UK Social Security and Child Support Commissioners' Decisions

[1998] UKSSCSC CDLA_1389_1997 (15 October 1998)


 


THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CDLA/1389/1997
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTR1BIJTIONS AND BENEFITS ACT 1992
APPEAL FROM A DECISION OF A DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER MR COMMISSIONER JACOBS

Claimant:

Tribunal:

Tribunal's Case No:

Decision

1. My decision is as follows. It is given under sections 23(7)(b) and 34(4) of the Social Security Administration Act 1992.

1.1 The decision of the Birkenhead Disability Appeal Tribunal held on 17th December 1996 is erroneous in point of law: see paragraphs 19 and 35 below.

1.2 Accordingly I set it aside and, as it is not expedient for me to give a decision on the claimant's appeal from the adjudication officer's decision, I refer the case to a differently constituted tribunal for determination.

1.3 1 direct the tribunal that rehears this case to conduct a complete rehearing and, in particular:

The tribunal shall first determine the period over which it has jurisdiction.

(i) The tribunal's jurisdiction begins on the date of claim: 3rd October 1995.

(ii) In order to determine the date on which the tribunal's jurisdiction ends, the tribunal must establish whether the claimant has made any subsequent claim for Disability Living Allowance. If such a claim has been made and has been adjudicated upon and the tribunal's jurisdiction runs down to the effective date of that decision. Otherwise, it runs down to the date of the rehearing. The adjudication officer should inform the tribunal, either by way of an additional submission or through the presenting officer at the rehearing, whether any subsequent claim has been made and, if so, the decision given on it and the effective date of that decision.

Having determined the period of its jurisdiction, the tribunal shall determine

whether at any time within its jurisdiction the claimant satisfied the conditions of entitlement to any rate of either component of Disability Living Allowance, and in particular the tribunal shall have regard to the guidance in paragraphs 30, 34, 36, 44 and 49-50 below.

Adjudication history of the case

1. This is an appeal to a Commissioner against the decision of the tribunal brought by the claimant with the leave of the tribunal's chairman. The adjudication officer supports the appeal, although she submits that the Commissioner should give the same decision as the tribunal.

3. The claimant's claim for Disability Living Allowance was treated as made on

3rd October 1995. In the claim pack, the claimant asserted difficulties with walking.

He said that he was in discomfort all the time when walking, but that he experienced

severe discomfort after walking 50-60 yards which he could cover in one and a half minutes. In the accompanying statement, his landlady referred to some difficulties with care. The diagnosis of the claimant's GP was spondylosis with right-sided sciatica. The adjudication officer refused the claim.

2. The claimant applied for a review of the decision, saying that he felt severe discomfort when walking regardless of the distance. A report was obtained from the claimant's GP. It gave the diagnoses as right-sided sciatica, vibration white finger and perennial rhinitis. The doctor reported that the claimant had spondylosis in his lower spine which caused pain on rising from a chair, but that he could walk normally on level ground at a slow to normal pace. A different adjudication officer reviewed the decision under section 30(1) of the Social Security Administration Act 1992, but confirmed the refusal of the claim.

5. The claimant appealed against the decision given by the adjudication officer

on the section 30(1) review. His letter of appeal, which was written by a Welfare

Benefits Advisor, stated:

"[The claimant] confirms that he is always in some pain and that this intensifies after walking from 50-60 yards when he has to stop due to the severe discomfort."

The tribunal's record of decision shows that the claimant attended at the hearing of the appeal, accompanied by a different Welfare Benefits Advisor as representative.

6. The tribunal, by a majority, confirmed the refusal of the claim.

Record of proceedings

7. From and including 28th February 1996, the chairman of a Disability Appeal

Tribunal has been under a duty to make a record of the proceedings: see regulation 29(7) of the Social Security (Adjudication) Regulations 1995.

3. There is no copy of a record of the evidence and proceedings before the tribunal either in the Commissioner's file that is before me or in the tribunal's file that is attached thereto. I have no knowledge of what, if any, oral evidence was given at the hearing.
4. It is necessary, therefore, to decide the significance of a breach of regulation 29(7) and, in particular, whether it is an error of law such that the tribunal's decision in this case must be set aside.
5. The Adjudication Regulations make no provision for the effect of a failure by a chairman to make a record of proceedings or for the effect of the absence of the original or a copy of that record before a Commissioner on an appeal.
6. Before the introduction of regulation 29(7), Commissioners had considered the need for a record of evidence and proceedings, and the significance of the lack, or inadequacy, of a record.
7. The desirability of a record of evidence and proceedings was made clear by Commissioners in the 195Os: see the decisions of the Commissioners in R(I) 81/51. Paragraph 23 and R(I) 42/59. paragraph 35. However, the absence of a record was not at that time treated as an error of law: see R(I) 81/5 1, paragraph 24.

13. In R(SB) 8/84. paragraph 25U2 , a Tribunal of Commissioners directed that the

tribunal rehearing the case should

"if the claimant does give ... evidence, ensure that there is a chairman's note of such evidence identifying clearly where such evidence begins and where it ends."

14. It was not until 1988 that a Commissioner gave a decision on the significance

of the lack of a record of evidence given at a hearing before a tribunal. In CSSB/212/1987. Paragraph 3, the Commissioner was concerned with a case where there was no record taken of evidence given at the hearing before the tribunal. He held that in the circumstances of the case the failure to take a note of evidence was an error of law. He said:

"It may be that there are cases where the need for a note is less compelling e.g. where there is a simple point of law which disposes of the case and in respect of which no evidence could make any difference. But in the instant case where the findings of fact may well be crucial it seems to me to be fundamental that the parties must be able to see from the decision from what evidence the findings of fact were derived. It has long been held that where the findings show that certain evidence has been rejected the tribunal must explain why. Equally, where there is conflicting evidence the tribunal must explain why they preferred the evidence they did. A tribunal's failure to provide such an explanation is an error of law. And if that is so, it seems to me to be equally an error of law to leave the parties in the dark as to how the findings came to be made."

15. The Commissioner in CSSB/212/1987 related the significance of the notes of evidence to the established grounds on which a tribunal's decision will be erroneous in law. The absence of any, or of an adequate, note of evidence and proceedings would amount to an error of law, if it was necessary to have regard to the evidence in order to decide if there had been an error of law.

8. In CDLA/16902/1996. paragraph 9, the Commissioner was concerned with a case where the note of evidence was incomplete and barely legible. The hearing before the tribunal had taken place after the introduction of regulation 29(7), but the Commissioner did not expressly refer to it. As the Commissioner held the tribunal's decision to be erroneous in law on other grounds, it was unnecessary to decide whether there was an error of law as a result of the nature of the notes of evidence. However, the Commissioner commented as follows.

"A proper record of the tribunal's proceedings, from which it can be seen that the claimant's case has been given its due consideration and from which the result can be understood, is a requirement of the general law that does not depend on the terms of subordinate legislation: cf R(A) 1/72. Save perhaps where the whole case depends on a simple point of law and no facts are in issue, this requirement is not met without a proper record of the evidence taken, from which it can be seen how the tribunal's findings and conclusions are related to what was placed before them: R(SB) 8/84 12ara 25, CSSB 212/87 (*6/88) para 3."

9. My conclusion is that regulation 29(7), and the equivalent provisions that apply to other tribunals, by creating a general rule codified and expanded the need for a record of proceedings the desirability of which had long been recognised by Commissioners. The regulation is silent on the significance of a failure to comply with this duty. This leaves in place the decision of the Commissioner in CSSB/212/1987. This conclusion is implicit in the decision of the Commissioner in CDLA/16902/1996.
10. Accordingly, a failure to comply with regulation 29(7) will be an error of law if in a particular case it is necessary to have regard to the evidence given at the hearing or to any contention put forward at the hearing in order to decide if the case falls within any of the recognised heads of error of law. The lack of any, or of an adequate, record of proceeding is not of itself and in all circumstances an error of law. The absence of, or deficiency in, the notes of proceedings is not a separate head of error of law. However, it is subsidiary to, and protective and supportive of, the recognised heads of error of law in that it will be an error of law if it prevents a Commissioner from deciding whether a particular error of law has been shown.
11. For the reasons explained in paragraph below 35, it is not possible to know whether or not the circumstances of this case fall within one or more of the recognised heads of error of law without having regard to the chairman record of proceedings. In the absence of that record, the tribunal's decision is erroneous in law.

The mobility component at the higher rate

12. It seems that the only question before the tribunal was whether, and if so for what period, the claimant was entitled to the higher rate of the mobility component of Disability Living Allowance.
13. Section 73(1)(a) and (11)(a) of the Social Security Contributions and Benefits Act 1992 provides for entitlement to the mobility component at the higher rate where the claimant is unable or virtually unable to walk. Regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 provides that a person is unable or virtually unable to walk if

"(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment-

(i) he is unable to walk; or

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or

(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health".

14. So far as I can tell, the only possible head within which the claimant might fall is head (ii). The claimant's grounds of appeal criticise several aspects of the tribunal's decision on this head, citing in support authorities from both the Commissioners and the courts.

Jurisdiction of tribunals, Commissioners and the courts

15. In order properly to understand the authorities relied upon, it is necessary to understand the different questions that arise at different levels of decision-making.
16. On appeal from a tribunal to a Commissioner, and on appeal from a Commissioner to the Court of Appeal, the question for decision is whether the decision below was erroneous in law. Where the question before the tribunal involved the application of words of legislation that bear no special meaning in their context, the only question for the Commissioner or the Court of Appeal is whether there was an error of law in the application of those words to the facts as found by the tribunal. No question of the definition of the words arises.
17. Where the application of those words involved an exercise of judgment, the approach taken on appeal is based on the recognition that judgment might legitimately be exercised differently by different persons on the same facts: see the judgment of Lord Justice Asquith in Bellenden v. Satterthwaite [1948] 1 All England Law Reports 343 at page 345. The tribunal's decision will not be wrong merely because a Commissioner or the Court of Appeal would have formed a different judgment: see the speech of the Lord Chancellor, Viscount Simon, in Charles Osenton and Co. v. Johnson [1941] 2 All England Law Reports 245 at page 250. The Commissioner and the judges of the Court of Appeal should not and will not embark upon the exercise of deciding what judgment she or he would have formed: see the judgment of the Chief Justice, Lord Widgery, in Global Plant Ltd. v. Secretary of State for Health and Social Security [1971] 3 All England Law Reports 385 at page 393. In other words, the normal approach to the meaning of error of law is taken, save that it is recognised that on any particular set of facts there is a range of decisions that might legitimately be reached. In deciding whether the facts were such that no tribunal acting judicially and properly instructed as to the relevant law could have come to the decision reached, the Commissioner has to decide whether the tribunal's decision fell outside the range of permissible decisions that might be made.
18. The tribunal's jurisdiction covers both questions of fact and of law. The tribunal must first receive the evidence and then analyse and weigh it in order to make sufficient findings of fact. It may be necessary to interpret the relevant legislation. However, where the language of legislation bears its ordinary meaning, no interpretation is required and the sole question is the factual one of whether the case falls within the language used. The words "severe discomfort" are ordinary English words. They do not need to be interpreted; they need only to be applied. Finally, the tribunal must apply the wording of the relevant legislation in order to determine the claimant's entitlement to benefit on the basis of the facts as found.

The tribunal's decision

19. The relevant part of the reasons for decision given by the majority of tribunal

reads:

,,The tribunal members had to consider whether or not the ability to walk 50 to 60 yards in one and a half minutes before the onset of severe discomfort amounted to being virtually unable to walk. After the most careful consideration, the majority of the members of the tribunal are of the view that such limitations in walking did not amount to being virtually unable to walk. This was a difficult decision although we accept to some extent it is both subjective and objective but the majority of the members were unable to allow the appeal."

The reason given by the dissenting member was:

"The minority member was of the view that the distance stated above had limitations of time did mean [sic] that the statutory provisions were satisfied."

There was, therefore, no dissent as to the findings of fact. The dissent related only to their application.

The grounds of appeal

20. The claimant's representative has put forward four grounds of appeal in the letter of appeal to the Commissioner and in the response to the adjudication officer's submission to the Commissioner. They are as follows.

(a) On the majority's findings of fact, no tribunal acting judicially and properly instructed as to the law could have reached the conclusion reached by the majority.

(b) Regulation 12(1)(a)(ii) was interpreted too narrowly in that only one of the elements listed (time, speed, manner and distance) had to be established.

(c) The majority failed to explain why supportive evidence was rejected.

(d) The claimant was unable to discern from the decision why the evidence had failed to satisfy the majority.

In view of my conclusion that the tribunal's decision was erroneous in law, it is only necessary for me to deal with the first two grounds.

Ground (a): The majority was not entitled to reach the decision that it did on its Findings

21. The question of whether the claimant satisfied the conditions set out in regulation 12(1)(a)(ii) involved the tribunal in exercising its judgment on the findings of fact. It is not for me to substitute my own opinion of how that judgment should have been exercised. The question for me is whether the decision was one which the majority was entitled to reach on the facts as found. This question comes to this: as a matter of law is a claimant who can walk 50 to 60 yards in one and a half minutes necessarily virtually unable to walk for the purposes of regulation 12(1)(a)(ii)? My answer to this question is: no.
22. There is a preponderance of views within the decisions of Commissioners over the years that there is a distance beyond which a person ceases to be virtually unable to walk within the meaning of regulation 12(1)(a)(ii). This is found in the general indications of the restricted general meaning of virtually unable to walk given in decisions of the Commissioners in R(M) 1/78 Paragraph 11 and R(M) 3/78, Paragraph 12 ("unable to walk to any appreciable extent or practically unable to walk"), and R(M) 1/91. Paragraph 6 ("can technically walk, but only to an insignificant extent"). It is also found in decisions which give indications of distances beyond which a person is no longer virtually unable to walk, as in the decisions of the Commissioners in CNV379/1989. Paragraph 13 (60-70 yards or even as low as 40 yards), CNVI96/1993- Paragraph 9 (40 yards), CSDLA/78/1994.Paragraph (100 yards) and CDLA/1042/1995. Paragraph 12 (80-100 yards). The comments in these decisions were either given in general terms or in the context of decisions that a tribunal would be entitled to reach on particular findings.
23. In CSDLA/252/1994.Paragraph 14, the Commissioner went as far as to say

that (my emphasis)

"If somebody can walk even 50 yards albeit slowly and with a limp, and even if a rest is involved, before the onset of severe discomfort that person can not, in my judgment and as matter of law be 'virtually unable to walk'."

This suggests that a decision by a tribunal that a person who was able to walk 50 yards was virtually unable to walk would not be one that the tribunal was entitled to reach and would be erroneous in law. I doubt that the Commissioner intended to go as far as that, because so much would depend on the accompanying circumstances. Nonetheless, the Commissioner's comments on the distance of 50 yards are in line with the views in the above decisions.

24. Not all the decisions of Commissioners are to the same effect. The decision of the Commissioner in CDLA/805/1994. Paragraph 21 is an extreme and isolated example. The Commissioner, in order to emphasise the need to consider both time and speed of progress, gave the following example.

"A tribunal is entitled to conclude that a claimant is not virtually unable to walk if he can walk without severe discomfort for 400 yards at a reasonable, albeit slow, pace and, although obliged then to stop for, say, five minutes to recover, can afterwards walk without severe discomfort for a further 400 yards at the same pace. However, it would not be inconsistent were the same tribunal to conclude that a claimant was virtually unable to walk if, after walking the first 400 yards, he had to wait for two hours before being able to walk a further 400 yards."

No doubt the two hour recovery time was deliberately chosen in order to create an extreme example. The precise distance of 400 yards happened to be the distance that the claimant was found to be able to walk by the tribunal in that case. The example is probably too much tied to its own particular and extreme facts to carry any weight as a precedent, but in so far as it may be taken to suggest that a person who can walk 400 yards is capable nonetheless of being virtually unable to walk, I respectfully disagree.

25. Accordingly, I reject the argument that on the tribunal's findings of fact the only decision in law open to the tribunal was that the claimant was virtually unable to walk. Assuming for the purposes of considering this ground of appeal that the findings of fact made by the tribunal were the only relevant ones in the case, the decision was one that the majority was entitled to make.

Ground (b): A claimant need only satisfy one of the elements of regulation 12(1)(a)(ii)

26. Regulation 12(1)(a)(ii) provides that whether or not a claimant is virtually unable to walk has to be determined having regard to the time, speed, manner or distance of progress. It is not necessary for the claimant to be virtually unable to walk having regard to all those elements. It is sufficient if the claimant is virtually unable to walk having regard to one or more of them. See the decisions of the Commissioners in CNV239/1988.Paragraph and CSDLA/252/1994.Paragraph 5.
27. In the case before me, the tribunal's findings of fact dealt only with the distance covered and the time taken. A tribunal's decision will not be erroneous in law for failing to deal with an element that did not arise by evidence or argument before it: see the decision of the Tribunal of Commissioners in R(M) 1/83, Paragraphs 11 15 and 16. Accordingly, the majority's decision is not necessarily erroneous in law because it made no reference to any other element. However, in the absence of any record of proceedings, I cannot tell whether or not any other element arose on theevidence or by argument presented. Accordingly, the absence of a record of proceedings is an error of law.
28. For the benefit of the tribunal that rehears this case, I emphasise that, although it is sufficient to establish entitlement if the claimant is virtually unable to walk by reference to one of the elements listed in regulation 12(1)(a)(ii), the tribunal must consider the significance of each element in the context of any other element that is relevant on the facts of the case. The significance of one element can only properly be judged in the context of the others. For example, there is obviously a difference between a case where the claimant can walk 30 yards at half normal pace and one where the claimant can walk 30 yards at twice normal pace.

Pain and discomfort

29. As the claimant's evidence referred to pain as well as to severe discomfort and as the representative has cited the decision of the Court of Appeal in Cassinelli v. Secretary of State for Social Services (29th November 1991), it is necessary to direct the tribunal on how to approach evidence of pain and on how to relate it to the legal test of severe discomfort. The references to pain and discomfort in decisions by the Commissioners and by the courts are often cited by representatives. Considerable confusion has been occasioned by a misunderstanding of these references. As explained above, it is necessary to distinguish the different questions that arise at the tribunal's level and above.

Pain and discomfort - in the wording of tribunals' decisions, findings and reasons

30. In some of the authorities, comments on the comparative severity of pain and

severe discomfort refer to the use of those terms in the tribunal's decision.

31. In R(M) 1/91, the Commissioner was concerned with a case in which the

decision of a Medical Appeal Tribunal recorded that

"He walked with a marked limp but made steady progress without apparent pain or stress and without dragging his right leg."

The Commissioner held that the reference to "pain or stress" did not show an error of law. He said (at paragraph 3):

"If anything, 'pain or distress' constitutes a lower threshold than 'severe discomfort'."

40. In the case of Cassinelli v. Secretary of State for Social Services (29th

November 1991), the Court of Appeal was concerned with an appeal from a

Commissioner who had held that there was no error of law in the decision of a

Medical Appeal Tribunal. The tribunal's decision recorded that

"There was no evidence that the exertion [of walking] caused severe pain or distress."

The Court of Appeal held that a decision worded in this way was erroneous in law. Lord Justice Glidewell in giving the judgment of the Court of Appeal said:

"the phrase 'severe pain or distress' seems to me to be drawing a distinction between the factor of pain, of which discomfort is a lesser concomitant, and the factor of distress which may arise from other reasons than pain".

32. It may be possible to reconcile R(M) 1/91 and Cassinelli on the basis that they show that there is an escalating scale of severity from pain through severe discomfort to severe pain. It is unnecessary for me to decide this point in the case before me. The lesson for tribunals to draw from these cases is that conclusions should be expressed in the terms of the relevant legislation. The decision, findings and reasons in any particular case may or may not have been written with linguistic precision. However, in deciding whether or not the tribunal made an error of law, Commissioners have no alternative but to assume that the written record accurately represents what the tribunal did and why it did it. If a tribunal's conclusions on severe discomfort are expressed in other terms, there is the risk that a Commissioner or a court may decide that the tribunal has misunderstood or misapplied the law. In the case before me, the tribunal's reasons show that, although there was mention in the evidence of pain, the majority reached its decision on the basis of severe discomfort.

Pain and discomfort - in the evidence before the tribunal

33. The above authorities have no relevance to the tribunal's duty to obtain and analyse the evidence and to make findings of fact on the basis of that evidence. It is necessary to distinguish between the legal test to be applied and the evidence given. The legal test is set out in regulation 12(1)(a)(ii) and refers to walking without severe discomfort. The evidence may use those words or different words.

43. In making findings of fact on the basis of the evidence before a tribunal,

whether that evidence was given in terms of "discomfort", "pain", "distress", "agony"

or some other terms, a linguistic analysis of the nature of, and relationship between,

pain and (severe) discomfort is unnecessary and unhelpful. These are not words with precise meanings and as a result they are not necessarily used consistently by claimants and their representatives.

34. The tribunal should first obtain evidence of the symptoms that the claimant experiences while walking. That evidence may or may not use words like "discomfort", "pain", "distress", or "agony". Regardless of the language used to describe the symptoms, the tribunal must then relate that evidence to the legal test. In doing so the tribunal will take into account (a) the whole of the evidence, including such matters as the diagnosis, medication, and any medical evidence of disablement; (b) the claimant's credibility as a witness; and (c) the claimant's pain threshold (see further paragraphs 49 and 50 below) and ability to report symptoms accurately. Finally, a decision must be made whether the symptoms experienced by the claimant are properly described as "severe discomfort". The tribunal's conclusion should be expressed in those terms and its reasons should explain how the tribunal related the evidence to the terms of the legal test.
35. If the tribunal undertakes its duty to find the facts in accordance with the approach set out in paragraph 44 above, the question will never arise as to how a Commissioner would have interpreted the particular word chosen (by the claimant or by anyone else) to describe the claimant's symptoms while walking.
36. Commissioners have sometimes made remarks in general terms about the comparative severity of pain and severe discomfort. In CSDLA/78/1994.12 Paragraph 9, the Commissioner said:

"I need hardly point out that severe discomfort is something much less than pain......

In the context of the approach set out in paragraph 44 above, such remarks are, with respect, not relevant to the interpretation of the evidence and are not binding on the tribunal in analysing the evidence and making its findings of fact.

Severe discomfort and the point at which a claimant stops walking

37. The legal test is of the claimant's walking ability "without severe discomfort": see regulation 12(1)(a)(ii). Any walking that is undertaken while in severe discomfort has to be disregarded: see the decision of the Commissioner in R(M) 1/81.Paragraph 9.
38. Tribunals have a difficult task in identifying the onset of severe discomfort. I

have given some guidance on how to do so in paragraph 44 above.

39. It would be an error of law for the tribunal to equate as a matter of law the

onset of severe discomfort with the point at which the claimant stopped walking: see the decision of the Commissioner in CM/267/1993. paragraph 10. I accept the argument of the claimant's representative on this point. However, it is permissible for a tribunal to decide as a matter of fact in a particular case that severe discomfort first occurred at the moment when the claimant stopped walking. It may well be that in the great majority of cases it will be found as a matter of fact that the two do coincide.

50. In making its decision on this issue, the tribunal must be careful in interpreting

the evidence of the limitations on the actual walking undertaken by a claimant. There are at least four matters that the tribunal should consider.

(a) First, there is the possibility that the claimant may be exaggerating the difficulties experienced with walking.

(b) Second, evidence of time and distance is notoriously unreliable however honest a witness is trying to be: see the remarks of the Commissioner in CM/80/1988.Paragraph 5.

(c) Third, some claimants continue to walk regardless of the severity of their symptoms while some stop well short of the distance that would be covered by others with the same symptoms. The claimant's tolerance of symptoms is for the tribunal to judge on the whole of the evidence before it, including (if the claimant attends) the tribunal's estimation of the claimant's character.

(d) Fourth, a claimant may cover only a particular distance because there is no need or reason to go any further. For example, a claimant may only walk 20 yards because that is the distance to the shop where the claimant buys a newspaper before returning home to read it.

Conclusion

51. The tribunal's decision is erroneous in law and must be set aside. I cannot give the decision which the tribunal should have given on its findings of fact and it is not expedient for me to make further findings of facts. There must, therefore, be a complete rehearing of this case before a differently constituted tribunal in order to determine at all times within the period of the tribunal's jurisdiction the claimant's entitlement to Disability Living Allowance. The tribunal will decide afresh all issues of fact and law on the basis of the evidence available at the rehearing in accordance with my directions in paragraph 1.3 above. As my jurisdiction is limited to issues of law, my decision is no indication of the likely outcome of the rehearing, except in so far as I have directed the tribunal on the law to apply.

Signed: Edward Jacobs Commissioner

Date: 15th October 1998