Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2002] NISSCSC A8/01-02(DLA) (23 April 2002)

 


Application No: A8/01-02(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
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 2 May 2000 DISABILITY LIVING ALLOWANCE
DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. This is a purported application by the claimant for leave to appeal against a decision dated 4 October 1999 of a Tribunal sitting at Ballymena. That Tribunal had disallowed the claimant's appeal in relation to Disability Living Allowance and had decided that he was not entitled to that allowance from 21 October 1998.
2. The initial question which I have to determine is whether or not the claimant has made a valid application for leave to me. So doing I must consider the legislation involved and the background to this case. The legislative provisions governing applications to the Commissioner are contained in the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999. Regulation 9(1) thereof provides as follows:

"An application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only [my underlining] where the applicant has sought to obtain leave from the Chairman and leave has been refused or the application has been rejected."

3. Regulation 27 thereof provides as follows:

"Any irregularity resulting from failure to comply with the requirements of these Regulations shall not by itself invalidate any proceedings, and the Commissioner, before reaching his decision, may waive the irregularity or take steps to remedy it."

4. The background to this case is that the claimant did not make application to the Chairman for leave to appeal. He had been represented at the appeal to the Tribunal but his representative did not make an application for leave to appeal to the Tribunal Chairman. Instead the claimant's father purported to make such application. As the father was not authorised to represent the claimant the Tribunal Appeals Service wrote on two occasions telling the father that unless the claimant himself signed the appeal letter or a letter was received from the claimant authorising the father to act on his behalf the application could not be considered by the Legally Qualified Panel Member. In fact no reply was received from the claimant's father nor was correspondence relating to the father received from the claimant and on 27 March 2001 the Legally Qualified Panel Member rejected the purported application for leave to appeal stating that she had no jurisdiction to consider it.
5. The claimant then himself sought to appeal to me.
6. At the claimant's request I held an oral hearing to deal with this matter and I sought submissions from the claimant and from the Department in relation to my jurisdiction to hear this matter and as to the correctness of the decision of the Legally Qualified Panel Member.
7. Mr Morrison of the Decision Making and Appeals Unit of the Department furnished such observations in a most helpful letter dated 7 January 2002. The claimant who has been unrepresented in the appeal to me understandably did not furnish any such submissions.
8. I held an oral hearing of the purported application as mentioned above and as the claimant was unrepresented at the hearing, though he indicated that he was prepared to proceed without representation, I adjourned the hearing to give the claimant a further opportunity to obtain representation and to inform me within 30 days from 1 February 2002 as to whether or not he had obtained such representation. I have heard nothing further from the claimant and I proceed now to determine this matter.
9. I consider that the Legally Qualified Panel Member was correct to rule that she had no jurisdiction in relation to this matter in the sense that there was no valid application to her. Article 15(3) (b) of the Social Security (Northern Ireland) Order 1998 provides that an appeal from a Tribunal to a Commissioner may be made at the instance of certain persons. This includes:

"The claimant and such other person as may be prescribed."

The claimant had not made such application and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 make no provisions for any other persons than those set out in Article 15(3) to have appeal rights. None of the other categories of Article 15(3) relate to the claimant's father. The claimant's father therefore had no locus to apply to the Tribunal Chairman. Regulation 9(1) of the Commissioners Procedure Regulations refers to an applicant rather than to the claimant and there is no definition of applicant. However Regulation 9 (1) makes it clear that an application can be made to a Commissioner only where leave has been refused by the Chairman (and that did not happen here as the Chairman ruled that there was no valid application to her) or the application has been rejected. As regards this last requirement, I do not consider it was fulfilled. Unfortunately the phrase used in the form given to the Chairman is that the application has been rejected. However what the chairman was actually ruling in this case was that no application had been made. No-one with any locus to apply had done so. That being so the application could not be rejected as it had not been made.

10. I do not therefore have jurisdiction under regulation 9(1) of the Commissioners Procedure Regulations as leave has not been refused and as no valid application has been made and rejected by the Chairman.
11. Mr Morrison helpfully reviewed my powers under regulation 27 of the Commissioners Procedure Regulations and submitted that I could not exercise this power so as to extend rights that are conferred in primary legislation. I consider that he is correct in that submission. Regulation 27 provides that any irregularity resulting from failure to comply with the requirements of the Commissioner's Procedure Regulations shall not by itself invalidate any proceedings. It further empowers the Commissioner to waive the irregularity or take steps to remedy it. The requirement to apply for leave to a Chairman is made under S.14(10) of the Social Security (Northern Ireland) Order 1998 and may by that section only be made to me in accordance with regulations.
12. I am of the view that the failure to apply to the chairman was more than an irregularity and consider that I do not have power to waive that requirement which appears to me to have its basis in primary legislation.
13. I therefore consider that no valid application has been made to me in this case and that I have no jurisdiction to consider whether or not to grant leave to appeal.

(Signed):MOYA F BROWN

COMMISSIONER

23 April 2002