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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [2009] NISSCSC C16_08_09(DLA) (03 March 2009) URL: http://www.bailii.org/nie/cases/NISSCSC/2009/C16_08_09(DLA).html Cite as: [2009] NISSCSC C16_8_9(DLA), [2009] NISSCSC C16_08_09(DLA)

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[2009] NISSCSC C16_08_09(DLA) (03 March 2009)

Decision No: C16/08-09(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 6 November 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 6 November 2007 is in error of law. The error of law identified will be explained in more detail below.
2. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
3. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given, as there are further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
4. In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the direction and guidance set out below.
5. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to disability living allowance (DLA), for a particular period, remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

6. On 15 February 2005, following the receipt of detailed information from Benefit Investigations Services, and following a Departmental application for a supersession, a decision-maker in the Department superseded an earlier decision dated 14 January 2004, and removed entitlement to DLA from and including 12 July 2004.
7. An appeal against the decision dated 15 February 2005 was received in the Department on 11 March 2005.
8. The final appeal tribunal hearing took place on 6 November 2007. The delay in hearing and finally determining the appeal was caused by a series of adjournments, primarily to permit criminal proceedings to be taken. In the meantime further claims to DLA were made, and were successful.
9. The appellant attended the appeal tribunal hearing and was represented.
10. The appeal tribunal disallowed the appeal, and did not confirm the decision dated 15 February 2005. The appeal tribunal substituted its own decision by way of issue of two separate decision notices to the following effect:

'Appeal disallowed.

The appellant was not entitled to the care component of DLA from 12.7.04 to 1.12.04 inclusive'

'Appeal disallowed.

The appellant was not entitled to the mobility component of DLA from 12.07.04 to 1.3.05'

11. On 17 January 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS). The grounds cited in the application for leave to appeal were that the appeal tribunal, in relying on video-tape evidence, had effectively ignored medical evidence which had been submitted to the appeal tribunal. Further the interpretation placed on the video evidence had effectively ignored representations made in relation to that evidence, particularly in relation to the nature and extent of the appellant's illnesses and disabilities.
12. On 29 January 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

The proceedings before the Social Security Commissioner

13. On 11 March 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners. The grounds cited in the appeal were the same as those which had been cited in the application for leave to appeal which had been considered, and refused, by the LQPM.
14. On 9 May 2008 observations were sought from Decision Making Services (DMS) and these were received on 9 June 2008. DMS opposed the application on all grounds.
15. These observations were shared with the appellant on 12 June 2008, and with her representative on 16 June 2008.
16. The late application was accepted for special reasons, on 29 July 2008.
17. I granted leave to appeal on 10 October 2008. The stated reason for granting leave was that 'an arguable issue arises as to the extent to which the appeal tribunal considered whether the decision-maker had grounds to supersede an earlier decision of the Department'.
18. On 24 October 2008, further correspondence was received from the appellant's representative which included detailed witness testimony.
19. On 20 November 2008, I directed an oral hearing of the appeal and requested that the parties produce skeleton arguments in respect of the same.
20. Subsequently, skeleton arguments were received from both parties – from the Department on 10 December 2008 and from the appellant's representative on 20 January 2009.
21. The oral hearing of the appeal took place on 28 January 2009. At the oral hearing the appellant attended, and was represented by Mr Colhoun, and the Department was represented by Mr Hinton of the DMS section. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

Errors of law

22. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.
23. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."

The error of law in the present appeal

24. During the course of the proceedings before the Social Security Commissioner, prior to the oral hearing of the appeal, DMS had opposed the appeal, on all of the grounds cited by the appellant, and her representative. At the oral hearing of the appeal, Mr Hinton submitted that, on the basis of my decision in C12/08-09 (DLA), he would now have to concede that the decision of the appeal tribunal, dated 6 November 2007, was in error of law. I will return to what I said in C12/08-09 (DLA) in more detail below.
25. A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision-making and appeals. In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended. In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended. To all intents and purposes, the legislative provisions with respect to decision making and appeals in Great Britain and Northern Ireland are identical.
26. At paragraph 73, of R(IB)2/04, in discussing the appeal tribunal's powers with respect to supersession decisions:

'… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct. This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.'

27. The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
28. The decision under appeal to the appeal tribunal, in the present case, was a decision dated 15 February 2005, in which a decision-maker decided to supersede the earlier decision of the Department dated 14 January 2004 and, further, decided that the appellant was not entitled to any rate or component of DLA, from and including 12 July 2004.
29. Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 15 February 2005, had grounds to supersede the earlier decision of the Department, dated 14 January 2004.
30. If the appeal tribunal determined that the decision-maker, on 15 February 2005, did not have grounds to supersede the decision dated 14 January 2004, then that latter decision would continue to have effect.
31. If the appeal tribunal determined that the decision-maker, on 15 February 2005, did have grounds to supersede the decision dated 14 January 2004, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.
32. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.
33. In the written submissions prepared for the appeal tribunal hearing, the appeals writer dealt with the supersession in some considerable detail. Firstly, the appeals writer, and from pages 4 to 6 of the submission, sets out the basis on which it is submitted that the decision-maker, on 15 February 2005, did have grounds to supersede the decision dated 14 January 2004. The appeals writer submitted that the available evidence suggested that there had been an improvement in the appellant's mobility and care needs sufficient to amount to a relevant change of circumstances, since the decision dated 14 January 2004 had been made, and satisfying regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
34. Thirdly, the appeals writer submits that there was also sufficient evidence for the decision-maker, on 15 February 2005, to further decide that the appellant did not satisfy the conditions of entitlement to either component of DLA from and including 12 July 2004.
35. Fourthly, at page 11 of the appeal submission, the appeals writer sets out the legal basis upon which entitlement to DLA was removed from a specific date ('the effective date of supersession').
36. What does the appeal submission tell the appellant? It informs her of the legal and evidential basis on which the Department has decided, on foot of her application, that she no longer satisfies the conditions of entitlement to DLA. It informs her of the reasons for that decision ie that there has been a change of circumstances permitting the Department to look again at its earlier decision, and to change that earlier decision so that she is no longer entitled to the relevant benefit. Finally it informs her of the date from which she is no longer entitled.
37. By contrast, neither the decision notice prepared by the LQPM of the appeal tribunal, nor the statement of reasons for the appeal tribunal's decision, deals with the issue of supersession to any degree of sufficient detail. As was noted above, the appeal tribunal issued two separate decision notices to the following effect:

'Appeal disallowed.

The appellant was not entitled to the care component of DLA from 12.7.04 to 1.12.04 inclusive'

'Appeal disallowed.

The appellant was not entitled to the mobility component of DLA from 12.7.04 to 1.3.05'

38. In the statement of reasons there is no mention of the issue of supersession at all. The greater part of the statement of reasons is taken up with an assessment of the evidence available to the appeal tribunal, particularly in relation to video-tape evidence provided by the Department, some limited findings in fact, and a conclusion that:

'… for most of the time throughout the period in dispute, she did not satisfy the criteria for any award of Disability Living Allowance.'

39. What the decision notice and statement of reasons does tell the appellant is that the appeal tribunal has determined and agrees that the appellant should not have an entitlement to either component of DLA from a specific date, and then something of the evidential basis for its conclusions on that issue.
40. What the decision notice and statement of reasons does not inform the appellant is:

(i) that the appeal tribunal has addressed the issue of whether the Department had a legal and evidential basis for reconsidering and changing its earlier decision; and

(ii) the effective date from which any new decision should take effect.

41. As was noted above, at the oral hearing of the appeal, Mr Hinton submitted that, on the basis of my decision in C12/08-09 (DLA), he would now have to concede that the decision of the appeal tribunal, dated 6 November 2007, was in error of law.
42. In C12/08-09(DLA), I indicated, at paragraphs 48-58:

'48. The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct. As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

49. If the appeal tribunal determined that the decision-maker did not have grounds to supersede the earlier decision then that decision would continue to have effect.

50. If the appeal tribunal determined that the decision-maker did have grounds to supersede the earlier decision then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

51. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.

52. The appeal tribunal's duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so. It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal's documentation that the supersession issue was addressed. That consideration must be explicit from the decision notice, the statement of reasons or a combination of both. In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.

53. The consideration of the issues raised by the appeal is expressly a part of the appeal tribunal's inquisitorial role (on which issue see the further comments of the Tribunal of Commissioners in Great Britain in R(IB) 2/04 at paragraph 32). That would mean that the supersession issue ought to have been addressed, in any event.

54. In the present case, however, the appellant's representative, as is made clear in the record of proceedings, made a specific submission that 'nothing [sic] changed since initial award'. That representative, and, more importantly, his client were entitled to know the basis upon which the appeal tribunal had concluded that something had changed, justifying the Departmental supersession decision.

55. What the appellant, and her representative were informed, through the decision notice, and the statement of reasons, was the basis on which the appeal tribunal determined that she was not entitled to DLA. What they were not informed was the basis on which the appeal tribunal determined that there had been a relevant change, justifying the supersession, and from which effective date. The decision notice and statement of reasons collectively read as if they had been prepared in connection with a decision of a new or renewal claim.

56. It could well be the case that the appeal tribunal agreed with the detailed submissions, set out in the appeal submission, on all of the supersession issues – grounds, entitlement and effective date. If that is the case it would have been easy to make reference to those submissions and add further reasons as to the basis on which it so agreed.

57. DMS submits that it may have been preferable for the appeal tribunal to refer specifically to the grounds for supersession in the conclusion to its statement of reasons. It is not preferable but essential that it should do.

58. The failure of the appeal tribunal to make explicit its determination, findings and conclusions on the supersession issue means that it is in error of law, and it is for that reason that it is set aside.'

43. Mr Hinton is correct to concede that the application of the principles cited above to the present appeal must lead to a conclusion that there has been an error of law. The error is that the appeal tribunal has clearly failed to make explicit its determination, findings and conclusions on the supersession issue.

Another potential error – the dates of the award

44. As was noted above, the appeal tribunal purported to disallow entitlement in respect of the care and mobility components of DLA. The disallowance for the mobility component was stated to be for the period from 12 July 2004 to 1 March 2005. On the other hand, the disallowance for the care component was stated to be from 12 July 2004 to 1 December 2004 'inclusive'.
45. The Department, on 15 February 2005, had decided that there should be a disallowance of entitlement to both components of DLA, from and including 12 July 2004. That is probably where the appeal tribunal obtained the start date of the two disallowances which it purported to make, although without giving any indication as to why it thought that that start date was appropriate.
46. The difference in the end dates of the two disallowances is difficult to fathom although a clue as to the appeal tribunal's thinking is to be found in the record of proceedings. Therein it is noted that:

'Presenting Officer

Award of middle rate care from 02.03.05 to 01.03.07. Period in dispute today 12.7.04 to 01.03.05. Current award from 03.11.2006 of middle rate care, low rate mobility (supersessions). 3 month qualifying period applied for award from 02.03.05 (ie middle rate care criteria applied from 02.12.04'

47. The appeal tribunal may have formed the view that the end date for any disallowance was either 1 March 2005, that is the date immediately prior to the date of a further award made to the appellant, or 2 December 2004, which is three months prior to the date of the subsequent award.
48. In any event, there is no clear explanation as to why the appeal tribunal adopted two different end dates for disallowances in respect of the two different components of DLA. That error might not have been fatal to the overall decision, however, if the supersession issue, including the question of the effective date of supersession had been dealt with adequately.

The other grounds raised by the appellant

49. The grounds cited in the application for leave to appeal were that the appeal tribunal, in relying on video-tape evidence, had effectively ignored medical evidence which had been submitted to the appeal tribunal. Further the interpretation placed on the video evidence had effectively ignored representations made in relation to that evidence, particularly in relation to the nature and extent of the appellant's illnesses and disabilities.
50. In relation to the first issue, I agree that the statement of reasons for the appeal tribunal's decision is largely concerned with the appeal tribunal's assessment of the video-tape evidence which was before it. The statement also includes an assessment of the appellant's own evidence, as given at the appeal tribunal hearing.
51. It is important to note that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.
52. In Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal. At paragraph 29, the Court stated:

'It is clear that the Tribunal considered Dr M's report since they refer to it in their findings and describe it as being less than helpful. The challenge to the Tribunal's attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight. As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances. Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -

"A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless—

(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36."

53. At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:

'I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal. The weight to be given to an item of evidence is a matter of fact. That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached. Having examined Dr M's report I do not consider that the Tribunal's conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.'

54. Nonetheless, there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.
55. In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

' … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect. It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason. Indeed, it will sometimes be its duty to do so. However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant. It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short. We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal. That body must have regard to the whole of the evidence, including the medical evidence. Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so. Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.'

56. In its statement of reasons the appeal tribunal has made no reference to the medical evidence available to it, including the appellant's general practitioner (GP) records, and in the form of the medical report from his GP, dated 20 December 2006. The statement of reasons gives no indication as to how that medical evidence was assessed and whether or not it was accepted or rejected, and accordingly, the reasons are inadequate.
57. The remainder of the grounds cited by the appellant's representative, in the application for leave to appeal to the Social Security Commissioner, come close to amounting to a further submission on factual issues rather than questions of law. It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence. I have noted, in particular, that the appellant's representative has submitted detailed witness testimony, as part of his submissions. It is clear that such testimony should have been provided to the appeal tribunal in the first instance, had the appellant's representative wished to rely on it. It is not the task of the Social Security Commissioner to undertake a further analysis or assessment of evidence which was not made available to the appeal tribunal.

Disposal

58. The decision of the appeal tribunal dated 6 November 2007 is in error of law. The error of law identified will be explained in more detail below.
59. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
60. I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there is detailed evidence relevant to the issues arising in the appeal, including medical and video-tape evidence, to which I have not had access. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

Guidance to the parties to the proceedings and the appeal tribunal

Grounds to supersede

61. The appeal tribunal is reminded that the decision under appeal is a decision, dated 15 February 2005, to supersede an earlier decision of the Department dated 14 January 2004 and to remove entitlement to DLA from and including 12 July 2004.
62. Accordingly, the first task of the appeal tribunal is to determine whether the decision-maker, on 15 February 2005, had grounds to supersede the earlier decision of the Department, dated 14 January 2004. The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
63. In making its determination on the issue of whether the Department had grounds to supersede, the appeal tribunal should note the remarks of Mrs Commissioner Brown, at paragraph 7, of the decision in C14/04-05(DLA):

'… DLA is a composite benefit and … once grounds for supersession have been established both components can be looked at. R2/95(DLA) and CIB/4751/2002 indicate.'

64. As was noted by the Tribunal of Commissioners in R(IB) 2/04, at paragraph 10, in considering the Great Britain equivalent regulation to regulation 6, there can be no supersession unless one of the grounds for supersession specified in regulation 6 was actually found to exist, and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground.
65. In the original submission, prepared by the Department for the appeal tribunal hearing, it was submitted that the relevant ground on which the supersession was founded was a relevant change of circumstances. The change was that there had been an improvement in both the appellant's mobility and her care needs.
66. It will be for the Department to submit whether that remains the ground upon which the decision to supersede was made. Equally the appellant, and her representative may make representations on this key issue as to whether the Departmental decision-maker had grounds to supersede.
67. It will be for the appeal tribunal to determine whether the Department's decision to supersede on the ground of a relevant change of circumstances was correct, and whether the original decision was altered in a manner which follows from that ground.
68. As was noted by the Tribunal of Commissioners in Great Britain, at paragraph 73, of R(IB)2/04, in discussing the appeal tribunal's powers with respect to supersession decisions:

'… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct. This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.'

69. This means that the appeal tribunal, subject to the other guidance given by the Tribunal of Commissioners on the exercise and limits of the authority, has the power to remedy any defect in the decision under appeal, and make any decision which the decision-maker should have made.
70. If the appeal tribunal determines that the decision-maker, on 15 February 2005, did not have grounds to supersede the decision dated 14 January 2004, then that latter decision continues to have effect.
71. If the appeal tribunal determines that the decision-maker, on 15 February 2005, did have grounds to supersede the decision dated 14 January 2004, then the appeal tribunal should go on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

Effective date of supersession

72. In all appeals involving a supersession decision, the appeal tribunal is under a duty to consider the date from which any supersession should take effect ('the effective date of supersession'). This is not a straightforward issue, and much will depend on the ground for supersession, and the benefit at issue in the appeal.
73. The effective date of supersession rules are set out in Articles 11(5) and (6) of the Social Security (Northern Ireland) Order 1998, and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.
74. Where an appeal tribunal fails to consider the effective date of supersession rules, or misapplies these, it may find that its decision is in error of law.
75. The parties to the proceedings in the present case may wish to make submissions to the appeal tribunal on the application of the effective date of supersession rules to the issues arising in the appeal.

Further claims to DLA

76. The decision under appeal is a decision of the Department dated 15 February 2005. That decision had the practical effect of removing entitlement to DLA from and including 12 July 2004.
77. At the oral hearing of the appeal before me, Mr Hinton informed me that the appellant has had a series of awards of entitlement to DLA, covering the period from 2 March to date, and that she is currently the subject of an indefinite award. Details of these awards should be made available to the appeal tribunal to which the appeal is being referred.
78. The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA).

Evidential issues

79. It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal. In this respect, the appellant's representative should note my comments, made above, in connection with the provision of witness testimony.
80. It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed) K Mullan

Commissioner

3 March 2009