Secretary of State for Work and Pensions v Morina. Same v Borrowdale
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lady Justice Arden |
| Judgment Date | 23 July 2007 |
| Neutral Citation | [2007] EWCA Civ 749 |
| Date | 23 July 2007 |
| Docket Number | Case No: C3/2006/2053 |
| Court | Court of Appeal (Civil Division) |
[2007] EWCA Civ 749
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
CIS/2322/2005 and CIS/1363/2005
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lady Justice Arden and
Lord Justice Maurice Kay
Case No: C3/2006/2053
Ms Natalie Lieven QC (instructed by The Office of the Solicitor) for the Appellant
Mr Steven Kovats appeared as an Advocate to the Court)
Hearing date: 8 May 2007
Judgement
In the field of social security, primary and secondary legislation are notoriously labyrinthine. Sometimes the substantive entitlement to a statutory benefit is clothed in complexity and can only be determined after an interpretive journey that few are equipped to travel. These two appeals do not involve complex substantive law. However, they raise procedural and jurisdictional issues of real difficulty.
Mr Morina was an asylum seeker. On 28 June 2001 the Secretary of State decided that Mr Morina had been overpaid £417.40 in respect of Income Support for the period 4 – 25 December 2000 because he had failed to disclose that he had been refused asylum. On 11 June 2004 the Home Secretary granted Mr Morina indefinite leave to remain, as a result of which he became entitled to Job Seeker's Allowance. However, on 16 August 2004 the Secretary of State informed Mr Morina that he intended to recover the £417.40 by way of set-off against Job Seeker's Allowance. On 24 August 2004 Mr Morina wrote to the Secretary of State saying that he did not know of the refusal of asylum until he received a letter dated 21 December 2000. This was treated as an application to appeal out of time against the decision of 28 June 2001. On 2 December 2004 a Legally Qualified Panel Member (LQPM) of the Appeal Tribunal refused the application. On 6 July 2005 Mr Morina applied to a Social Security Commissioner for permission to appeal. On 2 September 2005 Mr Commissioner Rowland granted permission to appeal without prejudice to the right of the Secretary of State to argue that the Commissioner lacked jurisdiction. In due course, the Secretary of State argued against jurisdiction but on 12 June 2006 the Commissioner decided that he had jurisdiction. Nevertheless he dismissed Mr Morina's appeal. Mr Morina has accepted that decision and has played no part in proceedings in this court. The Secretary of State, on the other hand, whilst obviously satisfied with the decision of the Commissioner on the merits, has sought permission to appeal to this court on the question of jurisdiction. He was refused permission by the Commissioner on the ground that he had been a successful appellant. His application to this court was considered on the papers by Sir Henry Brooke who adjourned it for an oral hearing on notice, with appeal to follow if permission were to be granted.
Mr Borrowdale was a recipient of Income Support. On 11 January 2005, the Secretary of State notified him that in future his benefit would be paid by cheque. On 19 January Mr Borrowdale gave notice of appeal. He did not challenge the correctness of the amount of the benefit but contended that the Secretary of State had no power to pay it by cheque. The matter was first considered by a clerk to the Appeal Tribunal but he referred it to an LQPM. On 25 January the LQPM struck the appeal out on the basis that there was no jurisdiction to hear it. Thereafter, events proceeded along the same lines as in Mr Morina's case. Mr Commissioner Rowland granted permission to appeal and held that he had jurisdiction but dismissed the appeal substantively. The case has now reached this court at the behest of the Secretary of State following identical decisions on permission by the Commissioner and Sir Henry Brooke.
Thus the central point of law is whether a Social Security Commissioner has jurisdiction to hear and determine an appeal from an LQPM who has refused to extend time or who has struck out a proposed appeal for want of jurisdiction. The Secretary of State contends that it has always been understood that persons in the position of Mr Morina and Mr Borrowdale have no right to appeal to a Commissioner and that their remedy, if any, is an application to the Administrative Court for permission to apply for judicial review of the decision of the LQPM. If the Commissioner was right to hold that he had jurisdiction, there also arises the question as to whether this court either can or should hear an appeal by the Secretary of State in view of the fact that he was the successful party before the Commissioner in both cases. These are matters of some importance. In view of their complexity and the fact that Mr Morina and Mr Borrowdale have manifested no wish to be involved in the proceedings in this court, we have had the assistance of Mr Steven Kovats as Advocate to the Court. He has provided us with helpful written and oral submissions. His contention is that Mr Commissioner Rowland was right about jurisdiction in both cases and that this court should not feel inhibited from saying so. Also, the Child Poverty Action Group has been permitted to intervene by way of written submissions which support the approach of the Commissioner.
In an everyday dispute about substantive entitlement to a social security benefit, a claimant who is not satisfied with a decision of the Secretary of State has a right of appeal to the Appeal Tribunal. Since the Social Security Act 1998, the unified Appeal Tribunal has replaced a number of previous tribunals including Social Security Tribunals. There is then a further right of appeal to a Commissioner, but only on a point of law and with the leave of the Appeals Tribunal or the Commissioner. Subsequent appeals to the Court of Appeal must also be on a point of law and with the permission of the Commissioner or the Court of Appeal. In a typical case, questions of procedure and jurisdiction are tolerably clear. The difficulties arise around the margins where a plethora of statutory provisions may or may not apply, as this case vividly illustrates. Before dealing with the intricacies of the social security legislation, it is logical to resolve the threshold issue of whether this court can or should hear the appeals of the Secretary of State in view of the fact that he was the successful appellant before the Commissioner.
The appeals to this court: jurisdiction and discretion
Although we have received no submissions discouraging us from hearing these appeals, it is common ground that our entitlement to do so is not beyond dispute and requires resolution. This is because of the traditional reluctance to permit an appeal at the behest of a litigant who succeeded below and who seeks to take issue with the reasoning of the decision rather than with its outcome.
An appeal to the Court of Appeal from a Commissioner is provided for by section 15 of the Social Security Act 1998. It is limited to “a question of law” and relates to “any decision of a Commissioner”. This language is at variance with that used in connection with appeals from the High Court to the Court of Appeal which lie against “any judgment or order of the High Court”: Supreme Court Act 1981, section 16(1). The approach of the Court of Appeal to appeals from the High Court is illustrated by Lake v Lake [1955] P 336 which arose in the context of section 27 of the Supreme Court of Judicature (Consolidation) Act 1925, where the language was also that of “judgment or order”. Mrs Lake's answer to an allegation of adultery had been one of denial or, in the alternative, condonation. Her husband's petition was dismissed, the Commissioner finding that there had been adultery but that it had been condoned. She sought to appeal against the finding of adultery but the Court of Appeal declined to hear such an appeal. It held that “judgment or order” meant “the formal judgment or order which is drawn up and disposes of the proceedings” as opposed to “some finding or statement … which may be found in the reasons given by the judge for the conclusion at which he eventually arrives, disposing of the proceeding” (per Sir Raymond Evershed MR, at pp. 343–344). Hodson LJ agreed, adding (at p.345):
“This is an attempt by a successful party to appeal against an order which she has obtained in her favour. In my judgment, this court cannot entertain such an appeal.”
The procedure and documentation in the context of an appeal to a Social Security Commissioner are not the same as in the High Court. The appeals of Mr Morina and Mr Borrowdale were disposed of in a single document which also refused a third claimant leave to appeal and granted leave to appeal to a fourth. The single document contains paragraph 1, headed “Decision of the Social Security Commissioner”, which, in the cases of Mr Morina and Mr Borrowdale, simply stated with respect to each: “I dismiss the claimant's appeal”. Paragraphs 2–54, headed “Reasons”, then described the four cases and explained the conclusions reached by the Commissioner.
An analysis producing the result that we do not have jurisdiction to hear the Secretary of State's appeals would take this form: (1) section 15 of the 1998 Act provides for an appeal against “any decision of a Commissioner”; (2) the “decision” in each of these cases is to be found in paragraph 1, dismissing the claimant's appeal; (3) the Secretary of State is not seeking to challenge that decision; (4) by analogy with Lake v Lake, he has no right to challenge the reasoning on an issue upon which he was unsuccessful – jurisdiction – when the ultimate decision was wholly...
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