CIS 540 2002
| Jurisdiction | UK Non-devolved |
| Judge | Judge P. L. Howell Q.C. |
| Judgment Date | 17 January 2003 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 540 2002 |
| Subject Matter | Tribunal procedure and practice (including UT) |
R(IS) 6/04
Mr P L Howell QC CIS/540/2002
Commissioner
9.1.03
Human Rights – whether contrary to Article 6 of the Convention to exclude rights of appeal against decisions as to whether and when claims made in the prescribed manner
Human Rights – whether a tribunal or Commissioner had to apply Article 6 of the Convention even where the decision under appeal was made prior the commencement of the Human Rights Act 1998
The claimant appealed to a tribunal the question of whether he had submitted a properly completed form, so as to have validly claimed income support from 31 January 2001. The tribunal decided that a form which complied with the prescribed requirements for a claim had not been submitted until 17 April 2001, which was therefore the date of claim. The Secretary of State did not at that stage dispute the tribunal’s jurisdiction to decide the question
Upon the claimant appealing to the Commissioner, the Secretary of State submitted that the claimant had, in any case, no right of appeal to a tribunal on a question as to whether a claim had been validly made in accordance with the Social Security (Claims and Payments) Regulations 1987, nor as to the date of any such claim. These were decisions against which no appeal lay pursuant to regulation 27 and paragraph 5 of Schedule 2 to the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The claimant contended, in reply, that those regulations were either ultra vires or contrary to Article 6 of the European Convention on Human Rights. The Human Rights Act 1998 came into force on 2 October 2000.
Held, allowing the appeal and remitting the case for further findings on whether there had been a material non-compliance with the rules for making a claim, that:
1. prior to the coming into force of the Social Security Act 1998, decisions as to whether and when a claim was validly made in compliance with prescribed requirements were taken by adjudication officers, with a right of appeal to a tribunal, and this was unaffected by the amended requirements for making income support and jobseeker’s allowance claims, introduced on 6 October 1997 (paragraphs 8 to 10);
2. following the coming into force of the Social Security Act 1998, such decisions were taken by the Secretary of State and carried rights of appeal to a tribunal pursuant to section 12(1)(a) of that Act, unless validly excluded by regulation 27 and paragraph 5 of Schedule 2 to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (paragraphs 11 to 22);
3. those regulations were not ultra vires the enabling powers in the Social Security Act 1998 at the time they were made (paragraphs 23 to 29);
4. they were, however, contrary to Article 6 of the Convention and of no applicable effect from 2.October 2000, insofar as they purported to exclude rights of appeal against decisions as to whether and when a claim was validly made in compliance with prescribed requirements, where those rights existed prior to the Social Security Act 1998 and would now otherwise arise under section 12 of that Act (paragraphs 39 to 48);
5. section 6 of the Human Rights Act 1998 required that a tribunal or Commissioner consider whether the purported exclusion of appeal rights by statutory instrument was contrary to Article 6 since this concerned the tribunal’s own actions, even if the decision appealed against was taken prior
to commencement of the Act (paragraphs 30 to 37).
Wilson v. First County Trust Ltd (No. 2) [2002] QB 74 followed
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Introduction
1. This is an appeal by the claimant against the decision of the Warrington appeal tribunal consisting of a chairman sitting alone on 23 October 2001, when he determined that the claimant had not submitted a properly completed claim form for income support until 17 April 2001, and consequently confirmed the decision of an officer on behalf of the Secretary of State that the conditions for entitlement to the benefit on his claim had not been met for the earlier period back to 31 January of the same year.
2. I held a combined oral hearing of this and two other cases, in each of which the tribunal’s power to deal with such “claims” questions at all was put in issue by the Secretary of State. In this case CIS/540/2002 the claimant was represented by Stewart Wright, solicitor and Legal Officer of the Child Poverty Action Group. In all three cases (the others were CIS/758/2002 and CIB/1454/2002) the Secretary of State appeared by James Maurici of Counsel, instructed by the solicitor to the Department for Work and Pensions, assisted by Mr W Spencer and other members of the department. Since the oral hearing which covered the main issues of principle I have had the benefit of further written submissions from the parties in each case on their practical effects. To all who appeared and contributed to the oral and written arguments I am grateful, not only for the comprehensive material provided to assist me, but also for putting up over two full hearing days with the inadequate court accommodation in which the Commissioners and those who appear before them have for too long been expected to try and do their work: the prolonged administrative inaction over this is unfair to everyone involved.
Appeal jurisdiction on claims questions
3. In these three cases it has been contended on behalf of the Secretary of State that appeal tribunals constituted under the Social Security Act 1998 no longer have the jurisdiction possessed by their predecessor tribunals under the United Kingdom social security schemes before that Act was brought into force, to decide whether in any individual case a claim for benefit has been validly made in accordance with the formal requirements prescribed by the Secretary of State, and if so when was the effective date of that claim.
4. These are questions needing to be decided in virtually every case as part of determining entitlement to benefit. They currently arise in most cases under regulation 4 Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), which prescribes the formal manner in which a claim for benefit is to be made. The regulation has had various amendments and additions made to it from time to time so that it now also imposes a set of requirements of some complexity, in particular for income support and jobseeker’s allowance claimants, about the information and evidence that has to be provided before a claim is to be treated as complete and effective.
5. Compliance with those requirements (whether correctly viewed as substantive, or merely formal) is made an essential condition of entitlement to benefit in all but a small minority of cases, by section 1(1) Social Security Administration Act 1992 which lays down that:
“1. – (1) Except in such cases as may be prescribed … no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied –
(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or
(b) he is treated by virtue of such regulations as making a claim for it.”
6. The relevant regulations are the Claims and Payments Regulations just cited, made under powers now in section 5 of the 1992 Act. They require the making of a claim in compliance with the specified requirements for all benefits except a small category of exceptions under regulation 3, which does not apply to any of these cases. As already noted, the present form of regulation 4 imposes more detailed and stringent requirements on claims for income support or jobseeker’s allowance, by a set of amending regulations introduced from 6 October 1997.
7. It is accepted by all sides, and in my view clear beyond argument, that any question whether the requirements prescribed in the Claims and Payments regulations have been complied with in any particular claimant’s case so as to meet the first essential condition of entitlement to benefit under section 1 of the 1992 Act is a question that arises either as part of deciding a claim for a “relevant benefit” or as one that falls to be decided “under or by virtue of a relevant enactment” for the purposes of section 8 Social Security Act 1998, by which the initial determination of all such questions under the Act is to be made by the Secretary of State: see section 8(1)(a), 8(1)(c).
Previous law
8. Under the law before that section came into force, there is in my judgment no doubt that when a disputed question of fact arose between the claimant and departmental administrative staff over whether, or when, an effective...
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