DECISION OF THE TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

Decision

1.	We allow the Secretary of State’s appeal and set aside the tribunal’s decision of 23 April 2002 as having been made without jurisdiction.  The consequence is that the Secretary of State’s decision of 21 August 2002 (superseding the original awarding decision) stands.

Introduction

2.	This is an appeal by the Secretary of State against a decision of the Bradford Appeal Tribunal made on 23 April 2002, which purported to allow the claimant’s appeal against a decision of the Secretary of State of 21 August 2001 under Article 13(2) of Schedule 1 to the Social Security (Jamaica) Order 1997 (SI 1997 No 871) (“the Jamaica Order”).  The Secretary of State decided that, when the claimant left Great Britain to go to Jamaica, he was not likely to be permanently incapable of work and that, accordingly, was not exempt from the general disqualification for receiving benefit whilst absent from Great Britain under Section 113 of the Social Security Contributions and Benefits Act 1992 (“the Contributions and Benefits Act”).  On that basis, the Secretary of State superseded his earlier decision awarding incapacity benefit, effectively bringing the claimant’s receipt of that benefit to an end.   

3.	Before us, the Secretary of State submitted that the tribunal’s decision was wrong in law on three grounds namely:

(i)	The tribunal did not have jurisdiction to entertain the claimant’s appeal (the primary ground of appeal to us).

(ii)	Even if the tribunal had jurisdiction to hear the appeal, it erred in substituting its own decision as to the likelihood of permanent incapacity, rather than confining itself to deciding whether the Secretary of State’s opinion (that the likely permanent incapacity was not established) was irrational.

(iii)	Even if the tribunal had the jurisdiction to hear the appeal and substitute its own decision for that of the Secretary of State, the tribunal’s decision (that the claimant was likely to be permanently incapable of work when he left Great Britain) was not one to which it could properly have come on the evidence. 

4.	The hearing of the appeal was held on 29 and 30 January 2004 at which the Secretary of State was represented by Mr Philip Sales of Counsel (instructed by the Solicitor to the Department of Work and Pensions), and the respondent claimant was represented by Mr Daniel Kolinsky of Counsel (instructed by Mr Stewart Wright, Legal Officer to the Child Poverty Action Group).  The Commissioners are grateful to all of the legal representatives for their assistance.

The Background

5.	The claimant was born in Jamaica on 11 June 1950.  He moved to Great Britain in 1984, and was employed by a local authority as a minibus driver and helper at a care centre for the elderly.  In February 2000, he became incapable of work because of depression and, from April, received statutory sick pay.  

6.	After his period of entitlement to sick pay expired, it was followed by an award of incapacity benefit from 10 October 2000.  In the absence of any evidence to the contrary, the parties agreed that, by virtue of Regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968, as amended), this award was probably made for an indefinite period.  However, the claimant’s continued entitlement to this benefit was dependent upon his satisfying the all work test (now the personal capability assessment), although, in the usual way, under Regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No 311, as amended), he was initially treated as satisfying that test pending assessment.  In any event, although it is not clear whether he actually underwent a medical examination, following a reference to Benefits Agency Medical Services, on 25 November the claimant was assessed as satisfying the all work test.  Following that assessment, on 29 November 2000 a decision maker on behalf of the Secretary of State decided that the benefit should continue, recording this decision as a “refusal to revise” the original decision awarding benefit.

7.	In the meantime, at the request of his employers, the claimant had been seen by a psychiatrist, who advised that the claimant’s depression could improve with support and psychiatric treatment, but that a return to work with the council would exacerbate his disorder.  On the basis of that opinion, the council’s occupational health physician advised that the claimant was unable to perform the duties for which he had most recently been employed, and that that situation was likely to be permanent.  He recommended ill health retirement, and the claimant’s employment was terminated in accordance with that advice, on 27 November 2000.

8.	On 23 November (two days before his all work test assessment), the claimant informed the Benefits Agency that he was going to Jamaica on 27 November for health reasons, indicating that he intended to return in September 2001.  The claimant did, indeed, leave Great Britain for Jamaica on 27 November 2000.

9.	In common with some other benefits, incapacity benefit is generally payable only whilst the claimant is present in Great Britain.  Disqualification for receipt of benefit for persons absent from Great Britain is imposed by Section 113(1) of the Contributions and Benefits Act, which provides:  

“Except where regulations otherwise provide a person shall be disqualified for receiving any benefit under Parts II to V of this Act [which includes incapacity benefit], … for any period during which the person:
(a)  is absent from Great Britain; …”.
 
10.	Therefore, as a person is taken as being present in Great Britain on the day he leaves, under the general rule of Section 113, the claimant would have been disqualified for receiving his incapacity benefit from and including 28 November 2000.

11.	However, there are a number of exceptions to this general rule, two of which are relevant in this case.

12.	First, Article 2 of the Social Security Benefit (Persons Abroad) Regulations 1975 (SI 1975 No 563, as amended) (“the Persons Abroad Regulations”) provides that a person shall not be disqualified for receiving any benefit in respect of incapacity by reason of being temporarily absent from Great Britain for any day falling within the first 26 weeks of his absence, if he satisfies one of three conditions (set out in Regulation 2(1)(b), (bb) and (c)) and the Secretary of State certifies that it is consistent with the proper administration of the Social Security Act that the Section 113 disqualification should not apply.  One of the conditions (Regulation 2(1)(c)) is that the claimant is on the day on which the absence began, and had been for the past 6 months continuously been, incapable of work.

13.	In this case, the Secretary of State accepted that the claimant’s absence was temporary and Regulation 2(1)(c) was satisfied, and he gave the appropriate certificate that disqualification under Section 113 should not apply.  This gave the claimant exemption from the disqualification from the day after he left Great Britain (28 November 2000), for 26 weeks (i.e. to 28 May 2001).  The claimant duly received incapacity benefit to that date - but, by its nature of providing a temporary exception, the Persons Abroad Regulations could not assist the claimant beyond 28 May 2001.  

14.	Thereafter, to avoid disqualification under Section 113, the claimant had to rely upon a second potential exception, namely that provided by Article 13(2) of Schedule 1 to the Jamaica Order.  The statutory basis of this exception is as follows.

15.	Sections 179 of the Social Security Administration Act 1992 (“the Administration Act”) confers a power to make Orders in Council to modify Section 113 in order to give effect to reciprocal agreements with countries outside the United Kingdom.  Section 179 provides:

“(1)	For the purpose of giving effect

(a)  to any agreement with the government of a country outside the United Kingdom providing for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of legislation to which this section applies, or
(b) to any such agreement as it would be if it were altered in accordance with proposals to alter it which, in consequence of any change in the law of Great Britain, the government of the United Kingdom has made to the other government in question,

Her Majesty may by Order in Council make provision for modifying or adapting such legislation in its application to cases affected by the agreement or proposed alterations.

(2)	An Order made by virtue of subsection (1) above may, instead of or in addition to making specific modifications or adaptations, provide generally that legislation to which this section applies shall be modified to such extent as may be required to give effect to the provisions contained in the agreement or, as the case may be, alterations in question.”

The Jamaica Order was made under Section 179.  Article 2 of the Jamaica Order provides:

“The Social Security Administration Act 1992 and the Social Security Contributions and Benefits Act 1992 shall be modified to such an extent as may be required to give effect to the provisions contained in the Convention and the Protocol set out in Schedules 1 and 2 respectively to this Order so far as the same relate to England, Wales and Scotland.”

Schedule 1 to the Jamaica Order is the Convention on Social Security between the Governments of the United Kingdom and Jamaica (“the Reciprocal Agreement”), Article 13 of which provides:

“Invalidity Benefit

(1)	In this Article “competent authority” means, in relation to Great Britain, the Secretary of State for Social Security.

(2) 	Where a person is entitled to receive invalidity benefit under the legislation of the United Kingdom, he shall be entitled to receive that benefit in the territory of Jamaica provided that, at the time of leaving the United Kingdom he was considered by the competent authority of the United Kingdom likely to be permanently incapacitated for work, and that he subsequently continues to satisfy that authority that he remains incapacitated for work.

(3) 	Where a person would be entitled to receive for the same incapacity and for the same period invalidity benefit under the legislation of both Parties, whether by virtue of this Convention or otherwise, he shall be entitled to receive only the invalidity benefit under the legislation of the Party in whose territory the incapacity began.”
 
For convenience, in this decision we shall refer to Article 13(2) of Schedule 1 to the Jamaica Order simply as “Article 13(2)”.

16.	On 7 March 2001 the claimant’s case for exception under Article 13(2) was considered by a decision maker, who referred it again to Benefits Agency Medical Services for medical advice on the question of whether, as at the date of his departure from Great Britain, the claimant was “likely to be permanently incapacitated for work”.  A letter was obtained from the claimant’s general practitioner, advising that the claimant had made a partial response to antidepressant and counselling treatment, but the claimant felt that he would be unable to recover fully in this country and consequently had made arrangements to go to Jamaica.  Taking that into account, the approved doctor advised the decision maker on 7 July 2001 that it was not likely that the claimant would remain permanently incapable of work.  On the basis of that advice, on 16 August 2001, the decision maker made a “Decision on Payment of [Incapacity Benefit Long Term] in Jamaica” purportedly superseding the awarding decision, and disqualifying the claimant from receiving benefit from 29 May 2001 to 30 December 2001.  That decision was notified to the claimant by letter dated 21 August 2001.  That letter indicated that the claimant could ask to have the decision reconsidered, and:

“If the decision can be changed we will send you a new decision.  If we cannot change the decision we will tell you why.  You will still have the right of appeal against the decision”.

17.	On 30 August 2001 the claimant’s wife applied on his behalf for the decision to be reconsidered, enclosing with her letter the medical evidence obtained by his employers and the claimant’s letter of dismissal, and indicating that the claimant intended to live permanently in Jamaica, although returning for brief periods every two years to maintain his immigration status.  The decision was duly reconsidered on 16 October 2001.  However, the decision maker considered that the new medical evidence submitted on behalf of the claimant showed that, although the claimant was incapable of carrying out his regular occupation, it did not indicate that he was incapable of carrying out any (i.e. all forms of) employment.  On that basis the decision was not revised.

18.	On 16 November 2001, the claimant appealed to an appeal tribunal.  The Secretary of State did not challenge the tribunal’s jurisdiction to entertain the appeal, which therefore proceeded in the normal way to a hearing on 23 April 2002.  The appeal was attended by the claimant’s wife and a presenting officer, and the tribunal had before it a further submission on behalf of the claimant, together with a short medical report from his doctor in Jamaica.  The tribunal considered that the advice to the claimant’s employers recommending medical retirement was strong evidence that, at the time of his departure from Great Britain in November 2000, it had been likely that the claimant was permanently incapacitated for work.  It consequently allowed the appeal.  

19.	On 5 June 2002, the Secretary of State appealed against the appeal tribunal decision, raising the jurisdiction issue for the first time.  He submitted that, under Article 13(2), decisions as to whether a claimant is likely to be permanently incapable of work are decisions reserved to the Secretary of State, and, relying on Paragraph 22 of Schedule 2 to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991) (“the Decisions and Appeals Regulations”), such decisions do not carry a right of appeal.  Leave to appeal was granted by the District Chairman on 17 July 2002.  It is that appeal which now falls before this Tribunal of Commissioners.

Jurisdiction

20.	The Secretary of State’s primary contention before us was that, on the proper construction of the statutory provisions, the appeal tribunal did not have jurisdiction to hear the appeal from the claimant against the Secretary of State’s decision of 16 August 2001.  It is clear (and was common ground between the parties in this case) that Commissioners have jurisdiction to entertain an appeal made on such jurisdictional grounds.  Commissioners can deal with appeals made on the basis that an appeal tribunal erred in law by assuming jurisdiction which it did not have (see, e.g., the Tribunal of Commissioners’ decision in R(S) 13/81).

21.	Before the introduction of the Social Security Act 1998 (“the 1998 Act”), Section 20(1)(b) of the Administration Act required the reference to an adjudication officer of “any question arising in connection with a claim for, or an award of, benefit”.  Section 20(2) provided that Section 20 did not apply to any question which fell to be determined “other than by an adjudication officer”: and Section 17 prescribed questions that were to be determined by the Secretary of State.  Decisions and determinations of an adjudication officer were appealable to an appeal tribunal.  Those of the Secretary of State were not.

22.	By virtue of Section 1 of the 1998 Act, all of the functions of adjudication officers were transferred to the Secretary of State, who became responsible for all decision making under the Act.  The types of decision which may be made by the Secretary of State under the 1998 Act are specified in Section 8, which so far as material, provides:

“(1)	Subject to the provisions of this Chapter, it shall be for the Secretary of State

(a)	to decide any claim for a relevant benefit; 
(b)	…;
(c)	…, to make any decision that falls to be made under or by virtue of a relevant enactment; 
(d)…”

It was common ground between the Secretary of State and the claimant that a decision under Article 13(2) falls within Section 8(1)(c).  The section continues:

“(2)	Where at any time a claim for a relevant benefit is decided by the Secretary of State

(a)	the claim shall not be regarded as subsisting after that time; and
(b)	accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.”

Again, it was common ground that the original claim for benefit in this case ceased after it had been decided by the Secretary of State, and consequently the decision under Article 13(2) could not have been “made on a claim for …relevant benefit.”  The section continues:
“(3)	In this Chapter “relevant benefit” …, means any of the following, namely

(a)	benefit under Parts II to V of the Contributions and Benefits Act [which includes incapacity benefit]; …

(4)	In this section “relevant enactment” means any enactment contained in this Chapter, the Contributions and Benefits Act, the Administration Act, the Social Security (Consequential Provisions) Act 1992, the Jobseekers Act …”

23.	Sections 9 and 10 of the 1998 Act provide a mechanism for the Secretary of State to change benefit decisions.  Section 9 enables the Secretary of State to revise decisions generally with effect from the date of the original decision, and Section 10 enables him to supersede decisions generally with effect from the date of the claimant’s application to supersede or the date of the new decision.

24.	Section 12 of the 1998 Act provides for an appeal against certain categories of decision, as follows:

“(1)	This section applies to any decision of the Secretary of State under Section 8 or 10 above (whether as originally made or as revised under Section 9 above) which  

(a)	is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act; or
(b)	is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act.
(c)	…

(2)	In the case of a decision to which this section applies, the claimant and such other person as may be prescribed shall have a right to appeal to an appeal tribunal, but nothing in this subsection shall confer a right of appeal in relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision.

 (3)	Regulations under subsection (2) above shall not prescribe any decision or determination that relates to the conditions of entitlement to a relevant benefit for which a claim has been validly made or for which no claim is required.”

Therefore, in summary, Section 12(1)(a) prescribes decisions that are generally appealable, subject to the exceptions in Schedule 2 (headed, “Decisions against which no appeal lies”); and Section 12(1)(b) prescribes decisions which are generally non-appealable, subject to the exceptions in Schedule 3 (headed, “Decisions against which an appeal lies”).  It is clear that Sections 12(1)(a) and (b) are mutually exclusive, in that any particular decision must fall within one or the other but cannot fall within both.  Section 12(3) provides for a general limitation on the power to prescribe non-appealable decisions.    

25.	In respect of the jurisdiction point, Mr Sales for the Secretary of State submitted that the relevant decision (that, as at the date of his departure from Great Britain, it was not likely that the claimant would remain permanently incapable of work) was not appealable, for the following reasons:

(a)	At the time when the Reciprocal Agreement and Jamaica Order were made in 1997 - i.e. before the 1998 Act - not all benefit decisions were made by the Secretary of State.  There was a general distinction drawn between decisions made by adjudication officers (which were appealable) and those reserved to the Secretary of State (which were not).  The intention in the Jamaica Order was clearly that decisions under Article 13 of the Reciprocal Agreement should be allocated to the latter category, i.e. such decisions were not appealable before the 1998 Act.

(b)	This intended exclusion of a right of appeal from the Secretary of State’s decision remained effective, even after the 1998 Act.  Indeed, the exclusion was specifically retained.

(c)	Although the relevant decision in this case was not “on a claim”, it was “on an award” of benefit: and therefore it fell within Section 12(1)(a), rather than Section 12(1)(b).  The decision was therefore subject to a right of appeal, unless it fell within one of the exceptions in Schedule 2.

(d)	Paragraph 9 of Schedule 2 made non-appealable, “Such other decisions as may be prescribed”.  The Decisions and Appeals Regulations were made under Paragraph 9, and Regulation 27(1) provided that there is no appeal against a decision falling within the categories set out in Schedule 2 to the Regulations.  Paragraph 22 of that Schedule provided that the following category of decision was non-appealable:

“A decision of the Secretary of State made in accordance with an Order made under Section 179 of the Administration Act (reciprocal agreements with countries outside the United Kingdom)”.

The Secretary of State submitted that the decision of the Secretary of State under Article 13(2) fell - and obviously fell - full square within this category.  The decision was, therefore, non-appealable, and the appeal tribunal had no jurisdiction to hear the claimant’s appeal.

26.	Mr Kolinsky for the claimant submitted that the relevant decision was appealable, for the following reasons:

(a)	Mr Kolinsky accepted that, prior to the 1998 Act, such decisions were non-appealable, for the reasons put forward by Mr Sales.

(b)	However, he submitted that the 1998 Act properly construed gave claimants a right of appeal against such decisions, which they did not have before.

(c)	He submitted that the relevant decision of the Secretary of State under Article 13(2) was either a decision as to entitlement to benefit, or a decision as to payability of benefit.

(d)	If the decision was as to entitlement, Section 12(3) of the 1998 Act precluded such a decision being made non-appealable.  Insofar as Paragraph 22 of Schedule 2 of the Decisions and Appeals Regulations purported to make such decisions non-appealable, it was ultra vires. 
 
(e)	If the decision was as to payability, Mr Kolinsky submitted that it was neither on a claim nor on an award.  Consequently it fell within Section 12(1)(b), rather than Section 12(1)(a).  On this basis, there would be no right of appeal against the decision unless it fell within one of the exceptions in Schedule 3.  Paragraph 3 of that Schedule (headed, “Payability of benefit”) provided that the following category of decision was appealable:

“A decision whether a relevant benefit (or a component of a relevant benefit) to which a person is entitled is not payable by reason of:

(a)  any provision of the Contributions and Benefits Act by which the person is disqualified for receiving benefit; …”

Mr Kolinsky submitted that, by virtue of Section 179 and Article 2 of the Jamaica Order (both set out above), the Jamaica Order had the effect of modifying Section 113 of the Contributions and Benefits Act by which the claimant was disqualified for benefit.  A decision under that (modified) provision of the Contributions and Benefits Act - i.e. the modified Section 113 - therefore fell within the category of appealable decision defined by Paragraph 3(a) of Schedule 3. 

27.	These submissions gave rise to two issues relating to the relevant decision of the Secretary of State which, properly in our view, were agreed by the parties to be determinative of the jurisdiction question, subject to any issue arising under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”), namely (i) was the decision one of entitlement or payability, and (ii) was the decision “on an award”?  

Was the decision one of entitlement or payability?

28.	For the following reasons, we are quite satisfied that the Secretary of State’s decision was in respect of payability of benefit and not entitlement.  Specifically, it was not a decision “[relating] to the conditions of entitlement to a relevant benefit for which a claim [had] been validly made”, within the meaning of that phrase in Section 12(3) of the 1998 Act.

29.	Provision for entitlement to long-term incapacity benefit is dealt with in the Social Security Contributions and Benefits Act 1992 (particularly Sections 30A-30C, which are headed, “Incapacity Benefit: Entitlement), and Part II of the Social Security (Incapacity Benefit) Regulations 1994 (SI 1994 No 2946, as amended) (headed, “Entitlement to Incapacity Benefit: Supplementary Provisions).  Section 30A(1) provides that, where a claimant satisfies various conditions, he is entitled to short-term incapacity benefit “in respect of any day of incapacity for work which forms part of a period of incapacity for work”.  Entitlement to short-term benefit ceases after 364 days (Section 30A(4)): but, thereafter, a claimant is entitled to long-term incapacity benefit “in respect of any subsequent day of incapacity for work in the same period of incapacity for work…”.  Regulation 4 provides for various categories of day which are not treated as days of incapacity for work.  These include (in Regulation 4(b)):

“a day on which a person is disqualified for receiving incapacity benefit during a period of absence from Great Britain or imprisonment or detention in legal custody, if that disqualification is for more than 6 weeks…”

30.	The effect of these provisions is that, generally, where a claimant is disqualified for receiving benefit by reason of absence from Great Britain (under Section 113) for 6 weeks, then, and only then, does he lose his entitlement to incapacity benefit.  Whatever a claimant is deprived of by the direct effect of Section 113 within that 6 weeks, it cannot therefore be his entitlement to his benefit.  Indeed, as the wording of the section makes clear, Section 113 disqualifies a claimant who is entitled to incapacity benefit, from receiving or being paid that benefit.  In other words, Section 113 is concerned with “payability” and not “entitlement”.

31.	Mr Kolinsky submitted that, even if this were the case, because of the effects of Regulation 4(b), after 6 weeks (during which a claimant would be entitled to incapacity benefit, but disqualified from receiving it) his entitlement would necessarily and automatically end.  A decision relating to disqualification is therefore relevant to entitlement (he submitted), and, for the purposes of Section 12(3) of the 1998 Act, “relates to the conditions of entitlement”.  We do not agree.  The decision relates to payability of benefit and simply because, if the claimant is disqualified and remains abroad for more than 6 weeks, the consequence is that his entitlement comes to an end, this does not make the original payability decision one “relating to conditions of entitlement”.  Decisions relating to Section 113 disqualification (including decisions relating to exemption from the effects of Section 113, for example under the Persons Abroad Regulations or under Article 13(2)) relate to payability of, and not to entitlement to, benefit.

32.	Our view with regard to the nature of decisions relating to disqualification is reinforced by the specific words of Article 13(2).  Under that article, the issue of receipt of benefit in Jamaica only arises, “Where a person is entitled to receive benefit under the legislation of the United Kingdom…”.  

33.	It is also consistent with previous decisions of Commissioners.  For example, in R(S) 8/83,  Mr Commissioner Hallett rejected the contention that Regulation 2 of the Persons Abroad Regulations was ultra vires its purported empowering provision, namely Section 114(3) of the Social Security Act 1975, which prohibited the making of regulations excluding a right of appeal “as respects any question as to the right to benefit”.  He held that, since the regulation was made under a power to confer exceptions from disqualification, it did not concern a question as to the right to benefit or therefore contravene the prohibition in Section 114 of the 1975 Act.

34.	For these reasons, in our judgment, a decision relating to disqualification for receiving benefit (particularly, a decision under Article 13(2)) is a decision relating to payability, and not entitlement.  Specifically, it is not a decision “[relating] to the conditions of entitlement to a relevant benefit for which a claim [had] been validly made”, within the meaning of that phrase in Section 12(3) of the 1998 Act. 

Was the decision “on an award”?

35.	The parties agreed that, subject to the Section 12(3) issue dealt with above and any issue in respect of Article 6 of the European Convention (see below), the determinative issue with regard to jurisdiction was whether the Secretary of State’s decision was, or was not, “on an award”.  Mr Kolinsky accepted that, if it was “on an award”, then it fell within the confines of Section 12(1)(a), and would be the subject of the exclusion from appeal found in Paragraph 9 of Schedule 2 to the 1998 Act and (ultimately) in Regulation 27(1) of and Paragraph 22 of Schedule 2 to the Decisions and Appeals Regulations.  For his part, Mr Sales accepted that, if the decision was not “on an award”, it fell within Section 12(1)(b), and would be the subject of the exclusion from non-appealability found in Paragraph 3(a) of Schedule 3 to the 1998 Act.  We consider both of these concessions properly made.

36.	There is no definition of “award” in the 1998 Act or, so far as we are aware, in its predecessor statutes or any relevant regulations.  However, both parties submitted that some assistance in determining whether a decision under Article 13(2) is “on an award” could be derived from the provisions of Schedules 2 and 3 to the Act, each party adopting the same approach (albeit to different ends).  Mr Kolinsky submitted that, if a decision under Article 13(2) fell within one of the exceptions in Schedule 3 (as he submitted it did), then the decision must be covered by Section 12(1)(b) (otherwise Schedule 3 is not engaged), and therefore, by definition it cannot be a decision on a claim or on an award.   To the same effect, Mr Sales submitted that, if a decision under Article 13(2) fell within one of the exceptions in Schedule 2 (as he submitted it did), then the decision must be covered by Section 12(1)(a) (otherwise Schedule 2 is not engaged), and it must therefore be a decision on a claim or on an award.  Despite their different conclusions, we accept the common ground between the parties on this issue, namely that, in construing Section 12(1), regard can and should be had to Schedules 2 and 3 to the same statute.   

37.	As indicated above, Mr Kolinsky suggested that the decision fell within Paragraph 3(a) of Schedule 3, i.e. it was “a decision whether a relevant benefit… to which a person is entitled is not payable by reason of… any provision of the Contributions and Benefits Act by which the person is disqualified for receiving benefit”, i.e. Section 113 of that Act, as modified by Article 13(2) of the Jamaica Order.  This argument has considerable superficial attraction, not least in its simplicity.  However, we consider it is flawed, and we consider Mr Sales’ submissions compelling, for the following reasons.

38.	First, the relevant decision was not made under Section 113 at all, but under Article 13(2) which derives from Section 179.  

As we understood him, Mr Kolinsky submitted that a decision under Article 13(2) could not be regarded as a stand-alone decision.  He submitted that Article 13(2) modified Section 113 in the sense of effectively altering the wording of that section in some albeit unspecified way, so that any decision in relation to an exemption from disqualification is made under Section 113 as so modified.  No doubt that, under Section 179, Orders in Council could be made referring to specific statutory provisions, and re-wording those provisions to give effect to an international obligation in particular cases.  However, in our judgment, absent such express re-wording, provisions such as Article 13(2) do not modify the wording of the relevant primary legislation, but modify the effects of that legislation.  In our judgment, that is the natural and only proper meaning of both Section 179, and Article 2 of the Jamaica Order.  This construction is particularly reinforced by the opening words of Section 113 (“Except where regulations otherwise provide, a person shall be disqualified for receiving benefit…), which makes clear that exceptions are provided for, not within Section 113 itself, but by subordinate legislation.

It follows that that the Secretary of State’s decision in this case was not “a decision whether a benefit …to which a person is entitled is not payable by reason of …any provision of the Contributions and Benefits Act [i.e. Section 113] by which a person is disqualified for receiving benefit” within Paragraph 3(a) of Schedule 3 of the 1998 Act, but rather a stand-alone decision under Article 13(2) which was empowered by Section 179.  On this construction, Paragraph 3(a) is of course not otiose, but it is restricted to decisions under Section 113 which are governed by the provisions of the primary legislation, e.g. decisions on whether a person is absent from Great Britain.   

39.	Second, Paragraph 22 of Schedule 2 to the Decisions and Appeal Regulations expressly covers “a decision of the Secretary of State made in accordance with an Order under Section 179…”.  Although this provision is found in subordinate legislation (empowered by the general words of Paragraph 9 of Schedule 2 to the 1998 Act), we found compelling the Secretary of State’s submission that the express reference in Paragraph 22 to Section 179 has specificity in respect of a decision under Article 13(2).  This is lacking in Paragraph 3(a) of Schedule 3 to the Act.  

40.	Third, whether or not a decision under Article 13(2) is actually a decision under Section 113 (as modified by Article 13(2)) as Mr Kolinsky submitted, it would still in our judgment be a decision “on an award”.  

As indicated above, to engage Schedule 2 to the 1998 Act (“Decisions against which no appeal lies”) at all, a decision must fall within Section 12(1)(a), i.e. if it is not on a claim, it must be on an award of relevant benefit.  In a highly specific provision, Paragraph 5 of Schedule 2 provides for the following category of decision to be non-appealable:

“A decision whether to certify, in accordance with regulations made under Section … 113(1) …of the Contributions and Benefits Act, that it is consistent with the proper administration of that Act to treat a person as though he were present in Great Britain.”

The draftsman of the primary legislation apparently considered that such a decision, if not “on a claim”, was “on an award” - and therefore it needed an express provision in Schedule 2 to deprive a claimant of a right of appeal against such a decision.  

A decision falling within Paragraph 5 may arguably be of a different type to that under Article 13(2), in that a decision to “certify” something may arguably be different from a decision that one is satisfied as to something.  However, a decision falling within the category defined by Paragraph 5 is certainly a decision relating to an exception from the general Section 113 disqualification.  A further example can be found (albeit in subordinate legislation) in Paragraph 21 of Schedule 2 to the Decisions and Appeals Regulations, by which decisions certifying under Regulation 2 of the Persons Abroad Regulations (see Paragraph 12 above) are made non-appealable, through Regulation 9 of Schedule 2 to the 1998 Act.   If these decisions, by falling in Schedule 2 of the 1998 Act, are “on an award”, then so too must be a decision under Article 13(2) which equally relates to an exception from that disqualification.  We consider the cases indistinguishable in this regard.  

In our view, whatever the precise meaning of “on an award” might be and by whatever precise mechanics Article 13(2) modifies Section 113, if decisions falling within Paragraph 5 are within that definition (as they appear to be), then equally decisions under Article 13(2) must fall within that definition.  Certainly, that must be the case if, as Mr Kolinsky submitted, an Article 13(2) decision is for all intents and purposes a decision under Section 113.

41.	For these reasons, we consider that a decision made under Article 13(2) to be a decision “on an award”, and consequently it falls within the confines of Section 12(1)(a), and is the subject of the exclusion from appeal found in Paragraph 9 of Schedule 2 to the 1998 Act.

Article 6

42.	In these circumstances, Mr Kolinsky submitted that the absence of a right of appeal in the legislation contravened the claimant’s rights under Article 6 of the European Convention.    

43.	The Secretary of State, correctly in our view, accepted that a decision as to whether a claimant is disqualified for receiving social security benefit is a determination of a claimant’s civil rights, sufficient to engage Article 6.  However, he submitted that there was no breach of those rights in this case because:

(i)	Article 13(2) imposed a “subjective” rather than an “objective” test of exemption from disqualification.  It was a condition for exemption from the disqualification for receiving benefit that the Secretary of State considered the claimant likely to be permanently incapacitated for work, at the date he left Great Britain for Jamaica.

(ii)	As Article 13(2) was concerned with the test of payability (rather than a procedural matter), Article 6 had no application in this case, because Article 6 of the European Convention is neutral as to content of civil rights created under domestic law as opposed to the procedure for enforcing or protecting those rights (Matthews v Ministry of Defence [2003] 1 AC 1163 and Z v UK (2001) 34 EHRR 97).

For his part, Mr Kolinsky accepted that, if Article 13(2) did impose a subjective test in the form of a condition for the exemption from the disqualification applying, then Article 6 would have no application - because he conceded that Article 6 had no part to play in the ambit of substantive rights, as opposed to procedural rights.  We should make clear that we accepted that concession for the purposes of this case, and our judgment is based upon it.  As such, the determinative issue in relation to this aspect of the appeal therefore turned on simply whether Article 13(2) imposes such a subjective test.

44.	We have already referred to the general scheme for decision making before the 1998 Act (see Paragraph 21 above).  Decisions and determinations of an adjudication officer were appealable.  Those of the Secretary of State were not.  Section 17 of the Administration Act prescribed questions that were to be determined by the Secretary of State, but did not prescribe as a category all decisions made under Orders made under Section 179.  Such decisions would, therefore, be made by an adjudication officer (and were consequently not appealable to an appeal tribunal) - unless there was specific provision in relation to a particular Order or part of an order to the contrary.
.  
45.	By way of reminder, Article 13(2) provides that:

“Where a person is entitled to receive invalidity benefit under the legislation of the United Kingdom, he shall be entitled to receive that benefit in the territory of Jamaica provided that, at the time of leaving the United Kingdom he was considered by the competent authority of the United Kingdom likely to be permanently incapacitated for work, and that he subsequently continues to satisfy that authority that he remains incapacitated for work.

Article 13(1) defines “competent authority” thus:

“In this Article “competent authority” means, in relation to Great Britain, the Secretary of State for Social Security.”
 
46.	Mr Kolinsky submitted that the purpose of the “competent authority” being defined as the Secretary of State in Article 13(1) was to indicate that the relevant authority was that of Great Britain, rather than Jamaica.  However, in respect of the whole of the Schedule to the Jamaica Order (i.e. the Reciprocal Agreement), Article 1 of the Schedule does that.  It provides:

“For the purpose of this Convention the following definitions apply, except where the context otherwise requires

“competent authority” means
(i)	in relation to the territory of the United Kingdom, the Department of Social Security for Great Britain, the Department of Health and Social Services for Northern Ireland, the Department of Health and Social Security of the Isle of Man, or 
(ii)	in relation to Jersey, the Employment and Social Security Committee of the States of Jersey, or
(iii)	in relation to Guernsey, the Social Security Authority and,
(iv)	in relation to Jamaica, the Minister responsible for National Insurance, and any person or body to whom the functions, relevant to this Convention, of any of those persons or bodies, may be transferred;”

The provision in Article 13(1), specifically governing Article 13 alone, cannot therefore have the purpose for which Mr Kolinsky contended.

47.	In our judgment, its purpose is clear.  It was intended to reserve decisions under that particular article to the Secretary of State, rather than having the competent authority remaining as simply the relevant Government Department (which, for the reasons set out above, would have meant the decision maker would have been an adjudication officer).  It was intended that the exception provided by Article 13(2) should only be available if the Secretary of State considered the claimant likely to be permanently incapacitated for work when leaving Great Britain.  It was intended that, consequently, such decisions should not be appealable.  Mr Sales submitted in his written argument before us that:

“The precondition …under Article 13(2) of the Reciprocal Agreement and the Jamaica Order is very different from the usual objective test under the Contributions and Benefits Act.  The precondition…is expressed in terms of whether the competent authority in the UK (the Secretary of State) “considers” a person “likely to be permanently incapacitated for work”, and is a continuing precondition depending upon whether the claimant “subsequently continues to satisfy that authority that he remains incapacitated for work”.  It is therefore clearly a precondition which depends upon the satisfaction of the Secretary of State that there is likely permanent incapacity for work-which is a subjective test, subject to the usual requirement of rationality on the part of the decision-maker.” 

With respect to the position in 1997 (when the Jamaica Order was made), having rejected Mr Kolinsky’s submission with regard to the purpose of Article 13(1) (and accepting Mr Sales’ submission with regard to that provision), we consider that there is no compelling alternative to the construction suggested by Mr Sales.  

48.	Nor do we consider that the position was changed by the 1998 Act.  In enacting that statute, Parliament must be taken as having been aware of the existing statutory framework relating to reciprocal agreements.  Nothing in the 1998 Act purports to affect that framework, or the specific provisions of Article 13 of the Schedule to the Jamaica Order.  In particular, whilst effectively transferring the functions of adjudication officers to the Secretary of State, it did nothing to affect the nature of a decision under Article 13(2), i.e. as a decision in respect of a precondition of being exempted from disqualification from benefit.

49.	We therefore accept the Secretary of State’s submission that Article 13(2) imposes a “subjective” rather than an “objective” test of exemption from disqualification.  In this case, it was a precondition for exemption from the disqualification for receiving benefit that the Secretary of State considered the claimant likely to be permanently incapacitated for work, at the date he left Great Britain for Jamaica.  As accepted by the claimant, Article 6 of the European Convention has no application in such a case, because it is neutral as to content of civil rights created under domestic law as opposed to the procedure for enforcing or protecting those rights.

The Secretary of State’s Alternative Submissions

50.	In view of our conclusion that Paragraph 22 of Schedule 2 of the Decisions and Appeals Regulations is not ultra vires in its application to Article 13 of the Jamaica Order, it is not necessary for us to consider Mr Sales’s alternative submissions that the jurisdiction of the appeal tribunal was limited to considering whether the Secretary of State’s decision was lawful.  However, he accepted that the decision, even if not appealable, would be potentially subject to judicial review where, of course, it would be only the lawfulness of the decision that would be considered.  

51.	Neither do we have to consider Mr Sales’s further alternative submission, that the tribunal’s decision (that the claimant was likely to be permanently incapable of work when he left Great Britain) was not one to which it could properly have come on the evidence, had it been able to deal with the appeal as a full rehearing.      

Other Matters

52.	Our conclusion that there is no appeal against a decision of the Secretary of State under Article 13(2) is not one to which we have lightly come.  It runs contrary to the broad scheme of 1998 Act which generally provides for appeals against benefit decisions of the Secretary of State.  However, although the particular decision in this case had no specific international element, it must be noted that it was made under a provision that forms part of a scheme of international rights and obligations.  For example, it enables the competent authority of one country to request a medical examination of a claimant when that claimant is living in the other country (Article 28(6)).  Such an examination may be necessary, for example, to enable the Secretary of State to consider whether the claimant “continues to satisfy that authority that he remains incapacitated for work” for the purposes of Article 13(2)).  Although paid for by the requesting authority, it has to be arranged by the competent authority of the other country.  Where a claimant is in one country, but is entitled to receive benefit from the other, there is also provision for allowing the competent authority of the former country to effect payment at the request of the latter, on the basis that the latter will then provide reimbursement (Article 28(5)).  Where international affairs and obligations are involved, it may be appropriate that decisions within the benefit scheme are left to the executive, without recourse to a right of appeal to an appeal tribunal.

53.	As we have indicated, the Secretary of State accepted before us that it would be open to a claimant to apply to the Administrative Court for judicial review of an Article 13(2) decision and, if the decision was found to be unlawful (e.g. because the Secretary of State had failed to consider matters which he ought properly to have done), then it would be open to the Court to set aside the decision.  Indeed, Mr Sales for the Secretary of State appeared to accept that, on such an application, it would be open to the Court itself to make the findings of fact necessary to determine the lawfulness of the Secretary of State’s decision.  However, whatever the scope of judicial review in this context, for the reasons we have given, we consider a claimant has no right to challenge before an appeal tribunal the findings of fact made by the Secretary of State. 

54.	Finally, we should make clear that our decision is limited to the issues before us.  On the basis of the decision of Mr Commissioner Howell QC in CIB/3654/2002, it may be arguable that that the Human Rights Act and Article 6 of the European Convention may require rights of appeal to be granted against decisions under reciprocal agreement provisions in respect of which rights of appeal had existed previously.  There may also be other cases in which it may be arguable that Paragraph 22 of Schedule 2 of the Decisions and Appeals Regulations does not restrict certain rights of appeal without deciding whether the provision is ultra vires (as found in CIB/3586/2000 (starred decision 15/00)).  We express no view on the correctness of those decisions.

Conclusion

55.	For the reasons given above, the Secretary of State’s appeal succeeds, and our decision is given in Paragraph 1 above.

      

	(Signed)         His Honour Gary Judge Hickinbottom
	         Chief Commissioner

	(Signed)         Mr Commissioner May QC
	         		
	(Signed)	 Mr Commissioner Bano

			5 April 2004