeal.”’

 

21.   DMS go on to submit that, as the contents of the ‘missing page’ were replicated in the appeal submission which, as the record of proceedings for the appeal tribunal hearing confirm was before the appeal tribunal, the appeal tribunal would have considered all of the issues raised in appeal form, including the grounds set out in the ‘missing page’.

 

22.   I am in agreement that the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has considered the substantive issues raised by the appellant, concerning the effect of his back pain on his functional ability, and the variability in the nature of his back pain. In that respect, the appeal tribunal’s decision cannot be faulted.

 

23.   What does concern me, however, is the statement made by the appellant, in the ‘missing page’ of the appeal form that he intended to obtain a letter from his doctor which he wished to submit in support of his appeal. In the application for leave to appeal to the LQPM, the appellant submitted that:

 

‘… I tried to get a letter from my doctor or physio neither would give it without a request for incapity [sic] or the tribunal, I then rang the tribunal and asked them to sent [sic] a letter to ask for it but they couldn’t do it unless a legally qualified member asked for it to be done.’

 

24.   I am assuming that the appellant, rather than having telephoned ‘the tribunal’, telephoned the clerk to the appeal tribunal.

 

25.   I am of the view that had the appeal tribunal been more alert to the reference in the letter of appeal that the appellant had intended to obtain a letter of support from his GP, then an enquiry might have been made of the appeal tribunal clerk as to whether any such letter had ever been forwarded by the appellant. In turn, this might have elicited more information concerning the appellant’s telephone contact with the clerk to the appeal tribunal concerning his failure to obtain such a letter and, more significantly, the requirement for the LQPM to authorise the obtaining of such a letter.

 

26.   It could well be the case that the appellant had formed the view that the information which he had imparted to the clerk with respect to the obtaining of further medical evidence, would have been passed to the appeal tribunal, and the LQPM for a decision on how to proceed. The appeal tribunal might have formed the view that there was no requirement to obtain additional medical evidence and that it could proceed on the basis of the evidence which was before it. Equally, however, the appeal tribunal might have decided that additional medical evidence from the GP was relevant to the issues arising in the appeal and authorised TAS to obtain such a report.

 

27.   The appeal tribunal did not have before it, due to the failure to copy the appeal form in its entirety, relevant information concerning the possibility of obtaining additional medical evidence. In turn, that failure might have led to a further failure by the clerk to the appeal tribunal to alert the appeal tribunal to the further communication from the appellant. There is sufficient doubt about what actually took place and I am satisfied that the appellant may have thought that there was a further decision to be made by the appeal tribunal as to whether the obtaining of further medical evidence from his GP was required.

 

28.   It is important to add that the appeal was by way of a ‘paper’ hearing. The appellant, by return of Form Reg 2(i)d, signed on 26 May 2009 and received in TAS on 29 May 2009, indicated to the clerk to the appeal tribunal that he was content for the appeal to proceed without an oral hearing. The appeal tribunal, if it had been armed with the relevant information, might have also decided that it might be beneficial to adjourn the hearing to permit the appellant to attend to give oral evidence.

 

       The appellant’s other grounds for appealing to the Social Security Commissioner

 

29.   In relation to the first ground submitted by the appellant in the application for leave to appeal, the duty of the appeal tribunal was to determine whether the decision under appeal to it was correct. That decision was one which decided that:

 

(iii)  grounds existed to supersede an earlier decision of the Department, dated 13 December 2007, and which had awarded an entitlement to IB, from and including 17 May 2007; and

 

(iv) the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 19 March 2009.

 

30.   The appeal tribunal found that the decision-maker, on 19 March 2009, had grounds to supersede the decision dated 13 December 2007 awarding IB from and including 17 May 2007. The ground for supersession is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision awarding IB was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, from a doctor referred to in paragraph (1) of that regulation.

 

31.   The test of incapacity for work, applicable to the appellant, was the personal capability assessment. The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) Social Security Contributions and Benefits (Northern Ireland) Act 1992.

 

32.   The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended. Adopting relevant findings of fact, the appeal tribunal applied relevant descriptors to relevant activities meaning that the appellant scored 0 points. The appellant, therefore, failed to satisfy the personal capability assessment in that he was not incapable, by reason of some specific disease or bodily or mental disablement to perform certain of the activities as prescribed in the relevant legislation.

 

33.   The appellant was not, therefore, entitled to IB from and including 19 March 2009, which is the correct date from which the supersession decision takes effect.

 

34.   In arriving at this decision, the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it. The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  

 

35.   The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the appeal tribunal’s findings are irrational, perverse or immaterial.

 

36.   The appeal tribunal applied the correct standard of proof, ie on the balance of probabilities, having no power to apply any other standard. All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.

 

37.   The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate. The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.

 

38.   Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it. The appellant may well disagree with the conclusions of the appeal tribunal on the substantive issues but those conclusions cannot be interfered with by a Social Security Commissioner unless they are in error of law.

 

       The ‘errors’ identified by DMS

 

39.   In the written observations on the application for leave to appeal, DMS has submitted that:

 

‘In paragraph 52 of C12/08-09(DLA) Commissioner Mullan held:

 

“The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make it clear that it has done so….That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.”

 

In this case one of the issues before the tribunal was whether there were grounds to supersede the decision awarding incapacity.  From perusing the decision notice and statement of reasons I can find nothing to show that the tribunal considered supersession I would therefore submit that the tribunal has erred in law.’

 

40.   I have clarified my comments in C12/08-09(DLA) in many decisions since that decision was disseminated. I would repeat that it was in the context of the submission made by DMS in C12/08-09(DLA), and my rejection of the argument that it could be implied from the appeal tribunal’s reasoning that it had considered whether the decision-maker had established grounds to supersede, that my comments at paragraph 52 were derived.

 

41.   Where the decision under appeal is a supersession decision, it is important that the appeal tribunal considers whether the decision-maker had grounds to supersede, and to determine the effective date from which any supersession decision should take effect. It is important to note that the grounds on which a decision may be superseded, under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are varied. Each ground will have its own requirements, legal and evidential. Further, while most regulation 6 grounds have a general relevance to all social security benefit decision-making, some grounds will have a more specific relevance to decision-making in respect of particular social security benefits.

 

42.   For example, the principal ground for supersession in IB cases is to be found regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. Regulation 6(2)(g) reads as follows:

 

 ‘(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a doctor referred to in paragraph (1) of that regulation;’

43.   Regulation 6(2)(g) was introduced through amendments introduced in 1999 through the Social Security and Child Support (Decisions and Appeals) (Amendment No. 2) Regulations (Northern Ireland) 1999, as amended. The purpose of the amendment was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession. Previously, case-law had held that the obtaining of a new medical opinion did not itself amount to a change of circumstances justifying a supersession on that ground – R(IS)297 and R(DLA)6/01.

 

44.   While regulation 6(2)(g) has been, since its introduction, the principal basis on which decisions relating to IB have been superseded, it is important to note that this does not mean that there cannot be a supersession on any other ground contained in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. It is possible to supersede, for example, on the basis that there had been a relevant change of circumstances, under regulation 6(2)(a)(i). To do so, however, would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.  

 

45.   Accordingly, depending on the ground relied on by the decision-maker, and the desired effect in respect of social security entitlement, the analysis of the supersession issue, including grounds, entitlement and effective date which may be required may vary. It is arguable that in IB cases, the regulation 6(2)(g) ground is intrinsic to the benefit decision itself, and that subject to the necessary and sufficient fact-finding, a confirmation of the benefit decision by the appeal tribunal will be sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision. All will depend on the circumstances of each individual case, however. 

 

46.   In the instant case, I am satisfied that although the issue is marginal, the appeal tribunal did address, in an adequate manner, the supersession issue. It recognised and confirmed the outcome decision under appeal. While it would have been beneficial for the appeal tribunal to identify that the grounds to supersede were those found in regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, this is one of those cases where the regulation 6(2)(g) ground is intrinsic to the benefit decision itself and that, subject to the necessary and sufficient fact-finding, a confirmation of the benefit decision by the appeal tribunal is sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision.

 

47.   In any event, and absent the error with respect to the evidential assessment set out above, if I had been wrong in respect of my conclusions with respect to the supersession issue, I would have been content 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.

 

48.   In the written observations on the application for leave to appeal, DMS has also submitted that:

 

‘Likewise in paragraph 54 [sic] of C5/08-09(IB) Commissioner Mullan held:

 

“As was noted above, the primary issue before the appeal tribunal was whether the appellant was incapable of work in accordance with the personal capability assessment.  Having done so, and determined that the appellant was not so incapable, the appeal tribunal was under a duty to consider whether the appellant satisfied any of the exceptional circumstances set out in regulation 27 applied to him. That required the appeal tribunal to acknowledge, in its statement of reasons, that the application of regulation 27 was considered by the appeal tribunal. It required the appeal tribunal to make sufficient findings of fact in connection with those exceptional circumstances.” 

 

In this case the tribunal found that (the claimant) was not incapable of work in accordance with the PCA.  It was therefore obliged to consider whether not he satisfied any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.  Furthermore there was a duty on the tribunal to acknowledge that it has considered the exceptional circumstances.  As with the supersession issue I can find no reference as to whether or not the tribunal considered regulation 27, it is therefore my submission that the tribunal has erred in law.’

 

49.   The reference to paragraph 54 should be to paragraph 52. More importantly, however, the comments made in the relevant paragraph about the application of regulation 27 have to be read in the context of the particular facts of that case.

 

50.   The potential application of regulation 27 was a real issue in C5/08-09(IB). The appellant in that case had undergone a surgical procedure after being subject to a medical examination by a medical officer of the Department. The medical officer, in the report of a medical examination, undertaken as part of the personal capability assessment, had given an opinion as to whether the relevant surgical procedure was such as to take the appellant within the exceptional circumstance in regulation 27(d). In his letter of appeal, the appellant had made reference to having been in recovery following a knee operation. The appeal writer, in the appeal submission, had addressed the potential applicability of regulation 27. At paragraph 40, and following a description of that background, I stated that:

 

‘It was clear, therefore, that the issue of the possible application of regulation 27 was one of the issues that was raised by the appeal and was one which required to be addressed by the appeal tribunal.’

 

51.   It was in the context of the clear failure by the appeal tribunal to address the issue of the potential application of regulation 27, after it had been raised by the appeal, that my comments in paragraph 52 were made.

 

52.   It is important to note that at paragraphs 54 and 55, I stated:

 

‘54.          I would note, at this stage, that in the majority of cases in which an appeal tribunal is considering whether the appellant is incapable of work in accordance with the personal capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 27, will not be relevant. Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered. I am aware that many LQPMs of appeal tribunals have aide-memoirs to assist in ensuring that all issues in connection with personal capability assessment appeals have been considered. In my view, such aide-memoirs should also contain a reminder to consider regulation 27. Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 27 was considered but was discounted. That will not be an onerous duty for appeal tribunals. Where regulation 27 is not relevant a simple statement to that effect is sufficient.

 

55.           Where, of course, regulation 27 has a potential relevance there is a greater duty on the appeal tribunal to consider that application, as indicated in paragraph 52 above.’

 

53.   In the instant case, and on the basis of an assessment of all of the relevant evidence, it is clear that the substantive issue raised by the appeal was whether the appellant was incapable of work in accordance with the personal capability assessment, the further issue of whether he also satisfied the exceptional circumstances in regulation 27, was not relevant. While, in accordance with paragraph 54 of C5/08-09(IB), it would have been safest and best practice for the appeal tribunal, in the statement of reasons for its decision, to make a reference therein that the application of regulation 27 was considered but was discounted, its decision is not in error of law for having failed so to do.

 

       Disposal

 

54.   The decision of the appeal tribunal dated 2 June 2009 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.

 

55.   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. This is because there may be further evidence relevant to the issues arising in the appeal, including medical evidence, which requires further assessment, and there may be 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.

 

56.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

57.   The decision under appeal is a decision of the Department, dated 19 March 2009, which decided that:

 

(v)   grounds existed to supersede an earlier decision of the Department, dated 13 December 2007, and which had awarded an entitlement to IB, from and including 17 May 2007; and

 

(vi) the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 19 March 2009.

 

58.   Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 19 March 2009 had grounds to supersede the decision of the appeal tribunal dated 13 December 2007. The ground for supersession on which the decision-maker relied is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision awarding IB was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, from a doctor referred to in paragraph (1) of that regulation.

 

59.   The test of incapacity for work, applicable to the appellant, was the personal capability assessment. The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

 

60.   The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

61.   If the appeal tribunal determines that the appellant is not incapable of work in accordance with the personal capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, apply to the appellant. Guidance as to the approach to be taken to regulation 27 is to be found in R4/01(IB), C22/01-02(IB), CIB/14667/1996, and CIB/1381/2008 and C5/08-09(IB).

 

62.   The appellant has indicated his wish for the appeal tribunal to have sight of a further medical report from his GP in support of his appeal. The appellant should make every effort to obtain such a report in advance of the further hearing of his appeal before the differently constituted appeal tribunal. If necessary, the appellant should make an application to the LQPM of the appeal tribunal for a direction from the appeal tribunal concerning the requirement for such a report and for the arrangements for obtaining such a report.

 

63.   The appellant should give serious consideration to obtaining advice and representation in connection with the further appeal tribunal hearing and, at the very least, give consideration to requesting an oral hearing of the appeal in order that he might attend to give oral evidence in connection with the issues arising.

 

64.   In connection with the proceedings before the Social Security Commissioner, the appellant submitted correspondence relating to a further medical appointment at an orthopaedic outpatient clinic. The appellant may wish to draw this fact to the attention of the appeal tribunal. It will be essential, however, for the appeal tribunal to note that if any additional evidence is submitted to the newly constituted appeal tribunal, it will be for the appeal tribunal to decide whether it is relevant to circumstances obtaining at the date of the decision under appeal. Appeal tribunals are precluded, of course, by virtue of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 from taking into account any circumstances not obtaining at the time when the decision appealed against was made. The appeal tribunal is not, however, limited to evidence that was before the decision-maker who made the decision under appeal or that was in existence at the date of that decision providing the evidence related to the period within the tribunal’s jurisdiction. Appropriate guidance on this issue was made in R(DLA)2/01, R(DLA)3/01 and C21/08-09(DLA).

 

 

(signed):  Kenneth Mullan

 

Commissioner

 

 

 

21 May 2010