HDMCA v Department for Social Development (IS) (Income Support )

1.��� The decision of the appeal tribunal dated 26 June 2009 is in error of law.� The error of law identified will be explained in more detail below.

3.��� 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.

4.��� 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 may be further findings of fact which require to be made.� Further 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.

5.��� 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.

6.��� It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of whether there has been an overpayment of income support (IS), and whether any overpayment is recoverable from her 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.