Claimant awarded DLA LRC. Appeal made seeking MRC and LRM: first tribunal awarded LRM on top of exisitng LRC (which was not increased).

Went to Commissioners based on error of law, resulting in decision being set aside and Commissioner directing that the new tribunal should ADDITIONALLY consider the question of pain which had not been properly addressed at the firt hearing.

Second tribunal reheard the appeal with the same (substantial written medical) evidence: they did not accept pain added anything to entitlement but decided LRC only (ie took away LRM notwithstanding that they were relying on the same evidence as first tribunal who had awarded LRM).

This seems inherently unfair. Have looked at R(DLA) 7/0 Moyna HL para 20/25 "In any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way: see George Mitchell (Chesterhall) Ltd v. Finney Lock Seeds Ltd <1983> 2 AC 803, 815-816. I respectfully think that it was unrealistic of Kay LJ to think that he was able to sharpen the test to produce only one right answer. In my opinion the Commissioner was right to say that whether or not he would have arrived at the same conclusion, the decision of the tribunal disclosed no error of law." But this seems to relate to an appellate court reviewing a lower court decision.

Where both first tier tribunals have looked at same factual issues/evidence but reached different decisons, notwithstanding that the first decision has been set aside, is there mileage for arguing error of law through breach of natural justice?? Or are we stuck with the second decision as a result of the setaside (but in this case what is the relevance of including all the first appeal papers, decision and SoR in the bundle that went before the second tribunal)

Does anyone have any thoughts on the issue??

When the first Tribunal's decision was set aside, you were back to the decision of the original Decision Maker, which I assume was to award nothing at all. The decision of the first Tribunal is not in any way binding on the second - any court below the High Court is legally incapable of creating precedents which bind itself. Look how rarely the Commissioners seem to agree, because the decision of one Commissioner doesn't bind another on similar facts.

It is perfectly possible for two differently consituted Tribunals, assessing a question of fact, to direct themselves properly on all the facts and issues and relevant law, and come out with different decisions on the same facts. Neither would be wrong on that basis as a Tribunal in a DLA case is making findings of fact and a finding of fact is only appealable if it is so clearly wrong that no reasonable Tribunal, addressing itself to all the right issues, could have made it. It's different with cases turning on questions of law, which at least theoretically have one definite correct answer only.

I have seen CDs which actually warn the appellant that just because the decision, now being set aside, was wrong, it doesn't necessarily mean you will do any better on the rehearing. The reason for the set aside is not that the Tribunal arrived at the wrong decision, it is that the Tribunal arrived at its decision improperly. The decision itself is not being analysed.

If you appeal a Tribunal DLA award and it is set aside, you always run this risk. It's like appealing only one component because you are happy with the award on the other - you can never guarantee that the Tribunal will not reopen both components.