JF-v-Department for Communities (ESA) [2016] NICom 79

Decision No:  C29/15-16(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 26 March 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 26 March 2015 is in error of law.  The error of law identified will be explained in more detail below. 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. 

2.	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.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access.  An appeal tribunal which has a Medically Qualified Panel Member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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. 

3.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to employment and support allowance (ESA), 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

5.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 16 September 2014, which decided that: 

		(i) grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 31 October 2013; and

		(ii) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 16 September 2014. 

6.	The appeal was received in the Department on 23 September 2014.  On 18 December 2014 the decision dated 16 September 2014 was looked at again but was not changed.

7.	In the file of papers which is before me is a copy of correspondence which was forwarded to the appellant on 6 March 2015 by a clerk in the Appeals Service (TAS).  As will be noted in greater detail below, the appellant accepts that this correspondence was received by him. In the relevant correspondence the appellant was advised that an oral hearing of the appeal would be heard at Armagh Courthouse in Armagh on Thursday 26 March 2015 at 10.00.  The appellant was also advised that the hearing time of 10.00 was the earliest time the appeal will be heard. Delays do occur as it is impossible to know how long each appeal hearing will last, however, waiting time is kept to a minimum.’  The appellant was asked to complete and return a form which, in summary, would indicate whether or not he would be attending the hearing.  Finally, the appellant was advised of the importance of attending the oral hearing. 

8.	In the file of papers which is before me is a copy of a determination made by the Legally Qualified Panel Member (LQPM) of the appeal tribunal on 12 March 2015.  On 11 March 2015 the clerk to the appeal tribunal had advised the LQPM that:

‘A request has been made to have the hearing postponed – appellant is due in Craigavon court on the same day for his divorce proceedings, which have been ongoing for three years.’  

9.	The clerk to the appeal tribunal sought a determination from the LQPM as to whether the hearing might be postponed.  The LQPM’s determination was in the following terms:

	‘Postponement refused.’   

10.	The oral hearing proceeded on 26 March 2015. The appellant was not present.  The circumstances giving rise to his absence are explored in more detail below.  The record of proceedings for the hearing is in the following terms:

	‘A postponement request had been refused.

	The Appellant did not attend the hearing.

	The tribunal decided to proceed.

Apparently the Appellant had to attend divorce proceedings on the same day at court but the Tribunal believe that he could reasonably had [sic] attended the Tribunal hearing either before or after the divorce proceeding hearing at court and accordingly the Tribunal proceeded in his absence.’

11.	The appeal tribunal disallowed the appeal and confirmed the decision dated 16 September 2014. 

12.	On 8 July 2015 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 15 July 2015 the application was refused by the LQPM.

	Proceedings before the Social Security Commissioner

13.	On 12 August 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 8 September 2015 observations on the application were requested from Decision Making Services (‘DMS’).  In written observations dated 10 September 2015, Mr Collins, for DMS, supported the application.  Written observations were shared with the appellant on 14 September 2015. 

14.	On 7 December 2015 the appellant was requested to provide additional evidence concerning his attendance at Craigavon courthouse on 23 March 2015.  A response to this request was received from the appellant on 29 December 2015.  On 11 March 2016 the Legal Officer wrote to the appellant to confirm, in light of some of the comments which he had made in his correspondence received on 29 December 2015, the independence of the Office of the Social Security Commissioners from the Appeals Service, Social Security Agency and what was then the Department for Social Development.

15.	On 15 March 2016 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the appeal tribunal was correct to proceed in the absence of the appellant. On the same date I directed an oral hearing of the appeal.  The oral hearing took place on 26 April 2016.  The appellant was in attendance. Details of the evidence given by the appellant at the oral hearing are set out below.  The Department was represented by Mr Collins. I am grateful to Mr Collins for his oral submissions.  Following the oral hearing Mr Collins provided additional information concerning the appellant’s benefit entitlement subsequent to the decision which was under appeal to the appeal tribunal. 

	Errors of law

16.	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.  What is an error of law?

17.	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; …
18.		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 Department’s written observations

19.	In his written observations on the application for leave to appeal, Mr Collins made the following submissions:

‘The question for the Tribunal to decide was whether (the appellant) had limited capability for work in accordance with the limited capability for work assessment (section 8(2) of the Welfare Reform Act (NI) 2007 and regulation 19 of the Employment and Support Allowance Regulations (NI) 2008.)  This is a statutory test that has to be applied by the Appeal Tribunal.  The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable, or incapable, of performing the activities prescribed in Schedule 2 to the Employment and Support Allowance Regulations (NI) 2008.  To have limited capability for work (the appellant) had to score 15 points, whether for physical descriptors; mental, cognitive or intellectual descriptors; or a combination of both.  The Tribunal awarded (the appellant) a score of 0 points. 

(The appellant) could not attend the tribunal hearing as he was in Craigavon Court House at the same time.

In support of his contention (the appellant) states he had informed the tribunal and wanted a rearranged hearing as he wanted to speak for himself, his condition had worsened and he did not agree with the HCP’s report.

The tribunal papers associated with (the appellant’s) application to the Commissioner indicate that he requested a postponement on 11 March 2015 and this was refused by the LQM on 12 March 2015. The relevant form AT10 states the postponement request was due to (the appellant) having to attend divorce proceedings in Craigavon on the same day.

The record of proceedings from the Tribunal hearing on 26 March 2015 states:-

“A postponement request had been refused.

The Appellant did not attend the hearing.

The Tribunal decided to proceed.

Apparently the Appellant had to attend divorce proceedings on the same day at court but the Tribunal believe that he could reasonably had attended the Tribunal hearing either before or after the divorce proceeding hearing at court and accordingly the Tribunal proceeded in his absence.”

In his application for leave to appeal and received in The Appeals Service on 08 July 2015 (the appellant) states he notified his court attendance in Craigavon weeks before the tribunal hearing and he had to speak to his solicitor in the morning then go to Craigavon to meet his barrister and could not attend both places.  

Regulation 51of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 states:-

“51. – (1) Where a person to whom notice of an oral hearing is given wishes to request a postponement of that hearing, he shall do so in writing to the clerk to the appeal tribunal stating his reasons for the request, and the clerk to the appeal tribunal may grant or refuse the request as he thinks fit or may pass the request to a legally qualified member who may grant or refuse the request as he thinks fit.” 

(2) Where the clerk to the appeal tribunal or, as the case may be, the legally qualified panel member refuses a request to postpone the hearing he shall –

	(a) notify in writing the person making the request of the refusal; and

(b) place before the appeal tribunal at the hearing both the request for the postponement and notification of its refusal.

(3) The legally qualified panel member or the clerk to the appeal tribunal may of its own motion at any time before the beginning of the hearing postpone the hearing.

(4) An oral hearing may be adjourned by the appeal tribunal at any time on the application of any party to the proceedings or of its own motion.”

In the circumstances of the present case the clerk to the appeal tribunal passed the request from (the appellant) to the LQM who refused the request. I would submit that the LQM clearly acted within the scope of the above regulation.

That being said, the relationship between postponement and adjournment has been the subject of case law both in Great Britain and Northern Ireland.  In unreported Northern Ireland decision C37/08-09(DLA) Commissioner Mullan considered Great Britain decision CDLA/3680/97 and Northern Ireland decision C5/01-02, explaining in paragraphs 28 – 30 that both decisions are authority for the view that non-attendance at a hearing must be taken as a renewal of an application for a postponement and that “the prior consideration of the postponement application by the LQPM did not relieve the tribunal of the responsibility of considering whether to adjourn the proceedings.  The appeal tribunal was under a duty to consider afresh an application for an adjournment.”  (See paragraph 30.)

In paragraph 32 of C37/08-09(DLA) Commissioner Mullan stated the tribunal must consider the postponement request/possibility of adjourning afresh and must set out that it has done so.  As with the DLA decision, I am not satisfied that in the present case and based on the extract from the record of proceedings to which I have referred above the tribunal considered the possibility of adjourning at all but instead was satisfied it should continue solely on the basis of the 12 March decision not to postpone.

For completion in paragraph 26 of R(S) 4/82(T), a Tribunal of Commissioners in Great Britain considered the requirements of natural justice noting that it requires “that the procedure before any tribunal shall be fair in all the circumstances.”  Considering the stress that (the appellant) would reasonably have experienced as a result of divorce proceedings on the same day as his hearing, the logistics of attempting to attend both and his stated view that he wanted to put his case in person I would submit that it is also arguable that the refusal of a postponement in these circumstances was unfair and constitutes a breach of the rules of natural justice. 

Consequently I am of the opinion that the tribunal’s failure to consider a postponement/adjournment amounts to an irregularity capable of making a material difference to the outcome or the fairness of the proceedings on 26 March 2015.  I would therefore support (the appellant’s) grounds of appeal.’

	The appellant’s grounds for appealing

20.	As was noted above, the appellant’s grounds are very straightforward. He submits that he was due to attend at Craigavon courthouse on the date on which his appeal was listed for oral hearing in Armagh courthouse.  He added that he was anxious to attend the oral hearing of his appeal ‘ as I wanted to speak for myself as my condition had got worse and did not agree with the doctor’s report.’  The appellant made reference to his earlier request for a postponement of the appeal tribunal hearing.

	The appellant’s oral evidence to me  

21.	As was noted above, the appellant attended the oral hearing before me. He gave evidence mainly in response to questions asked by me.  Having heard from and seen the appellant I found him to be honest and credible. I accept his oral evidence in its entirety and adopt it as factual.

22.	The appellant readily accepted that he had received correspondence dated 6 March 2015 from TAS informing him of the date, time and venue of the oral hearing of the appeal tribunal hearing.  A copy of that correspondence is in the file of papers which is before me.  The appeal was listed for oral hearing at Armagh Courthouse on Thursday 26 March 2015.  The correspondence from TAS indicated that the appeal was listed for 10.00 but added:

‘You should note that the hearing time referred to is the earliest time the appeal will be heard. Delays do occur as it is impossible to know how long each appeal hearing will last, however, waiting time is kept to a minimum.’  
 
23.	The appellant stated that when he did receive the correspondence dated 6 March 2015 he had telephoned TAS to indicate that he would be in another court that day.  I am satisfied that the telephone call which the appellant made to TAS following receipt of the correspondence dated 6 March 2015 prompted the clerk to place before the LQPM the request for determination on a postponement request.  The outcome of that determination was noted above.

24.	The appellant stated that he had indicated in the telephone call that he was ‘really stressed out’ by the matter and asked for it ‘to be sorted out.’ He accepted that he had probably received notification of the refusal of the postponement but was anxious for his divorce ‘to be sorted out.’  He thought that he had done the right thing and could not see any reasons why the date of the appeal tribunal hearing could not be changed.  He had been aware of the requirement to be at Craigavon courthouse on 26 March 2015 before he had learned that the appeal tribunal hearing had been listed for the same date.  He made an active decision to attend Craigavon courthouse.  At the time he was suffering from depression as, in addition to the appeal tribunal hearing, he was also dealing with his mother’s will and his own divorce. 

25.	The appellant stated that the purpose of the proceedings in Craigavon courthouse was for two solicitors and two barristers to attend in order to ‘sort out some sort of agreement’ or ‘some settlement’ in connection with his divorce. He was required to bring details of his finances with him, including his bank statements, papers related to his benefits and his pension and anything which he was owed by his ex-wife. There was a lot of paperwork to be sorted out on that day. 

26.	On the morning of 26 March 2015 he had gone to Craigavon courthouse. He met his own solicitor and barrister.  They sat in one room and his wife and her representatives sat in another.  He was in the courthouse for a good three to four hours but it could have been longer as he had stayed on to talk to his own solicitor.  Matters had not been resolved and he was due to attend court again. 

27.	The appellant stated that he had indicated to TAS that he was more than willing to attend on any other date.  He was anxious to have his divorce proceedings sorted out.  He had wanted to attend the oral hearing of his appeal because he had disagreed with some of the findings of the ‘doctor’ by whom he meant the healthcare professional. 

	Analysis

28.	Mr Collins is to correct to highlight that in C37/08-09 (DLA), I considered the decision of the Commissioner in Great Britain in CDLA/3680/97 and the decision of Mrs Commissioner Brown in C5/01-02(IB), explaining in paragraphs 28 to 30 that both decisions are authority for the view that non-attendance at a hearing must be taken as a renewal of an application for a postponement and that: 

‘… the prior consideration of the postponement application by the LQPM did not relieve the tribunal of the responsibility of considering whether to adjourn the proceedings.  The appeal tribunal was under a duty to consider afresh an application for an adjournment.’

29.	As was noted above, in his written observations on the application for leave to appeal, and in his further submissions during the course of the oral hearing before me, Mr Collins has indicated he was not satisfied that at the oral hearing of the appeal, and following the earlier postponement refusal, the appeal tribunal had given proper consideration to the question of adjournment but had, instead, relied on the prior determination not to postpone. 

30.	As was noted above, in the record of proceedings, the appeal tribunal noted that there had been a prior application for a postponement which had been refused.  The appeal tribunal then added:

‘The Appellant did not attend the hearing.

The tribunal decided to proceed.

Apparently the Appellant had to attend divorce proceedings on the same day at court but the Tribunal believe that he could reasonably had [sic] attended the Tribunal hearing either before or after the divorce proceeding hearing at court and accordingly the Tribunal proceeded in his absence.’

31.	It is arguable that the sentence ‘the tribunal decided to proceed’ is indicative that the appeal tribunal was mindful of the requirement to consider afresh an application for an adjournment and, having done so, refused that application. 

32.	The power to adjourn is a discretionary one but it must be exercised judicially.  As has been observed by Mr Collins, in R(SB) 4/82, a Tribunal of Commissioners in Great Britain, observed, at paragraphs 25 and 26:

‘A local tribunal is exercising quasi-judicial functions … The common law requires bodies exercising quasi-judicial functions to observe the rules of natural justice, and accordingly these rules apply to local tribunals … Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances.’

33.	In R v The Medical Appeal Tribunal (Midland Region) ex p Carrarini ([1966] 1 WLR 883), Lord Parker CJ stated, at page 887:

‘The approach, as it seems to me in this matter, is to look at the decision in the first instance of the medical appeal tribunal, and to ask oneself whether in exercising that discretion they acted judicially; that of course would embrace the question whether what they did was, as it is sometimes put, contrary to natural justice.’

34.	The discretion referred to is, of course, the discretion to adjourn.  It is clear, therefore, that the purpose of an adjournment is to ensure that the parties to the proceedings have a fair hearing in accordance with the principles of natural justice.

35.	In Rose v Humbles ([1970] 1 WLR 1061, Buckley J stated, at page 1071:

‘… if the discretion has been exercised in such a way as to cause what can properly be regarded as an injustice to any of the parties affected, then the proper course for an appellate court to take is to ensure that the matter is further heard.’ 

36.	The principal issue which arises is whether the appeal tribunal, in exercising its power to refuse to adjourn, acted judicially, in the sense that it acted in accordance with the principles of natural justice.  I have no hesitation in holding that it did not.

37.	As has been noted above, if it is accepted that the appeal tribunal was mindful of the requirement to consider afresh an application for an adjournment and, having done so, refused that application, then it was obliged to set out its reasons for the refusal.  Those reasons are set out in one sentence.  The first part of that sentence is that  ‘Apparently the Appellant had to attend divorce proceedings on the same day at court …’ 

38.	I will ignore, for the moment, the somewhat offhand use of the word ‘apparently’ to preface the background to the absence of the appellant from the appeal tribunal hearing.  The appeal tribunal’s tone is rather dismissive of the appellant’s explanation as to why he could not attend the appeal tribunal hearing.  I have noted that the LQPM who chaired the appeal tribunal was the same LQPM who refused the application for the postponement of the hearing on 12 March 2015 and, indeed, it was the background information given in connection with the postponement application which informed the statement made by the appeal tribunal in its reasons for refusing the adjournment.

39.	The LQPM was, accordingly, aware on 12 March 2015 that the appellant had submitted that he was unable to attend the appeal tribunal hearing listed for 26 March 2015, and was aware of the reasons why he could not attend.  Giving the LQPM the benefit of the doubt that he was aware that the purport of refusing the application for a postponement meant that there would be a subsequent requirement, on the day of the hearing, to consider afresh an application for an adjournment, then I do not understand, why, in his reasons for refusing the postponement, he did not indicate to the appellant that he could forward evidence to corroborate his requirement to attend court, if, as appears to be the case, the LQPM had doubts about the veracity of that application request.  Of equal significance, I do not understand why the LQPM, knowing that there would be a requirement to consider a fresh adjournment application on the day of the hearing, did not signify to the appellant that he (or someone on his behalf) could renew the adjournment application on the day of the hearing with supporting evidence, if required. I am of the view that the curt determination of ‘Postponement refused’ tells the appellant very little about the consequences and his further rights.

40.	As was noted above, the appeal tribunal’s substantive reasoning for proceeding in the appellant’s absence was that it believed that the appellant ‘ could reasonably had [sic] attended the Tribunal hearing either before or after the divorce proceeding hearing at court.’ I am of the view that such reasoning is wholly irrational, for the following reasons.   

41.	I begin with the somewhat simple perplexity that had such reasoning been in the mind of the LQPM when he refused the application for a postponement on 12 March 2015 then why was this not indicated to the appellant in the reasons for the postponement?  Had the appellant been aware that the appeal could have been promoted to the start of the list of appeals for 26 March 2015 or put to the back of that list then he might have made alternative arrangements for attending on that day.

42.	What is most incongruous about the appeal tribunal’s reasoning is as follows.  The appeal tribunal had no idea about the nature of the proceedings scheduled for the appellant in Craigavon courthouse on 26 March 2015.  Most fundamentally it did not know whether the proceedings were in a formal court list or how long those proceedings were likely to last. As was noted above, in oral evidence to me, the appellant indicated that he was in formal negotiations in the courthouse for at least three to four hours and remained for a further period for discussions with his solicitor.  Even if the appellant had been aware of the possibility of attending court first and coming to the appeal tribunal hearing afterwards, the length of the court proceedings were such that by the time he would arrive at the appeal tribunal venue, the morning session would have been completed. 

43.	This leads me on to a second irrationality in the appeal tribunal’s reasoning. The appeal tribunal hearing was listed in Armagh.  The court proceedings were scheduled for Craigavon.  It is unclear to me whether the appeal tribunal gave any cognisance to the practicalities of the appellant attending two judicial venues some 14 miles apart on the same day and subject to a strict timetable. 

44.	The third and most significant incongruity in the appeal tribunal’s reasoning is that it has failed to consider and weigh the impact of requiring the appellant to attend and participate effectively in two sets of important legal proceedings which had the potential to have a considerable bearing on his rights and responsibilities.  It is axiomatic that divorce proceedings are emotive, traumatic and stressful for those having to participate.  It is equally well-known (there is more than enough research to back up this point) that unrepresented appellants find the prospect of attending an oral hearing of an appeal in connection with their social security benefit entitlement to be daunting and upsetting. In such circumstances, I am at a complete loss to understand how the appeal tribunal concluded that it was reasonable for the appellant to attend and participate, with purpose, in both sets of proceedings in venues miles apart. 

45.	In his oral evidence to me, the appellant indicated that he had been aware of his requirement to attend at Craigavon courthouse in advance of receipt of the notification of the parallel oral hearing of his appeal in Armagh on the same day.  At the same time he was attending to the formalities in connection with his role as executor of his later mother’s will. All of this was causing him considerable stress and had led to depression.  He had prioritised his attendance at his divorce proceedings but emphasised that he did not wish to underplay the importance of the appeal tribunal proceedings to him.  He had wanted to attend and to participate, stating that he wished to challenge certain of the statements of the healthcare professional.  That is what prompted his immediate request for a postponement of the appeal tribunal hearing. 

46.	For these reasons I have concluded that the appeal tribunal, in exercising its power to refuse on adjournment, did not act judicially, and did not act in accordance with the principles of natural justice.  The decision of the appeal tribunal is, accordingly, in error of law and I set it aside. 

47.	I would add that the scheduling of the appeal for 26 March 2015 was the first time on which it had been listed. As far as I can determine, the appellant has no history of seeking postponements or adjournments and did not seek an advantage in having the appeal postponed or adjourned. Appellants are encouraged to attend oral hearings and are informed by TAS, in the notification correspondence, that it is important to attend. This appellant indicated his wish to attend and participate. In these circumstances the decision to refuse the postponement is equally difficult to understand as is the failure of the LQPM to be more proactive in securing the appellant’s attendance and effective participation.      

	Disposal

48.	The decision of the appeal tribunal dated 26 March 2015 is in error of law. 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. 

49.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

		(i) the decision under appeal is a decision of the Department, dated 16 September 2014, which decided that (i) grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 31 October 2013; and (ii) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 16 September 2014; 

		(ii) following the oral hearing of the appeal before me, Mr Collins informed me that the appellant was in receipt of Jobseeker’s Allowance (JSA) from 19 October 2015 to 4 April 2016 and had a claim to ESA from and including 5 April 2016. The Department is directed to provide details of the outcome of the latter claim to ESA. The appeal tribunal is directed to take any evidence of the entitlement to JSA and the subsequent claim to ESA into account in line with the principles set out in C20/04-05(DLA);

		(iii) 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; and 

		(iv) 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

Chief Commissioner

7 December 2016