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[1990] UKSSCSC CI_492_1989 (21 June 1990)

R(I) 5/91

Mr. A. T. Hoolahan CI/492/1989

21.6.90

Commissioners' jurisdiction – special reasons for admitting late application for leave to appeal – whether clear error of tribunal relevant

Directions to medical appeal tribunal on referral - Section 112(6) and (7) of Social Security Act 1975.

Claimant suffered an industrial accident and injured his knee. Various assessments and reviews took place. A final assessment of 3% from 20 June 1975 to 20 June 1976 was made by a reassessment medical board on 9 May 1975. On 26 January 1988 the claimant applied for a review on the grounds that there had been an unforeseen aggravation. On 4 March 1988 an adjudicating medical authority decided there had been no unforeseen aggravation. The claimant appealed. On 17 November 1988 the medical appeal tribunal made the following assessment:

"(1) From 20 June 1976 to 19 June 1986 award 8% provisional.

(2) From 19 June 1986 to 11 January 1988 10% provisional.

(3) From 12 January 1988 to 11 July 1988 20% provisional.

(4) From 12 July 1988 10% for life final."

The medical appeal tribunal had no jurisdiction to backdate the assessment prior to 26 October 1987 since the period to be taken into account by any assessment reviewed and revised under section 110(2) of the Social Security Act 1975 was a period not exceeding three months before the date of the application: section 110(5) of the Act of 1975 and regulation 68(a) of the Social Security (Adjudication) Regulations 1986.

Some six months out of time, the Secretary of State on 22 August 1989 gave notice of application for leave to appeal. The reason given for the delay in the application was the need to seek advice from the statutory adjudicating authorities and from solicitors as to whether the MAT decision could be implemented. Extensive inquiries were made before issuing the application. The main ground for appeal was that the MAT's decision was erroneous and, if it was allowed to stand, it provided for assessment from 20 June 1976 until 25 October 1987, a period where there was no entitlement under the statute and regulations.

Section 112(6) of the Act of 1975 now provides that where the Commissioner holds that a decision of an MAT was erroneous in law he shall set it aside and refer the case to an MAT "with directions for its determination" and section 112(7) now provides that "Subject to any direction by the Commissioner", the MAT shall consist of persons who were not members of the MAT which gave the erroneous decision.

Held:

l. the question for determination was whether or not there were special reasons for an extension of time in the particular case: Regulation 3(2) of the Social Security Commissioners Procedure Regulations 1987. The reasons given for lateness by the Secretary of State in his notice for leave to appeal would not of themselves have been sufficient, but taking into account the clear error in the MAT's decision it was proper to extend the time. The Commissioner is not limited to the consideration of special reasons relating to the delay which has taken place: R v. Secretary of State for the Home Department ex parte Mehta [1975] 1 WLR 1087 and R(M) 1/87 at paragraph 6 applied;

the case was referred to a MAT with direction that it should comprise the same members who made the decision appealed against and that they should delete the assessments from 20 June 1976 to 19 June 1986 and from 19 June 1986 to 25 October 1987 and make the remaining assessments as in the decision appealed against;

the Commissioner has no jurisdiction to grant leave only in respect of part of a decision of a medical appeal tribunal. Appeal allowed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I extend the time for leave to appeal and grant the Secretary of State's application for leave to appeal. With the consent of the claimant and the Secretary of State I treat the application as the appeal: regulation 5(3) of the Social Security Commissioner's Procedure Regulations 1987. I allow the Secretary of State's appeal against the decision of the medical appeal tribunal dated 17 November 1988. I refer the case to the same medical appeal tribunal, that is to say to a medical appeal tribunal which shall consist of the same persons who were members of the tribunal dated 17 November 1988, pursuant to section 112(7) of the Social Security Act 1975. I direct, pursuant to section 112(6) of the Act of 1975, that medical appeal tribunal to correct the decision dated 17 November 1988 by confirming the assessments of disablement from 26 October 1987 onwards and deleting the assessments of disablement from 20 June 1976 to 25 October 1987.

The claimant was born in 1951. On 31 March 1971 he suffered an industrial accident and injured his left knee. On 17 March 1972 he made a claim for industrial disablement benefit. On 18 April 1972 a medical board assessed the disablement at 3% from 3 July 1971 to 3 October 1972 final. On 21 March 1973 he applied for a review and on 11 April 1973 a medical board assessed the disablement at 5% from 21 December 1972 to 20 December 1973 provisional. On 9 May 1975 a reassessment medical board assessed the disablement at 3% from 20 June 1975 to 20 June 1976 final. On 26 January 1988 the claimant applied for a review on the ground that there had been an unforeseen aggravation of the results of the injury. On 4 March 1988 an adjudicating medical authority decided that there had been no unforeseen aggravation. The claimant appealed. On 17 November 1988 the medical appeal tribunal made the following assessment:

"(1) From 20 June 1976 to 19 June 1986 we award 8% provisional.

(2) From 19 June 1986 to 11 January 1988 10% provisional.

(3) From 12 January 1988 to 11 July 1988 20% provisional.

(4) From 12 July 1988 10% for life final."

On 22 August 1989 the Secretary of State gave notice of application for leave to appeal. The time allowed for an application for leave to appeal from a decision of a medical appeal tribunal is "three months beginning with the date when a copy of the record of the decision was given to the applicant": regulation 1(3)(b) and Schedule 2, paragraph 6 to the Social Security (Adjudication) Regulations 1986. The application was, therefore, some six months out of time. The reasons for lateness were set out in form OSSC1, Part F as follows:

"The Secretary of State has been seeking advice from the statutory adjudicating authorities and from solicitors as to whether the decision of the MAT dated 17 November 1988 could be implemented. After making extensive enquiries it has now been decided that an appeal to the Commissioner on a question of law is appropriate."

In a document attached to form OSSC1, the Secretary of State set out the grounds of appeal which read as follows:

"Section 110(5) of the Social Security Act 1975 and regulation 68(a) of the Social Security (Adjudication) Regulations 1986 restrict the period to be taken into account by any assessment reviewed and revised under section 110(2) of the Social Security Act 1975 (review on ground of unforeseen aggravation) where the application for review was made by the claimant, to a period not exceeding three months before the date of the application. In this case the earliest date from which the MAT could have revised the assessment of disablement was 26 October 1987. This date was shown in paragraph 3 of the Secretary of State's observations to the MAT following the claimant's appeal. As the MAT have revised the assessment from 20 June 1976 their decision is clearly erroneous in point of law."

On 12 January 1990 I directed an oral hearing of the application and invited submissions in particular as to (i) the grounds for extension of time and (ii) whether the Commissioner had jurisdiction to grant leave only in respect of that part of the decision of the MAT dealing with the period 20 June 1976 to 26 October 1987.

The oral hearing took place on 8 May 1990. The Secretary of State was represented by Mr. J. Latter of counsel, instructed by the Solicitor's Office, Departments of Health and Social Security. The claimant was present and was represented by Mr. Myers, solicitor, of the firm of Brian Thompson and Partners. I am grateful to them for their attendance and submissions.

Application for leave

The first question is to determine whether or not to grant an extension of time for leave to appeal. Regulation 3(2) of the Social Security Commissioners Procedure Regulations 1987 provides that where there has been a failure to apply to the chairman of the appeal tribunal or MAT, as the case may be, for leave to appeal within the specified time:

"(a) an application for leave to appeal may be made to a Commissioner who may, if for special reasons he thinks fit, accept and proceed to consider and to determine the application."

The question for determination, therefore, is whether or not there are "special reasons" in the present case.

Special reasons

Mr. Latter submitted that the "reasons for lateness" set out in Part F of form OSSC1 (which I have set out above) showed that this was not a case where nothing had been done. In fact, on 6 December 1988 the adjudication officer had sought advice from the Regional Office as to the course of action and the advice given was that the adjudication officer ought to implement the decision only from the date three months before the application for review. The Chief Adjudication Officer, however, took a different view, contending that he ought to implement the decision in full or not at all. He was of the opinion that the adjudication officer ought not to appear to sit in judgment on the MAT and enforce only part of their decision. It was then decided by the Secretary of State to apply to set aside the decision under regulation 11(1)(c) of the Adjudication Regulations on the ground that "the interests of justice so require" but after further consideration that procedure was considered by his advisers to be inappropriate. It was not until 21 July that the papers were received at the Solicitor's Office of the Department of Health and Social Security for the purpose of an appeal and the application for leave to appeal was sent to the Office of the Social Security Commissioners on 22 August. Mr. Latter accepted that there had been no "holding" notice of application nor any letters sent to the claimant explaining that the question of an appeal was under consideration. He submitted that although, as he had submitted, the reasons for the delay could be explained, the main ground of the application was that the decision of the MAT was clearly erroneous and that if it was allowed to stand, it provided for assessments from 20 June 1976 until 25 October 1987 when in fact for those eleven years, four months, there was no entitlement under the statute and regulations. He submitted that in deciding whether or not to extend the time and grant leave to appeal, the public interest must be taken into account. He referred to and relied upon R(M) 1/87 and R v. Secretary of State ex parte Mehta [1975] 1 WLR 1087.

Mr. Myers, on the other hand, strongly contended that the "special reasons" must be limited to the special reasons for the delay as set out in Part F of form OSSC1. He submitted that the main reason put forward in the present case, namely what one might call the "mischief", was not a special reason for extending the time for leave to appeal. He referred to and relied upon the observations of the Commissioner in paragraph 4 of R(M) 1/87 and R(U) 8/68.

In paragraph 4 of R(M) 1/87 the Commissioner said:

"4. Mr. Canlin, who represented the Secretary of State on the application gave me figures which show that there is a very large number of mobility allowance claims to handle, which seems to me to be a general circumstance; and he gave me the dates at which the papers were passed between the various branches of the Department. I mention only that the papers were passed to the legal branch sometime after the three month period had expired and that there was a further delay of three weeks before the present application was made after the papers had been returned with advice (presumably advice to apply for leave to appeal out of time) from the legal branch. In face of what was said in decision R(U) 8/68 1 do not think that I can hold that there were any special reasons relating to the delay which could justify my considering the application."

In R(U) 8/68 the tribunal of Commissioners said in paragraph 14:

"14. We must draw attention pointedly to a matter of procedure. This appeal was out of time. The local tribunal's decision was given on 27 September 1967. The appeal was not received before 3 January 1968, a few days out of time. The statute provides that an appeal to the Commissioner must be brought within three months from the date of the decision of the local tribunal, 'or such further period as the Commissioner may in any case for special reasons allow . . .' (National Insurance Act 1965, section 70(2)). The Association's only grounds for requesting an extension of time are that it was necessary to obtain further information from one of their officers. It would have been perfectly simple for them to submit a notice of appeal in time but subsequently ask to abandon it if further information warranted that course. By failing to give notice within the generous time limit of three months, the Association were unwarrantably imperilling their members' interests. In the present case we should not have felt justified in granting the extension but for the fact that the application for it was supported by the insurance officer."

In other words, the application for leave to appeal out of time was in fact supported by the insurance officer in R(U) 8/68 and I do not think that the tribunal of Commissioners' observations in paragraph 14 assist in resolving the present question.

In R v. Secretary of State for the Home Department ex parte Mehta [1975] 1 WLR 1087 a student had lodged notice of appeal, a few days out of time, against a refusal of an extension of time to complete her studies in the United Kingdom. Rule 11(4) of the Immigration Appeals (Procedure) Rules 1972 provided that:

". . . the appellate authority shall not be required to dismiss the appeal but may be allowed to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right so to do; . . ."

Lord Denning, MR said at page 1091:

"The tribunal said that they must come to a consideration on the preliminary point without regard to the substance or merits of the appellant's appeal. That also is too strict a view. Here again I think the appellate authority might well follow the practice in this court. We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and to extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. In short, the rule gives the tribunal a discretion to do what is just and right. It should be liberally interpreted by them so as not to let an appellant suffer unfairly."

Browne LJ said at page 1092:

"I am certainly not going to try to lay down an exhaustive list of what other factors can be taken into account and I am not laying down that in every case other factors must be taken into account. I am only saying that in my view there' is no reason in law why the tribunal should not take into account the substantive merits of the case, or the fact that the failure to give notice in time was due to some mistake of the applicant's legal advisers or the fact that the applicant had been lulled into a false sense of security. I think the tribunal is entitled to treat such matters, and there may be others, as making it just and right to treat the notice of appeal as having been given in time."

In R(M) 1/87 the Commissioner referred to the Mehta case in paragraph 5 of his decision and said that the Court of Appeal had used language "that indicated that they considered that there was virtually no restriction on the circumstances that might be regarded as special circumstances". He continued:

"5 . . . . I should be reluctant to limit the meaning of special reasons, inasmuch as claimants in practice are found much more often than the insurance officer or the Secretary to be asking for an extension of time.

For myself I see no ground for distinguishing between the 'special circumstances' of the [Mehta] case and the 'special reasons' of the present case. I think the two phrases equally wide and I hold that I am not limited to the consideration of special reasons relating to the delay that has taken place. I note that the tribunal of Commissioners in decision R(U) 8/68 regarded the fact that the insurance officer supported the application for an extension of time as a special reason."

There can be no doubt, for the reasons which I set out below, that the decision of the MAT was erroneous in law. They made assessments for the period from 20 June 1976 to 25 October 1987 for which there was no entitlement. In my judgement, applying the observations of the Commissioner in R(M) 1/87 at paragraph 6 to which I have referred above, it is right to take that factor into account. In my judgment, the reasons for lateness set out in form OSSC1 Part F would not have sufficed to extend the time for the application but taking into account the clear error in the decision, I have come to the conclusion that it is right and proper to extend the time and grant the application for leave to appeal notwithstanding that it is out of time.

I agree with Mr. Latter that I have no jurisdiction to grant leave only in respect of that part of the decision of the MAT dealing with the period 20 June 1976 to 25 October 1987. The decision dated 17 November 1988 was one decision and I do not, in my judgment, have any jurisdiction to divide it into parts.

Accordingly, I grant leave to appeal. With the consent of Mr. Myers on behalf of the claimant and Mr. Latter on behalf of the Secretary of State given at the oral hearing, I treat the application as the appeal: regulation 5(3) of the Social Security Commissioners Procedure Regulations 1987.

The appeal

Section 110(2) of the Social Security Act 1975 provides:

"(2) Any assessment of the extent of the disablement resulting from the relevant loss of faculty may also be reviewed by an adjudicating medical practitioner if he is satisfied that since the making of the assessment there has been an unforeseen aggravation of the results of the relevant injury."

Section 110(5) of the Act provides:

"5. An assessment made, or confirmed or varied by a medical appeal tribunal shall not be reviewed under subsection (2) above without the leave of a medical appeal tribunal, and . . . on a review under that subsection the period to be taken into account by any revised assessment shall only include a period before the date of the application for the review if and in so far as regulations so provide."

The relevant regulation is regulation 68 of the Social Security (Adjudication) Regulations 1986. That regulation provides:

"On review of any assessment under section 110(2) of the 1975 Act (review on ground of unforeseen aggravation) the period to be taken into account by any revised assessment may include any period not exceeding three months before -

(a) if the review was in consequence of an application by a claimant, or a person acting on his behalf, the date of that application; or

(b) [not relevant],

if the medical board are satisfied that throughout that period there has been unforeseen aggravation of the results of the relevant injury since the making of the assessment under review."

In other words, where there is a review on the ground of unforeseen aggravation the period to be taken into account by a revised assessment is limited to a period not exceeding three months before the date of the application for the review. In the present case, the date of application for the review was 26 January 1988. Any revised assessment could therefore be backdated to three months before that date i.e. 26 October 1987 and no earlier. I must point out that there is no such limit to a review under section 110(1) of the Act of 1975 which provides that a decision may be reviewed if the decision "was given in ignorance of a material fact or was based on a mistake as to a material fact".

Clearly, therefore, there was no jurisdiction to backdate the revised assessment for any period prior to 26 October 1987. In purporting to award assessments for the period from 20 June 1976 to 25 October 1987, the MAT acted without jurisdiction and Mr. Myers very fairly conceded that if I granted leave to appeal, he would have to accept that the decision to backdate beyond 26 October 1987 was erroneous. Accordingly, in my judgment, the decision of the MAT dated 17 November 1988 was erroneous in law and I must set it aside.

Directions

Section 112(1) of the Social Security Act 1975 provides that an appeal lies to a Commissioner from any decision of a medical appeal tribunal on the ground that the decision is erroneous in point of law. Prior to 6 April 1990 section 112(5) provided:

"(5) On any such appeal . . ., a question of law arising for the decision of the Commissioner and the facts on which it arises shall be submitted for his consideration in the prescribed manner; and the medical appeal tribunal on being informed in the prescribed manner of his decision on the question of law shall give, confirm or revise their decision on the case accordingly."

However, with effect from 6 April 1990 subsection (5) has been amended and the words from "and the medical" onwards cease to have effect and after subsection (5) there are new subsection (6) and (7) which provide as follows:

"(6) Where the Commissioner holds that the decision was erroneous in point of law he shall set it aside and refer the case to a medical appeal tribunal with directions for its determination.

(7) Subject to any direction of the Commissioner, the tribunal on a reference under subsection (6) above shall consist of persons who are not members of the tribunal which gave the erroneous decision."

Those amendments have been made by section 21 of, and Schedule 3, paragraph 9 to, the Social Security Act 1989.

In the present case, the Secretary of State has not appealed against the decision of the MAT that there had been an unforeseen aggravation of the results of the relevant injury; nor is there any appeal against the amounts of the assessments. The appeal is only in relation to the period of the assessments. The Secretary of State does not contend that there was any error of law in relation to any assessment from 26 October 1987 onwards. In those circumstances, I refer the case to a medical appeal tribunal whose members shall consist of the persons who were members of the tribunal on 17 November 1988 and I direct that they revise their decision and award assessments from 26 October 1987 to 11 January 1988, at 10% provisional, from 12 January 1988 to 11 July 1988 at 20% provisional, and from 12 July 1988 at 10% for life final, and that they delete the award of assessment from 20 June 1976 to 19 June 1986 and from 19 June 1986 to 25 October 1987.

For those reasons, I allow this appeal.

Date: 21 June 1990 (signed) Mr. A. T. Hoolahan

Commissioner