THE SOCIAL SECURITY COMMISSIONERS

	Commissioner's Case No:  CDLA/3224/2001

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
	SOCIAL SECURITY ACT 1998

	APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL
	ON A QUESTION OF LAW

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

	COMMISSIONER: MR J MESHER

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant's appeal is allowed. The decision of the Portsmouth appeal tribunal dated 21 March 2001 is erroneous in point of law, for the reason given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 5 and 6 below (Social Security Act 1998, section 14(8)(b)).

2.	Neither the representative of the Secretary of State nor of the claimant has objected to the appeal tribunal's decision being set aside solely on the grounds identified when I gave leave to appeal or to the case being referred to a new appeal tribunal for rehearing. In the circumstances there is no need to set out the details of the case, but I should give brief reasons for setting aside the appeal tribunal's decision. My decision is therefore given under section 14(8) of the Social Security Act 1998.

3.	I said the following when granting the claimant leave to appeal:

	"... in the Appeals Service file was a copy of the form AT37 which is sent from the Benefits Agency to the Appeals Service (now added to the Commissioner's papers). On the form AT37 the box is ticked that the Benefits Agency (ie the Secretary of State) requires an oral hearing and that a presenting officer will attend. In those circumstances it is arguable that it was a breach of regulation 39(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for there not to be an oral hearing, with notice of the date sent to both parties to the proceedings."

Unfortunately, my instruction to the Commissioners' office to add the form AT37 to the papers appears not to have been carried out.

4.	The Secretary of State evidently agrees with my suggestion. I now conclude that the appeal tribunal did err in law in the way identified above and therefore set its decision aside. The claimant's appeal against the decision dated 14 June 2000 is referred to a differently constituted appeal tribunal for determination in accordance with the following directions.

5.	There must be a complete rehearing of the appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 21 March 2001. This will have to be an oral hearing, in the light of the Secretary of State's request, with the appropriate notice of the date and place. The claimant's representatives should discuss the question of the venue directly with the Appeals Service.

6.	I need give no directions of law about the conditions of entitlement to disability living allowance. The points made on behalf of the claimant in the application for leave about the evidence before the appeal tribunal of 21 March 2001 may of course be repeated in submissions to the new appeal tribunal. The letter dated 17 April 2001 from the consultant paediatrician must be part of the papers for the rehearing. No doubt the claimant's representatives will consider what further written and oral evidence to put forward. It must though be remembered that section 12(8)(b) of the Social Security Act 1998 limits the new appeal tribunal to considering the circumstances as at 14 June 2000 and the effective date of the renewal claim (25 June 2000), although evidence coming into existence after those dates may be relevant to the earlier circumstances. And, if the new appeal tribunal were to decide that the claimant was entitled to disability living allowance as at 25 June 2000, the proper period of any award would have to be considered, subject to any decisions already given on any subsequent claims. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal.

	(Signed)    J Mesher    
	Commissioner

	Date:    8 January 2002