[2009] NISSCSC C11_08_09(IB) (16 June 2009) 

		Decision No: C11/08-09(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

		SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	INCAPACITY BENEFIT

	Appeal to a Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 20 March 2008

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the 	appeal can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 20 March 2008 is in error of law. 	The error of law identified will be explained in more detail below.

3.	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. 

4.	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. 

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 	incapacity benefit (IB) 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 7 January 2008, a decision-maker of the Department decided to 	supersede an earlier decision of the Department, dated 11 October 2005, 	and which refused entitlement to IB credits from and including 7 January 	2008.

7.	The appeal against the decision dated 7 January 2008 was received in the 	Department on 16 January 2008.

8.	On 11 February 2008, the decision dated 7 January 2008 was looked at 	again but was not changed.

9.	The appeal tribunal hearing took place on 20 March 2008. The applicant 	attended and was represented. A presenting officer from the Department 	attended.

10.	The appeal tribunal disallowed the appeal, and confirmed the decision 	dated 7 January 2008. 

11.	On 6 June 2008 an application for leave to appeal to the Social Security 	Commissioner was received in the Appeals Service. The grounds cited in 	the application were that:

	(i)	the appeal tribunal failed to give adequate reasons for its 			decision; and

	(ii)	the appeal tribunal failed to address the issue of whether the 		Departmental decision-maker had grounds, on 7 January 			2008, to supersede the earlier decision of the Department, 			dated 11 October 2005.

12.	On 25 June 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 1 August 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 	were the same as those which had been submitted in the application for 	leave to the LQPM. 

14.	On 3 September 2008 observations were sought from Decision Making 	Services (DMS) and these were received on 24 September 2008. DMS 	opposed the application. 

15.	Observations were shared with the appellant, and her representative, on 	30 September 2008.

16.	On 23 February 2009, I granted leave to appeal. In so doing, I stated, as a 	reason, that an arguable issue arose as to whether the statement of 	reasons for the appeal tribunal’s decision was adequate to explain how the 	appeal tribunal assessed the evidence which was before it.

Errors of law

17.	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.

18.	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.” 
19.	The present appeal is concerned with the adequacy of the appeal 	tribunal’s reasons for its decision.

Reasons

20.	Regulation 53(4) of the Social Security and Child Support (Decisions and 	Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

	‘(4)	 Subject to paragraph (4A), a party to the proceedings may 			apply 	in writing to the clerk to the appeal tribunal for a 			statement of the reasons for the tribunal’s decision within 			one month of the sending 	or giving of the decision notice to 			every party to the proceedings or 	within such longer period 			as may be allowed in accordance with regulation 54 and 			following that application the chairman or, in the case 				of a tribunal which has only one member, that member, shall 		record a statement of the reasons and a copy of that 				statement shall be sent or given to every party to the 				proceedings as soon as may be practicable.’

21.	In Miss H v East Sussex County Council and others ([2009] EWCA Civ 	249), the Court of Appeal for England & Wales has reviewed the nature of 	the requirement on appeal tribunals to give reasons for their decisions. 	Lord Justice Waller, at paragraphs 16 to 17 of his judgement stated:

	‘16.	The requirement to give reasons is concerned with fairness 	and as far as guiding principles are concerned I agree with 	what Wall LJ said in W v Leeds City Council and SENDIST [	2006] ELR 617. After referring to four first instance decisions 	specifically relating to Special Educational Needs Tribunals 	and the giving of reasons, including Grigson J's decision in 	R(M) v Brighton and Hove City, he said at paragraph 53 to 	54 as follows:- 

	"53.	I do not think it necessary for this court to add 			to the already substantial jurisprudence on 			this topic.  Speaking for myself, I have 				always regarded the judgment of Sir 				Thomas Bingham MR (as he then was) 				in this court in Meek v Birmingham City Council 		[1987] IRLR 250 (even though it substantially 			antedates the incorporation into English Law of 		ECHR) as the definitive exposition of the 			attitude superior courts should adopt to 				the reasons given by Tribunals. Whilst, of 			course some	aspects of the reasoning 				processes of 	different specialist tribunals are 			unique to the particular speciality which is 			engaged, I see no reason, in this context, to 			distinguish between Employment Tribunals and 		what are now SENDISTs. Sir Thomas said:

		"It has on a number of occasions been made 			plain 	that the decision of an Industrial Tribunal 		is not 	required to be an elaborate formalistic 			product of refined legal draftsmanship, but it 			must contain an outline of the story which 			has given rise to the complaint and a 				summary of the Tribunal's basic factual 				conclusions and a statement of the reasons 			which have led them to reach the conclusion 			which 	they do on those basic facts. The parties 		are entitled 	to be told why they have won or 			lost. There should be sufficient account of 			the facts and of the reasoning to enable the 			EAT or, on further appeal, this court to see 			whether any question of law arises . . ."

	54. 	The Master of the Rolls added:

		"Nothing that I have said is, as I believe, in any 			way inconsistent with previous authority on 			this subject. In UCATT v Brain [1981] 				IRLR 225, Lord Justice Donaldson (as he 			then was) said at p 227:

		"Industrial Tribunals' reasons are not intended 			to include a comprehensive and detailed 			analysis of the case, either in terms of fact 			or in law . . . their purpose 	remains what it has 			always been, which is to tell the 	parties in 			broad terms why they lose or, as the case 			may be, win. I think it would be a thousand 			pities if these reasons began to be 				subjected to a detailed analysis and 				appeals were to be brought based upon 	any 			such analysis. This, to my mind, is to misuse 			the purpose for which the reasons are 				given."""

	17.	I would merely add to those dicta, the dictum of Baroness 	Hale in Secretary of State for the Home Department v AH 	(Sudan) and Others [2008] 1 AC 678 where she paraphrased 	a view she had previously expressed on expert Tribunals in 	these words:- 

	"30.	 . . This is an expert tribunal charged with 			administering a complex area of law in 				challenging circumstances. To paraphrase a 			view I have expressed about such expert 			tribunals in another 	context, the ordinary courts 		should approach appeals 	from them with an 			appropriate degree of caution; it is 				probable that in understanding and applying the 		law in 	their specialised field the tribunal will 			have got it right: see Cooke v Secretary of 			State for Social Security [2001] EWCA Civ 			734, [2002] 3 All ER 279, para 16.  They 			and they alone are the judges of the facts. It is 			not enough that their decision on those facts 			may 	seem harsh to people who have not 			heard and read the evidence and 					arguments which they have heard and 				read. Their decisions should be respected 			unless it is quite clear that they have 				misdirected themselves in law. Appellate 			courts should not rush to find such 				misdirections simply because they might have 			reached a different conclusion on the facts or 			expressed themselves differently. I cannot 			believe that 	this eminent Tribunal had indeed 			confused the three 	tests or neglected to apply 			the correct relocation test."

22.	As was noted by the Lord Justice himself, there is considerable case-law 	on the requirement by appeal tribunals to give adequate reasons for its 	decisions.

23.	In Re Poyser and Mills’ Arbitration [1964] 2 QB 467, 478, Megaw J. said:

	“Parliament provided that reasons shall be given, and in my view 	that must be read as meaning that proper, adequate reasons must 	be given. The reasons that are set out must be reasons that will not 	only be intelligible, but which deal with the substantial points that 	have been raised.”

24.	In R(A)1/72, the then Chief Commissioner for Great Britain, considering an 	appeal from a delegated medical practitioner acting on behalf of the 	Attendance Allowance Board, said:

	“The obligation to give reasons for the decision in [a case involving 	a conflict of evidence] imports a requirement to do more than only to 	state the conclusion, and for the determining authority to state that 	on the evidence the authority is not satisfied that the statutory 	conditions are met, does no more than this. It affords no guide to 	the selective process by which the evidence has been accepted, 	rejected, weighed or considered, or the reasons for any of these 	things. It is not, of course, obligatory thus to deal with every piece of 	evidence or to over elaborate, but in an administrative quasi-judicial 	decision the minimum requirement must at least be that the 	claimant, looking at the decision should be able to discern on the 	face of it the reasons why the evidence has failed to satisfy the 	authority. For the purpose of the regulation which requires the 	reasons for the review decision to be set out, a decision based, and 	only based, on a conclusion that the total effect of the evidence fails 	to satisfy, without reasons given for reaching that conclusion, will in 	many cases be no adequate decision at all.”

25.	In R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 66 	(The Times, January 24, 2003), the Court of Appeal considered the 	approach Sedley J had taken in R v Higher Education Funding Council Ex 	p Institute of Dental Surgery [1994] 1 WLR 242 to the question of whether 	there was a duty to give any reasons at all and held that, where there is a 	duty to give reasons, the same approach should be taken to the question 	whether reasons were adequate. Sedley J’s approach required the 	balancing of a number of considerations, which might vary from case to 	case. He said:

	“The giving of reasons may among other things concentrate the 	decision-maker’s mind on the right questions; demonstrate to the 	recipient that this is so; show that the issues have been 	conscientiously addressed and how the result has been reached or 	alternatively alert the recipient to a justiciable flaw in the process. 	On the other side of the argument, it may place an undue burden on 	decision makers; demand an appearance of unanimity where there 	is diversity; call for the articulation of sometimes inexpressible value 	judgments; and offer an invitation to the captious to comb the 	reasons for previously unsuspected grounds of challenge.”

26.	In R(DLA) 3/08, a Tribunal of Commissioners in Great Britain stated, at 	paragraphs 9 to 10:

	‘9.	In a well known passage in South Bucks District Council v 			Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36], 			Lord 	Brown of Eaton-under-Heywood said:
	“The reasons for a decision must be intelligible and they 	must be adequate. They must enable the reader to 	understand why the matter was decided as it was and what 	conclusions were reached on the ‘principal important 	controversial issues’, disclosing how any issue of law or fact 	was resolved. Reasons can be briefly stated, the degree of 	particularity required depending entirely on the nature of the 	issues falling for decision. The reasoning must not give rise 	to a substantial doubt as to whether the decision-maker erred 	in law, for example by misunderstanding some relevant 	policy or some other important matter or by failing to reach a 	rational decision on relevant grounds. But such adverse 	inference will not readily be drawn. The reasons need refer 	only to the main issues in the dispute, not to every material 	consideration. They should enable disappointed developers 	to assess their prospects of obtaining some alternative 	development permission, or, as the case may be, their 	unsuccessful opponents to understand how the policy or 	approach underlying the grant of permission may impact 	upon future such applications. Decision letters must be read 	in a straightforward manner, recognising that they are 	addressed to parties well aware of the issues involved and 	the arguments advanced. A reasons challenge will only 	succeed if the party aggrieved can satisfy the court that he 	has genuinely been substantially prejudiced by the failure to 	provide an adequately reasoned decision.”
	10.	Those comments were made in the context of planning 			decisions, but they apply equally to social security cases. …’  

27.	The requirement for an appeal tribunal to give adequate reasons for its 	decision includes a requirement to an explicit explanation as to why it 	prefers, accepts or rejects relevant evidence. In R2/01(IB)T, a Tribunal of 	Commissioners stated, at paragraph 17:

	‘However, where, as in this case, there is a conflict of crucial 	evidence the Tribunal should give some indication of its evidential 	preference and the reasons for that preference. To give a 	hypothetical example, if it considers that a claimant is overstating 	his or her case, whether consciously or otherwise, it should clearly 	say so.  The assessment of evidence is a matter for the Tribunal as 	the fact finding body and it is quite entitled to exercise its judgment 	in making that assessment.  It must, however, give adequate 	reasons for its decision and in this case we do not consider that it 	has done so.  The reasons do not adequately explain to the 	claimant why she lost her case.’

28.	Further, at paragraphs 38 to 39, the Tribunal of Commissioners noted the 	decision of the Commissioner in the Great Britain case CI/5880/1999:

	‘We also note that Mr Commissioner Williams quotes from the 	judgment of Lord Lane C.J. in R v Immigration Appeal Tribunal, ex 	parte Khan [1983] QB790.  The passage from which the quotation is 	taken when read in full is as follows:-

	“… The important matter which must be borne in mind by 	tribunals in the present type of circumstances is that it must 	be apparent from what they state by way of reasons first of 	all that they have considered the point which is at issue 	between the parties, and they should indicate the evidence 	on which they have come to their conclusions.  

	Where one gets a decision of a tribunal which either fails to 	set out the issue which the tribunal is determining either 	directly or by inference, or fails either directly or by inference 	to set out the basis on which it has reached its determination 	on that issue, then that is a matter which will be very closely 	regarded by this court, and in normal circumstances will 	result in the decision of the tribunal being quashed.  The 	reason is this.  A party appearing before a tribunal is entitled 	to know, either expressly stated by it or inferentially stated, 	what it is to which the tribunal is addressing its mind.  In 	some cases it may be perfectly obvious without any express 	reference to it by the tribunal; in other cases it may not.  	Secondly, the appellant is entitled to know the basis of fact 	on which the conclusion has been reached.  Once again in 	many cases it may be quite obvious without the necessity of 	expressly stating it, in other cases it may not.”

	While we agree with Mr Commissioner Williams that an appellant is 	entitled to know the basis of fact upon which a decision has been 	reached, the above passage (which has already been approved by 	the Chief Commissioner in R5/99(IB)) sets out explicitly the 	implications of this entitlement.  The Khan decision clearly indicates 	that while a claimant is entitled to know the basis of fact for a 	conclusion, there is no absolute and universal requirement for this 	basis to be expressly stated.  All will depend on the case.  Express 	statement may be necessary in some cases, it may not be so 	necessary in others.  The Khan case is not authority for the view 	that in every case the basis of fact must be expressly stated.’

29.	In C8/08-09(IB), I stated, at paragraph 60:

		‘… 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.’

The appeal tribunal’s reasons in the present case

30.	In the present case the reasons for the appeal tribunal’s decision are 	brief. The reasons read as follows:

	‘The claimant has not had any referrals for physiotherapy, 	orthopaedic investigation or for psychiatric treatment. Her 	General Practitioner manages her condition. The Tribunal felt 	her evidence was overstated and accepts only what is vouched 	by the medical examination. The General Practitioner letter 	states she had depression with poor concentration and memory 	problems and makes no reference to her other conditions. 

		The Tribunal is not persuaded to interfere with the Department’s 		decision.’

31.	I should say, at the outset of the analysis of the adequacy of the appeal 	tribunal’s reasons, 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.

32.	In this regard, I would add that the assessment of the credibility of an 	appellant’s own evidence, given to an appeal tribunal, is for the appeal 	tribunal to make. 

33.	In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

	‘ … there is no universal rule that a Tribunal must always explain its 	assessment of credibility.  It will usually be enough for a Tribunal to 	say that it does not believe a witness.’     

34.	Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 	22 repeated what the duty is:

		‘We do not consider that there is any universal obligation on a 	Tribunal to explain its assessment of credibility.  We disagree with 	CSIB/459/97 in that respect.  There may of course be occasions 	when this is necessary but it is not an absolute rule that this must 	always be done.  If a Tribunal makes clear that it does not believe a 	claimant’s evidence or that it considers him to be exaggerating this 	will usually be sufficient.  The Tribunal is not required to give 	reasons for its reasons. There may be situations when a further 	explanation will be required but the only standard is that the 	reasons should explain the decision.  It will, however, normally be a 	sufficient explanation for rejecting an item of evidence, including 	evidence of a party to an appeal, to say that the witness is not 	believed or is exaggerating.’

35.	This reasoning was confirmed in CIS/4022/2007. After analysing a series 	of authorities on the issue of the assessment of credibility, including 	R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at 	paragraph 52, as follows:
	‘In my assessment the fundamental principles to be derived from 	these cases and to be applied by tribunals where credibility is in 	issue may be summarised as follows: (1) there is no formal 	requirement that a claimant's evidence be corroborated – but, 	although it is not a prerequisite, corroborative evidence may well 	reinforce the claimant's evidence; (2) equally, there is no obligation 	on a tribunal simply to accept a claimant's evidence as credible; (3) 	the decision on credibility is a decision for the tribunal in the 	exercise of its judgment, weighing and taking into account all 	relevant considerations (e.g. the person's reliability, the internal 	consistency of their account, its consistency with other evidence, its 	inherent plausibility, etc, whilst bearing in mind that the bare-faced 	liar may appear wholly consistent and the truthful witness's account 	may have gaps and discrepancies, not least due to forgetfulness or 	mental health problems); (4) subject to the requirements of natural 	justice, there is no obligation on a tribunal to put a finding as to 	credibility to a party for comment before reaching a decision; (5) 	having arrived at its decision, there is no universal obligation on 	tribunals to explain assessments of credibility in every instance; (6) 	there is, however, an obligation on a tribunal to give adequate 	reasons for its decision, which may, depending on the 	circumstances, include a brief explanation as to why a particular 	piece of evidence has not been accepted. As the Northern Ireland 	Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately 	"the only rule is that the reasons for the decision must make the 	decision comprehensible to a reasonable person reading it". 
The adequacy of the reasons in the present case

36.	The reasons for the appeal tribunal’s decision are problematic, in two 	respects. 

37.	Firstly, the appeal tribunal concludes that the appellant’s own evidence 	was ‘overstated’. The appeal tribunal, however, has gone on to state that 	the evidence of the appellant which is accepted is ‘only what is vouched by 	the medical examination’. Although it is nowhere stated in the reasons, I 	am assuming that ‘the medical examination’ refers to the report of the 	medical examination, conducted by a medical officer of the Department, 	and which formed the basis of the decision under appeal. 

38.	It is important to note that the medical officer of the Department, in the 	report of the medical examination, undertook an assessment of the extent 	to which the appellant could perform certain of the activities as prescribed. 	That included the application of relevant descriptors to relevant activities, 	which resulted in a conclusion that the appellant had restrictions in 	functional ability with respect to sitting, bending and kneeling, standing, 	walking and walking up and down stairs. Further, the medical officer 	concluded that the appellant’s mental condition prevented her from 	undertaking leisure activities previously enjoyed; and that she preferred to 	be left alone for six hours or more each day. 

39.	The assessment undertaken by the medical officer of the Department 	formed the basis on which the decision-maker of the Department decided 	that the appellant was not incapable of work in accordance with the 	personal capability assessment and, accordingly, was not entitled to IB 	credits. In arriving at this decision, the decision-maker found that the 	appellant scored nine points in relation to the personal capability 	assessment accepting, as had the medical officer of the Department, that 	the appellant had restrictions in functional ability with respect to sitting, 	bending and kneeling, standing, walking and walking up and down stairs, 	and that the appellant’s mental condition prevented her from undertaking 	leisure activities previously enjoyed; and that she preferred to be left alone 	for six hours or more each day.

40.	In relation to the decision of the appeal tribunal, a personal capability 	assessment ‘score-sheet’ was completed in which, in relation to the 	physical descriptors, it is recorded that the appellant was awarded three 	points each for walking, standing and bending and kneeling, although no 	specific descriptor for these activities was separately recorded. In relation 	to the mental descriptors, it is recorded that the appellant was awarded 	one point each for completion of tasks and interaction with other people. 	On this page, however, the specific descriptors of ‘15(e)’ and ‘18(e)’ were 	separately recorded.      

41.	It is clear, therefore, that the appeal tribunal differed from the decision-	maker in respect of walking up and down stairs (or because, if descriptors 	from both ‘walking’ and ‘walking up and down stairs’ apply, only one 	descriptor can count towards the final score, the appeal tribunal concluded 	that it had only to record one of the two descriptors).

42.	More significantly, anyone reading the reasons for the appeal tribunal’s 	decision, and that includes the appellant, would, in my view, be justified in 	wondering which aspects of the ‘medical examination’ did ‘vouch’ her oral 	evidence, and which did not. Put a different way, the appellant would be 	justified in wondering why the appeal tribunal accepted, as it apparently 	did, the evidence in respect of the activities where it determined there was 	a limitation, why it rejected, as over-stated, the remainder of the evidence, 	and why it considered there was a difference.   

43.	In C8/08-09(IB), at paragraphs 60 to 61, I said the following about the duty 	on an appeal tribunal to explain its assessment of the evidence:

		’60.	… 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.

		61.	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.’

44.	The second respect on which reasons for the appeal tribunal’s decision 	are problematic is in connection with the evidence which the appeal 	tribunal had before it, from the appellant’s general practitioner (GP). 

45.	As was noted above, the reasons record that ‘Her General Practitioner 	manages her condition’ and ‘The General Practitioner letter states she had 	depression with poor concentration and memory problems and makes no 	reference to her other conditions.’ Nowhere else in the reasons does the 	appeal tribunal explain what it made of the evidence from the GP, nor is 	there an explanation as to how the appeal tribunal assessed the evidence 	concerning poor concentration and memory problems in light of its duty to 	consider whether the appellant satisfied the personal capability 	assessment and, as part of that assessment, the extent to which the 	appellant could perform certain of the activities as prescribed. 

46.	As has already been noted, the appeal tribunal did award one point each 	for ‘completion of tasks’ and ‘interaction with other people’, and recorded 	escriptors of ‘15(e)’ and ‘18(e)’ in connection with these activities. It may 	be the case that the appeal tribunal was accepting that the evidence from 	the General Practitioner was supportive of its conclusion that the specific 	descriptors ‘15(e)’ and ‘18(e)’ were applicable to the appellant. In the 	Statement of Reasons the references to the evidence of the GP is nothing 	more than a record that the evidence was before the appeal tribunal. Once 	again, the appeal tribunal has not given an indication of what it made of 	that evidence. In this regard it is important to note that the appeal tribunal 	had before it a written submission from the appellant’s representative 	which linked the evidence from the GP to the potential application of other 	mental health descriptors. 

47.	In CDLA/544/2009, Judge Wikeley of the Upper Tribunal in Great Britain 	warns appeal tribunals against the practice of simply reciting the evidence 	which was before it rather than weighing and assessing that evidence, 	making sufficient findings of fact, and providing adequate reasons for the 	appeal tribunal’s conclusions. At paragraph 19 he stated:

	‘As Gibbs J explained pithily in LJ v Devon County Council [2001] 	EWHC (Admin) 958, “mere recitation of evidence is no substitute for 	the giving of reasons” (at paragraph 50). This is not a new principle 	for tribunals. Some 25 years ago, in R(SB) 42/84, Mr Commissioner 	Mitchell explained that the statutory requirements for statements of 	reasons (albeit then expressed in slightly different terms) meant that 	“it was incumbent upon the tribunal to make findings upon the 	matters material [to the question in issue] and not merely to record 	contentions or statements made in that connection” (at paragraph 	6).’

48.	Having found that the appeal tribunal was under a duty to explain why it 	has preferred, accepted or rejected evidence which is before it and which 	is relevant to the issues arising in the appeal, and having failed so to do in 	its statement of reasons, I find that the decision of the appeal tribunal is in 	error of law.

The appellant’s other grounds for seeking leave to appeal

49.	In the application for leave to appeal to the Social Security Commissioner, 	the appellant’s representative states that the appeal tribunal had ‘failed to 	address whether the Department had grounds to supersede the original 	decision awarding Incapacity Benefit rather than simply failing to interfere 	with their decision.’

50.	Having found that the decision of the appeal tribunal is in error of law on 	the basis of the reasoning noted above, I do not have to consider this ground 	in detail. I would refer, however, to what I said in C7/08-09(IB) at paragraphs 	41 to 53, and repeated in C9/08-09(IB), at paragraphs 42 to 46, about the 	duty on an appeal tribunal, particularly in an IB appeal, to address the 	decision under appeal, and to deal with the supersession issue which, in 	turn, includes a requirement to be satisfied that the correct ground for 	supersession has been identified, and that the supersession decision 	takes effect from the correct date. 

Disposal

51.	The decision of the appeal tribunal dated 20 March 2008 is in error of law. 

52.	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. 

53.	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. 

54.	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. 

55.	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

	16 June 2009