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[1993] UKSSCSC CIS_68_1991 (11 May 1993)

R(IS) 5/94

Mr. M. J. Goodman CIS/68/1991

11.5.93

Tribunal practice - withdrawn appeal - whether fresh appeal valid

After lodging an appeal with the tribunal the claimant withdrew it with leave of the chairman. The claimant later sought to appeal once more from the same adjudication officer's decision, by which time the appeal was late. Although a chairman accepted special reasons for lateness and admitted the appeal, at the hearing the new tribunal declined jurisdiction because the claimant had previously withdrawn an appeal against the same decision.

Held that:

provided that, where necessary, the chairman has granted leave for a late appeal, there is no obstacle to a fresh appeal being brought against an adjudication officer's decision which has been the subject of a withdrawn appeal (para. 10);

the rule that, when once a matter has been adjudicated on by a competent authority, another authority of the same level cannot re-adjudicate on the point (res judicata) would not apply. All that has happened in this case is that the chairman of the tribunal has given leave for the earlier appeal to be withdrawn. That does not amount to a decision by a tribunal on the issues involved in the appeal (para. 10);

following the general principles laid down in the Rules of the Supreme Court (see annotation no. 16 to Order 59; Rule 1), if the tribunal were to dismiss an appeal to it on a withdrawal by the claimant then the matter would be res judicata and no subsequent appeal on the same subject could be brought to a social security appeal tribunal. The decision to dismiss, however, would be subject to review and appeal to the Commissioner in appropriate cases (para. 12);

as the claimant has not in effect had a hearing before a social security appeal tribunal the correct course of action is for the Commissioner to remit the case to a new tribunal for them to deal with the substantive matters in the appeal (para. 13).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal against the decision of the social security appeal tribunal dated 30 October 1990 as that decision is erroneous in law and I set it aside. I remit the case for hearing and determination, in accordance with the directions in this decision, to an entirely differently constituted social security appeal tribunal: Social Security Administration Act 1992, section 23.

This is an appeal to the Commissioner by the claimant a man aged 54 at the relevant time. The appeal is against the unanimous decision of a social security appeal tribunal dated 30 October 1990, in the following terms, "The appeal has already been withdrawn at the request of the appellant and this tribunal had no jurisdiction to re-open it." In my judgment for the reasons given below, that ruling of no jurisdiction was erroneous and I have consequently remitted the case to another social security appeal tribunal for hearing of the claimant's appeal on the actual issues relating to income support (see below).

The claimant appealed to a social security appeal tribunal against a decision of the local adjudication officer issued on 15 January 1990 in the following terms "[The claimant] is no longer entitled to a disability premium. His income support entitlement from 10 January 1990 amounts to £54.80 per week." The next relevant document in the file of papers before me is a record of a decision of a social security appeal tribunal (on form AT3) dated 24 April 1990. There are no entries in the 'boxes' on that form for findings of fact, decision or reasons for decision. The only entry occurs in box 1 ("Chairman's note of evidence") and reads as follows "AT6 read. Withdrawal agreed." I note that neither the claimant nor any representative of his was present. Unfortunately the particular form AT6, which is a form sent to claimants in advance of a hearing asking various questions in connection with that hearing, is not available in the file of papers before me. However, that form AT6 contains a standard question asking the claimant if, having read the appeal papers, he now wishes to withdraw his appeal. It is a reasonable surmise that in this case the claimant answered "Yes" to that question. Some further light is cast on this matter by a letter dated 4 July 1990 from a Solicitor who had by that time taken over the claimant's case. That letter states, "The original appeal against [the adjudication officer's] decision was withdrawn on 19 April 1990 on the grounds that [the claimant] was more concerned with the loss of his transitional addition following the withdrawal of the disabled person's premium".

Regulation 6 of the Social Security (Adjudication) Regulations 1986 [SI 1986 No. 2218] reads as follows:

"Withdrawal of applications, appeals and references

(1) [Relates to applications for leave to appeal-not relevant to this case]

(2) Any appeal to an adjudicating authority made under the Acts or these Regulations may be withdrawn by the person who made the appeal -

(a) before the hearing begins by giving written notice of intention to withdraw to the adjudicating authority to whom the appeal was made and with the consent in writing of -

(i) in a case which originated in a decision of an adjudication officer, an adjudication officer; or

(ii) in any other case, the Secretary of State, and, in any case, of any other party to the proceedings; or

(b) after the hearing has begun, with the leave of the adjudicating authority or, in the case of a tribunal or board, its chairman, at any time before the determination is made.

...."

It would appear from the record of decision (form AT3) of the tribunal of 24 April 1990 that in this case the matter was dealt with under regulation 6(2)(b) i.e. it was treated as being a case "after the hearing has begun" because the words "Withdrawal agreed' in box 1 "chairman's note of evidence" imply that the chairman had given leave for the appeal to be withdrawn.

The appeal thus having been withdrawn, the question then is whether the appeal could be 're-instated'. What actually occurred is that the claimant's solicitor in the letter already quoted (of 4 July 1990) also said "We have now been instructed to request leave to appeal against the [adjudication officer's] decision to withdraw the disabled person's premium dated 15 January 1990.".

That request was put to a social security appeal tribunal chairman, who endorsed on the solicitor's letter the words "Request for late appeal allowed". Similarly a chairman allowed the late appeal "because there were special reasons for delaying it", in a decision on form AT10 dated 17 July 1990. However when the matter came before the social security appeal tribunal again on 30 October 1990 they declined jurisdiction (see para. 2 above).

Regulation 6 of the Social Security (Adjudication) Regulations 1986 (quoted in paragraph 4 above) is silent on the question of whether there can be a 're-instatement' of a withdrawn appeal. That is by contrast with regulation 20 of the Social Security Commissioners Procedure Regulations 1987 [SI 1987 No. 214], which, after providing that a Commissioner may give leave for the withdrawal of an appeal to the Commissioner, then goes on to say, in regulation 20(3):

"20. (3) A Commissioner may, on application by the party concerned, give leave to re-instate any application, appeal or reference which has been withdrawn in accordance with paragraphs (1) and (2) above and, on giving leave, he may make such directions as to the future conduct of the proceedings as he thinks fit."

That provision does not give a right to re-instatement of a withdrawn appeal to the Commissioner but leaves it to the discretion of the Commissioner, who may impose directions. What, however, is the position where there is an attempted 're-instatement' of a withdrawn appeal to a social security appeal tribunal?

In my judgement, provided that, where necessary, the social security appeal tribunal chairman's leave for a late appeal (see regulation 3(3) of the Social Security (Adjudication) Regulations 1986) has been obtained, where there are "special reasons", there is no obstacle to what is in effect a fresh appeal being brought against an adjudication officer's decision, which decision has already been the subject of a withdrawn appeal. The rule that, when once a matter has been adjudicated on by a competent authority, another authority of the same level cannot re-adjudicate on the point res judicata would not apply. All that has happened in this case is that the chairman of the tribunal has given leave for the earlier appeal to be withdrawn. That does not amount to any decision by a tribunal on the issues involved in the appeal (cf. R(I) 6/81 medical appeal tribunal). The same in my view would apply if, before the hearing had begun written notice of intention to withdraw had been given by a claimant to the social security appeal tribunal and the adjudication officer had consented in writing. Again there would be no res judicata.

Support for this view is to be found in the practice of the Court of Appeal in relation to appeals to that Court being withdrawn. The matter is dealt with in the annotations to the Rules of the Supreme Court (the "White Book") at paragraph 59/1/16 (annotation to Order 59, Rule 1) reading as follows:

"Appeals - An appeal cannot be withdrawn without the leave of the Court ([1890] WN130, CA). If an appeal is withdrawn as opposed to being dismissed it would appear that, subject to obtaining the necessary extension of time, the appellant could proceed with an appeal by serving a fresh notice of appeal. For this and other reasons it is now the usual practice of the Court of Appeal to insist that appeals are either heard or disposed of by means of a dismissal by consent or other consent order. Only in rare circumstances will the Court of Appeal permit an appeal to be withdrawn."

It follows from the principles in that statement, which in my view are general in application, that if a social security appeal tribunal were actually to dismiss an appeal to it on a withdrawal by a claimant then the matter would be res judicata and no subsequent appeal on the same subject matter could be brought to a social security appeal tribunal. (The decision to dismiss would, of course, still be subject to review and appeal to the Commissioner, in appropriate cases). But that is not what occurred here. There was no dismissal of the first appeal but merely what appears to have been the chairman giving leave for the appeal to be withdrawn. It follows that the subsequent tribunal of 30 October 1990 were erroneous in law in stating that they had no jurisdiction to "re-open" the appeal and they should have heard it on its merits.

As the claimant has, therefore, not in effect had a hearing before a social security appeal tribunal it appears to me that the correct course in this case is for me to remit the matter to a new tribunal for them to deal with the substantive matters in issue in the appeal. That will enable the claimant and/or his solicitor to appear at the hearing and argue the various points in connection with the transitional addition and the apparent loss of it, in the circumstances set out in the summary of facts by the local adjudication officer to the tribunal. I do not consider it apposite for me to make any further comment on this matter, save to point out that to secure the continuance of his transitional addition the claimant will need to bring himself within regulation 14 of the Income Support (Transitional) Regulations 1987 [SI 1987 No. 1969]. I have received submissions on this point but in the circumstances I think it better if the matter is left entirely to the new tribunal, which will need to make a careful enquiry into the facts and then apply the relevant provisions (if any) of regulation 14 of the Transitional Regulations. The new tribunal will also need to deal with the claimant's contention that his disability premium has terminated prematurely.

Date: 11 May 1993 (signed) Mr. M. J. Goodman

Commissioner