Powers of the Tribunal on an Appeal
| Author | Andrew Bano |
| Pages | 249-255 |
Chapter 29
Powers of the Tribunal on an Appeal
THE ROLE OF THE TRIBUNAL
29.1 Sections 1 and 5A of the Pensions Appeal Tribunals Act 1943 confer rights of appeal to a tribunal against entitlement decisions and against specified decisions (including armed forces compensation decisions) on the question of whether a decision was rightly made on the ground notified to the claimant. Section 5 gives rights of appeal against assessment decisions. However, as noted in para 25.5, the ‘ground’ of a decision is a finding that the statutory conditions of entitlement are not satisfied, rather than the reasons for that conclusion.
29.2 In the leading social security case R(IB) 2/05, a tribunal of Social Security Commissioners held (at [24]) that, within the limits of the relevant legislation, a tribunal can make any decision which the decision-maker could have made on the legal questions properly before that officer, including dealing with new questions, so as to reach the right result on an appeal. The Social Security Commissioners held (at [25]) that ‘the tribunal in effect stands in the shoes of the decision-maker for the purpose of making a decision on the claim’. It follows that the tribunal is not concerned with whether the decision under appeal was one which was properly open to the decision-maker on the basis of the evidence which was taken into account when the decision was made, but rather with the question of what is the correct decision on the claim (or review application) on the basis of the evidence before the tribunal. In NH v Secretary of State for Defence (No 2) (AFCS),
250 War Pensions and Armed Forces Compensation – Law and Practice
can exercise the powers exercisable by the Secretary of State on a review,
LIMITATIONS ON THE TRIBUNAL’S POWERS
29.3 The Child Support, Pensions and Social Security Act 2000 amended the Pensions Appeal Tribunals Act 1943 (and the corresponding social security and child support legislation) so as to introduce limitations on a tribunal’s powers when determining an appeal. Section 59 of the 2000 Act added a new section 5B to the 1943 Act, as follows:
5B Matters relevant on appeal
In deciding any appeal under any provision of this Act, the appropriate tribunal—
(a) need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.
Issues raised by the appeal
29.4 Section 5B(a) gives the tribunal a discretion whether to consider an issue in an appeal which has not been raised by one of the parties, but does not oblige it to do so. In CDLA/1000/2001,
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