DLA appeal failed, in midst of appealing to Commissioners, who have suggested a decision they think is justified on facts before tribunal.

Sec of State has objected and is now sending new evidence along with her OSSC3's. I didn't think new evidence was allowed at this stage of the game, but am not sure whether I should object on a matter of principle or not. The evidence that has been introduced doesn't seem to do the SoS much good or us much harm, should I just let it go, or am I wrong about this and should I be lobbing in new evidence of my own?

I'm fairly new to this level of appeals and at the moment have difficulty judging when to stop the OSSC3 ping-pong.

Sue

Is what the SoS is providing actual evidence (ie, about the facts in issue), or is it submissions (arguments about the correct interpretation of the facts)?

An appeal to the Commissioners is only on a point of law, and is confiend to the facts that were before the Tribunal. It is not open to the parties to bring in new evidence such as medical evidence or witness statemtns at this stage. A Commissioner can make his/her own findings on the facts which were before the Tribunal, if they think the factual evidence is clear enough. Commissioners can also call for the parties to provide arguments to them.

What most legal appeals are about is what the law is, that should ahve been applied. An appeal could be on the basis that the wrong legal principles - statutes, regulations and case-law - have been applied to the case. Or it can be that the Tribunal's interpretation of the facts is so unreasonable that a Tribunal properly applying its mind to the facts should never have arrived at it. Or it may simply be that the Tribunal's explanation for their findings of fact is inadequate (probably the commonest ground for a successful appeal). The usual outcome of an appeal is not for the Commissioner to make his own decision, but to set the Tribunal's decision aside and send the appeal back to a new Tribunal to rehear it. At that stage new medical evidence, etc, could be introduced.

However in complex cases it is common for a commissioner to form a preliminary view of the main issues and, if he feels the submissions of the parties don't deal adequately with the legal problems involved, ask them to make further submissions, often with relevant case law. If this is what the SoS is doing - refining the legal arguments - then that is perfectly in order. You may find new cases being quoted at you, but that's fine.

I have to say the distinction between what is a fidning of fact and what is a legal principle is one of those things that law students get dinned into them very early on in their legal education, and it's easy to forget that not everyone has had that curious experience. When I started, my tutor said to our class "By Christmas we'll have you all thinking like lawyers - it's a pity really, you'll never look at anything quite the same way again"

Yes, I'm a law student myself and I think I dimly recall that bit!

We haven't got as far as the Commissioner deciding that there needs to be a new tribunal yet - he's suggested an award based on the facts as they stand and we agreed and they objected. We're still at the stage of exchanging observations about that, which is why I don't think they should be doing what they're doing.

They've sent new factual information to support one of their arguments - namely a copy of an IB50 which was not part of their submission to the tribunal.

If the Cmmr has identified an error in law, then new evidence can be considered (it's discretionary).

It sounds as if the Cmmr agrees that the Tribunal erred in law. Or, the DWP is trying to get ahead of the game....

the new IB50 can't be put in, it's "new evidence"

and I so agree with Ariadne ....we don't look at things the same as the rest of the world! but in this sort of thing, that's not necessarily a bad thing.. IMHO

I am leaning towards Kevin’s view. Section 14(8) of the SSA 1998 is in the following terms.

“Where the Commissioner holds that the decision appealed against was erroneous in point of law, he shall set it aside and—
(a) he shall have power—
(i) to give the decision which he considers the tribunal should have given, if he can do so without making fresh or further findings of fact; or
(ii) if he considers it expedient, to make such findings and to give such decision as he considers appropriate in the light of them; and
(b) in any other case he shall refer the case to a tribunal with directions for its determination”.

So while I agree that new evidence cannot be adduced while the commissioner is deciding if there has been an error of law, once the commissioner has decided to set the tribunal’s decision aside, then IMHO, sub-section 8(ii) might just be wide enough to allow him to consider new evidence at that stage.

Speaking as one who has never had the benefits of being a law student (I always try to get my excuses in first) - I cannot see how section 14(8) allows consideration of fresh facts.

The wording of (a)(i) & (ii) seem to allow fresh findings of fact to be made, not new considerations of evidence. Surely if new evidence is to be sought or considered - the correct decision would be to remit back to a new tribunal.

I agree that if new evidence is to be sought then the case should be (and usually is remitted back) but if the commssioner actually has the evidence in his hand which clearly supported a decision either for or against the appellant then it may be judicious for him to consider it and give his own decision.

However, the interests of justice would demand that the other party be given an opportunity to obtain evidence to challenge it.

It might be more practicable just to remit the case back with directions but that is not the question. The question was can the commissioner consider new evidence. One view is no, not at all, the other is maybe, once the decision is set aside. I don't think a conclusive answer has been reached either way yet. It is an interesting point.