PJD-v-Department for Social Development (IB) [2010] NICom 134

Decision No:  C23/10-11(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 2 June 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

2.	The decision of the appeal tribunal dated 2 June 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to incapacity benefit (IB) credits, from and including 26 January 2009, is confirmed.

3.	This decision will come as a disappointment to the appellant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.

Background

4.	On 26 January 2009 a decision-maker of the Department made a decision which:

(i)	superseded an earlier decision of the Department dated 21 July 2006 which, in turn, had awarded IB credits from and including 14 June  2006; and

(ii)	decided that the appellant was not entitled to IB credits from and including 26 January 2009.

5.	An appeal against the decision dated 26 January 2009 was received in the Department on 30 January 2009.  On 22 February 2009 the decision dated 26 January 2009 was looked at again but was not changed.

6.	The substantive oral hearing of the appeal took place on 2 June 2009.  The appeal tribunal disallowed the appeal and confirmed the decision dated 26 January 2009.

7.	Correspondence was subsequently received in The Appeals Service (TAS) from the appellant but the date of receipt of this correspondence is not clear.  In this correspondence, the appellant indicates that he wishes to apply for leave to appeal to the Social Security Commissioner.  In addition, the appellant asserts that the evidence which he wished to submit to the appeal tribunal was refused by the appeal tribunal, which was vital to his appeal.  The appellant also asserts that the evidence was refused despite his legal representative being in attendance at the appeal tribunal hearing.  The appellant also makes reference to the legibility of the decision notice, although he appears to ascribe faults in the preparation of the decision notice to the 'clerk to the petty sessions'.

8.	In the file which is before me there is correspondence from TAS to the appellant, dated 23 June 2009.  In this correspondence, the appellant was advised that his application for leave to appeal to the Social Security Commissioner had been received.  The appellant was also advised that before making an application for leave to appeal, he was required to make an application for a statement of reasons (SORs) for the appeal tribunal's decision.  He was also advised of the procedures for making an application for a SORs and was informed that as the statutory time limit for making an application for a SORs had expired, he would also be required to make an application for an extension of the time limit for applying for the SORs.  He was also advised of the procedures for making an application for an extension of the time limit and provided with the necessary forms for so doing.

9.	On 9 July 2009, the clerk to the appeal tribunal placed a question before the legally qualified panel member (LQPM) of the appeal tribunal.  The question was as follows:

‘1.	The attached papers show that the appellant has not clearly stated his intentions.

2.	The appellant has asked for leave to appeal without having asked for a statement of reasons.

3.	Comm1d was sent to the appellant on 24/6/09 explaining the correct procedure

4.	No reply to date

How should we proceed?’

10.	The form ‘Comm 1d’ is the correspondence dated 23 June 2009 referred to above.

11.	The LQPM replied to the question, on 9 July 2009, as follows:

‘As the appellant has not replied to letter of 23/6/09 please proceed to process the application for leave to appeal to Commissioner.’

12.	On 21 July 2009, the LQPM ‘rejected’ the application for leave to appeal.  The stated reason for the rejection was that ‘Reasons for decision were not sent to the applicant as required by Regulation 58(1)(a)’.

Proceedings before the Social Security Commissioner

13.	On 31 July 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).  On 3 August 2009, the registrar wrote to the appellant indicating that he should make an application to TAS for a copy of the record of proceedings (ROPs) for the appeal tribunal hearing.  On 22 September 2009 a reminder was issued to the appellant concerning the issues raised in the correspondence dated 3 August 2009.  On 28 September 2009 a reply was received from the appellant in which he indicated that he had requested the ROPs in July 2009, approximately but had no reply.  He also indicated that he was unsure of the exact date on which he had applied for ‘… these documents, but definitely within 14 days of your last contact.’

14.	On 23 October 2009 the legal officer wrote to TAS, attaching the reply from the appellant dated 28 September 2009, informing TAS that the appellant had indicated that he had sought a copy of the ROPs, and seeking further information as to whether the ROPs were to be issued.  On 3 November 2009 a reply was received from TAS which set out details of the action which had been taken by the clerk to the appeal tribunal on 9 July 2009, and as set out above.  The reply added:

‘The Appeals Service has not received any communication from (the claimant) since his letter was received in June 2009 therefore the Record of Proceedings and The Statement of Reasons has [sic] not been issued in this case.’

15.	The officer from TAS also offered to refer the appellant’s response dated 28 September 2009 to the LQPM for consideration, with an indication that the LQPM would not be available to give that consideration for some time.

16.	On 6 November 2009 the registrar wrote to the appellant indicating that TAS had stated that they had not received any correspondence from the appellant after 23 June 2009, and informing him that he should seek a copy of the ROPs directly from TAS.

17.	On 16 March 2010 the officer from TAS was requested to place the appellant’s response to correspondence from OSSC before the LQPM.  On 14 April 2010, the LQPM ruled that:

‘There is still no formal request for written reasons for decision despite a further letter being sent to (the claimant) on 26/3/10 requesting same.  It is now over 10 months since the date of hearing …  The written reason for decision is not available because the claimant has never requested same despite a further opportunity to do so.  It is now well outside the time limit.’

18.	There then followed a delay in the determination of this application as I was involved in making a decision in two other cases where similar issues arose.

Errors of law

19.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

20.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)	failing to give reasons or any adequate reasons for findings on material matters;

(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)	giving weight to immaterial matters;

(v)	making a material misdirection of law on any material matter;

(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

Was the decision of the appeal tribunal in the instant case in error of law?

21.	Following the hearing of an appeal, an appellant is entitled, under regulation 53(3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended to be sent a copy of the decision notice which contains the decision of the appeal tribunal, and be informed of his right:

	(a)	to apply for a SORs for the appeal tribunal’s decision; and

	(b)	the conditions governing appeals to a Social Security Commissioner.

22.	The conditions governing appeals to a Social Security Commissioner are to be found in regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

23.	It seems to me that an appellant is also entitled to be informed of his right to apply for the ROPs for the appeal tribunal hearing, and of his right to make an application to have the decisions of the appeal tribunal set aside.

24.	In the instant case, it is clear that the appellant was sent a copy of the decision notice for the appeal tribunal’s decision.  In his correspondence dated 18 June 2009, the appellant makes reference to having received the decision notice, although he inadvertently ascribes problems with the legibility of the hand-written decision notice to the clerk to the appeal tribunal.  The majority of the hand-written content would have been completed by the LQPM.

25.	The appellant was also clearly aware of his right to make an application for leave to appeal to the Social Security Commissioner.  The first line of the correspondence dated 18 June 2009 makes that intention clear.  It was probably because the appellant then goes on to make reference to what was submitted as a refusal to accept evidence, that the clerk to the appeal tribunal considered that the true intention of the appellant was to make an application for the decision of the appeal tribunal to be set aside.

26.	Nonetheless, the clerk to the appeal tribunal was aware that if the correspondence dated 18 June 2009 was an application for leave to appeal to the Social Security Commissioner, then it was made before a request for a SORs for the appeal tribunal’s decision and, could not, accordingly, satisfy the conditions in regulation 58(1)(a) of the Social Security and Child Support (Decisions and appeals) Regulations (Northern Ireland) 1999, as amended.  Accordingly, through the issue of Form COMM1d to the appellant, on 23 June 2009, the clerk to the appeal tribunal alerted the appellant to the requirement to obtain a copy of the SORs and a copy of the ROPs for the appeal tribunal hearing.  I am satisfied that the appellant failed to respond to that alert.

27.	In addition, when the appellant was notified, through the issue of correspondence on 21 July 2009, that his application for leave to appeal to the Social Security Commissioner had been rejected by the LQPM, he was advised that he could renew that application to the Social Security Commissioner.  In addition he was advised that he would have to forward a copy of the SORs for the appeal tribunal’s decision with his further application for leave to appeal.  Finally, he was given a copy of the relevant OSSC (NI) form on which to make a further application for leave to appeal.  That form also includes details of the requirement to have attached to the application copies of the SORs for the appeal tribunal’s decision and the ROPs for the appeal tribunal hearing.  I have also noted that the registrar, on 3 August 2009, advised the appellant to obtain a copy of the ROPs for the appeal tribunal hearing.

28.	I am satisfied that all of the information which was sent to appellant, and which he did receive, is sufficient to inform the appellant of his rights to apply for the decision of the appeal tribunal to be set aside; of his right to make an application for leave to appeal to the Social Security Commissioner; and of his right to apply for a SORs for the appeal tribunal’s decision and a ROPs for the appeal tribunal hearing.  The appellant did take certain action based on that correspondence, namely to make an application for leave to appeal to the Social Security Commissioner but failed, through his own omission, to take action to obtain copies of the ROPs and the SORs.

Was the decision to reject the application correct?

29.	Regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

‘58(1)  Subject to paragraph (1A), an application for leave to appeal to a Commissioner from a decision of an appeal tribunal under Article 15 of the Recovery of Benefits Order or under Article 13 or 14 shall—

(a)	be sent to the clerk to the appeal tribunal within the period of one month of the date of the applicant being sent a written statement of the reasons for the decision against which leave to appeal is sought; and

(b)	be in writing and signed by the applicant or, where he has provided written authority to a representative to make the application on his behalf, by that representative;

(c)	contain particulars of the grounds on which the applicant intends to rely;

(d)	contain sufficient particulars of the decision of the appeal tribunal to enable the decision to be identified; and

(e)	if the application is made late, contain the grounds for seeking late acceptance.’

30.	An appeal tribunal has no jurisdiction to consider an application for leave to appeal to a Social Security Commissioner if there is no written SORs for the appeal tribunal’s decision.  That principle was established in the decision of the Commissioner in Great Britain in R(IS)11/99 in connection with the former procedural rules for decision-making and appeals – the Social Security (Adjudication) Regulations 1995, as amended, which had an equivalence in Northern Ireland in the Social Security (Adjudication) Regulations (Northern Ireland) 1995, as amended.  The principle remains valid, however, in connection with regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  On a simple construction of regulation 58(1)(a), the time for sending an application for leave to appeal to the Social Security Commissioner commences with the date on which a written SORs for the decision has been sent to the applicant.

31.	Accordingly, the LQPM was correct to reject the application for leave to appeal to the Social Security Commissioner.

32.	I have noted that there is in existence a template form which is utilised by LQPMs to record determinations in connection with applications for leave to appeal to the Social Security Commissioner.  At section 4 of that form, the LQPM may choose one of three reasons for rejecting the application for leave to appeal.  The first of those three options, in its current version, reads as follows:

‘Reasons for decision were not sent to the applicant as required by Regulation 58(1)(a)’

33.	I am of the view that this wording does not properly reflect the reason why a LQPM has the power to reject an application for leave to appeal to the Social Security Commissioner, where there is no written SORs for the appeal tribunal’s decision.  The true reason for the rejection in these circumstances is that the applicant has not applied for a written SORs under regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, and accordingly, the time for bringing an application for leave to appeal, under regulation 58(1)(a) has not started to run.  I would recommend that consideration is given to the alteration of this form to reflect the proper position.

Consideration of the application by the Social Security Commissioner

34.	Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides that an application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.  The latter emphasis is mine.

35.	Regulation 10 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, requires an application to a Social Security Commissioner for leave to appeal to be made by notice in writing and to have with it, inter alia, a copy of the written SORs of the appeal tribunal for the decision against which leave to appeal is sought.

36.	The application in the instant case does not fulfil that requirement in that it does not have a copy of the written SORs of the appeal tribunal for the decision against which leave to appeal is sought.  Nonetheless, I exercised the power conferred on me by regulation 27 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, and waive the absence of a copy of full written SORs for the appeal tribunal’s decision as an irregularity.  The exercise of this power permits me to consider the application.

37.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  In the absence of a full statement, the error of law must appear from the documents before me or from the circumstances of the case.  Having considered all of the documents before me, and the circumstances of the case, I am satisfied that no error of law can be identified.

38.	I have considered the appellant’s submission that the appeal tribunal refused to accept certain evidence which he wished to adduce.  In the absence of a copy of the ROPs for the appeal tribunal hearing, it is difficult to know what transpired at the appeal tribunal hearing, and whether any additional evidence was submitted and rejected by the appeal tribunal.  As was noted by the Chief Social Security Commissioner at paragraph 16 of C48/99-00 (DLA):

‘It is difficult for a Commissioner, who has only jurisdiction to decide appeals on points of law, to rule on whether something occurred or did not occur at a Tribunal hearing.’

	I am not satisfied, however, that there has been an error of law as submitted by the appellant.

39.	I have also considered the appellant’s submission that the appeal tribunal was not independent from the Department and that the decision had been made before he entered the appeal tribunal room as there was at least one person from the Department present.  The decision notice records that a presenting officer from the Department was present at the oral hearing of the appeal.  A Departmental presenting officer is entitled to be present at an oral hearing of an appeal, as a party to the proceedings, under regulation 49 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  The importance of the presence of a presenting officer, at an oral hearing of an appeal, cannot be over-emphasised.  That attendance serves a number of significant functions.  Firstly, it provides the appellant with a visible confirmation that the Department is a party to the proceedings which, in turn, serves to emphasise the independence of the appeal tribunal.  Secondly, the presenting officer is able to make submissions to the appeal tribunal, on the legal and evidential issues arising in the appeal.  In so doing, the officer can address any conflicts which have arisen, possibly as a result of further evidence adduced by the appellant, at the oral hearing.  Further the officer can test the appellant’s evidence, by asking questions of the appellant or any witness who also attends.  Thirdly, the officer can provide answers to any queries which the appellant may have concerning the handling of the case at Departmental level.  Finally, the officer, in the role of amicus curiae, can raise points not addressed by the appellant, or the appeal tribunal and, on the basis of what has been seen and heard at the oral hearing, make relevant concessions and compromises.  The presenting officer is not, however, a member of the appeal tribunal, and does not participate in the appeal tribunal’s decision-making process.  Accordingly, I cannot find that the decision of the appeal tribunal is in error of law on this submitted ground.

Disposal

40.	The decision of the appeal tribunal dated 2 June 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to IB credits, from and including 26 January 2009, is confirmed.

(signed):  Kenneth Mullan

Commissioner

19 January 2011