New evidence after Tribunal, but before Cmmrs…..

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    Kevin D


    An appeal is heard by Tribunal and decided on the evidence before it.

    One of the parties is granted leave to Cmmrs.

    However, AFTER the Tribunal, but BEFORE the Cmmr’s hearing, new (relevant) evidence comes to light.

    Is there any legal basis on which the new evidence can be introduced by:

    1) the clmt (irrespective of which way the original decisions went); [u:f3b69c068a]or[/u:f3b69c068a]

    2) the LA (again, irrespective of which way the original decisions went).

    The evidence relates to the circumstances obtaining at the time of the decision, so is admissable in that context. But, my understanding is that Cmmrs cannot consider evidence that was not before a Tribunal. Are any exceptions possible?



    No I dont think so Kevin. That is not the role of the Commissioner.

    For instance,

    CH2484/2006 before Nicholas Paines QC sitting as a Deputy Commissioner makes this point:

    “As far as concerns error of law, I do not consider that the points now relied on by the local authority render the tribunal’s decision erroneous in law. A number of them do not appear to have been drawn to the tribunal’s attention but are the fruit of the impressively thorough work of the representative now acting for the local authority.

    To the extent that the local authority is dissatisfied with the outcome of this case, that perhaps highlights the need for thorough preparation of a local authority’s factual case in advance of tribunal hearings, so that all the points can be raised there.

    Even the most thoroughly prepared appeal to a Commissioner is not an adequate substitute for doing so, for the reason that, however strongly a Commissioner might doubt the factual correctness of a tribunal decision (and I repeat that I have not formed a view about the facts in this case), the Commissioner’s doubts are irrelevant in the absence of an error of law. And it will seldom be an error of law for a tribunal to fail to deal with a point that a local authority representative has not raised before it”.

    I suspect that the LA in question had gone out and found out a lot more information about the case that was not known at the Tribunal stage… but the DC was having none of it.

    Kevin D

    Thanks for the response Peter.

    Presumably then, the only option for the LA would be to revise (or supersede where appropriate) on the grounds of new evidence.

    (For the sake of argument, assume in this instance that the additional evidence was SUPPLIED to the LA (by whatever means) after the original decision / Tribunal – assume there was no lack of investigation by the LA in the first instance).



    Yes indeed. I would have put that in my answer but you dont need me to tell YOU that Kevin.


    I agree that the Commissioners cannot consider new evidence while deciding whether the Tribunal erred in law.

    However, if that threshold is crossed and the Commissioner decides there has been an error of law, the Commissioner can (and often does) then go on to make new findings of fact based on new evidence – see paragraph 8(5) of Sched 7 to the 2000 Act.

    In other words, new evidence cannot form the basis of an appeal to the Commissioner, but if it gets o the stage where the Commisioner is going to make a new substantive decision then new evidence can be taken into account.

    A Council can supersede a Tribunal decision locally if new evidence comes to light – see D&A Reg 7(1)(d)(i). If it is disadvantageous to the claimant, it takes effect from the same date the Tribunal decsion took effect – see Reg 8(7). It walks like revision and quacks like revsion, but we call it supersession. Ths is essentially an anti-fraud measure allowing decisions to be changed if the fraud only gets rumbled after the tribunal has heard the case.

    What if the Council believes a Reg 7(1)(d)(i) supersession is called for, but there is already leave to appeal to the Commissioner? I cannot find an equivalent of Sched 7.3(6) providing for the appeal to Commissioners to lapse in such circumstances. In CH/2267/2005, the Council superseded a Tribunal decision while it was under appeal to the Commissioner; this caused no end of complication and the Deputy Commissioner suggested that Councils should wait until after the Commissioners have heard a case before they do that (Reg 7(1)(d)(i) applies to Commisioners’ decisions as well, so there’s no harm in waiting).

    Kevin D

    Excellent Peter – thank you.

    I’d overlooked the distinction between looking at new evidence at the stage of deciding if there has been an error in law and then at the separate stage, where relevant, of substituting a decision.

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