DR-v-Department for Social Development (DLA) [2010] NICom 88

Decision No: C55/10-11(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

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 29 January 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, 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 29 January 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 is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, 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 disability living allowance (DLA) 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. On 25 September 2008 a decision-maker of the Department decided that the appellant was entitled to the lowest rate of the care component of DLA from 1 January 2009 to 31 December 2011, on the basis of a renewal claim to that benefit. An appeal against the decision dated 25 September 2008 was received in the Department on 20 October 2008.

 

9. The appeal tribunal hearing took place on 29 January 2009. The appellant was present, was accompanied by his wife and was represented. The appeal tribunal disallowed the appeal, and confirmed the decision dated 25 September 2008.

 

10. On 8 May 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).

 

11. On 1 June 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM). Although the application for leave to appeal was refused by the LQPM he also identified the following ‘point of law’:

 

‘It is alleged that the Tribunal failed to consider all of the evidence given to the Tribunal and/or that it failed to give due weight to the evidence.’

 

Proceedings before the Social Security Commissioner

 

12. On 9 July 2009 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.

 

13. On 8 September 2009 observations were sought from Decision Making Services (DMS) and these were received on 5 October 2009. DMS indicated that they could not provide definitive comment on two of the grounds cited by the appellant but supported the appeal on the third such ground.

 

14. Observations were shared with the appellant and his representative on 15 October 2009. On 3 November 2009 further correspondence was received from the appellant’s representative in reply to the observations from DMS. This further correspondence was shared with DMS on 3 November 2009.

 

Errors in 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.”

 

The error of law in the instant case

 

The submissions of the parties

 

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

 

(i)                 the appellant submitted that two members of the appeal tribunal were discussing aspects of the appellant’s general practitioner (GP) records while the appellant’s wife was giving evidence to the appeal tribunal. The evidence of the appellant’s wife, which related to aspects of his medical treatment was significant and was not referred to in the statement of reasons for the appeal tribunal’s decision. Further, the failure to give proper attention to the evidence being given at the appeal tribunal hearing was analogous to the situation arising in CDLA/1588/2008;

 

(ii)               the appellant submitted that at the appeal tribunal hearing evidence from the Service Personnel & Veterans Agency (SPVA) relating to his entitlement to a war pension was not accepted. The appellant submitted that the evidence from the SPVA confirmed that as a result of a degenerative change in his left knee, his war pension had been increased from 30% to 50%. The appellant submitted that there was a statement in the statement of reasons of there being an increase in his war pension from 20% to 30% because of knee pain. The appellant submitted that not only was this reference in the statement of reasons an error but that he also could not understand why this evidence was not accepted;

 

(iii)             the appellant submitted that at the conclusion of the appeal tribunal hearing, the giving of the decision in respect of his appeal, and the departure of two of the members of the appeal tribunal, he remained within the appeal tribunal venue to await the return of his GP records. The appellant submitted that there was a considerable wait for the return of the relevant records and when he queried this with the clerk to the appeal tribunal he was advised that the LQPM was ‘…going through the medical notes’. The appellant wished to know why this ‘… took place because at this stage the hearing had concluded and the decision given’.

 

18. I would add, at this stage, that in the original application for leave to appeal which was before the LQPM, the appellant had submitted that in addition to the three grounds cited above, the statement of reasons for the appeal tribunal hearing records that his mother accompanied him to the hearing. The appellant indicated that this was a clear error as he was accompanied to the appeal tribunal hearing by his wife. The error had caused great annoyance to the appellant and to his wife.

 

19. As was noted above, in the written observations on the application for leave to appeal, DMS indicated that they could not provide definitive comment on two of the grounds cited by the appellant but supported the appeal on the third such ground.

 

20. Further, it is important to note that in the further correspondence from the appellant’s representative, dated 3 November 2009, and in reply to the observations from DMS, the appellant’s representative submitted, in connection with the second ground of appeal:

 

‘… I am confident that I gave the correct information (i.e. War Pension increased from 30% to 50%) as I had a copy of the letter from The Veterans Agency in front of me.

 

I feel that this information was probably transcribed incorrectly especially when it is noted that the Tribunal recorded that (the claimant’s) mother attended as a witness. This was … wife of the appellant. Both (the claimant and his wife) were very annoyed at this mistake, considering that (the claimant) was in his 50^th year this certainly left his wife feeling very old when she was mistaken for his mother.

 

I felt that the letter from The Veterans Agency was strong evidence because it had been issued following a medical examination and had result [sic] in an increase in the payment of War Pension. It is difficult to understand why the same evidence was not accepted by the Tribunal; however the tribunal have failed to record whether they accepted or rejected it.’

 

My analysis

 

21. I begin my analysis by dealing with the second ground set out in the application for leave to appeal to the Social Security Commissioner, namely the manner in which the appeal tribunal dealt with the evidence from the SPVA.

 

22. I would commence this analysis by noting that those who have experience with dealing with the documentation associated with an appeal tribunal hearing in connection with an appeal relating to entitlement to a social security benefit are aware that there are three sets of papers which are of particular significance:

 

(i)                 the record of proceedings for the appeal tribunal hearing;

 

(ii)               the decision notices for the appeal tribunal’s decision(s); and

 

(iii)             the statement of reasons for the appeal tribunal’s decision.

 

23. In the submissions made by the appellant in the original application for leave to appeal made to the LQPM, and in the subsequent application for leave to appeal to the Social Security Commissioner, there are certain references to the statement of reasons which, strictly speaking, should be references to the record of proceedings but nothing turns on that.

 

24. In C16/07-08(IB), at paragraphs 67 to 69 and 71 to 73, I said the following about records of proceedings:

 

‘67. Regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

 

‘A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.’

 

68. In C48/99-00(DLA), the Chief Commissioner stated, at paragraph 16:

 

‘… there is no obligation to make a verbatim record of all that does occur at a Tribunal hearing although the record should summarize all relevant evidence and also note any written evidence and submissions that are received by the Tribunal during the hearing. It is difficult for a Commissioner, who has only jurisdiction to decide appeals on points of law, to rule on whether something occurred or did not occur at a Tribunal hearing. In light of my findings on ground (iv) I do not consider it necessary or constructive to pursue this issue any further save to emphasize that a Tribunal has an obligation to summarize all relevant evidence and also to note that any particular written evidence or submissions were received by the Tribunal during the hearing.’

 

69. In R(DLA) 3/08, a Tribunal of Commissioners in Great Britain considered the extent of the requirements in connection with the making of a record of proceedings. In summary, the tribunal determined that:

 

(i) a tribunal’s record of proceedings should be a record of what happened and in addition to indicating the evidence taken, should include a record of any procedural application and its result (paragraph 6);

 

(ii) it is good practice to include a brief note of any submissions made (paragraph 10);

 

(iii) the duty to make a record of proceedings does not extend to making a note of the tribunal’s deliberations (paragraph 26);

 

(iv) the record of proceedings must be intelligible or capable of being made intelligible to those to whom it is issued (paragraphs 13 and 14);

 

(v) a failure to comply with regulation 55 will not necessarily render the tribunal’s decision erroneous in point of law; the failure to comply must be material to the decision in the sense that it has resulted in a real possibility of unfairness or injustice. In so far as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed (paragraph 27).

 

… 71. The usual manner in which a record of proceedings is made is that it is recorded, in writing, by the LQPM of the appeal tribunal, on a form especially created for that purpose. The task of completion of a record of proceedings, as part of the general conduct and procedure for the oral hearing, is not an easy one for the LQPM, particularly where the oral hearing is lengthy; where there is considerable oral evidence to be taken; where the questioning of the appellant and any other witnesses is undertaken by other members of the appeal tribunal; where detailed submissions are made on behalf of the appellant by a representative; and where there is cross-referencing to other documentation contained in the appeal papers or provided as part of the appeal hearing. The recording difficulties are exacerbated where the LQPM is also asking relevant questions of a witness, or where the LQPM is the sole member of the appeal tribunal.

 

72. Nonetheless, the LQPM should endeavour to ensure that the record in writing is as accurate as possible, in line with the principles outlined in C48/99-00(DLA), and R(DLA) 3/08. As far as possible, the process should not be rushed, and clarification of particular evidence, in relation to medical treatments and medication regimes, for example, should be sought. Fundamental errors, such as the inaccurate recording of marital status, should be avoided. The record should contain details of submissions made, applications sought, and their outcome, and other interventions, both planned and untoward. The latter could include, for example, episodes of distress on the part of the appellant or other witness, or brief adjournments.

 

73. In this jurisdiction, where a request for a copy of the record of proceedings is made, under regulation 55(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, the usual procedure is that the hand-written copy, as recorded on the day of the appeal tribunal hearing, is typed up and checked for inaccuracies by the LQPM. The provision of a typed-up copy of the record of proceedings is of considerable advantage to the party to the proceedings seeking the same, and avoids problems associated with legibility of hand-writing. It is possible that some factual inaccuracies are the result of the misinterpretation of hand-writing during the typing-up process. Once again, LQPMs should endeavour to ensure that the final version which is to be forwarded to a party to the proceedings is accurate and in conformity with what was actually recorded on the day.’

 

25. I would add that my comments with respect to LQPMs ensuring the accuracy of the record of proceedings are equally applicable to the completion of decision notices and statements of reasons.

 

26. In the instant case, I have been provided with a copy of the papers which were contained in the TAS administrative file, and following questions directed to the clerk to the appeal tribunal, the appellant, and his representative, have been given further details of the documentation which was before the appeal tribunal. I am satisfied, on the basis of my analysis of all of the materials which are before me that the appeal tribunal had before it:

 

(i) a copy of correspondence from the SPVA dated 23 January 2009;

 

(ii) the appellant’s complete GP records;

 

(iii) form AT16 completed and signed by the appellant’s GP on 16 January 2009.

 

27. Regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, is not prescriptive about the format of the record of proceedings for the appeal tribunal hearing. Nonetheless, the President of Appeal Tribunals for Northern Ireland has recommended the use of the template form for the purpose of making of a record of proceedings for use in each case. Section 1 of the form is headed ‘Documents Considered’ and in this section, one would expect the chairman to note, in a summary format, the documentation which was before the appeal tribunal, including the documentation which was made available to the appeal tribunal in advance of the hearing, and any documentation which was made available to the appeal tribunal on the day of the hearing itself. The ‘Documents Considered’ section serves as a useful ‘aide-memoir’ to the chairman of the appeal tribunal as to the documentary evidence or submissions which were before the appeal tribunal. That aide-memoir would be very useful if and when the chairman is asked to prepare a statement of reasons for the appeal tribunal’s decision.

 

28. In the present case, the ‘Documents Considered’ section of the record of proceedings for the care component of DLA commences with details of evidence given by the appellant. The ‘Documents Considered’ section of the record of proceedings for the mobility component of DLA commences with details of a submission made by the representative. The statement of reasons for the appeal tribunal’s decision makes reference, however, to certain documentation which must have come from the GP records. I do not understand, therefore, why a separate note of the documentation which was before the appeal tribunal was not made in the ‘Documents Considered’ section.

 

29. More fundamentally, however, in the application for leave to appeal to the Social Security Commissioner, the appellant submits that:

 

(i) there is no reference to the letter from the SPVA, in the ‘Documents Considered’ section of the record of proceedings;

 

(ii) the reference in the record of proceedings to a submission made in connection with the correspondence from the SPVA is erroneous; and

 

(iii) there is no reference in the statement of reasons and, more particularly, no indication of whether the appeal tribunal accepted or rejected this evidence.

 

30. The appellant’s representative submits that, accordingly, the reasons for the appeal tribunal’s decision are inadequate. This is a submission which is supported by DMS.

 

31. I have already commented on the failure to record the documentation in the ‘Documents Considered’ section of the record of proceedings. I also agree that there is an error in how the submission from the appellant’s representative in connection with the SPVA correspondence has been recorded. The SPVA correspondence amounts to a notification that there has been an increase in the SPVA’s assessment of the appellant’s disablement from 30% to 50%. In the record of proceedings this is recorded as ‘War Pension increased from 20% to 30%’. Ordinarily, these might be explained away as recording errors. I say ‘ordinarily’ because I will return below to a number of other recording errors in the documentation associated with this appeal.

 

32. In C16/08-09(DLA), I said the following, at paragraph 54:

 

‘…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.”

 

33. In the instant case, I am presuming that the letter from the SPVA was submitted to the appeal tribunal on the basis of its relevance to the issues arising in the appeal or on the basis that it provided supportive evidence on the other submissions concerning the appellant’s potential entitlement to DLA. The appeal tribunal may have considered the evidence contained in the letter from the SPVA team to have no relevance to the issues arising in the appeal, or did not support the submissions in connection with potential entitlement to DLA. Nonetheless, the appeal tribunal was under a duty to indicate that it had considered the documentation, and indicate what it made of that documentation in relation to its determination of the issues arising in the appeal.

 

34. Having found that the appeal tribunal was under a duty to consider the relevant documentation, and having failed to consider it, and explain, in its statement of reasons, that it has so considered it, I find that the decision of the appeal tribunal is in error of law.

 

35. As was noted above, I have already discovered an omission in how the appeal tribunal completed the ‘Documents Considered’ section of the record of proceedings. I have also referred to an error in how the details of the correspondence from the SPVA were recorded. I have noted, however, a number of further errors in the completion of the documentation associated with this appeal, as follows:

 

(i)                 the appellant’s wife is referred to as his ‘mother’;

 

(ii) there is no record of the evidence which was taken from the appellant’s wife;

 

(iii) the decision notice for the care component of DLA makes an incorrect reference to the mobility component.

 

36. It is clear to me that the guidance which I gave in C16/07-08(IB), concerning the completion of documentation with care and accuracy, has not been followed in this case.

 

37. In the first ground for seeking leave to appeal to the Social Security Commissioner, the appellant has submitted that two members of the appeal tribunal were discussing aspects of the appellant’s GP records while the appellant’s wife was giving evidence to the appeal tribunal. The evidence of the appellant’s wife, which related to aspects of his medical treatment was significant and was not referred to in the statement of reasons for the appeal tribunal’s decision. Further, the failure to give proper attention to the evidence being given at the appeal tribunal hearing was analogous to the situation arising in CDLA/1588/2008.

 

38. In order to clarify the background to this submission, I directed the members of the appeal tribunal to provide observations on the submission which was made. The disability qualified panel member replied to this direction by stating that she could not recall the appeal tribunal hearing. The LQPM replied by stating that:

 

(i) the assertion that he had a conversation with the medically qualified panel member was simply not correct;

 

(ii) the assertion that the medically qualified panel member drew the attention of the LQPM to something in the medical notes was correct. It was the practice of this medically qualified panel member to ‘… review the notes and records from the GP whilst evidence is being given by or on behalf of the Claimant and to bring it to the Chairperson’s attention by pointing to same.’ It was, however, incorrect to assert that the medically qualified and LQPMs had a discussion about what was being pointed out;

 

(iii) ‘All of the evidence that was given by or on behalf of the Claimant was recorded; the Claimant was represented; no suggestion was made by the Claimant or the Claimant’s representative at the time or during the hearing that evidence given had not been recorded.’

 

39. The medically qualified panel member replied to the direction by indicating that he, too, could not recall the precise appeal tribunal hearing. He stated, however, that ‘… when I am hearing an appeal, if there is something in the medical notes of relevance to the evidence that a witness is giving at the time, it would be my usual practice to draw this to the attention of the Chairman simply by pointing to it. I endeavour to listen carefully to all the evidence being given by a witness at an appeal and to take account of it in determining the matter.’

 

40. I have no reason to doubt the statement by the medically qualified panel member that he is fully attentive to the oral evidence of an appellant or witness on behalf of the appellant, during an oral hearing of an appeal. It seems to me, however, that his stated practice of a concurrent review of the contents of the appellant’s GP records, while oral evidence is being given might give the appellant and/or the witness, the impression that the oral evidence is not being given the attention which it should.

 

41. In CDLA/1588/2008, in considering the issue of the conduct of appeal tribunal panel members, Deputy Upper Tribunal Judge Michael Mark referred to the decision of Court of Appeal for England and Wales in Stansbury v Datapulse plc ([2003] EWCA Civ 1951). Peter Gibson LJ referred to a judgment of an Employment Appeal Tribunal known as Kudrah. In paragraph 28 of his judgment he stated:

 

‘The EAT in Kudrah were, in my judgment, right to say that it was the duty of the Tribunal to be alert during the whole of the hearing, and to appear to be so…. A member of a tribunal who does not appear to be alert to what is being said in the course of the hearing may cause that hearing to be held to be unfair, because the hearing should be by a tribunal each member of which is concentrating on the case before her. That is the position under English law, quite apart from the European Convention on Human Rights. It is reinforced by Article 6(1) of the Convention.’

 

42. Further, the practice of pointing out aspects of the contents of the GP records to the LQPM, while oral evidence is being given might give a similar uncomforting impression to the appellant or witness. It would be preferable, safest and best practice, in my view, if the medically qualified panel member was to take a note of the oral evidence which might warrant correlation with the contents of the GP records, and draw this to the attention of the LQPM at some convenient break in the oral evidence or at its conclusion.

 

43. I have noted the LQPM’s reply that all of the evidence given by or on behalf of the appellant was recorded. I cannot find any reference in the record of proceedings and, more significantly, in the statement of reasons for the appeal tribunal’s decision, to the evidence which was given by the appellant’s wife. As was noted by the appellant, in the application for leave to appeal, ‘… this evidence, in my opinion was very important because without it, the situation would have appeared that my knee problems must not be too bad when I did not require surgery.’ It was incumbent, in my view, on the appeal tribunal, not only to record the evidence, but to assess that evidence and given an indication of the outcome of that assessment. The failure to do so is contrary to the principles set out in C16/08-09(DLA).

 

44. I have also noted the reply from the LQPM that ‘ … the Claimant was represented; no suggestion was made by the Claimant or the Claimant’s representative at the time or during the hearing that evidence given had not been recorded.’ It is difficult to know how the appellant or his representative could know what was or was not being recorded during the course of an oral hearing of the appeal. In CDLA/1588/2008, Peter Gibson LJ stated, in relation to the fact that the conduct of a tribunal was not raised he stated at paragraph 21:

 

‘In my judgment the EAT could properly decide, as they did in the present case that the fact that the point had not been raised before the ET should not prevent the point being raised before the EAT on appeal. It is always desirable that a point on the behaviour of the ET be raised at the ET in the course of the hearing but it is unrealistic not to recognise the difficulty, even for legal representatives, in raising with the ET a complaint about the behaviour of an ET member, who, if the complaint is not upheld, may yet be part of the ET deciding the case.’

 

45. The appellant’s third ground for seeking leave to appeal to the Social Security Commissioner was that at the conclusion of the appeal tribunal hearing, the giving of the decision in respect of his appeal, and the departure of two of the members of the appeal tribunal, he remained within the appeal tribunal venue to await the return of hid GP records. The appellant submitted that there was a considerable wait for the return of the relevant records and when he queried this with the clerk to the appeal tribunal he was advised that the LQPM was ‘…going through the medical notes’. The appellant wished to know why this ‘… took place because at this stage the hearing had concluded and the decision given’.

 

46. The appellant has informed the Office of the Social Security Commissioners that he brought his GP records to the appeal tribunal venue, as his GP did not like to post confidential records to TAS. I am assuming that the appellant remained behind to re-claim the GP records to bring these back to the surgery.

 

47. I am of the view that the appellant has misunderstood the comment from the clerk to the appeal tribunal that the ‘…LQPM was ‘…going through the medical notes.’ My understanding is that the LQPM of an appeal tribunal, in assimilating preparatory notes for a statement of reasons, or the statement of reasons itself, will wish to refer to relevant extracts from the GP records. My understanding is that the GP records are only available to the appeal tribunal on the day of the hearing of the appeal itself and that copies of the GP records are not made by TAS. Accordingly, there will have to be a detailed recording of the relevant extracts, by hand. I am certain that the LQPM was not ‘going through the medical notes’ for the purpose of the re-assessment of the medical evidence, in the absence of the other members of the appeal tribunal, and the parties to the proceedings.

 

Disposal

 

48. The decision of the appeal tribunal dated 29 January 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.

 

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

 

(i)                 the decision under appeal is a decision of the Department, dated 25 September 2008, in which a decision-maker decided that the appellant was entitled to the lowest rate of the care component of DLA from 1 January 2009 to 31 December 2011;

 

(ii) 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; and

 

(iii) 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

 

 

 

22 September 2010