[2009] UKUT 59 (AAC) (19 March 2009)<BR>Industrial accidents<BR>declaration of accident

IN THE UPPER TRIBUNAL	Appeal No.  CI/190/2009
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S. M. Lane

Decision:  This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007: 

The decision of the Newcastle Tribunal, held on 28/7/08 under reference 228/08/01197, is SET ASIDE because it involved an error on a point of law.  

The case is REMITTED for rehearing before a differently constituted First Tier Tribunal (Social Entitlement Chamber) with DIRECTIONS that the tribunal conduct a complete rehearing.  

REASONS FOR DECISION

1.	This decision is given in exercise of the transitional provisions contained in paragraphs 2 and 3 of Schedule 4 of the Transfer of Tribunal Functions Order 2008 which came into force on 3 November 2008.  As a result of those provisions, cases that were previously dealt with by the Social Security Appeals Commissioners are, from that date, dealt with by the Upper Tribunal (Administrative Appeals Chamber).  

2.	The appeal concerns the appellant’s application for a declaration that he had an industrial accident.  An application for a declaration of an industrial accident (‘an accident declaration’) can, and in this case was, made without making a claim for Industrial Injuries Disablement Benefit.  Where the application is for an accident declaration alone, the proper constitution of the tribunal comprises a legally qualified chairman alone, under regulation 36(2)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  

3.	This is a point often overlooked by tribunals, and this particular tribunal was comprised of both a first tier judge and a medical member who, as it happens, played a full part in the hearing.  The tribunal was improperly constituted and their decision cannot stand.

4.	The Secretary of State supports the appeal on this ground, and does not require reasons for my decision.  The appellant, however, wished to have reasons given.  The ground upon which I have allowed the appeal is sufficient to send the appeal back for re-determination by a properly constituted tribunal.  

5.	Had it not been for this error, I would not have set the decision aside.  The tribunal produced a thorough Statement of Reasons dealing carefully with the evidence and making findings which were sustainable on the evidence.  Findings of fact are for the tribunal, and the Upper Tribunal could not have interfered with them.  

6.	Given erroneous constitution of the tribunal, I do not think it would be appropriate for me to substitute my own decision.  The appeal must be sent back to a properly constituted, fresh first tier judge for re-hearing.  The appellant should not take his success before the Upper Tribunal as any indication of the outcome of the rehearing before a first tier tribunal.

[Signed]
S M Lane
Judge of the Upper Tribunal
17/04/2009