Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2004] NISSCSC R1/04(DLA) (28 February 2003)


 
R1/04(DLA)

Judge J. A. H. Martin QC
28.2.03 C24/02-03(DLA)


Article 14(3) - legally qualified panel member was required to set aside the tribunal decision and refer the case back for re-determination by a differently constituted tribunal but did not do so - Commissioner's Jurisdiction On 9 April 2002 the claimant applied to the legally qualified member of the tribunal for leave to appeal to the Commissioner against its decision dated 21 November 2001 (corrected and re-signed on 28 December 2001). On 26 April 2002 an officer representing the Department contacted the Appeals Service and expressed the view that the tribunal decision was erroneous in law as the reasons for the decision were inadequate. In accordance with Article 14(3) of the Social Security (Northern Ireland) Order 1998 (the Order) the legally qualified member was required to set aside the tribunal decision and refer the case back for re-determination by a differently constituted tribunal but did not do so. On 9 May 2002 the claimant sought leave from a Commissioner to appeal to a Commissioner under Article 15(1) of the Order. On 8 October 2002 the Chief Commissioner directed the legally qualified member to consider the Department's letter dated 26 April 2002 and the claimant's application for leave to appeal. He was also directed to consider Article 14(3) of the Order and rule on the setting aside of the tribunal decision. In reply to that direction the legally qualified member did not indicate that he had taken any of the steps set out in the direction but instead forwarded amended reasons for the tribunal decision. Agreeing that the tribunal's reasons for the decision were inadequate, the Chief Commissioner, exercising his powers under Article 15(8) of the Order, set the decision aside and referred the case back to a differently constituted tribunal. Held that: Where the Department's support for the claimant's application under Article 14(3) is unequivocal and unambiguous, the legally qualified member has no alternative but to set aside the decision and remit the case to another tribunal for redetermination (paragraph 36); The legally qualified member was functus officio as he had completed the discharge of his powers and duties and therefore is not entitled to purport to set out entirely different reasons for the tribunal decision at this stage (paragraph 13(c)); As it has not been set aside, the tribunal decision is still extant. Also, as leave to appeal has been refused, the criteria prescribed by regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999 appear satisfied (paragraph 14); Agreed with Great Britain decisions CIS/4772/2000 (paragraph 10) and CIB/4427/2002 (paragraph 17) that there is nothing to be gained by a Commissioner considering whether or not the application was properly considered by the panel member and that a Commissioner has no direct jurisdiction to deal with such an issue (paragraphs 19 – 22); While the most appropriate remedy in law is by way of judicial review in the High Court, in circumstances such as the present it is appropriate for a Commissioner to consider, if the parties consent, to exercise his discretionary power under Article 15(7) of the Order. If such a course is taken it results in a party obtaining a rehearing to which he was clearly entitled in law if the legally qualified member had acted in accordance with the law (paragraphs 25 – 27 & 29);

A setting aside under Article 15(7) does not necessarily imply that the Commissioner is satisfied that the decision under appeal was erroneous in law, however there would be reluctance on the part of the Commissioner to exercise discretionary powers where he does not accept there has been an error in law (paragraph 28); Once it is clear that the legally qualified member ought to have set aside a decision under the mandatory provisions of Article 14(3), a Commissioner has jurisdiction to deal with this matter and should rectify matters, if the parties consent, either by exercising his discretionary powers set out in Article 15(7), or his general powers to allow an appeal under Article 15(8), unless there are compelling reasons why he should not do so (paragraph 30); Obiter: In obiter remarks, the Chief Commissioner: Doubts the proposition in Great Britain decision CSI/1256/01 (paragraph 16), that a legally qualified member generally has no statutory power to review his decision (paragraph 13(d)) Questions the correctness of the statement in CIB/4427/2000 (paragraph 17) to the effect that there might be cases where the Commissioner is not of the opinion that an error in law had been made but would be obliged to refer the matter back to the tribunal or direct that a chairman should do so (paragraphs 23 – 24).

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, by the claimant, with leave of a Commissioner, against the decision of a Tribunal to the effect that he is not entitled to either the care or the mobility component of Disability Living Allowance from and including 11 February 2001.
2. The claimant is now represented by Mr McVeigh of the Citizens Advice Bureau. The Department is represented by Mr Fletcher of the Decision Making and Appeals Unit. While, in the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing, both Mr McVeigh and Mr Fletcher made significant contributions in writing during the decision making process of this case and I am indebted to both of them for their written submissions.
3. The appeal by the claimant was heard by the Tribunal on 21 November 2001 and the decision issued on the same day. The claimant on 14 December 2001 then sought leave from the legally qualified member to appeal but, as no statement of reasons was attached to the application (as none had been requested at this stage), the Tribunal Service informed the claimant of the requirement to attach this statement when making a valid application for leave. In the meantime, on 12 December 2001, the Department had asked the Tribunal to correct its decision. The decision was corrected and re-signed on 28 December 2001 and accordingly the date of non-entitlement in the decision was amended from 11 February 2000 to 11 February 2001.
6. The statement of reasons was eventually issued on 11 March 2002, after the appropriate application had been made by the claimant. The statement of reasons was identical in relation both to the mobility and the care components and was in the following terms:

"Appellant's care and mobility needs are substantially the worst of (sic) self-neglect. Appellant has the insight to realise this, but he chooses not to rectify the position."

7. An application to the legally qualified member of the Tribunal for leave to appeal to a Commissioner was then made on 9 April 2002. The grounds set out were the following:

"1. The tribunal erred in holding that care and mobility needs, as result of self-neglect cannot be taken into account when assessing entitlement to Disability Living Allowance.

2. The tribunal held that [the claimant] had the insight to realise that the care and mobility needs were the result of self-neglect, but he chooses not to rectify the problem. The tribunal has failed to give adequate reasons why it considers that [the claimant] has the ability to rectify the problem.

In Commissioner's decision R(A)1/72, the Commissioner held that "in an administrative quasi-judicial decision the minimum requirement must be at least that the claimant, looking at the decision should be able to discern on the face of it the reasons why the evidence has failed to satisfy the authority".

8. Article 14(3) of the Social Security (Northern Ireland) Order 1998 provides:

"If each of the principal parties to the case expresses the view that the decision was erroneous in point of law, the person (the legally qualified member) shall set aside the decision and refer the case for determination by a differently constituted tribunal." [My emphasis]

9. On 26 April 2002 Mrs Gunning of the Decision Making and Appeals Unit, on behalf of the Department, e-mailed a message to the Appeal Service to the effect that in her view the decision of the Tribunal dated 21 November 2001 was erroneous in point of law. The letter addressed to the clerk to the Appeal Service stated as follows:

"Thank you for giving me the opportunity, in accordance with article 14(3) of the Social Security (Northern Ireland) Order 1998, to express a view on [the claimant's] application for leave to appeal to the Commissioner against the decision of the appeal tribunal dated 21 November 2001. I have examined the relevant papers and I consider the tribunal has failed to explain the reasoning behind its decision. Accordingly I support the application."

10. In the normal course of events one would expect the Appeal Service to forward a copy of this communication along with the rest of the papers in the application to the legally qualified member for leave to appeal to a Commissioner.
11. The legally qualified member refused leave to appeal on 30 April 2002 and notification of the refusal was sent to the claimant on 2 May 2002.
12. The legally qualified member, according to his statement dated 10 September 2002, has no recollection of whether he had or had not access to Mrs Gunning's letter of 26 April 2002 when he decided the claimant's application for leave to appeal.
13. The legally qualified member was required by law – namely Article 14(3) – to set aside the decision as both parties had agreed that there was an error in law in the Tribunal's decision. Accordingly the Tribunal ought to have set aside the decision and referred the case back for re-determination by a differently constituted Tribunal. However, this was not done.
14. The claimant on 9 May 2002 sought leave from a Commissioner to appeal to a Commissioner under Article 15(1) of the Order.

15. (a) In an attempt to clarify matters, on 8 October 2002 I issued the following direction to the legally qualified member:

"In exercise of my powers under Regulation 20 of the above Regulations I direct the legally qualified panel member of the Appeal Tribunal which on 21 November 2001 heard and decided the claimant's appeal, to consider the letter dated 26 April 2002 from Mrs Gunning of the Decision Making and Appeals Unit to the Clerk of the Appeals Service. The legally qualified panel member should consider this letter and the claimant's application for leave to appeal. He should also consider Article 14(3) of the above Order and rule on the setting aside of the said decision of 21 November 2001, as amended on 28 December 2001.

The legally qualified panel member is directed to inform the office of the Social Security Commissioners within 30 days of the outcome of his consideration."

(b) In reply to that direction the legally qualified panel member did not indicate that he had taken any of the steps set out in the direction but, instead, forwarded, through the Tribunal Appeals Service, amended reasons for his decision. These reasons were identical in relation to both the care and the mobility components. The amended reasons were as follows:

"Appellant is an insulin dependent diabetic. He knowingly neglects his condition. Last attended General Practitioner 12.3.99. Doesn't monitor blood sugar or urine. Self-medicates when he thinks necessary. Complains of hypoglycaemic attacks 2/3 times a fortnight. Doesn't keep sweet drinks at home. Relies on family. Complains of falling outside. If he did not neglect himself, he should be able to cope with his bodily functions unaided and unsupervised, and should be able to walk out of doors unaccompanied. Also no reason why he could not cook a main meal for himself.

So far as depression is concerned, appellant is not on medication or subject to specialist intervention.

Appellant's care and mobility needs are substantially the result of self-neglect. Appellant has the insight to realise this, not to rectify the position."

(c) The question of the status of this purported statement of reasons is obviously an issue in this case. In my view the legally qualified member was functus officio, as he had completed the discharge of his powers and duties as a Tribunal chairman and legally qualified member and therefore is not entitled to purport to set out entirely different reasons for the decision at this stage. In the circumstances I take the view that I am not entitled to take the contents of the revised statement of reasons into account when deciding this appeal even though it came into existence, albeit indirectly, as a result of my direction to the legally qualified member.

(d) Regardless of the reasons why the legally qualified member refused to grant leave as opposed to setting the decision aside, there is authority to the effect that a legally qualified member generally has no statutory power to reconsider and review his decision (see Great Britain decision of Mrs Commissioner Parker in CSI/1256/01, at paragraph 16 in particular). I have some doubts that this proposition is correct in circumstances where the legally qualified member was not made aware of the consent of the parties that there was an error of law in the decision. In this case the issue is somewhat academic as (i) it is not established that the legally qualified member did not know of the Department's views and (ii) the legally qualified member has taken no steps to exercise any powers that he might have under Article 14(3). However, it is certainly arguable that the legally qualified member was correct, after receiving my direction dated 8 October 2002, not to attempt to revise his refusal of leave to appeal dated 30 April 2002.

15. As stated earlier in this decision, the claimant on 9 May 2002 then sought leave from a Commissioner to appeal to a Commissioner, under Article 15(1) of the Order. As it has not been set aside, the Tribunal decision of 21 November 2001 is still extant. Also, as leave has been refused, the criteria prescribed by Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) appear to be satisfied and the application, now an appeal, is properly before me as a Commissioner.
16. The claimant might have been able to take proceedings in the High Court by way of judicial review, on the grounds that the legally qualified member had failed to comply with the statutory duty imposed by Article 14(3). However, no such proceedings were taken.
17. I am aware that the approach of the High Court on judicial review would be technically very different to the approach of a Commissioner exercising his statutory powers on appeal but I envisage the result, as far as the claimant is concerned, to be very similar.
18. I granted leave to appeal on 5 December 2002. I gave the following reasons for granting leave:

"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.

It is arguable that the decision was wrong in law, in light of the fact that, in accordance with Article 14(3) of the Social Security (Northern Ireland) Order, the Department, by letter dated 26 April 2002, expressed the view on the claimant's application for leave to appeal to a Commissioner against the decision of the Tribunal dated 21 November 2001, that the Tribunal's decision ought not to be allowed to stand.

(In any submissions to a Commissioner on these proceedings, the representatives of the parties ought to consider the propriety, or otherwise, of a Commissioner considering whether it is appropriate to exercise the powers available to him which are set out in Article 15(7) of the Social Security (Northern Ireland) Order 1998)."

19. Both parties to the proceedings have continued to express the view that the decision is erroneous in point of law.
20. The first issue that arises is whether I should be directly involved with the issue that obviously concerns me, namely the failure of the legally qualified member to act in accordance with the provisions of Article 14(3). However, I am mindful of the words of Mr Commissioner Rowland in Great Britain Decision CIS/4772/2000 where he stated at paragraph 10: -

"… It seems to me that … it is no part of the function of a Commissioner to review a decision granting or refusing leave to appeal. It is important to bear in mind that a decision of a panel member to grant or refuse leave to appeal does not determine the rights of any party to the proceedings. (By contrast, a refusal of leave by a Commissioner does). If a panel member refuses leave to appeal and the application is renewed to a Commissioner, there is nothing to be gained by the Commissioner considering whether or not the application was properly considered by the panel member. He or she just considers the merits of the renewed application. …"

21. Mr Commissioner Levenson in the very recent Great Britain decision CIB/4427/2002 agreed with Mr Commissioner Rowland's approach and stated at paragraph 13: -

"13. In the submission now made to the Commissioner by the Secretary of State the point is made that in CIS/4772/2000 Mr Commissioner Rowland held that it is no part of the function of the Commissioner to review a decision granting or refusing leave to appeal. I agree, and nothing would be gained by pursuing that issue since the Commissioner always has jurisdiction to grant leave if there has been a previous refusal of leave, or to dismiss the appeal if there has been a previous grant. However, what is at issue here is what should have happened instead of leave being granted or refused. It is true that the claimant has lost no substantive rights, but he has suffered a delay of about 4 months while the grant of leave and the appeal to the Commissioner have been processed."

In the present case there has been an obvious similar suffering by the claimant because of the delay inevitable in the appeal process, although fortunately it has not been excessive.

22. Mr Commissioner Levenson, however, reluctantly came to the conclusion that he had no direct jurisdiction to deal with this issue and stated at paragraph 17:-

"… it is clear that in the present case I can supply no separate remedy in respect of that breach, because I am taking the action that should in any event [have] been taken by the chairman."

23. I agree with these statements of the law of two Great Britain Commissioners in relation to the jurisdiction of a Commissioner in these circumstances.
24. I note that Mr Commissioner Levenson continues in paragraph 17 of CIB/4427/2002 to state as follows: -

"… Nevertheless, there might be cases where the Commissioner is not of the opinion that an error of law had been made but where the Commissioner would be obliged to refer the matter back to the tribunal, or direct that a chairman should do so, so that the claimant's rights under section 13(3) [the Great Britain equivalent of Article 14(3)] are preserved."

25. I am not sure that this statement is correct, if it means that a Commissioner should exercise a power, under Article 15(8)(b) or any other statutory power, to refer the case to another Tribunal for rehearing, as (1) the Chairman is functus officio so probably cannot be directed by a Commissioner to refer the matter back to a Tribunal, and (2) the Commissioner when considering remitting a case directly to a Tribunal, must surely be required to look at the merits of the case put forward by the applicant for leave to appeal against the correctness of the Tribunal's substantive decision. Accordingly to remit a case to another Tribunal for rehearing on a point of law, where a Commissioner does not accept that there is an error in law in the Tribunal's decision, seems somewhat illogical. However, I do not have to decide this issue, which does not arise in this case, as I am satisfied, as will become clear, that there is an error of law in this case. In any event the issue was not argued by the parties' representatives in the written submissions before me.
26. However, I consider that it is appropriate for a Commissioner in circumstances such as the present to consider, if the parties consent, to exercise his discretionary power under Article 15(7).
27. Article 15(7) is in the following terms: -

"If each of the principal parties to the appeal expresses the view that the decision appealed against was erroneous in point of law, the Commissioner may set aside the decision and refer the case to a tribunal with directions for its determination." [My emphasis]

28. If such a course is taken it results in a party obtaining a rehearing to which he was clearly entitled in law if the legally qualified member had acted in accordance with the law.
29. A setting aside under Article 15(7) does not necessarily imply that the Commissioner is satisfied that the decision under appeal was erroneous in point of law. However, I envisage a reluctance on the part of a Commissioner to exercise such powers in circumstances where he does not accept that there has been an error in law in the Tribunal's decision especially as the powers exercisable under Article 15(7) by a Commissioner are clearly discretionary, unlike the mandatory provisions relating to legally qualified members set out in Article 14(3).
30. I also consider that the most appropriate remedy in law for a party who has been the victim of a failure of the legally qualified chairman to remit the case by consent, is by way of judicial review in the High Court – although I acknowledge that this is not an easy remedy for parties to obtain as it must be sought in a forum totally outside the statutory appeal system set up by Parliament. There may be good reasons why Commissioners should have a jurisdiction, similar not only in result but in process, to that of the High Court but there is no such jurisdiction presently available to Commissioners.
31. Therefore I consider it likely that cases, such as the present, will continue to come before Commissioners on appeal and I am satisfied that Commissioners have jurisdiction to deal with them. I also take the view that, once it is clear that the legally qualified member ought to have set aside a decision under the mandatory provisions of Article 14(3), a Commissioner should rectify matters, if the parties consent, either by exercising his discretionary powers set out in Article 15(7), or his general powers to allow an appeal under Article 15(8), unless there are compelling reasons why he should not do so. A compelling reason might be that the Commissioner has come to a clear and unambiguous conclusion that the propositions put forward by the applicant for leave and the respondent's Article 14(3) response are entirely misconceived. In this case there are no such compelling reasons.
32. However, it must be remembered, to quote Mrs Commissioner Brown in C4/01-02(IS) of paragraph 9, that:

"It is not any, and every, error on the part of a Tribunal which will render its decision erroneous in point of law."

In that case the Department's views were somewhat inconclusive and Mrs Commissioners Brown in the circumstances not surprisingly came to the conclusion that it was open to considerable doubt as to whether the Department could be said to have expressed the view that the decision was erroneous in point of law. Accordingly the legally qualified member was not faulted in anyway for not applying Article 14(3), though no issue really arose in that case as the legally qualified member had granted leave to appeal in any event and the Commissioner's jurisdiction to hear the appeal was never in issue.

33. In this case I entirely agree with the contents of Mrs Gunning's e-mail of 26 April 2002 which conceded that the Tribunal's decision was erroneous in point of law. In supporting the claimant's application Mrs Gunning is basically making the same point that is being made on behalf of the claimant – namely, that the Tribunal's reasoning was inadequate and does not explain its decision. Accordingly I conclude that the approach taken by the Decision Making and Appeals Unit was a perfectly proper attempt by the Unit to have the decision of the Tribunal set aside under the provisions of Article 14(3).
34. On due consideration I do not think that it is appropriate for me to exercise any powers I might have to set aside this decision in accordance with the powers given to me by Article 15(7), even though there has been consent. I have given a reasoned decision in this case in any event, so the Article 15(7) procedure will not save time or expedite matters in this case. I am also aware that a setting aside under Article 15(7) can never be cited as authority for any proposition of law (see the Great Britain Decision of Mr Commissioner Rowland - CI/3596/01).
35. A Commissioner when allowing an appeal normally acts in accordance with the powers set out in Article 15(8) which is in the following terms: -

"(8) Where the Commissioner holds that the decision appealed against was erroneous in point of law, he shall set it aside and –

(a) he shall have power –

(i) to give the decision which he considers the tribunal should have given, if he can do so without making fresh or further findings of fact; or

(ii) if he considers it expedient, to make such findings and to give such decision as he considers appropriate in the light of them; and

(b) in any other case he shall refer the case to a tribunal with directions for its determination."

36. In my view this is the appropriate Article in the circumstances of this case. Therefore I exercise the powers set out in Article 15(8)(b) and hold that the decision appealed against was erroneous in point of law, I set it aside and I refer the case back to a differently constituted Tribunal to decide the appeal on the merits.
37. However, if the proper procedure had been adhered to in the present case, this appeal would never have had to come to a Commissioner. Accordingly, to prevent future unnecessary similar appeals, I emphasise that an appropriate communication from a party, under the provisions of Article 14(3), ought to be notified by the Tribunal Service staff to the legally qualified member as soon as reasonably possible after its receipt in the Appeals Service Office. In addition, and this should go without saying, where the party's support under Article 14(3) in unequivocal and unambiguous, the legally qualified member in such circumstances has no alternative, as the law now stands, but to set aside the decision and remit the case to another Tribunal for redetermination, even if he firmly is of the opinion that the views expressed by the parties that the decision is erroneous are entirely misconceived. I realise that the legally qualified member may be put in a most invidious position in such circumstances but the statutory provisions mean that he has no alternative but to comply.

Date: 28 February 2003 (Signed): J A H Martin QC

Chief Commissioner