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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2006] UKSSCSC CIS_1363_2005 (12 June 2006) URL: https://www.bailii.org/uk/cases/UKSSCSC/2006/CIS_1363_2005.html Cite as: [2006] UKSSCSC CIS_1363_2005 |
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[2006] UKSSCSC CIS_1363_2005 (12 June 2006)
CIS/1363/2005
CIS/2322/2005
CJSA/3742/2005
CHR/3855/2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
(b) In CIS/2322/2005, I dismiss the claimant's appeal.
(c) In CJSA/3742/2005, I refuse the claimant leave to appeal.
(d) In CHR/3855/2005, I grant the claimant leave to appeal and give further directions in paragraph 54 below.
REASONS
The facts
The legislation
"(1) Subject to subsection (2) below, an appeal tribunal shall consist of one, two or three members drawn by the President from the panel constituted under section 6 above.
"(2) 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); or
(b) be an advocate or solicitor in Scotland.
…
(6) Regulations shall make provision with respect to –
(a) the composition of appeal tribunals;
(b) …
(c) …
"(7) Schedule 1 to this Act shall have effect for supplementing this section."
"6. The Secretary of State may appoint such officers and staff as he thinks fit for the President and for appeal tribunals.
…
"12.(1) The Secretary of State may be 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 in 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."
"Subject to the provisions of this Chapter, it shall be for the Secretary of State –
(a) to decide any claim for a relevant benefit;
(b) …;
(c) subject to subsection (5) below, to make any decision that falls to be made under or by virtue of a relevant enactment."
Subsection (5) has the effect that decisions that fall to be made by Her Majesty's Revenue and Customs are excluded from the scope of subsection (1)(c).
"(1) This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) 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; or
(b) is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act.
"(2) In the case of a decision to which this section applies, the claimant and such other person as may be prescribed 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.
…
"(7) Regulations may make provision as to the manner in which, and the time within which, appeals are to be brought."
"(1) Subject to the provisions of this section, an appeal lies to a Commissioner from any decision of an appeal tribunal under section 12 or 13 above on the ground that the decision of the tribunal was erroneous in point of law.
…
"(10) No appeal lies under this section without the leave –
(a) of the person who constituted, or was the chairman of, the tribunal when the decision was given or, in a prescribed case, the leave of such other person as may be prescribed; or
(b) subject to and in accordance with regulations, of a Commissioner."
"5. A decision, being a decision of the Secretary of State …, under the following provisions of the Claims and Payments Regulations –
…
(l) regulation 26 (manner and time of payment of income support);
…
"24. A decision of the Secretary of State relating to the suspension of a relevant benefit or the payment of such a benefit which has been suspended under Part III."
"(1) The time within which an appeal must be brought may be extended where the conditions specified in subsections (2) to (8) are satisfied, but no appeal shall in any event be brought more than a year after the expiration of the last day for appealing under regulation 31.
"(2) An application for an extension of time under this regulation shall be made in accordance with regulation 33 and shall be determined by a legally qualified panel member …
"(3) …
"(4) An application for an extension of time shall not be granted unless –
(a) the panel member is satisfied that, if the application is granted, there are reasonable prospects that the appeal will be successful; or
(b) the panel member … are [sic] satisfied that it is in the interests of justice for the application to be granted.
"(5) For the purposes of paragraph (4) it is not in the interests of justice to grant an application unless the panel member … is satisfied that –
(a) the special circumstances specified in paragraph (6) are relevant to the application; or
(b) some other special circumstances exist which are wholly exceptional and relevant to the application,
and as a result of those special circumstances, it was not practicable for the application to be made within the time limit specified in regulation 31.
"(6) For the purposes of paragraph (5)(a), the special circumstances are that –
(a) the applicant or a partner or dependant of the applicant has died or suffered serious illness;
(b) the applicant is not resident in the United Kingdom; or
(c) normal postal services were disrupted.
…
"(9) An application under this regulation for an extension of time which has been refused may not be renewed.
"(10) The panel member who determines an application under this regulation shall record a summary of his decision in such written form as has been approved by the President.
"(11) As soon as practicable after the decision is made a copy of the decision shall be sent or given to every party to the proceedings."
"Subject to the following provisions of this regulation, an appeal tribunal shall consist of a legally qualified panel member."
"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 a legally qualified panel member for decision by the panel member rather than the clerk to the appeal tribunal.
"47.(1) …
"(2) A legally qualified panel member 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;
(b) (revoked)
(c) the panel member is satisfied that the appeal is not an appeal which may be struck out under regulation 46; or
(d) the panel member is satisfied that notwithstanding that the appeal is one which may be struck out under regulation 46, it is not in the interests of justice for the appeal to be struck out."
By regulation 1(3), the phrase "out of jurisdiction appeal" used in regulation 46(1)(a) is defined as one specified in Schedule 2 to the Act (so that no appeal lies against it because it is excluded from the scope of section 12 by subsection (1)(a)) or prescribed by regulation 27 (which introduces Schedule 2 to the Regulations) as an decision against which no appeal lies. Regulation 46(b) to (d) permits an appeal to be struck out where an appellant has failed to take necessary action in connection with the appeal.
The jurisdiction of a Commissioner
"Now let us just consider what that means, that an appeal shall not be given unless some particular body consents to it 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 ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal?"
A similarly pragmatic approach has been applied in Bland v. Chief Supplementary Benefit Officer [1983] 1 W.L.R. 262 (also reported as R(SB) 12/83) so as to prevent an appeal to the Court of Appeal where a Commissioner refuses leave to appeal under section 14(10)(b) from a decision of an appeal tribunal.
"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."
However, in the context of social security adjudication, Lord Donaldson's new approach must be regarded as having been qualified by the decision of the Court of Appeal in Carpenter v. Secretary of State for Work and Pensions [2003] EWCA Civ 33 (reported as R(IB) 6/03), which seems to me also to have overtaken the Commissioners' decisions in CSIS/118/90 and CSIS/110/91 to which Mr Cooper very properly drew my attention. The necessary implication of Carpenter v. Secretary of State for Work and Pensions (arising because of the relationship between the right to have reasons for a decision and the right of appeal) is that there is no right of appeal against a refusal to adjourn, although such a refusal may be material on an appeal against the final decision of the tribunal. This approach is certainly welcome on pragmatic grounds. Truly interlocutory appeals in social security cases, where hearings before tribunals seldom last much more than an hour or so and cases are listed for hearing relatively quickly, would be disproportionately time consuming and are really not practical, whereas, in the courts and some other tribunal jurisdictions, although they may be discouraged, they can result in the saving of time and money in a significant proportion of cases.
Conclusion in CIS/1363/2005
Conclusion in CIS2322/2005
Conclusion in CJSA/3724/2005
Conclusion in CHR/3855/2005
(a) The Appellant shall, within one month of the date this decision is sent to her representative, make a further written submission on the appeal, indicating whether she wishes to pursue arguments based on discrimination and, if so, setting them out more fully and, in particular, dealing with the points I have raised in paragraph 51 above. She may wish to seek legal advice before making such a submission.
(b) The Respondent shall, within one month of being sent a copy of the Appellant's further written submission, make a written submission in response to the appeal, dealing with all the points that arise.
(c) The Appellant may, if she wishes, make a final written submission within one month of being sent a copy of the Respondent's submission.
(d) Both parties should indicate in their written submissions whether they wish there to be an oral hearing of the appeal.
(e) This appeal will not be dealt with under section 14(7) of the 1998 Act.
(signed on the original) MARK ROWLAND
Commissioner
12 June 2006