Made | 19th December 2002 | ||
Coming into operation | 1st January 2003 |
1. | Citation, commencement, duration and interpretation |
2. | Service of notices or documents |
3. | Other persons with a right of appeal or a right to make an application for a direction |
4. | Time within which an appeal is to be brought |
5. | Late appeals |
6. | Making of an application for an extension of time |
7. | Making an application for a direction |
8. | Death of a party to an appeal or an application for a direction |
9. | Composition of appeal tribunals |
10. | Assignment of clerks to appeal tribunals |
11. | Consideration and determination of appeals, applications for a direction and penalty proceedings |
12. | Directions concerning oral hearings |
13. | Withdrawal of application for a direction or penalty proceedings |
14. | Non-disclosure of medical advice or evidence |
15. | Summoning of witnesses and administration of oaths |
16. | Cases which may be struck out |
17. | Reinstatement of struck out cases |
18. | Procedure at oral hearings |
19. | Manner of providing expert assistance |
20. | Postponement and adjournment |
21. | Decisions of appeal tribunals |
22. | Late applications for a statement of reasons for tribunal decision |
23. | Record of tribunal proceedings |
24. | Correction of accidental errors |
25. | Setting aside decisions on certain grounds |
26. | Provisions common to regulations 24 and 25 |
27. | Application for leave to appeal to a Commissioner from a decision of an appeal tribunal |
Service of notices or documents
2.
Where, by any provision of these Regulations-
the following other persons have a right of appeal to an appeal tribunal or a right to make an application for a direction-
Time within which an appeal is to be brought
4.
- (1) Where a dispute arises as to whether an appeal was brought within the time limit specified in section 39(1) of the Act, the dispute shall be referred to, and be determined by, a legally qualified panel member.
(2) The time limit specified in section 39(1) of the Act may be extended in accordance with regulation 5.
Late appeals
5.
- (1) The time within which an appeal must be brought may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but no appeal shall in any event be brought more than one year after the expiry of the last day for appealing under section 39(1) of the Act.
(2) An application for an extension of time under this regulation shall be made in accordance with regulation 6 and shall be determined by a legally qualified panel member, except where the Board consider that the conditions in paragraphs (4)(b) to (8) are satisfied, the Board may grant the application.
(3) An application under this regulation shall contain particulars of the grounds on which the extension of time is sought, including details of any relevant special circumstances for the purposes of paragraph (4).
(4) An application for an extension of time shall not be granted unless-
(5) For the purposes of paragraph (4) it is not in the interests of justice to grant an application unless the legally qualified panel member is, or the Board are, as the case may be, satisfied that-
and as a result of those special circumstances, it was not practicable for the appeal to be made within the time limit specified in section 39(1) of the Act.
(6) For the purposes of paragraph (5)(a), the special circumstances are that-
(7) In determining whether it is in the interests of justice to grant the application, regard shall be had to the principle that the greater the amount of time that has elapsed between the expiry of the time within which the appeal is to be brought under section 39(1) of the Act and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application is based.
(8) In determining whether it is in the interests of justice to grant an application, no account shall be taken of the following-
(9) An application under this regulation for an extension of time which has been refused may not be renewed.
(10) The legally qualified panel member who determines an application under this regulation shall record a summary of his decision in such written form as has been approved by the President.
(11) As soon as practicable after the decision is made a copy of the decision shall be sent or given to every party to the proceedings.
(12) In this regulation "Commissioner" includes a Commissioner within the meaning of section 39(1) of the Social Security Act 1998[8].
Making of an application for an extension of time
6.
An application for an extension of time for making an appeal to an appeal tribunal shall be made in writing to the Board and shall-
(b) be signed by or on behalf of the appellant.
Making an application for a direction
7.
An application for a direction to be made by an appeal tribunal shall-
Death of a party to an appeal or an application for a direction
8.
- (1) In any proceedings relating to an appeal or an application for a direction, on the death of a party to those proceedings (other than the Board) the following persons may proceed with the appeal or application for a direction in the place of such deceased party-
(2) Where there is no person mentioned in paragraph (1)(a) to (c) to proceed with the appeal or application for a direction, the Board may appoint such person as they think fit to proceed with that appeal or that application in the place of such deceased party referred to in that paragraph.
(3) A grant of probate or letters of administration to the estate of the deceased party, whenever taken out, shall have no effect on an appointment made under paragraph (2).
(4) Where a person appointed under paragraph (2) has, prior to the date of such appointment, taken any action in relation to the appeal or application for a direction on behalf of the deceased party, the effective date of appointment by the Board shall be the day immediately prior to the first day on which such action was taken.
(3) Subject to paragraph (4), an appeal tribunal shall consist of a legally qualified panel member and a financially qualified panel member where the appeal, application for a direction or penalty proceedings may require consideration by members of the appeal tribunal of issues which are, in the opinion of the President, difficult and which relate to-
(4) Where the composition of an appeal tribunal would fall to be prescribed under both paragraphs (2) and (3), it shall consist of a legally qualified panel member, a medically qualified panel member and a panel member with a disability qualification.
(5) Where the composition of an appeal tribunal is prescribed under paragraph (1) or (3), the President may determine that the appeal tribunal shall include such an additional member drawn from the panel as he considers appropriate for the purposes of providing further experience for that additional panel member or for assisting the President in the monitoring of standards of decision-making by panel members.
(6) A person shall not act as a medically qualified panel member of an appeal tribunal in any appeal if he has at any time advised or prepared a report on any person whose medical condition is relevant to the issue in the appeal, or has at any time regularly attended such a person.
Assignment of clerks to appeal tribunals
10.
The Department shall assign a clerk to service each appeal tribunal and the clerk so assigned shall be responsible for summoning members of the panel to serve on the tribunal.
(2) If an application for a direction is, or penalty proceedings are, withdrawn in accordance with paragraph (1)(a), the clerk to the appeal tribunal shall send notice in writing to any party to the proceedings who is not present when the application for a direction is, or penalty proceedings are, withdrawn, informing him that the application for a direction has, or the penalty proceedings have, been withdrawn.
(3) If an application for a direction is, or penalty proceedings are, withdrawn in accordance with paragraph (1)(b), the clerk to the appeal tribunal shall send notice in writing to every party to the proceedings informing them that the application for a direction has, or penalty proceedings have, been withdrawn.
Non-disclosure of medical advice or evidence
14.
- (1) Where, in connection with an appeal, an application for a direction or penalty proceedings, there is medical advice or medical evidence relating to a person which has not been disclosed to him and in the opinion of a legally qualified panel member, the disclosure to that person of that advice or evidence would be harmful to his health, such advice or evidence shall not be required to be disclosed to that person.
(2) Advice or evidence such as is mentioned in paragraph (1)-
unless a legally qualified panel member is satisfied that it is in the interests of the person to whom the advice or evidence relates to do so.
(3) A tribunal shall not be precluded from taking into account for the purposes of the determination advice or evidence which has not been disclosed to a person under the provisions of paragraph (1) or (2).
Summoning of witnesses and administration of oaths
15.
- (1) A chairman or, in the case of an appeal tribunal which has only one member, that member, may by summons require any person in Northern Ireland to attend as a witness at a hearing of an appeal, an application for a direction or penalty proceedings, at such time and place as shall be specified in the summons and, subject to paragraph (2), at the hearing to answer any question or produce any documents in his custody or under his control which relate to any matter in question in that appeal, application or those proceedings but-
(2) No person shall be compelled to give any evidence or produce any document or other material that he could not be compelled to give or produce on a trial of an action in a court of law in Northern Ireland.
(3) In exercising the powers conferred by this regulation, the chairman, or in the case of an appeal tribunal which has only one member, that member, shall take into account the need to protect any matter that relates to intimate personal or financial circumstances, is commercially sensitive, consists of information communicated or obtained in confidence or concerns national security.
(4) Every summons issued under this regulation shall contain a statement to the effect that the person in question may apply in writing to the chairman or, in the case of an appeal tribunal which has only one member, that member, to vary or set aside the summons.
(5) A chairman, or in the case of an appeal tribunal which has only one member, that member, may require any witness, including a witness summoned under the powers conferred by this regulation, to give evidence on oath and for that purpose there may be administered an oath in due form.
(2) Where the clerk to the appeal tribunal determines to strike out the case, he shall notify the appellant or applicant that his case has been struck out and of the procedure for reinstatement of the case as specified in regulation 17.
(3) The clerk to the appeal tribunal may refer any matter for determination under this regulation to a legally qualified panel member for decision by the panel member rather than the clerk to the appeal tribunal.
Reinstatement of struck out cases
17.
- (1) The clerk to the appeal tribunal may reinstate a case which has been struck out in accordance with regulation 16(1)(b) where-
but if the clerk to the appeal tribunal is not satisfied that there are reasonable grounds for reinstatement a legally qualified panel member shall consider whether the case should be reinstated in accordance with paragraph (2).
(2) A legally qualified panel member may reinstate a case which has been struck out in accordance with regulation 16 where-
Procedure at oral hearings
18.
- (1) Subject to the following provisions of this Part, the procedure for an oral hearing shall be such as the chairman, or in the case of an appeal tribunal which has only one member, such as that member, shall determine.
(2) Except where paragraph (4) applies, not less than 14 days' notice (beginning with and including the day on which notice is given and ending on the day before the hearing of the appeal or application for a direction is to take place) of the time and place of any oral hearing of an appeal or an application for a direction shall be given to every party to the proceedings.
(3) If such notice has not been given to a person to whom it should have been given under the provisions of paragraph (2) the hearing may proceed only with the consent of that person.
(4) Any party to the proceedings may waive his right under paragraph (2) to receive not less than 14 days' notice of the time and place of any oral hearing by giving notice to the clerk to the appeal tribunal.
(5) If a party to the proceedings to whom notice has been given under paragraph (2) fails to appear at the hearing the chairman or, in the case of an appeal tribunal which has only one member, that member, may, having regard to all the circumstances including any explanation offered for the absence-
(6) If a party to the proceedings has waived his right to be given notice under paragraph (2) the chairman or, in the case of an appeal tribunal which has only one member, that member, may proceed with the hearing notwithstanding his absence.
(7) An oral hearing of an appeal, application for a direction or penalty proceedings shall be in public except where the chairman or, in the case of an appeal tribunal which has only one member, that member, is satisfied that it is necessary to hold the hearing, or part of the hearing, in private-
(8) At an oral hearing-
provided that the chairman or, in the case of an appeal tribunal which has only one member, that member, gives permission and the appellant, the applicant for a direction or the person who is subject to penalty proceedings consents.
(9) A person who has the right to be heard at a hearing may be accompanied and may be represented by another person whether having professional qualifications or not and, for the purposes of the proceedings at the hearing, any such representative shall have all the rights and powers to which the person whom he represents is entitled.
(10) The following persons shall also be entitled to be present at an oral hearing (whether or not it is otherwise in private) but shall take no part in the proceedings-
(11) Nothing in paragraph (10) affects the rights of-
and nothing in this regulation prevents the presence at an oral hearing of any witness or of any person whom the chairman or, in the case of an appeal tribunal which has only one member, that member, permits to be present in order to assist the appeal tribunal or the clerk.
(12) Any person entitled to be heard at an oral hearing may address the tribunal, may give evidence, may call witnesses and may put questions directly to any other person called as a witness.
(13) For the purpose of arriving at its decision an appeal tribunal shall, and for the purpose of discussing any question of procedure may, notwithstanding anything contained in these Regulations, order all persons not being members of the tribunal, other than the person acting as clerk to the appeal tribunal, to withdraw from the hearing except that-
may remain present at any such sitting.
(14) In this regulation "live television link" means a live television link or other facilities which allow a person who is not physically present at an oral hearing to see and hear the proceedings and be seen and heard by those physically present.
Manner of providing expert assistance
19.
- (1) Where an appeal tribunal requires one or more experts to provide assistance to it in dealing with a question of fact of special difficulty under Article 8(4) of the Order, such an expert shall, if the chairman or, in the case of an appeal tribunal which has only one member, that member, so requests, attend at the hearing and give evidence.
(2) If the chairman or, in the case of an appeal tribunal which has only one member, that member, considers it appropriate the expert shall enquire into and provide a written report on the question to be dealt with in accordance with paragraph (1).
(3) A copy of any written report received from an expert in accordance with paragraph (2) shall be supplied to every party to the proceedings.
Postponement and adjournment
20.
- (1) Where a person to whom-
wishes to request a postponement of that hearing he shall do so in writing to the clerk to the appeal tribunal stating his reasons for the request, and the clerk to the appeal tribunal may grant or refuse the request as he thinks fit or may pass the request to a legally qualified panel member who may grant or refuse the request as he thinks fit.
(2) Where the clerk to the appeal tribunal or, as the case may be, the legally qualified panel member refuses a request to postpone the hearing he shall-
(3) The legally qualified panel member or the clerk to the appeal tribunal may of his own motion at any time before the beginning of the hearing postpone the hearing.
(4) An oral hearing may be adjourned by the appeal tribunal at any time on the application of any party to the proceedings or of its own motion.
(4) A party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal's decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 22.
(5) Following the application made under paragraph (4), the chairman or, in the case of an appeal tribunal which has only one member, that member, shall record a statement of the reasons and a copy of that statement shall be sent or given to every party to the proceedings as soon as may be practicable.
(6) If the decision is not unanimous, the decision notice specified in paragraph (1) shall record that one of the members dissented and the statement of reasons referred to in paragraph (5) shall include the reasons given by that member for dissenting.
Late applications for a statement of reasons for tribunal decision
22.
- (1) The time for making an application for the statement of reasons for an appeal tribunal's decision may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but, subject to paragraph (13), no application shall in any event be brought more than three months after the date of the sending or giving of the notice of the decision of the appeal tribunal.
(2) An application for an extension of time under this regulation shall be made in writing and shall be determined by a legally qualified panel member.
(3) An application under this regulation shall contain particulars of the grounds on which the extension of time is sought, including details of any relevant special circumstances for the purposes of paragraph (4).
(4) The application for an extension of time shall not be granted unless the legally qualified panel member is satisfied that it is in the interests of justice for the application to be granted.
(5) For the purposes of paragraph (4) it is not in the interests of justice to grant the application unless the legally qualified panel member is satisfied that-
and as a result of those special circumstances it was not practicable for the application to be made within the time limit specified in regulation 21(4).
(6) For the purposes of paragraph (5)(a), the special circumstances are that-
(7) In determining whether it is in the interests of justice to grant the application, the legally qualified panel member shall have regard to the principle that the greater the amount of time that has elapsed between the expiry of the time within which the application for a copy of the statement of reasons for an appeal tribunal's decision is to be made and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application is based.
(8) In determining whether it is in the interests of justice to grant the application, no account shall be taken of the following-
(9) An application under this regulation for an extension of time which has been refused may not be renewed.
(10) The legally qualified panel member who determines an application under this regulation shall record a summary of his determination in such written form as has been approved by the President.
(11) As soon as practicable after the determination is made notice of the determination shall be sent or given to every party to the proceedings.
(12) Any person who, under paragraph (11), receives notice of the determination may, within one month of the determination being sent to him, apply in writing for a copy of the reasons for that determination and a copy shall be supplied to him.
(13) In calculating the time specified for applying in writing for a statement of the reasons for the tribunal's decision there shall be disregarded any day which falls before the day on which notice was given of-
(14) In this regulation "Commissioner" includes a Commissioner within the meaning of section 39(1) of the Social Security Act 1998.
Record of tribunal proceedings
23.
- (1) A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.
(2) Such record shall be preserved by the clerk to the appeal tribunal for six months from the date of the decision made by the appeal tribunal to which the record relates and any party to the proceedings may within that period apply in writing for a copy of that record and a copy shall be supplied to him.
Correction of accidental errors
24.
- (1) The clerk to the appeal tribunal or a legally qualified panel member may at any time correct accidental errors in any decision, or the record of any such decision, of an appeal tribunal made pursuant to the Act.
(2) A correction made to, or to the record of, a decision shall be deemed to be part of the decision or record of that decision and written notice of it shall be given as soon as practicable to every party to the proceedings.
Setting aside decisions on certain grounds
25.
- (1) On an application made by a party to the proceedings a decision of an appeal tribunal made pursuant to the Act may be set aside by a legally qualified panel member in a case where it appears just to set the decision aside on the ground that-
(2) In determining whether it is just to set aside a decision on the ground set out in paragraph (1)(b), the legally qualified panel member shall determine whether the party making the application gave notice that he wished to have an oral hearing, and if that party did not give such notice the decision shall not be set aside unless that member is satisfied that the interests of justice manifestly so require.
(3) An application under this regulation shall-
whichever is the later;
(b) be in writing and signed by a party to the proceedings or, where the party has provided written authority to a representative to act on his behalf, that representative;
(c) contain particulars of the grounds on which it is made; and
(d) be sent to the clerk to the appeal tribunal.
(4) Where an application to set aside a decision is entertained under paragraph (1), every party to the proceedings shall be sent a copy of the application and shall be afforded a reasonable opportunity of making representations on it before the application is determined.
(5) Notice in writing of a determination on an application to set aside a decision shall be sent or given to every party to the proceedings as soon as may be practicable and the notice shall contain a statement giving the reasons for the determination.
(6) The time within which an application under this regulation must be made may be extended by a period not exceeding one year where the conditions specified in paragraphs (7) to (11) are satisfied.
(7) An application for an extension of time shall be made in accordance with paragraph (3)(b) to (d), shall include details of any relevant special circumstances for the purposes of paragraph (9) and shall be determined by a legally qualified panel member.
(8) An application for an extension of time shall not be granted unless the legally qualified panel member is satisfied that-
(9) For the purposes of paragraph (8) it is not in the interests of justice to grant an application for an extension of time unless the legally qualified panel member is satisfied that-
and as a result of those special circumstances, it was not practicable for the application to set aside to be made within the time limit specified in paragraph (3)(a).
(10) For the purposes of paragraph (9)(a), the special circumstances are that-
(11) In determining whether it is in the interests of justice to grant an application for an extension of time, the legally qualified panel member shall have regard to the principle that the greater the amount of time that has elapsed between the expiry of the time within which the application to set aside is to be made and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application for an extension is based.
(12) An application under this regulation for an extension of time which has been refused may not be renewed.
Provisions common to regulations 24 and 25
26.
- (1) In calculating any time specified for appealing to a Commissioner from a decision of an appeal tribunal there shall be disregarded any day falling before the day on which notice was given of-
(2) There shall be no appeal against a correction made under regulation 24 or a refusal to make such a correction or against a determination given under regulation 25.
(3) Nothing in this Chapter shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from these Regulations.
Application for leave to appeal to a Commissioner from a decision of an appeal tribunal
27.
- (1) Subject to Article 15 of the Order (as applied and modified by the Appeals Regulations), an application for leave to appeal to a Commissioner from a decision of an appeal tribunal under Article 13 or 14 of the Order (as applied and modified by the Appeals Regulations) shall-
(2) Where an application for leave to appeal to a Commissioner is made by the Board, the clerk to the appeal tribunal shall, as soon as may be practicable, send a copy of the application to every other party to the proceedings.
(3) A person determining an application for leave to appeal to a Commissioner shall record his determination in writing and send a copy to every party to the proceedings.
(4) Where there has been a failure to apply for leave to appeal within the period of time specified in paragraph (1)(a) but an application is made within one year of the last date for making an application within that period, a legally qualified panel member may, if for special reasons he thinks fit, accept and proceed to consider and determine the application.
(5) Where an application for leave to appeal against a decision of an appeal tribunal is made-
Sealed with the Official Seal of the Department for Social Development on
19th December 2002.
L.S.
John O'Neill
Senior Officer of the Department for Social Development
[2] See Article 8(b) of S.R. 1999 No. 481back
[6] Paragraph 3 was amended by regulation 2(21) of S.R. 2002 No. 189back