CIS 20002 2000
| Jurisdiction | UK Non-devolved |
| Judge | Mr M. J. Goodman |
| Judgment Date | 04 September 2000 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 20002 2000 |
| Subject Matter | Tribunal procedure and practice (including UT) |
R(is) 12/01
Mr. M. J. Goodman CIS/20002/2000
4.9.00
Tribunal practice - decision by tribunal awarding benefit in respect of one period of claim and adjourning consideration of later period - whether a final decision in relation to period for which award made and if so whether later tribunal has power to reconsider that decision
Tribunal practice - refusal by tribunal of jurisdiction to reconsider decision of earlier tribunal - whether subject to right of appeal to the Commissioner
Tribunal practice - leave to appeal granted and then purportedly rescinded by chairman - whether chairman had power to rescind
The claimant was a single woman living with her parents as a member of their household. She was in receipt of income support and attendance allowance (which was later replaced by disability living allowance). On 31 July 1990 she appealed against an adjudication officer’s decision of 27 July 1990 refusing to award severe disability premium, relying on a decision of the Commissioner (CIS/787/1991) which was later the subject of appeal to the Court of Appeal and then the House of Lords in Chief Adjudication Officer v. Bate (R(IS) 12/96). On 24 July 1992 a tribunal awarded her severe disability premium for the period 11 April 1988 to 8 October 1989 and adjourned for later consideration of the subsequent period. On 6 March 1995 a tribunal heard the appeal in respect of the period from 9 October 1989 and awarded severe disability premium up to 1 December 1994 in the light of the Court of Appeal’s judgment in Bate given on 30 November 1994, remitting the matter to the adjudication officer for calculation. The period from 2 December 1994 onwards was adjourned pending further submissions from both parties as amending Regulations had come into force from that date and the claimant argued that they were not intended to apply to existing claimants. On
16 May 1996 the decision of the House of Lords in Bate reversed the effect of the Court of Appeal’s judgment. On 17 August 1999 a tribunal hearing the reconvened appeal found that the tribunal of
6 March 1995 had conclusively dealt with the period 9 October 1989 to 1 December 1994 and it did not have jurisdiction to reopen the appeal in relation to that period, and accepted the claimant’s withdrawal of the appeal in respect of the period from 2 December 1994. The adjudication officer applied to the chairman for leave to appeal to the Commissioner which was granted, but following representations from the claimant’s representative that there had been no decision against which an appeal could be made the chairman purported to rescind the grant of leave. Nevertheless the Commissioner heard the appeal
Held, dismissing the appeal, that
1. the decision of the 1999 tribunal represented a declining of jurisdiction and the question of whether the tribunal had jurisdiction or not was a question of law which the Commissioner could consider (para. 25)
2. once a Chairman had given leave to appeal to the Commissioner, he was functus officio and he had no power thereafter to vary or rescind his grant of leave (para. 26);
3. the part of the decision of the tribunal of 6 March 1995 awarding severe disability premium from 9 October 1989 to 1 December 1994 was a final decision and consequently the decision of the tribunal of 17 August 1999 that it had no jurisdiction to rehear or reopen the appeal in relation to that period was correct in law (para. 22);
4. it was competent to a tribunal finally to decide one part of an appeal period or one issue that is under appeal to it and then to adjourn another issue and, although it may well be that a tribunal ought not normally to do this, in the circumstances of this case it was clear that, in view of the changes in the legislation and the complicated nature of the caselaw, the tribunal of 1995 did all that it possibly could do and acted quite properly in adjourning the period from and including 2 December 1994 (para. 24).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I dismiss the Secretary of State’s appeal against the decision of the appeal tribunal dated 17 August 1999 as that decision is not erroneous in law: Social Security Administration Act 1992, section 23.
2. This is an appeal by the Secretary of State against the unanimous decision of an appeal tribunal dated 17 August 1999, which allowed the appeal (re. severe disability premium) of the claimant, a single woman, born on 15 November 1946, who unfortunately has been mentally and physically handicapped from birth. She lives with her parents. Her mother is her social security appointee.
3. On my direction, the appeal was the subject of an oral hearing before me on 17 August 2000, at which neither the claimant nor her mother were present. They were, however, ably represented by Mr. D. Abrahams of Counsel. The Secretary of State was represented by Mr. L. Scoon, of the Office of the Solicitor to the Departments of Health and Social Security. I am much indebted to Mr. Abrahams and Mr. Scoon for their assistance to me at the hearing.
4. The facts of this case are accurately summarised by the Secretary of State’s representative in his written appeal dated 15 November 1999, (the abbreviations used in it are “AA/DLA” attendance allowance/disability living allowance; “AO” adjudication officer; “SDP” = severe disability premium for income support “Bate v. CAO” = the case of Bate v. Chief Adjudication Officer in the Court of Appeal, before that Court’s decision was reviewed by the House of Lords). Paragraphs 3 to 5 of the Secretary of State’s appeal read as follows:
“The claimant is a single woman who lives with her parents as a member of their household. She has...
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