Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2001] NISSCSC A1/01-02(IS) (1 February 2002)

 


Application No: A1/01-02(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCOME SUPPORT
Application by the above-named for leave to appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 24 January 2001

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1. The application by the claimant for leave to appeal is refused for want of jurisdiction, for the reasons set out in the following paragraphs herein.
2. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.
3. Mr Bennett, on behalf of the Decision Making and Appeals Unit of the Department, made the following relevant submissions in written observations dated 12 October 2001 in relation to this application: -

"4. A preliminary issue arises in that the original decision refusing an award of severe disability premium for the period 21 February 2000 to 12 June 2000 was revised, under regulation 3(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 ("the D&A Regulations"), to the effect that severe disability premium was awarded from 8 February 2000 to 27 March 2000 on the grounds that during that period her grandson, as a joint tenant, was excepted from the definition of "non-dependant" by virtue of regulation 3(2B) of the Income Support (General) Regulations (Northern Ireland) 1987. Severe disability premium for the period 28 March 2000 to 12 June 2000 remained not payable.

5. The issue which arises from this revision is whether [the claimant's] original appeal survives following this decision or whether a renewed appeal should have been made against the revised decision. The relevant legislation is contained in Article 10 of the Social Security (Northern Ireland) Order 1998 ("the Order") and regulation 30 of the D&A Regulations.

Article 10(6) of the Order provides: -

"(6) Except in prescribed circumstances, an appeal against a decision of the Department shall lapse if the decision is revised under this Article before the appeal is determined."

The prescribed circumstances are set out in Regulation 30 of the D&A Regulations which provides: -

"(1) An appeal against a decision of the Department shall not lapse where the decision is revised under Article 18 of the Child Support Order or under Article 10 before the appeal is determined and the decision as revised is not more advantageous to the appellant than the decision before it was revised.

(2) Decisions which are more advantageous for the purposes of this regulation include decisions where –

(a) any relevant benefit paid to the appellant is greater or is awarded for a longer period in consequence of the decision made under Article 10;

(b) to (f) (not relevant).

(3) Where a decision as revised under Article 18 of the Child Support Order or under Article 10 is not more advantageous to the appellant than the decision before it was revised, the appeal shall be treated as if it had been brought against the decision as revised.

(4) The appellant shall have a period of one month from the date of notification of the decision as revised to make further representations as to the appeal.

(5) After the expiry of the period specified in paragraph (4), or within that period if the appellant consents in writing, the appeal to the appeal Tribunal shall proceed except where, in the light of any further representations from the appellant, the Department further revises its decision and that decision is more advantageous to the appellant than the decision before it was revised."

"Shall" is defined in Section 38 of the Interpretation Act (Northern Ireland) 1954: -

"In an enactment passed or made after the commencement of this Act, the expression "shall" shall be construed as imperative and the expression "may" as permissive and empowering."

6. I submit that the decision of 28 July 2000 which resulted in an award of severe disability premium albeit for the limited period from 8 February 2000 to 27 March 2000 fell within the terms of regulation 30(2)(a) and therefore was advantageous to [the claimant]. Regulation 30(3) then provides that where a decision as revised under Article 10 is not more advantageous to the appellant than the decision before it was revised, the appeal shall be treated as if it had been brought against the decision as revised. I submit that the implication of that sub-paragraph is that where a revised decision is more advantageous to an appellant the original appeal lapses and a new appeal is required against the revised decision. I further submit that sub-paragraphs (4) and (5) of regulation 30 reinforce that view.

7. In the light of the above my submission is that [the claimant's] appeal of 25 July 2000 to the Tribunal was invalid as it related to the decision of 30 June 2000 and therefore should have lapsed and [the claimant] given new appeal rights in respect of the outstanding period from 28 March 2000 to 15 June 2000.

8. If the Commissioner accepts this submission I further submit that it may not be the end of the matter. I have checked with the social security office and established that subsequent to the revised decision [the claimant] was given a "no change" decision and her appeal of 25 July 2000 was treated as being against the decision not to pay the premium from 28 March 2000 to 12 June 2000. As [the claimant] has not been given specific appeal rights against the decision of 25 July 2000 (sic, the proper date is 28 July 2000) she could still lodge a proper and timely appeal against that decision once proper notification of it is given."

4. In reply, Mrs Carty of the Law Centre (NI) on behalf of the claimant, made the following relevant submissions in written observations dated 30 November 2001: -

"The Department has raised the preliminary issue of whether [the claimant's] appeal should have been considered by the appeal tribunal, in light of the fact that the revised decision of 28/7/00 was to her advantage. Having considered the provisions of article 10 of the Social Security (NI) Order 1998 and regulation 30 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, I would concur that the initial appeal dated 15/7/00 (received by Social Security Office 25/7/00), lapsed as a consequence of the revised decision. It appears that the notification of the advantageous revised decision did not include a statement of the claimant's right to request a further statement of reasons and to lodge an appeal, as required by regulation 28(1)(b) and (c) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999."

In the circumstances, it is submitted that the local office should issue a fresh, valid decision to allow [the claimant] the right to appeal the decision of 25 July 2000 (sic, the proper date is 28 July 2000)."

5. I accept these submissions as correct.
6. Accordingly, I conclude that for the reasons set out by Mr Bennett and Mrs Carty that I have no jurisdiction to hear any appeal from the Tribunal decision of 24 January 2001, as the claimant's appeal of 25 July 2000 to the Tribunal was not valid as it related to the Decision Maker's decision dated 27 June 2000 (issued on 30 June 2000) and therefore the appeal had lapsed when the Decision Maker on 28 July 2000 had revised the decision.
7. In the circumstances I cannot deal with the substantive grounds set out in the claimant's application for leave to appeal as I have no jurisdiction so to do.
8. Whilst I cannot direct the relevant authorities to take the appropriate action in the present case, in the circumstances it seems reasonable to expect that the claimant will be given specific appeal rights against the decision of 28 July 2000 (which revised the decision dated 27 June 2000), as otherwise it may be appropriate for the claimant to take proceedings by way of judicial review.

(Signed): J A H MARTIN

CHIEF COMMISSIONER

1 February 2002