File no: CIB/2154/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1.	I allow the appeal. For the reasons given below, the decision of the tribunal is wrong in law and I set it aside. Fresh findings of fact need to be made and I am not in a position to make them. Therefore, pursuant to s.14(8) (b) Social Security Act 1998, I refer the appeal to a completely differently constituted tribunal for determination in accordance with the directions given in this decision.

Background

2.	The appellant is appealing with the permission of the Commissioner against the decision of the Nottingham Appeal Tribunal of 21.11.01. The decision of that tribunal was that the appellant was not entitled to Incapacity Credits from 4.07.01, he having been found capable of work following a Personal Capability Assessment.         
                                                       
The reasons for my decision

3	 This appeal is supported by the Secretary of State and I can deal with my reasons briefly. The appellant’s present representatives say that the tribunal erred in law because it failed to adjourn to seek an expert report. I do not think that that is right because the appellant was represented at the hearing and the then representative did not seek an adjournment. However, it is certainly correct to say that the tribunal are in error of law for failing to deal with the letter from Mr Tomasevic of 20.7.01, and the earlier letter from him dated 13.9.97 which was produced at the hearing.

Directions 

4.	I direct that this file shall be placed before a District Chairman so that he or she may consider ordering that a report be obtained from the appellant’s consultant Professor Dua at the Queen’s Medical Centre Nottingham. Enquiry should be made in terms of the relevant descriptors: that is, is the appellant able to recognise a friend across a street; can he see the shape of furniture within a room. It would also assist the new tribunal to know whether keratoconus affects both of the appellant’s eyes to the same degree since it may well be concerned only with the vision in the appellant’s better eye. Mr Tomasevic does describe the condition as bilateral (at page 53) but since it results in a thinning of the cornea, vision may be better in one eye than in the other.

5.	The new tribunal will have to consider that report, take evidence and find facts accordingly. If it proves to be that the difficulties experienced by the appellant are intermittent then the findings of fact will be particularly important and the tribunal will need to consider the regularity with which the appellant’s vision is compromised. I also remind the new tribunal that the Secretary of State’s grounds for review are likely to be found in r.6(2)(g) Social Security and Child Support (Decisions and Appeals) Regulations 1999 rather than in r.17(4) Social Security (Claims and Payments) Regulations 1987, as apparently found by the previous tribunal.

                                                                          Stuart McLachlan           
                                                                       Deputy Commissioner
 
   9.8.02         
[Signed on original on the date shown]