Good Morning.
I have applied for an been granted leave to appeal to a Commissioner by the Commissioner on error in point of law. Although not entirely happy with the opinion at this stage on another point of law proffered, that will be addressed in due course. The question is whether a Commissioner has over-stepped their mark in the first direction granting leave to appeal on point of law. The following comment was made by the Commissioner in a direction for the respondent to offer comment on:
"Very careful fact finding as to the nature and periods of attention and/or supervision would be reasonably required by the claimant, but I cannot immediately see how in any event the claimant would be able to establish that he qualified for any rate of the care component other than the lowest rate, which he has presently been awarded".
Could this been seen as has having the potential of unduly influencing any future tribunal constituted to hear the case afresh. The Commissioner has not been asked to offer any opinion as to the level of DLA appropriate, he is asked purely to offer opinion on error in point of law. Does anyone agree with me that the offering of this opinion at this or any stage, unless the Commissioner was asked or intended to replace the decision with one of his own, which he has not been, is vulnerable to a challenge under fair hearing?
Is it for example legitimate in law? and if it is, should it not be been seen as bad practice? . Opinions most welcome. Thank you.
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