CDLA 4184 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision.  (Social Security Act 1998, section 14(8) and (9)). 

2	The claimant and appellant is appealing with my permission against the decision of the Colchester appeal tribunal on 17 August 2004 under reference U 42 132 2004 00670 
  
3	DIRECTIONS FOR REHEARING

A	The rehearing will be at an oral hearing. 
B	The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.
C	The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal. 
D	If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision. 

These directions are subject to any later direction by a district chairman. 

REASONS FOR THE DECISION 

4	The parties have agreed that I should set aside the decision of the tribunal, and refer it for rehearing, for the reasons given when I granted permission to appeal. These are as follows.

5	The claimant was appealing against a refusal to award her more than the lower rate of the mobility component of disability living allowance. She appealed asking for a higher award. The tribunal dealt with the matter at a paper hearing and took away her existing entitlement. Regardless of the individual issues and merits of claims, it can never be right for a tribunal to consider reducing an existing entitlement to benefit without giving the claimant proper notice that this is being considered and offering the claimant a chance to be heard or to withdraw the appeal.  Accordingly, a tribunal cannot do this at a first paper hearing following the usual paper hearing procedures unless – unusually – the matter has been raised in the written submissions.  There was nothing in the papers here, so the tribunal’s procedure was clearly unfair and the decision must be set aside.

6	I do not comment on any specific aspect of the claimant’s entitlement to disability living allowance. That is for the new tribunal to consider on all the evidence. The claimant now has a representative, and the matter will now go to an oral hearing. The claimant and representative are now aware that the new tribunal might call the existing award into question as well as look at the claimant’s case for increasing her award.   

								David Williams
								Commissioner

								25 January 2005
[Signed on the original on the date shown]