Rydqvist v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE CHADWICK,MR JUSTICE NELSON |
| Judgment Date | 24 June 2002 |
| Neutral Citation | [2002] EWCA Civ 947 |
| Date | 24 June 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A1/2002/0933 |
[2002] EWCA Civ 947
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY
AND CHILD SUPPORT COMMISSIONERS
(Commissioner Levenson)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Chadwick
Mr Justice Nelson
A1/2002/0933
MISS CATHERINE O'DONNELL (Instructed by Sternberg Reed Taylor & Gill, Focal House, 12/18 Station Parade, Barking, Essex IG11 8DN) appeared on behalf of the Appellant.
MR JEREMY JOHNSON (Instructed by Solicitor to the Department of Work and Pensions, Quarry House, Quarry Hill, Leeds LS2 7UB) appeared on behalf of the Respondent.
Monday, 24th June 2002
This appeal raises a short point on the Social Security Adjudication Regulations 1995 ("the Regulations"): where an appellant appealing to a Social Security Appeal Tribunal ("the Tribunal") has given written notice that he is withdrawing his appeal, does the Tribunal have jurisdiction to proceed with the hearing of the appeal? The Social Security Commissioner on a further appeal to him by the appellant held that the Tribunal did not have jurisdiction and refused permission to appeal. The appellant now appeals to this court with the permission of Brooke LJ.
The appellant, James Rydqvist, is an accountant who had the misfortune in 1984 to suffer a stroke when he was in his early forties. He received an award of income support from 24th March 1992. The award included an element to cover interest on the whole of his mortgage. When Jobseeker's Allowance (" JSA") was introduced on 7th October 1996 an award of JSA was made. It is a requirement of entitlement to JSA that the claimant of JSA must enter into a Jobseeker's Agreement. Mr Rydqvist signed a Jobseeker's Agreement on 11th November 1996. On the same day he signed form ES 2, which included a question: "What is the lowest wage you are willing to accept?" He answered by inserting the figure "£18,000". Also that day he completed and signed another form in which he explained why £18,000 was the minimum amount he required.
On 6th January 1997 Mr Rydqvist was interviewed and signed a statement acknowledging that it had been explained to him that the wage he was seeking might affect his entitlement to JSA. Regulation 9 of the Jobseeker's Allowance Regulations 1996 provides that a person may not restrict his availability for employment by placing restrictions on the level of remuneration in employment for which he is available after the expiry of the period of months beginning with the date of claim.
The matter was referred to an adjudication officer who by a decision notified to Mr Rydqvist on 16th January 1997 decided that Mr Rydqvist was not available for employment from 11th November 1996 and not entitled to JSA from that date. Mr Rydqvist on 3rd February 1997 appealed against the adjudication officer's decision to the Tribunal. On 13th February 1997, however, Mr Rydqvist's solicitors wrote a letter to the Employment Service, saying:
"Our client wishes to withdraw his appeal and withdraw any restrictions he may have seemed to have placed on his availability for work."
The solicitors explained that the staff at the Romford Employment Service had asked the appellant what salary he wanted to work for, and he had given an indicative figure. The solicitors asked that JSA be reinstated from the date of suspension. The letter was copied to the Independent Tribunal Service. The Clerk to the Tribunal on 24th February 1997 wrote to Mr Rydqvist and to the adjudication officer, saying that the withdrawal of the appeal had been agreed to and that no further action would be taken. The terms of that letter referred to the need for the consent of the adjudication officer to be obtained. That was appropriate only to an earlier version of Regulation 6. Under Regulation 6 then in force, that consent was not required. It was open to the adjudication officer to oppose a withdrawal, but no notice of opposition was given. On 5th March 1997 the request for reinstatement of JSA was refused.
Mr Rydqvist was notified in advance of the appeal hearing, and the adjudication officer in his written submissions expressly referred to the withdrawal of the appeal but, nevertheless, dealt with the substantive point raised by the appeal. The appeal was heard on 4th December 1997. Mr Rydqvist and a presenting officer attended the appeal hearing. The Tribunal confirmed the adjudication officer's decision in respect of Mr Rydqvist's claim for JSA from 11th November 1996, but only until 12th February 1997. It found on the evidence before it that Mr Rydqvist had intended to impose restrictions and that that contravened regulation 9 of the Jobseeker's Allowance Regulations. Neither in the decision notice written in manuscript by the Chairman and dated 4th December 1997, nor in the typewritten statement of material facts and reasons for the Tribunal's decision dated 4th April 1998, does the Tribunal expressly advert to the fact that the appeal had been withdrawn, although in the statement reference is made to the letter of 13th February 1997 as indicating the acceptance by Mr Rydqvist's solicitors that the £18,000 wage limit restriction was withdrawn.
Mr Rydqvist appealed against the Tribunal's decision, and that was heard by Mr Commissioner Levenson. Mr Rydqvist appeared in person at the oral hearing. In his reserved decision the Commissioner records that he was told by Mr Rydqvist that at the hearing before the Tribunal the presenting officer agreed to the Tribunal hearing the appeal. The Commissioner held that the decision of the Tribunal was made without jurisdiction. He said that Mr Rydqvist through his solicitors gave an effective notice of intention to withdraw the appeal and that there was no provision for a withdrawn appeal to be reinstated. He pointed out that leave could have been sought for a late appeal but that no application was made. He indicated that had he had jurisdiction, he would have allowed the appeal on the basis that it was improper for the Employment Service to insist that a claimant specify in advance a level of remuneration and that there was no evidence that Mr Rydqvist was imposing a restriction on the level of remuneration in employment for which he was available. It is not clear how the Commissioner thought that he could have reversed the finding of fact made by the Tribunal, given the limited jurisdiction which the Commissioner had.
Before us Miss O'Donnell for Mr Rydqvist submitted that the Commissioner erred in law in two respects:
(1) in finding that the Tribunal had no jurisdiction to determine the appeal on 4th December 1997 and that the notice given in letter of 13th February 1997 by the appellant's solicitors to withdraw the appeal was effected;
(2) in failing to apply the guidelines set out by this court in R v The Home Secretary ex parte Jeyeanthan [2000] 1 WLR 351. She says that had the Commissioner applied the guidelines, he would have found that the Tribunal did have jurisdiction to hear the appeal. She in particular relies on the fact that there was power for the Tribunal to allow a late appeal.
Mr Johnson for the respondent Secretary of State submits that the Commissioner was plainly right to reach the conclusion which he did. He says that once the appeal had been withdrawn there was nothing for the Tribunal to decide. He submits that Jeyeanthan is distinguishable, the guidelines there relating to procedural irregularities rather than to matters which go to jurisdiction.
It is not in dispute that an appeal lies from the decision of an adjudication officer to the Tribunal on both fact and law, but that by section 14(1) of the Social Security Act 1998 an appeal lies from the Tribunal to the Commissioner only on the ground that the Tribunal's decision was erroneous in point of law and that by section 15(1) of that Act an appeal to this court from the Commissioner is only on a question of law.
I start with the legislative provisions governing the points in issue. By section 22 of the Social Security Administration Act 1992, so far as relevant:
"(1) … where the adjudication officer has decided a claim or question other than a claim or question relating to an attendance allowance, a disability living allowance or a disability working allowance—
(a) if it relates to statutory sick pay or statutory maternity pay, the employee and employer concerned shall each have a right to appeal to a social security appeal tribunal; and
(b)in any other case the claimant shall have a right to do so."
(I interpose the comment that it is section 22(1)(b) that is relevant in the present case.)
(4)Regulations may make provision as to the manner in which, and the time within which, appeals are to be brought."
The 1995 Regulations were made pursuant to (amongst other empowering provisions) section 22(4). Regulation 2(1) confers powers on the Chairman of the Tribunal to determine the procedure before the Tribunal on a determination, and by regulation 2(1)(a) the Chairman has the power to give directions requiring any party to the proceedings to comply with any provision of the Regulations.
Regulation 3 dealt with (amongst other things) time limits. By regulation 3(3) of, and paragraph 4 of Schedule 2 to, the 1995 Regulations, an appeal to the Tribunal from a decision of an adjudication officer has to be brought within three months, beginning with the date when notice in writing of the decision was given to the appellant. Regulation 3(3) allows for the extension of the time limit for an appeal,...
To continue reading
Request your trial
-
Government of Germany v Kleinschmidt and another
...the Home Department ex p Jeyeanthan [2000] 1 WLR 354 at pp359, 362 as qualified by Rydvist v Secretary of State for Work and Pensions [2002] 1 WLR 3343. 36. For the reasons I set out in paras [12-34] I do not consider that to permit service of the Order in Council and, notwithstanding Mr Su......
-
R (Winchester College) v Hampshire County Council
...are capable of being waived. This is clear from Lord Woolf's judgment at 362F, and there is direct authority for it in Rydquist v Secretary of State for Work and Pensions [2002] 1 WLR 3343. In my judgment the question of what constitutes an application in terms of the relevant legislation i......
-
R Rycroft v The Royal Pharmaceutical Society of Great Britain
...case is distinguishable from Essex Incorporated Congregation Church Union v Essex County Council [1963] AC 808 and Rydqvist v Secretary of State for Work & Pensions [2002] EWCA Civ 947. In those cases an attempt was made by the parties to confer jurisdiction upon the Lands Tribunal (in th......
-
CH 1815 2005
...Boal Quay Wharfingers Limited v Kings Lynn Conservancy Board [1971] 1 WLR 1558; Rydqvist v Secretary of State for Work and Pensions [2002] EWCA Civ 947, [2002] 1 WLR 3343 followed (paragraph 4. although different considerations may apply in the case of claimants who are not fully able to ma......