CHR 3855 2005
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 04 July 2008 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CHR 3855 2005 |
| Subject Matter | Commissioners' procedure and practice |
R(IS) 6/09
|
His Honour Judge Hickinbottom, Chief Commissioner Mr A Lloyd-Davies, Commissioner Mr E A L Bano, Commissioner 4 July 2008 |
CHR/3855/2005 CIS/3746/2006 CDLA/948/2007 |
Commissioners’ jurisdiction – procedural decision made by legally qualified panel member – whether there is a right of appeal to a Commissioner – scope of Secretary of State for Work and Pensions v Morina and Borrowdale
In each case, the appeal was made to the tribunal after the primary one-month time limit for appealing, but before (or arguably before) the expiry of the absolute statutory bar 12 months later. In those circumstances, under regulation 32 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, a legally qualified panel member (LQPM) has power to extend time for appealing, but, in each of these cases, the LQPM refused to exercise that discretionary power in the claimant’s favour. The issue for the Tribunal of Commissioners was whether such a refusal was a “decision of an appeal tribunal under section 12” for the purposes of section 14 of the Social Security Act 1998, ie whether such a decision attracted a right of appeal to a Commissioner or whether the right of challenge was limited to judicial review. In Secretary of State for Work and Pensions v Morina and Borrowdale [2007] EWCA Civ 749, [2007] 1 WLR 3033 (also reported as R(IS) 6/07) the Court of Appeal had held that that right of appeal did not extend to a challenge to a decision of a LQPM to refuse an extension of time for appealing where the appeal to the tribunal was more than 12 months outside the primary time limit of one month, in which circumstances there was no power in the LQPM to give an extension of time because of the express statutory bar. The difference in these cases was that the LQPM had a discretion to extend the time limit
Held, dismissing the appeal in CHR/3855/2005 and refusing the applications in CIS/3746/2006 and CDLA/948/2007, that:
- in Morina Maurice Kay LJ had commented that it was neither desirable nor necessary to import the reasoning of Rickards v Rickards [1990] Fam 194 into the field of social security, and Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262 (also reported as R(SB) 12/83) and White v Chief Adjudication Officer [1986] 2 All ER 905 (also reported as an appendix to R(S) 8/85) remained authority for the proposition that some interlocutory decisions were not “decisions” for the purposes of section 14(1) of the 1998 Act, because they did not determine the matter in dispute. There was no suggestion in the reasoning that Maurice Kay LJ’s comments were limited to the facts of Morina (paragraphs 28 to 32);
- the reasoning of Arden LJ and the Master of the Rolls in Morina, based solely on statutory construction, did not support the claimants in the present case because an approach based purely on statutory construction inevitably requires that all decisions taken under regulation 32 are characterised in the same way for the purposes of section 14(1) of the 1998 Act and the decision of the Court of Appeal was binding so far as the proper statutory construction of the relevant statutory provisions was concerned (paragraphs 35 and 36);
3. insofar as the Court of Appeal’s reasoning in Morina was not binding because the case before it concerned an unencumbered appellate exclusion, the comments made in that case were, in the Commissioners’ view, correct (paragraph 36).
DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
Decision
- Our decision is that the appeal in CHR/3855/2005 is dismissed, and the applications for leave to appeal in CIS/3746/2006 and CDLA/948/2007 are refused.
Introduction
- Under section 14 of the Social Security Act 1998 (the 1998 Act), an appeal lies to a Social Security Commissioner “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”. In Secretary of State for Work and Pensions v Morina and Borrowdale [2007] EWCA Civ 749, [2007] 1 WLR 3033 (also reported as R(IS) 6/07) the Court of Appeal held that that right of appeal does not extend to a challenge to a decision of a legally qualified panel member of the tribunal (LQPM) to refuse an extension of time for appealing (and consequently to dismiss the appeal for want of jurisdiction) where the appeal to the tribunal is more than 12 months outside the primary time limit of one month. In those circumstances, there is no power in the LQPM to give an extension of time because of an express statutory bar (regulation 32(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) (the 1999 Regulations)).
- The cases now before us concern the scope of the decision in Morina. In each, the appeal was made after the primary one-month time limit for appealing, but before (or arguably before) the expiry of the absolute statutory bar 12 months later. In those circumstances, under regulation 32 an LQPM has power to extend time for appealing – but, in each of these cases, the LQPM refused to exercise that discretionary power in the claimant’s favour. The issue before us is whether such a refusal is a “decision of an appeal tribunal under section 12” for the purposes of section 14, ie whether such a decision attracts a right of appeal to a Commissioner or whether the right of challenge is limited to judicial review. In determining the appeal and applications before us, we have been concerned only with the jurisdiction issue and have, with the agreement of the parties, not otherwise considered the merits of the claimants’ individual cases.
- At the hearing before us, the claimants in CHR/3855/2005 and CDLA/948/2007 were represented by Mr David Forsdick of counsel, instructed by the Child Poverty Action Group (CPAG); and the claimant in CIS/3746/2006 was represented by Mr Desmond Rutledge of counsel, instructed by Newcastle Law Centre. Ms Deok Joo Rhee of counsel appeared for the Secretary of State for Work and Pensions (the DWP) in CDLA/948/2007 and CIS/3746/2006; and Mr Tim Buley of counsel appeared for HM Revenue and Customs as agents for the Secretary of State in CHR/3855/2005. We are grateful to all of the representatives for their clear and helpful submissions.
The statutory provisions
- Section 12(7) of the 1998 Act prescribes that regulations may be made as to the manner in which and the time within which appeals are to be brought. Regulations 31 and 32 of the 1999 Regulations are made under that provision.
- Under regulation 31 of the 1999 Regulations, the time limit for making an appeal to an appeal tribunal (now known as Social Security and Child Support Appeals Tribunals) is one month from the date of notification of the decision against which the appeal is brought, subject to a limited extension in cases where a statement of reasons for the decision has been requested within that one-month period (the primary time limit).
- Regulation 32 makes provision for late appeals to be admitted, but with an absolute time limit of one year after the expiry of the primary time limit, in the following terms:
“(1) The time within which an appeal must be brought may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but no appeal shall in any event be brought more than one 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 [an LQPM] … .
(3) An application under this regulation shall contain particulars of the grounds on which the extension of time is sought, including details of any relevant special circumstances for the purposes of paragraph (4).
(4) An application for an extension of time shall not be granted unless –
(a) the [LQPM] is satisfied that, if the application is granted, there are reasonable prospects that the appeal will be successful; or
(b) the [LQPM is] … 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 [LQPM] 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...
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