Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC A2_07_08(JSA)

Application No: A2/07-08(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
JOBSEEKER'S ALLOWANCE
Application by the above-named claimant for leave to appeal to a Social Security Commissioner on a question of law from a decision of a legally qualified member dated 24 August 2007
DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant to seek leave to appeal from the decision of a legally qualified panel member (LQPM) to strike out the claimant's appeal letter of 18 August 2007 under regulation 46(1)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 (the 1999 Regulations) on the ground that the appeal cannot be prosecuted because it lies outside the absolute time limit for appeal as imposed by regulation 32 of the 1999 Regulations.
2. Having considered the circumstances of the case and the reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.
3. I have had the benefit of the notice of appeal and written submissions from Mr M Brady MLA on behalf of the claimant and also written submissions from Ms McHugh of Decision Making Services on behalf of the Department.
4. The claimant appealed the Department's first decision that he had been overpaid jobseeker's allowance (JSA). However after he had submitted his appeal on 22 February 2006 the Department revised the decision, as it had been incorrectly calculated. The revised decision of 25 March 2006 was in the claimant's favour in that it reduced the amount of the overpayment. In accordance with Article 10(6) of the Social Security (Northern Ireland) Order 1998 and regulation 30 of the 1999 Regulations, his appeal therefore lapsed and the claimant needed to submit a fresh appeal if he wanted to challenge the new overpayment amount. This was not done as the claimant states he did not receive notice that his original appeal had lapsed, nor did he receive subsequent correspondence about the matter.
5. The ordinary period in which the claimant had a right to appeal to a tribunal ran for one month from the note of the notification of the decision – regulation 31(1) and 2(a) of the 1999 Regulations.
6. On 24 August 2007 an LQPM struck out the claimant's appeal letter of 10 August 2007 under regulation 46(1)(b) of the 1999 Regulations on the ground that the appeal cannot be prosecuted as it lies outside the absolute time limit for appeal, as imposed by regulation 32(1) which states that "no appeal shall in any event be brought more than one year after the expiry of the last day for appealing under regulation 31."
7. The claimant now attempts to apply to the Commissioner for leave to appeal. However, the circumstances of his application were considered by the Court of Appeal in England and Wales in the case of Secretary of State for Work and Pensions v Morina and Borrowdale R(IS) 6/07, Neutral Citation Number: [2007] EWCA Civ 749. The claimant in that case attempted to appeal the decision of an LQPM to refuse to admit a late appeal that was outside the absolute time limit. The Court of Appeal at paragraphs 41 and 45 ruled that the claimant did not have a right to seek leave to appeal from an LQPM to a Commissioner in those circumstances. A Great Britain Tribunal of Commissioners in CHR 3855/2005 summarized Morina and at paragraph 15 stated that the Court of Appeal in England and Wales had found that the Commissioner had no jurisdiction to hear and determine an appeal from an LQPM who has struck out a proposed appeal for want of jurisdiction; that decision under regulations 32 and 46 were not decisions for the purposes of section 12 of the 1998 Act (the equivalent of Article 13 of the Northern Ireland Order) and were therefore not appealable under section 14 (the equivalent of Article 15). The Tribunal of Commissioners confirmed the view of the Court of Appeal that "the only means of challenging those decisions was by way of judicial review".
8. The legislation applied by the Court of Appeal of England and Wales and the Great Britain Tribunal of Commissioners is identical and to the same effect as the equivalent legislation applicable to Northern Ireland.
9. I therefore follow the decision of the Morina case and reject the claimant's application as he does not have the right in law to seek leave to appeal the LQPM's decision of 24 August 2007.

(signed): J A H Martin QC

Chief Commissioner

8 January 2009