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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2005] UKSSCSC CIB_4192_2004 (15 February 2005) URL: http://www.bailii.org/uk/cases/UKSSCSC/2005/CIB_4192_2004.html Cite as: [2005] UKSSCSC CIB_4192_2004 |
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[2005] UKSSCSC CIB_4192_2004 (15 February 2005)
I SET ASIDE the decision of the Middlesbrough appeal tribunal, held on 28 September 2004 under reference U/44/228/2004/06405, because it is erroneous in point of law.
I REMIT the case to a differently constituted appeal tribunal and DIRECT as follows.
The appeal tribunal must investigate and determine the claimant's capacity for work on and from 29 March 2004. In doing so:
The appeal tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.
The appeal tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration.
Error of law:
There was evidence that the claimant had given up leisure activities for physical reasons, but also that he had done so for mental reasons. The tribunal preferred the former evidence, but did not refer to the latter evidence or explain why it rejected it.
That is sufficient to justify setting aside the tribunal's decision. I do not need to refer to any other error that the tribunal may have made.
Descriptor 17(a)
'Mental stress was a factor in making him stop work.'
Rehearing:
• The error on which I have set aside the tribunal's decision would not alone have affected the outcome of the appeal. However, I am satisfied that there is a reasonable prospect of the claimant satisfying the personal capability assessment on other grounds mentioned in the application for leave, in my grant of leave, and in the Secretary of State' observations.
• Given that, the investigation into the facts is better undertaken and the evidence better assessed by appropriately experienced panel members.
• The rehearing will not be limited to the grounds on which I have set aside the tribunal's decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.
• The tribunal will not be limited to the evidence and submissions before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.
• The tribunal must come to its own conclusions on issues of both fact and law that it considers. Neither my decision itself nor anything I have written in it is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.
Signed on original on 15 February 2005 |
Edward Jacobs Commissioner |