THE SOCIAL SECURITY COMMISSIONERS

	Commissioner's Case No:  CS/3294/2001

	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 Birmingham appeal tribunal dated 26 March 2001 is erroneous in point of law, for the reasons 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 7 to 9 below (Social Security Act 1998, section 14(8)(b)).

2.	The representative of the Secretary of State has suggested the use of the procedure in section 14(7) of the Social Security Act 1998 in this case, although providing a reasoned submission. The claimant has requested the Commissioner to substitute a decision on the facts, as he is going abroad soon for some weeks and might not be back in time for the date of a rehearing. In the circumstances there is no need to set out all the details of the case, but I have concluded that 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.	The Secretary of State's submission dated 29 January 2002 very helpfully explained the reason why the appeal tribunal was required to consider the circumstances down to the date of its decision, 26 March 2001. The appeal was against the adjudicating medical authority's (AMA's) decision dated 18 March 1998 and was made on 10 June 1998. At that date the appeal had to go to a medical appeal tribunal (MAT). Indeed, the appeal was first heard by a MAT on 21 January 1999, whose decision was subsequently set aside by a Commissioner. Appeals to MATs were not included within Schedule 6 to the Social Security Act 1998, so that although the claimant's appeal was made after the date on which that Act was passed (21 May 1998), the prohibition in Schedule 6 on taking account of circumstances obtaining after the date of the decision under appeal did not apply to it. When the Social Security Act 1998 was brought into force in relation to severe disablement allowance, so as to transfer outstanding appeals from MATs to the new appeal tribunals, there was nothing in the legislation to apply that prohibition to such appeals.

4.	The Secretary of State therefore agreed with what I said when granting leave to appeal, that the appeal tribunal did not explain why it stopped its assessment at 19 April 2000. The AMA's original assessment had been made for the period from 20 April 1997 (wrongly transcribed as 20 April 1998 and adopted by the appeal tribunal) to 19 April 2000. But on appeal the appeal tribunal was required to consider the claimant's condition and the appropriate assessment of disablement for the whole of the period from 20 April 1997 to 26 March 2001 and for the forward period for which the claimant would have been expected to continue to suffer from the relevant loss of faculty (Social Security Contributions and Benefits Act 1992, Schedule 6, paragraph 4(1)). There was a related error. The appeal tribunal regarded evidence that the claimant had been in employment as a legal clerk from 8 October 1998 to 31 December 1999 as inconsistent with his evidence about the effect of his back condition on his activities. But there would be no inconsistency if the claimant's evidence was about his condition as at the date of the hearing on 26 March 2001 or about some date after 31 December 1999. There was a flaw in the appeal tribunal's reasoning and a failure properly to consider evidence of worsening down to 26 March 2001. There was a lack of clarity about how far the appeal tribunal was assessing the claimant's current disablement and how far it was working back, say from the findings on clinical examination, to his disablement as at 19 April 2000.

5.	For those reasons, the appeal tribunal's decision must be set aside as erroneous in point of law. I have thought carefully about whether I can substitute a decision on the facts. That is because of the claimant's request and of the merits, when a case has reached a Commissioner for a second time, in not sending it for a third hearing by a tribunal. However, I have come down against taking that course. It would be undesirable, especially given the long period which must be considered, for the final decision on the facts to be taken by someone who has not had the opportunity of hearing from and seeing the claimant in person. And it is desirable for the assessment to be made by a body which has a member with medical qualifications and expertise, as an appeal tribunal hearing severe disablement allowance cases must have.

6.	The claimant's appeal against the AMA's decision dated 18 March 1998 is referred to an appeal tribunal for determination in accordance with the following directions. No-one who was a member of the MAT of 21 January 1999 or of the appeal tribunal of 26 March 2001 is to be a member of the new appeal tribunal. The claimant should contact the Appeals Service without delay to tell them the dates on which he will be out of the country and to inform them whether he wishes to wait until after he returns for an oral hearing or whether he wishes the appeal to be dealt with at a "paper hearing". In the circumstances, the new appeal tribunal would be greatly assisted if the claimant could attend.

7.	There must be a complete rehearing of the appeal on the disablement question 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 MAT of 21 January 1999 or the appeal tribunal of 26 March 2001. The clinical findings recorded on 26 March 2001 can, though, be taken into account as part of the evidence in the case. As explained above, the new appeal tribunal must consider the whole period from 20 April 1997 down to the date of the rehearing and make the appropriate assessment. There need not be a single assessment for the whole period. Different percentages can be attached to different sub-periods within the overall period.

8.	Severe disablement allowance was abolished as from 6 April 2001, but with savings for those whose current period of incapacity for work commenced before 6 April 2001. I have not gone into the complications. It would be helpful for the Secretary of State to provide a written submission to the new appeal tribunal about the effect of the legislation on the abolition, with savings, of severe disablement allowance in the present case. Subject to what might be said in that submission, it seems to me that the new appeal tribunal should, to be on the safe side, make an assessment of disablement considering the circumstances down to the date of the rehearing and for the forward period for which disablement is expected to continue.

9.	The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal.

10.	In view of the suggestion above of a fresh submission from the Secretary of State and of the claimant's problems about dates, this case should be looked at by a district chairman before a date for the rehearing is fixed.

	(Signed)    J Mesher    
	Commissioner

	Date:  28 February 2002