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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> JAB v Department for Social Development (DLA) [2010] NICom 25 (15 April 2010)
URL: http://www.bailii.org/nie/cases/NISSCSC/2010/C3_09_10(DLA).html
Cite as: [2010] NICom 25
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JAB v Department for Social Development (DLA) [2010] NICom 25
Decision No: C3/09-10(DLA)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 8 April 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 8 April 2008 is in error of law. The error of law identified will be explained in more detail below.
2. 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.
3. 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.
4. 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.
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 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
6. On 22 May 2007, a decision-maker decided that the applicant was not entitled to DLA from and including 6 August 2007 on a renewal claim. Previously the appellant had an entitlement to the lower rate of the mobility component and the highest rate of the care component of DLA from 6 August 2004 to 5 August 2007. The appeal against the decision dated 22 May 2007 was received in the Department on 20 July 2007. On 26 June 2007 the decision dated 22 May 2007 was reconsidered but was not changed.
7. A first appeal tribunal hearing took place on 23 January 2008. The appeal was adjourned for the appellant’s representative to consider the papers, and for general practitioner (GP) records to be obtained.
8. A further appeal tribunal hearing took place on 8 April 2008. This was an oral hearing which was attended by the applicant and her husband. No presenting officer from the Department was in attendance. The appeal tribunal disallowed the appeal, and confirmed the decision dated 22 May 2007.
9. On 8 August 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service. The applicant was now represented by the Law Centre. On 26 August 2008, the application for leave to appeal was refused by the legally qualified panel member.
Proceedings before the Social Security Commissioner
10. On 7 October 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. On 11 November 2008 observations were sought from Decision Making Services (DMS) and these were received on 8 December 2008. DMS opposed the application on the grounds cited by the applicant.
11. Observations were shared with the applicant, and her representative, on 13 January 2009. Further submissions in reply were received from the applicant’s representative on 11 March 2009. These further submissions were shared with DMS on 19 March 2009.
12. On 9 April 2009 I granted leave to appeal and directed an oral hearing of the appeal. In granting leave to appeal, I gave the following as a reason:
‘Leave to appeal is granted as an arguable issue arises as to the manner in which the appeal tribunal assessed certain of the evidence before it.’
13. I also directed that the skeleton arguments for the oral hearing should address the relevance of questions asked in GP factual reports (DBD 370 (NI) GPFR) to the tests for entitlement to DLA.
14. At the oral hearing, the appellant was represented by Ms Loughrey from the Law Centre (Northern Ireland), and the Department was represented by Mr Kirk of the DMS section. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.
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’s representative has submitted that the decision of the appeal tribunal was in error of law on the basis that the reasons for the appeal tribunal’s decision are inadequate to explain how it dealt with and decided that the appellant was not entitled to the lower rate of the mobility component of DLA.
18. More particularly, the appellant’s representative challenged the conclusion which the appeal tribunal had arrived at in respect of evidence contained within a factual report prepared by the appellant’s GP.
19. In its initial written observations on the application for leave to appeal, DMS opposed the application on the grounds cited by the appellant’s representative, submitting that the appeal tribunal was entitled to arrive at the conclusion which it did based on its evidential assessment. Further, DMS also submitted that:
‘For completeness I would respectfully point out that (the claimant’s) evidence to the tribunal would indicate a need for accompaniment rather than supervision and that this would not warrant an award of the lower rate mobility component.
In unreported decision C71/97(DLA) Commissioner Brown dealt with the issue of supervision and endorsed the views of the Commissioners in C44/45(DLA) and CDLA/042/94. In paragraphs 9, 10 and 12 she stated:
“9. In C44/95(DLA) the Northern Ireland former Chief Commissioner referred to CDLA/042/94. The Chief Commissioner referred specifically to paragraphs 20,21 and 22 of that decision with approval. Paragraph 21 of the GB decision refers to paragraph 19 thereof and to the interpretation of the word “supervision” set out therein. Commissioner Mesher stated:
“…there is supervision of a claimant’s walking when another person is accompanying the claimant and is watching over her, in the sense of monitoring her physical or mental or emotional state for signs of something that might require some other positive action by the person to enable or encourage the claimant to continue walking (my underlining) or monitoring the route ahead for obstacles, dangers or places or situations which might upset or disquiet the claimant or otherwise affect her adversely. Such monitoring is supervision even though it never results in the need for more active action. Such action, which might still be essentially precautionary, can also come within the meaning of supervision. The sort of things I have in mind here are encouraging, persuading or cajoling the claimant, or providing distraction from possibly alarming situations by conversation. I stress again that these are merely examples of what in my view comes within the ordinary meaning of “supervision” and I am not purporting to give a definition to be applied mechanically to all cases. In different circumstances other kinds of action may be supervision.
10. It will be seen therefore that the Commissioner was of the view that there must be at least monitoring of the claimant by the accompanying person for the matter to come within the meaning of “supervision”. This is further confirmed in paragraph 22 of the GB decision where at sub-paragraph (k) Commissioner Mesher states:
“supervision, in the context of section 73(1)(d), means accompanying the claimant and at least monitoring the claimant or the circumstances (my underlining) for signs of a need to intervene so as to prevent the claimant’s ability to take advantage of the faculty of walking being compromised.”
At sub-paragraph (1) the Commissioner states:
“The fact that the claimant derives reassurance from the presence of the other person does not prevent action which would otherwise fall (my underlining) within point (j) or (k) from being guidance or supervision.”
“12. I am in agreement with Commissioners interpretation of supervision relating to the mobility component (as set out in 10 above) and also with the Northern Ireland Chief Commission in C44/95(DLA).”
In view of the above it is my submission that the tribunal has adequately dealt with and explained why (the claimant) was not entitled to the lower rate mobility component and has not erred in law as contended.’
20. In reply to the written observations made by DMS, the appellant’s representative submitted that the evidence which was before the appeal tribunal concerning her needs while walking out of doors fell within the ambit of what was stated by Commissioner Brown in paragraph 9 of C71/97(DLA). Further the appellant’s representative challenged the submission by DMS that the appellant’s medical conditions, as recorded in the factual report prepared by the GP, did not substantiate a requirement for guidance and/or supervision when walking out of doors. In so doing, the appellant’s representative submitted that ‘… it is not the medical condition from which a person suffers but rather the resulting care/mobility needs which are considered when deciding entitlement to Disability Living Allowance …’.
Submissions with respect to GP factual reports
21. In the skeleton argument prepared for the oral hearing of the appeal, Mr Kirk, from DMS, in response to the specific question which I directed to be addressed submitted that:
‘I believe that it may be helpful to give a brief history regarding the factual reports. Prior to the current version GPs were being asked to answer numerous questions, which were proving to be time consuming. In general GPs were of the view that from their records they did not know if their patients could specifically perform the activities asked in the reports.
In many cases the GP could only reply ‘not known’ to the questions asked. Many GPs were also unhappy at having to give an opinion as to a person’s walking ability etc.
Following a consultation process it became clear that the GPs preferred to focus on diagnostic questions and in response to their concerns the Department decided to change the factual reports.
The General Practitioner’s Factual Report is currently designed to ask certain diagnostic questions and the effect of a claimant’s condition to perform certain tasks in their daily life and their ability to get around. The questions asked are geared towards the entitlement conditions to DLA and if completed properly and with sufficient detail should help the decision maker and tribunals in deciding whether or not a claimant satisfies the entitlement conditions for that benefit.
It should also be noted that a tribunal can obtain access to the GP notes to help decide the case.’
22. In the skeleton argument prepared for the oral hearing of the appeal, Ms Loughrey, from Law Centre (NI), in response to the specific question which I directed to be addressed submitted that:
‘3.0 ‘CONTENT OF GP FACTUAL REPORT
3.1 By letter dated 18 May 2009, the Commissioner has asked to be addressed on the relevance of questions contained in General Practitioner (GP) Factual Reports (DBD 370 (NI) GPFR) to the tests for entitlement to Disability Living Allowance.
3.2 For ease of reference, we have attached a blank copy of the relevant report which was in use at the time (the claimant’s) GP completed his report in March 2007. We also attach a copy of that currently in use.
3.3 From discussions with The Disability and Carers Service, we understand that the purpose of collecting evidence by way of a GP Factual Report is to obtain an overview of clinical findings. As the GP may not know the details of specific aspects of need for care/mobility his/her patient may have, nor how information provided will be applied to the conditions of entitlement for benefit, the purpose of collecting evidence in this manner is to enable the Decision Maker to consider the clinical findings and form his/her own view on what a person’s reasonable needs are likely to be. It is not intended that a GP should be asked to make assumptions about need.
3.4 While we recognise, that the Department are aware of the need to regularly review the structure of questions posed to GPs with a view to improving the quality of evidence provided to Decision Makers for the promotion of quality assurance and case accuracy, we submit that most questions contained on form DBD 370 GPFR could apply to any disability or sickness benefit. It would appear that question 6 (parts a, b and c) is the only question which broadly deals with the specific tests provided for in Sections 72 and 73 of The Social Security Contributions and Benefits (Northern Ireland) Act 1992 (hereafter referred to as “The Act”) for the purposes of determining entitlement to Disability Living Allowance.
3.5 By this, the construction of Question 6(a) appears to have been formulated with a view to establishing if the tests provided in either Section 72(1)(a)(i) or Section 72(1)(b)(i) can be met. Equally, the intention may be to collect evidence in relation to the test provided in Section 72(1)(c)(i). It does not however address any needs which could give rise to a person satisfying Section 72(1)(a)(ii) of the Act.
3.6 On consideration of how question 6(b) has been formulated, the Department appear to be seeking evidence in order to determine if a claimant meets the tests contained in either Section 72(1)(b)(ii) and/or Section 72(1)(c)(ii) of the Act.
3.7 The Department’s request for evidence as posed at question 6(c) of the report however is unclear. By this, on reading the wording of this question, (and when collecting evidence relevant to the mobility component), we are uncertain if the Department is seeking evidence specific to the test contained in Section 73(1)(a) or whether from its construction, the Decision Maker has sufficient information in order to determine if the test contained in Section 73(1)(d) of the Act is also satisfied.
3.8 On the basis of the above therefore, (and in answer to the question upon which the Commissioner has asked to be addressed), we submit that apart from question 6(a), (b) and (c) of form DBD 370 the questions otherwise posed are not specifically relevant to the tests for Disability Living Allowance.
3.9 When assessing a person’s entitlement however, we would conclude by submitting that while evidence (whether medical or otherwise) is a useful guide to Decision Makers and Tribunals, this evidence must be considered alongside a person’s own assessment of need, and all the evidence taken into account in the round before reaching a decision. A Tribunal when faced with conflicting evidence should state briefly which evidence it prefers and why, in a way that the Appellant and the Department will understand the basis of the conclusion drawn in the decision.
3.10 In (the claimant’s) case, she clearly stated on her renewal forms and in oral evidence at the Tribunal that she had mobility needs. Given that her Doctor had not identified any needs reflective of the test provided for in Section 73(1)(d) – possibly because he was not asked to provide appropriate information, both a Decision Maker and the Tribunal who heard her case did not believe she was entitled. Nor did either accept her own assertion of need.
On the basis of the above, we respectfully submit that the Tribunal has erred.’
23. At the oral hearing of the appeal, the appellant’s representative provided evidence obtained from the Disability and Carers’ Service concerning the range of factual reports which are utilised by the Department.
My analysis
24. In the renewal claim form to DLA, a copy of which is attached to the written submissions as Tab No 1, the appellant indicated, at page 7 of the form that she needed someone to be with her when she was walking out of doors. More specifically, she stated:
‘I get very fatigued when walking and need someone with me to support me and help me get back to the car, get to the toilet or rest.
Due to incontinence and bowel urgency I feel very vulnerable, having someone with me helps me cope emotionally when I have an episode of incontinence or to find me a toilet should I need one in an emergency.
I also suffer from anxiety and feel vulnerable when in unfamiliar places.’
25. It is clear, therefore, that the appellant was submitting that she had a requirement which might mean that she, potentially, satisfied the conditions of entitlement to the lower rate of the mobility component of DLA.
26. At the appeal tribunal hearing, as the record of proceedings (ROPs) confirm, the appeal tribunal asked specific questions concerning possible entitlement to the lower Rate of the mobility component of DLA. The ROPs contain the following extract:
‘Mrs Kirke
Mobility test explained. Unfamiliar surroundings – could she cope?
Appellant
Doesn’t go out because of leakages, depression, pain and too tired – stays at home.
Whether or not she is out depends on how sore she is and on her mood.
Mrs Kirke
What does her husband do? How does he help?
Appellant
He provides emotional support, she uses the pram for support.
Mrs Kirke
What support – mainly encouragement? Physical needed?
Appellant
Leans on him as well for support. Nothing further regarding mobility.’
27. The appeal tribunal’s reasons for its decision with respect to entitlement to the lower rate of the mobility component read as follows:
‘The appellant stated in her self-assessment form that she needed to have someone with her when she was outdoors for physical and emotional support due to her fatigue, incontinence and bowel urgency and her anxiety and vulnerability in unfamiliar places. The Tribunal does not accept this evidence and finds that the Appellant does not satisfy the conditions of entitlement for low rate mobility in light of the above medical evidence.
The Tribunal believes that if the Appellant’s condition was such that it warranted a need for guidance or supervision when outdoors most of the time, it is reasonable to assume that her GP would have been made aware of this and Dr Hamill would have stated this in his report. The Tribunal believes that the Appellant overstated her disability.’
28. It is important to note that the final part of the first paragraph from this quotation ‘… in light of the above medical evidence …’ is a reference to the evidential assessment which the appeal tribunal had undertaken with respect to its decision with respect to entitlement to the higher rate of the mobility component, and was also placing that evidential assessment in the context of the lower rate.
29. Further, and significantly, it is important to note that the assessment of the evidence which is before it, including the evidence of the appellant, 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.
30. 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.’
31. 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.’
32. 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:
33. In the instant case, however, the appeal tribunal added to the assessment of the appellant’s credibility additional analysis of the evidence contained in a factual report which had been prepared by the appellant’s GP. The relevant factual report had been sought by the Department as part of its evidence-gathering in connection with its decision-making on the renewal claim to DLA. It was attached to the original appeal submission as Tab No 2.
34. In my view, the additional analysis by the appeal tribunal, with respect to the factual report, is problematic, for a number of reasons.
35. It is possible that the appeal tribunal’s conclusions with respect to the appellant’s credibility were influenced by its conclusions with respect to the contents, or lack of contents, of the factual report prepared by the GP. The repetition of the conclusion that the appellant had ‘overstated her disability’, following the analysis of the factual report suggest that there was such a connection in the appeal tribunal’s reasoning.
36. I accept the description, set out in the skeleton arguments of both the appellant’s representative and DMS, of the background to the function and format of factual reports utilised by the Department as part of the evidence-gathering process with respect to decision-making in connection with DLA. I also accept that the format of such reports and, most significantly, the questions asked in such reports, have changed over a period of time. DMS, in answer to the question which I posed concerning the link between the questions asked in the factual reports to the tests for entitlement to DLA, stated:
‘The General Practitioner’s Factual Report is currently designed to ask certain diagnostic questions and the effect of a claimant’s condition to perform certain tasks in their day to day life and their ability to get around. The questions asked are geared towards the entitlement conditions to DLA and if completed properly and with sufficient detail should help the decision maker and tribunals in deciding whether or not a claimant satisfies the entitlement conditions for that benefit.’
37. In CDLA/2519/2008, Upper Tribunal Judge Jacobs stated, at paragraph 15:
‘15. Medical questionnaires cannot in practice be worded in the precise terms of the legislation and case law. They are addressed to professionals in terms that they can understand and answer. The tribunal has to analyse those answers, in context of the questions and the evidence as a whole, and apply the statutory tests to that analysis. As part of that analysis, the tribunal will have to consider whether, in the circumstances of the case, there may be relevant information that was not caught by the way a particular question was worded. If there may be, it will have to consider whether, and if so, how that evidence could reasonably be obtained. If there is a hearing, one obvious possibility is to question the claimant. If the case is being decided on the papers, the tribunal will have to consider whether an adjournment is appropriate in the circumstances of the case and whether it is realistic to expect more specific evidence to be forthcoming. The possibility of drawing inferences from the available evidence will be a relevant factor to take into account. If the claimant is represented, the tribunal is entitled to expect that the representative will have obtained whatever evidence the claimant wishes to be obtained and put before the tribunal.’
38. In the instant case, having perused the contents of the factual report, I cannot find any section where the GP is asked a direct question relevant to the conditions of entitlement to the lower rate of the mobility component of DLA, namely whether the appellant is so severely disabled that disregarding any ability she may have to use routes which are unfamiliar to her on her own, she cannot take advantage of the faculty of walking out of doors without guidance and supervision most of the time, set out in sections 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
39. The GP is asked at question 6 of the relevant factual report to:
‘Please give details. IF KNOWN, of the effects of the disabling condition(s) on
day to day life:
(a) Self care – for example, washing, dressing, feeding, using the toilet, continence, and ability to rise from the chair
(b) Insight and awareness of danger
(c) Ability to get around including pain, gait, balance, breathlessness and visual loss’
40. It is arguable that question 6(b) is directed towards the conditions of entitlement to the lower rate of the mobility component. It is more likely, however, that the question is directed towards the ‘supervision’ tests for entitlement to the middle and/or highest rate of the care component, set out in sections 72(1)(b)(ii) and 72(1)(c)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
41. Question 6(c) does ask for details of the effects of the disabling condition on an ability to get around. Accordingly, it could be argued that it is directed towards the conditions of entitlement to the lower rate of the mobility component. It is more likely, however, that the question is directed towards the tests for entitlement to the higher rate of the mobility component, set out in sections 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended. I say that because the factors which the GP is asked to take into account are all physical factors relevant to the tests of entitlement to the higher rate.
42. A claimant may have an entitlement to the lower rate of the mobility component of DLA based on being so severely disabled mentally that he or she cannot take advantage of the faculty out of doors without guidance and supervision most of the time. In my view, a GP could complete the relevant factual report and, more particularly, provide information in connection with Question 6(c) to the disadvantage of a claimant with mental health problems leading to a requirement for guidance and supervision while walking out of doors on unfamiliar routes. It is perfectly possible for a GP to note that such a claimant had not problems with pain, gait, balance, breathlessness and visual factors – the identified factors.
43. Accordingly, it is, in my view, a step too far to conclude, as the appeal tribunal did in the instant case, that if the appellant’s condition was such that it warranted a need for guidance or supervision when outdoors most of the time, it is reasonable to assume that her GP would have been made aware of this and would have stated this in the factual report. It may be that in answering Question 6(c) in the manner in which the GP did, he had in mind the factors of guidance and supervision. Equally, however, it might have been the case that he did not. Finally, and most significantly, if he had been asked a direct question concerning the requirement for guidance and supervision he may have provided the substantiation which the appeal tribunal inferred that he had.
44. Accordingly, I find that the reasons for the decision of the appeal tribunal, in respect of the lower rate of the mobility component of DLA are inadequate and do not satisfactorily explain how it arrived at its conclusions with respect to that decision.
45. I would add that I do not accept the submission made by DMS, in the initial observations on the application for leave to appeal, that the medical conditions noted by the GP did not substantiate a requirement for guidance and/or supervision when walking out of doors. It is not possible to conclude that claimants with particular medical conditions will not and cannot satisfy the conditions of entitlement to a component or rate of a component of DLA, or that satisfaction of the conditions of entitlement to the lower rate of the mobility component is restricted to those with non-physical medical conditions.
46. Further, the submission made by DMS on the applicability of the decision of Commissioner Brown in C71/97(DLA) is one which can be renewed before the appeal tribunal which will determine the re-hearing of this appeal. This is because, as the appellant’s representative has submitted, there may be evidence which supports entitlement on the basis of supervision rather than accompaniment.
Disposal
47. The decision of the appeal tribunal dated 8 April 2008 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.
48. 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 22 May 2007, which decided that the applicant was not entitled to DLA from and including 6 August 2007;
(ii) the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);
(iii) 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
(iv) 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): Kenneth Mullan
Commissioner
30 March 2010