Good Morning.

I have applied for an been granted leave to appeal to a Commissioner by the Commissioner on error in point of law. Although not entirely happy with the opinion at this stage on another point of law proffered, that will be addressed in due course. The question is whether a Commissioner has over-stepped their mark in the first direction granting leave to appeal on point of law. The following comment was made by the Commissioner in a direction for the respondent to offer comment on:

"Very careful fact finding as to the nature and periods of attention and/or supervision would be reasonably required by the claimant, but I cannot immediately see how in any event the claimant would be able to establish that he qualified for any rate of the care component other than the lowest rate, which he has presently been awarded".

Could this been seen as has having the potential of unduly influencing any future tribunal constituted to hear the case afresh. The Commissioner has not been asked to offer any opinion as to the level of DLA appropriate, he is asked purely to offer opinion on error in point of law. Does anyone agree with me that the offering of this opinion at this or any stage, unless the Commissioner was asked or intended to replace the decision with one of his own, which he has not been, is vulnerable to a challenge under fair hearing?

Is it for example legitimate in law? and if it is, should it not be been seen as bad practice?
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Opinions most welcome. Thank you.

This isn't an easy question, Paddy.

I've been considering this for a while and I think we're at a disadvantage without the full context of the situation.

I'm split three ways:

1) Agree with you. At first it seems as though the claimant is being denied fairness and justice with commissioner perhaps giving a comment which might lead a new tribunal towards a particular decision adn therefore prejudice thier independence and impartiality;

2) Maybe the commissioner has considered all the evidence in the bundle and, in his function as a decision maker, he is simply making the parties aware that in his opinion the current award is the right one regardless of any error?

3) following two, perhaps the commissioner is considering setting aside the tribunal's decision and substituting it with the same one and this is an invitation to the parties to give further comment on the facts?

Best I can come up with I'm afraid...

For what its worth, my opinion is that the Commissioner is questioning whether any error in law is material.

There are a number of decisions which confirm that if an error in law is made but has no affect on the result of the appeal then it is not a material error in law.

Only material errors in law would necessitate the setting aside of the tribunal decision.

For example a claimant gets 3 physical points in a PCA appeal. The tribunal get descriptor 5c wrong. If that is the only error then it is not material as it makes no difference to the outcome.

OR

The tribunal find that a claimant can walk 800m at a normal pace for DLA based on the opinion of an EMP but the EMP actually says 400m. Again the error is unlikely to be material because there would (normally) be no entitlement to high mob with that distance.

If I get the chance I'll try and dig out some relevant decisions but on the face of it, the Commissioner is pointing out that you need to show that the error in law, if accepted, COULD result in a different outcome.

David

The lead case is R(Iran) v SoS for the Home Office (CA) 2005. Endorsed for Social Security purposes in R(I) 2/06.