SO’N-v-Department for Social Development (IB) [2010] NICom117
Decision No: C21/10-11(IB)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCAPACITY BENEFIT
Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 8 January 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. 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.
2. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.
3. The decision of the appeal tribunal dated 8 January 2008 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to incapacity benefit (IB), from and including 24 September 2007, is confirmed.
4. This decision will come as a disappointment to the applicant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.
Background
5. This appeal has had a long and complicated background and the decision in relation to it was delayed by consideration of similar issues in another but separate appeal.
6. On 24 September 2007 a decision-maker of the Department decided that:
(i) an earlier decision of the Department, dated 10 May 2001, which had awarded entitlement to IB from and including 30 October 2000, could be superseded; and
(ii) the applicant was not entitled to IB from and including 24 September 2007.
7. An appeal against the decision dated 24 September 2007 was received in the Department on 27 September 2007.
8. The appeal tribunal hearing took place on Tuesday 8 January 2008. The decision notice for the appeal tribunal’s decision records that the appellant was present at the oral hearing. The appeal tribunal disallowed the appeal, and confirmed the decision dated 24 September 2007.
9. On 22 January 2008 correspondence was received in the Appeals Service (TAS) from the appellant. In this correspondence, the appellant stated:
‘I was up for a board on Jan 8th and was disallowed. I would wish that the decision is looked at again as I think its unfair due to my disabilities.’
10. On 23 January 2008 a letter was sent by the clerk to the appeal tribunal to the appellant. This letter was a standard TAS letter ‘Comm/Setd’. The relevance of the forwarding of this correspondence will be explored in more detail below.
11. On 31 January 2008 a completed TAS ‘Comm 11’ form was received in TAS. On this form, the appellant has ticked the box that she wishes to apply for leave to appeal to the Social Security Commissioner and the box that she has requested a copy of the statement of reasons for the appeal tribunal’s decision.
12. In the papers which are before me there is a copy of a Form ‘AT10(srl)’ completed and signed by the legally qualified panel member (LQPM) on 17 February 2008. In this form the LQPM is informed by the clerk to the appeal tribunal that an application for leave to appeal to the Social Security Commissioner had been received and that a copy of the statement of reasons had not been received. The LQPM’s response is to note ‘Application Refused’.
13. On 1 March 2008, the LQPM completes the standard TAS ‘Comm 12’ form in which he both refused and rejected the application.
Proceedings before the Social Security Commissioner
14. On 9 April 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.
15. Various requests were made to the appellant to obtain the record of proceedings for the appeal tribunal hearing (ROPs). On 24 June 2008 a reply was received from the appellant in which she states that she had requested the ROPs on 27 April 2008 and had not heard anything.
16. On 4 July 2008 observations on both the application and the procedural aspects of the case were sought from Decision Making Services (DMS) and these were received on 28 July 2008. DMS opposed the application on the grounds cited by the appellant and indicated that the LQPM was under no obligation to treat the application for leave to appeal to the appeal tribunal as a request for a statement of reasons for the appeal tribunal’s decision. In support of this submission, DMS made reference to the decision of the Tribunal of Commissioners in R3/02(IB)(T).
17. Observations were shared with the appellant on 30 July 2008.
18. On 17 December 2008, the clerk to the appeal tribunal was asked to confirm:
(i) whether any request for a ROPs was made by the claimant at any time but, in particular, in and around 27 April 2008; and
(ii) which documents would have been before the LQPM when he made the decisions on 17 February 2008 and 1 March 2008.
19. Also on 17 December 2008, the appellant was asked to clarify the following matters:
(i) On your form ‘Comm11’ you indicated that you had requested a copy of the statement of reasons. Did you do this by way of a separate letter and if so did you retain a copy or know when it was sent to TAS?
(ii) The ROPs is a separate document from the statement of reasons. In correspondence with this office you told us you had applied on 27 April 2008 and ‘haven’t heard anything’. Do you have a copy of that request and do you know which office it was sent to?
20. On 7 January 2009 the clerk to the appeal tribunal indicated that there had been no request for a copy of the ROPs from the appellant, and that the documents which would have been before the LQPM, when he made the decisions on 17 February 2008 and 1 March 2008, included the submission and form ‘Comm11’.
21. On 2 February 2009, following the issue of a reminder letter, the appellant replied to the correspondence dated 17 December 2008, indicating that:
‘… but I cannot remember where I sent the documents at the time I had so many to post and don’t know which department these went to.’
22. The appellant also indicated that she was suffering from stress and wished to have the matter resolved quickly.
23. On 12 May 2009 the clerk to the appeal tribunal was asked to confirm whether ‘Comm1d’ letter was issued to the appellant on receipt of form ‘Comm11’ with no statement of reasons attached.
24. On 20 May 2009, the clerk to the appeal tribunal replied to indicate that ‘Comm 1d’ letter was never issued to the appellant.
25. On 9 November 2009, a direction was issued to the LQPM, in the following terms:
‘A Social Security Commissioner is currently considering an application for leave to appeal against a decision of an appeal tribunal dated 8 January 2008.
You were the legally qualified panel member for that appeal tribunal. On 17 February 2008, you completed a Form AT10 indicating that you were refusing an application for leave. The clerk to the Appeals Service had indicated on the relevant Form AT10 that while an application for leave to appeal to the Social Security Commissioner had been received, a statement of reasons for the appeal tribunal’s decision had not been attached.
On 1 March 2008 you also completed a Form Comm12 in which you indicated that you were refusing leave to appeal and rejecting the application. The reason given for rejecting the application was that the ‘reasons for decision were not sent to the applicant as required by Regulation 58(1)(a)’.
The Social Security Commissioner has now been informed that the Procedural Guide for clerks to the Appeals Service contains a section which makes provision for administrative action to be taken in a situation where an application for leave to appeal has been received but a statement of reasons has not yet been requested. In this situation, the clerk is supposed to forward a template letter ‘Comm 1d’ to the applicant. Comm1d instructs the applicant to make a request for the statement of reasons.
The Appeals Service has now confirmed to the Social Security Commissioner that due to a procedural oversight Form Comm1d was never issued in this case. Accordingly, the applicant was never informed of her right to make an additional request for a statement of reasons.
In light of this information, the Social Security Commissioner asks you to respond to the following.
(i) Would your decisions in respect of the application for leave to appeal to the Social Security Commissioner have been different had you been aware of the relevant procedural irregularity?
(ii) Is there any reason in law why you should not now provide a statement of reasons for the appeal tribunal’s decision?
(iii) If the answer to question (ii) is ‘no’ are you now willing to provide a statement of reasons for the appeal tribunal’s decision?’
26. On 1 December 2009, the LQPM responded to the three questions posed in the direction, as follows:
‘1. No. Leave to appeal was initially refused on the 17/2/08 by the completion of Comm 12 (“point of law”). At the request of The Appeals Service, a further Comm 12 was completed on 1/3/08 (“reasons not sent”).
The Appellant was advised of her right to request a SOR 1. by the appeal decision issued on the 8/1/08 and the accompanying information and 2. by a letter from TAS dated 23/1/08 (Comm/Setd)
2. Yes. The Appeal Tribunal’s decision is dated 8/1/08, and due to the effluxion of time, it is almost impossible to give an adequate statement of reasons. I do not believe that it is in the interests of justice at this stage to furnish a statement of reasons, having considered Reg 54 (SS and CS D and A) Regulations NI 1999.
3. Not applicable’
27. Comments on the reply to the direction by the LQPM were received from DMS on 13 May 2010 and were shared with the appellant on 18 May 2010.
Errors of law
29. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:
“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii) failing to give reasons or any adequate reasons for findings on material matters;
(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv) giving weight to immaterial matters;
(v) making a material misdirection of law on any material matter;
(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”
Was the decision of the appeal tribunal in the instant case in error of law?
The post-appeal actions
30. There are certain aspects of how the appeal was dealt with at post-hearing stage which are of concern to me, as follows:
(i) the correspondence received from the appellant in TAS on 22 January 2008 was not placed before a LQPM for determination as to what further action was appropriate;
(ii) the appellant was not re-directed to make an application for the statement of reasons for the appeal tribunal’s decision, when it was clear on receipt of the form Comm11 that no such statement had been requested.
I am aware that the procedural guide for clerks to TAS contains a section which makes provision for administrative action to be taken in a situation where an application for leave to appeal has been received but a statement of reasons has not yet been requested.
Where a statement of reasons has not yet been requested, the clerk is instructed to forward a template letter ‘Comm 1d’ to the applicant, to retain the application in the file and bring the file forward for 14 days.
The template letter ‘Comm1d’ instructs the applicant to make a request for the statement of reasons. As was noted above, the clerk to the appeal tribunal has confirmed that Comm1d was never issued in this case.
(iii) the wording of the first option at section 4 of form Comm12 may not be appropriate.
31. I have to ask whether the appellant has been disadvantaged as a result of these problematic aspects of the post-appeal actions.
32. Following the hearing of an appeal, an appellant is entitled, under regulation 53(3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended to be sent a copy of the decision notice which contains the decision of the appeal tribunal, and be informed of his right:
(a) to apply for a statement of reasons for the appeal tribunal’s decision; and
(b) to the conditions governing appeals to a Social Security Commissioner.
33. The conditions governing appeals to a Social Security Commissioner are to be found in regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended.
34. It seems to me that an appellant is also entitled to be informed of his right to apply for the ROPs for the appeal tribunal hearing, and of his right to make an application to have the decisions of the appeal tribunal set aside.
35. In the instant case, it is the position of TAS that the appellant was given a copy of the decision notice on 8 January 2008, together with the details of the regulation 53(3) requirements. Those requirements would include the need to apply for a statement of reasons for the appeal tribunal’s decision.
36. The appellant was, however, not re-directed to make an application for the statement of reasons for the appeal tribunal’s decision, when it was clear on receipt of the Form Comm11 that no such statement had been requested.
37. The details in the Comm/Setd form, which was sent to the appellant on 23 January 2008, and which she did receive, are sufficient to inform the appellant of her rights to apply for the decision of the appeal tribunal to be set aside; of her right to make an application for leave to appeal to the Social Security Commissioner; and of her right to apply for a statement of reasons for the appeal tribunal’s decision. The appellant did take certain action based on that correspondence, namely to make an application for leave to appeal to the Social Security Commissioner. Accordingly, I am of the view that the appellant was aware of the requirement to request a statement of reasons but failed nonetheless to make such a request.
38. I am of the view, however, that consideration should be given by TAS as to the proper procedures to be applied in the circumstances where post-appeal correspondence from an appellant is unclear as to what the true intentions of the appellant are.
Was the decision to reject the application correct?
39. Regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:
‘58(1) Subject to paragraph (1A), an application for leave to appeal to a Commissioner from a decision of an appeal tribunal under Article 15 of the Recovery of Benefits Order or under Article 13 or 14 shall—
(a) be sent to the clerk to the appeal tribunal within the period of one month of the date of the applicant being sent a written statement of the reasons for the decision against which leave to appeal is sought; and
(b) be in writing and signed by the applicant or, where he has provided written authority to a representative to make the application on his behalf, by that representative;
(c) contain particulars of the grounds on which the applicant intends to rely;
(d) contain sufficient particulars of the decision of the appeal tribunal to enable the decision to be identified; and
(e) if the application is made late, contain the grounds for seeking late acceptance.’
40. An appeal tribunal has no jurisdiction to consider an application for leave to appeal to a Social Security Commissioner if there is no written statement of reasons for the appeal tribunal’s decision. That principle was established in the decision of the Commissioner in Great Britain in R(IS)11/99 in connection with the former procedural rules for decision-making and appeals – the Social Security (Adjudication) Regulations 1995, as amended, which had an equivalence in Northern Ireland in the Social Security (Adjudication) Regulations (Northern Ireland) 1995, as amended. The principle remains valid, however, in connection with regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. On a simple construction of regulation 58(1)(a), the time for sending an application for leave to appeal to the Social Security Commissioner commences with the date on which a written statement of reasons for the decision has been sent to the applicant.
41. Accordingly, the Legally Qualified Panel Member was correct to reject the application for leave to appeal to the Social Security Commissioner.
42. I have noted that there is in existence a template form which is utilised by LQPMs to record determinations in connection with applications for leave to appeal to the Social Security Commissioner. At section 4 of that form, the LQPM may choose one of three reasons for rejecting the application for leave to appeal. The first of those three options, in its current version, reads as follows:
‘Reasons for decision were not sent to the applicant as required by Regulation 58(1)(a)’
43. I am of the view that this wording does not properly reflect the reason why a LQPM has the power to reject an application for leave to appeal to the Social Security Commissioner, where there is no written statement of reasons for the appeal tribunal’s decision. The true reason for the rejection in these circumstances is that the applicant has not applied for a written statement of reasons under regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended and, accordingly, the time for bringing an application for leave to appeal, under regulation 58(1)(a) has not started to run. I would recommend that consideration is given to the alteration of this form to reflect the proper position.
Consideration of the application by the Social Security Commissioner
44. Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides that an application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected. The latter emphasis is mine.
45. Regulation 10 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, requires an application to a Social Security Commissioner for leave to appeal to be made by notice in writing and to have with it, inter alia, a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought.
46. The application in the instant case does not fulfil that requirement in that it does not have a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought. Nonetheless, I have exercised the power conferred on me by regulation 27 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, and waive the absence of a copy of full written statement of the reasons for the appeal tribunal’s decision as an irregularity. The exercise of this power permits me to consider the application.
47. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law. In the absence of a full statement, the error of law must appear from the documents before me or from the circumstances of the case. Having considered all of the documents before me, and the circumstances of the case, I am satisfied that no error of law can be identified.
48. As was noted in R3/02(IB)(T) and R(IS) 11/99, it is evidently not possible to challenge an appeal tribunal’s decision on the grounds of inadequacy of reasoning in circumstances where there is no written statement of reasons available. The lack of adequate reasons cannot constitute an error of law, because a statement of reasons was not requested in time.
The provision of a statement of reasons after the passing of a period of time
50. As was noted above, the LQPM, in a response to a direction issued to him has submitted that ‘… due to the effluxion of time, it is almost impossible to give an adequate statement of reasons’. It seems to me that if a comprehensive note of
(a) the issues arising in the appeal;
(b) the appeal tribunal’s assessment of the evidence which was before it;
(c) the appeal tribunal’s findings in fact;
(d) details of the appeal tribunal’s reasons
is recorded in a judicial notebook together with details of the case reference, it should be possible to provide a statement of reasons in relation to every appeal, despite the passage of time since the date of the appeal tribunal hearing.
Disposal
51. The decision of the appeal tribunal dated 8 January 2008 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to IB, from and including 24 September 2007, is confirmed.
52. This decision will come as a disappointment to the applicant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.
(signed): K Mullan
Commissioner
23 November 2010