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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for Work & Pensions v Morina & Anor  EWCA Civ 749 (23 July 2007)
Cite as:  WLR 3033,  EWCA Civ 749,  1 WLR 3033
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
CIS/2322/2005 and CIS/1363/2005
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE MAURICE KAY
| SECRETARY OF STATE FOR WORK AND PENSIONS
|- and -
|MORINA & ANR
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Steven Kovats appeared as an Advocate to the Court)
Hearing date : 8 May 2007
Crown Copyright ©
Lord Justice Maurice Kay :
The appeals to this court: jurisdiction and discretion
"This is an attempt by a successful party to appeal against an order which she has obtained in her favour. In my judgment, this court cannot entertain such an appeal."
Did the Commissioner have jurisdiction to hear these appeals?
"(1) Subject to the provisions of this Chapter, it shall be for the Secretary of State –
(a) to decide any claim for a relevant benefit …
(c) … to make any decision that falls to be made under or by virtue of a relevant enactment."
"(1) This section applies to any decision of the Secretary of State made under section 8 … which
(a) is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act …
(2) In the case of a decision to which this section applies, the claimant … shall have a right to appeal to an appeal tribunal, but nothing in this subsection shall confer a right of appeal in relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision …
(4) Where the Secretary of State has determined that any amount is recoverable under or by virtue of section 71 or 74 of the Administration Act, any person from whom he has determined that it is recoverable shall have the same right of appeal to an appeal tribunal as a claimant …
(7) Regulations may make provision as to the manner in which, and the time within which, appeals are to be brought."
"An application for an extension of time under this regulation … shall be determined by [an LQPM] …"
"46(1) Subject to paragraphs 2 and 3, an appeal may be struck out by the clerk to the appeal tribunal:
(a) where it is an out of jurisdiction appeal and the appellant has been notified by the Secretary of State that an appeal brought against such a decision may be struck out …
(2) where the clerk to the appeal tribunal determines to strike out the appeal, he shall notify the appellant that his appeal has been struck out and of the procedure for reinstatement of the appeal as specified in regulation 47.
(3) The clerk to the appeal tribunal may refer any matter for determination under this regulation to [an LQPM] for decision by the panel member rather than the clerk to the appeal tribunal …
(2) A [[LQPM] may reinstate an appeal which has been struck out in accordance with regulation 46 … where:
(a) the appellant has made representations or, as the case may be, further representations in support of his appeal with reasons why he considers that his appeal should not have been struck out, to the clerk to the appeal tribunal, in writing within one month of the order to strike out the appeal being issued, and the panel member is satisfied in the light of those representations that there are reasonable grounds for reinstating the appeal …
(c) the panel member is satisfied that the appeal is not an appeal which may be struck out under regulation 46 … "
"(1) The Secretary of State may by regulations provide –
(a) for officers authorised by the Secretary of State to make any determinations which fall to be made by an appeal tribunal and which do not involve the determination of any appeal, application for leave to appeal or reference;
(b) for the procedure to be followed by such officers in making such determinations;
(c) for the manner in which such determinations by such officers may be called into question.
(2) A determination which would have the effect of preventing an appeal, application for leave to appeal or reference being determined by an appeal tribunal is not a determination of the appeal, application or reference for the purposes of sub-paragraph (1) above."
"from any decision of an appeal tribunal under section 12 … on the ground that the decision of the tribunal was erroneous in point of law."
The status of the LQPM
"The member, or (as the case may be) at least one member, of an appeal tribunal must –
(a) have a general qualification (construed in accordance with section 71 of the Courts and Legal Services Act 1990) … "
"Where Parliament has conferred a right of appeal to an Appeal Tribunal and has enabled a Secretary of State to make procedure regulations for the Tribunal under which interlocutory and other decisions may be made, the implication is that Parliament intended that those decisions would be made by the Appeal Tribunal save where specific provision is made to the contrary."
"In retrospect I regret that I added the sentence: 'That section relates to a decision which determines the matter in dispute.' This is wrong, since a truly interlocutory or procedural decision could give rise to an appealable question of law, even if it is unlikely that leave to appeal would be given."
Lady Justice Arden:
" …[W]hen I look not only at the language used, but at the substance of the meaning of the provision, it seems to me to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop the appeal -- that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit is an appeal should be given. Now let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave should be given or not without hearing and determining upon the hearing whether it was a case that for an appeal? "
Sir Anthony Clarke MR: