UKSSCSC CIS_3299_1997 (01 October 1998)
Mr. M. Rowland CIS/3299/1997
Commissioners' jurisdiction – no full statement of tribunal's decision – whether jurisdiction to hear appeal
Tribunal practice - inquisitorial role - whether duty to ask questions already asked by the Secretary of State - whether duty to adjourn when claimant absent
Under regulation 23 of the Social Security (Adjudication) Regulations 1995 as amended by the Social Security (Adjudication) and Child Support Amendment (No. 2) Regulations 1996, every decision of a social security appeal tribunal had to be recorded in summary in a decision notice. The chairman then had the power to issue a full statement of the tribunal's decision, stating their findings and reasons, at any time and had a duty to provide one on a request made within 21 days after the decision notice was sent or given to the parties.
In CIS/3299/1997, the claimant's claim for income support was disallowed on the ground that he was neither available for work nor exempt from the requirement that he should be available for work. In reaching that conclusion, the adjudication officer overlooked the question whether the claimant's circumstances fell within regulation 6(a) of the Income Support (General) Regulations 1987 which applied to people whose ability to work was restricted by disability. The claimant appealed, arguing that his disability meant that he was unable to work to a sufficient extent but not giving all the information required for a decision as to whether regulation 6(a) applied to him. He did not attend the hearing before the tribunal and his appeal was dismissed. He sought leave to appeal within 21 days, without specifically asking for a full statement of the tribunal's decision and leave was refused by the chairman who did not issue a full statement. The claimant was granted leave to appeal by a Commissioner.
In CIB/4189/1997, the claimant was held by a tribunal not to satisfy the all work test. She did not ask for a full statement of the tribunal's decision and did not ask the chairman for leave to appeal until more than 21 days had elapsed. Leave to appeal was refused by the chairman, who did not issue a full statement, but was granted by a Commissioner.
There was raised on both appeals the question whether the Commissioner had jurisdiction to hear a case in the absence of a full statement of the tribunal's decision, given that the time for applying to a chairman for leave to appeal was the period of three months after a full statement of the tribunal's decision was issued and that a copy of the full statement was to be annexed to an application for leave.
Held, allowing the appeal in CIS/3299/1997 and dismissing the appeal in CIB/4189/1997, that:
- there was a duty to give reasons for a tribunal's decision only if a full statement of the tribunal's decision was requested or provided and a summary of grounds in a decision notice could not be challenged for inadequacy (paragraphs 6 and 7);
- a tribunal's decision would not be erroneous in point of law for breach of the chairman's duty to provide a full statement on a request made within 21 days if the decision notice in fact contained an adequate statement of reasons (paragraph 8);
- where there was no full statement of reasons a tribunal might be shown to have erred in law if the point of law was justiciable without there being evidence of the tribunal's reasoning or if sufficient evidence of their reasoning could be gleaned from the decision notice (paragraph 9);
- a chairman had no jurisdiction to grant leave to appeal if no full statement had been issued but a Commissioner could grant leave if there were special reasons for doing so notwithstanding a failure to apply to a chairman within the specified time and could waive the requirement that a full statement be annexed to an application and, accordingly, had jurisdiction to hear an appeal even though no full statement had been issued (paragraphs 14 to 17);
- a tribunal had a duty to ensure that all relevant questions had been asked of a claimant but were not bound to ask questions that had already been asked by the Secretary of State or an adjudication officer (paragraph 31);
- the tribunal in CIS/3299/1997 had been unable to ask material questions relating to regulation 6(a) but fairness had not required an adjournment because the claimant had not been wholly unaware that the extent of his ability to work was relevant, the tribunal were entitled to take the view that the claimant would have been unlikely to succeed on that issue and the claimant had chosen not to appear before the tribunal (paragraph 32);
- the inquisitorial role of the tribunal required them to draw the claimant's attention in their reasons to the material point previously overlooked by the adjudication officer, the decision notice in CIS/3299/1997 did not do so and, as the claimant's application for leave to appeal had again referred to the extent of his ability to work, it should have been regarded as a request for a full statement made within 21 days and the tribunal's decision was erroneous in point of law because no such statement had been provided (paragraphs 36 to 38);
- the tribunal in CIB/4189/1997 had not been obliged to ask the claimant about an activity with which she had previously told the Benefits Agency she had no difficulties and had not failed to ask her about other activities (paragraph 41);
- there was no reason why the chairman in CIB/4189/1997 should have issued a full statement and in the absence of one the tribunal's decision could not be impugned for inadequacy of reasons (paragraphs 40 and 42).
DECISIONS OF THE SOCIAL SECURITY COMMISSIONER
The 1996 Amendments
"(2) Every decision of an appeal tribunal shall be recorded in summary by the chairman in such written form of decision notice as shall have been approved by the President, and such notice shall be signed by the chairman.
(3) As soon as may be practicable after a case has been decided by an appeal tribunal, a copy of the decision notice made in accordance with paragraph (2) shall be sent or given to every party to the proceedings who shall also be informed of
(a) his right under paragraph (3C); and
(b) the conditions governing appeals to a Commissioner.
(3A) A statement of the reasons for the tribunal's decision and of its findings on questions of fact material thereto may be given -
(a) orally at the hearing, or
(b) in writing at such later date as the chairman may determine.
(3B) Where the statement referred to in paragraph (3A) is given orally, it shall be recorded in such medium as the chairman may determine.
(3C) A copy of the statement referred to in paragraph (3A) shall be supplied to the parties to the proceedings if requested by any of them within 21 days after the decision notice has been sent or given, and if the statement is one to which subparagraph (a) of that applies, that copy shall be supplied in such medium as the chairman may direct.
(3D) If a decision is not unanimous, the statement referred to in paragraph (3A) shall record that one of the members dissented and the reasons given by him for dissenting.
(4) A record of the proceedings at the hearing shall be made by the chairman in such medium as he may direct and preserved by the clerk to the tribunal for 18 months, and a copy of such record shall be supplied to the parties if requested by any of them within that period."
A statement of the tribunal's reasons for their decision and their findings of fact within regulation 23(3A) is known as a "full statement of the tribunal's decision" (see regulation 2(2) of the 1995 regulations and regulation 2 of the 1987 regulations) and that is the term I shall generally use.
"Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."
That applies whenever a document purporting to be a full statement of the tribunal's findings and reasoning is issued under regulation 23(3A), whether or not it is issued pursuant to the duty imposed by regulation 23(3C), but I do not consider that a "summary of grounds" can be challenged on the ground of inadequacy because, in my view, such a summary cannot be regarded as purporting to be a full statement. In CI/33/1998, it was submitted on behalf of the claimant that the refusal to issue full reasons because the request was made after 21 days suggested that the chairmen believed that the "summary of reasons" amounted to "proper, adequate reasons". I do not accept that submission. A chairman has a broad discretionary power to refuse to supply full reasons if the request is late.
The 1997 Amendments
"(1) Subject to the following provisions of this regulation, an application to the chairman of an appeal tribunal for leave to appeal to a Commissioner from a decision of an appeal tribunal shall
(a) be made in accordance with regulation 3 and Schedule 2: and
(b) have annexed to it a copy of the full statement of the tribunal's decision."
By regulation 6 of the 1997 regulations, Schedule 2 to the 1995 regulations was amended so that the three month time limit for making an application to a chairman for leave to appeal to a Commissioner, which had previously run from the date when notice of the tribunal's decision was given to the applicant, now runs from "the date when a copy of the full statement of the tribunal's decision was given or sent to the applicant". The obvious purpose of this amendment was to prevent an applicant from being prejudiced by any delay between a request for a full statement of a tribunal's decision being made and the full statement being issued.
"3.—(1) Subject to paragraph (2) of this regulation, an application may be made to a Commissioner for leave to appeal against a decision of an appeal tribunal or a medical appeal tribunal only where the applicant has been refused leave to appeal by the chairman of an appeal tribunal or, as the case may be, of a medical appeal tribunal.
(2) Where there has been a failure to apply to the chairman for such leave within the specified time, 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 determine the application.
(3) An application for leave to appeal under paragraph (1) above must be made within 42 days from the date on which notice in writing of the refusal of leave to appeal was given to the applicant.
(5) A Commissioner may accept and proceed to consider and determine an application for leave to appeal under paragraphs (1) and (4) above notwithstanding that the period specified for making the application has expired, if for special reasons he thinks fit.
- —(1) Subject to the following provisions of this Regulation, an application to a Commissioner for leave to appeal shall be brought by a notice to a Commissioner containing:
(a) the name and address of the applicant;
(b) the grounds on which the applicant intends to rely;
(c) an address for services of notices and other documents on the applicant;
and the notice shall have annexed to it a copy of the full statement of the tribunal's decision against which leave to appeal is being sought.
(2) Where the applicant has been refused leave to appeal by the chairman of an appeal tribunal or of a medical appeal tribunal the notice shall also have annexed to it a copy of the decision refusing leave and shall state the date on which the applicant was given notice in writing of the refusal of leave.
(3) Where the applicant has failed:
(i) to apply within a specified time to the chairman of an appeal tribunal or of a medical appeal tribunal for leave to appeal; or
(ii) to comply with regulation 3(3) above; or
(iii) .... ,
the notice of application for leave to appeal shall, in addition to complying with paragraphs (1) and (2) above, state the grounds relied upon for seeking acceptance of the application notwithstanding that the relevant period has expired."
The unconventional punctuation and use of capital letters are in the legislation. By regulation 2, "the specified time" means the time specified under the 1995 Regulations for applying to a chairman for leave to appeal to a Commissioner.
"The singular relevance of rule 32(3) is that the time for an appeal under rule 3(1A) is 42 days from the date of full reasons, so that rule 32(3) clearly contemplates that there will be circumstances in which it would be appropriate for the Employment Appeal Tribunal to hear an appeal without full reasons."
In Wolesley Centers Limited v Simmons  ICR 503, the Employment Appeal Tribunal admitted such an appeal, saying, at page 507, that they agreed with counsel for the appellant:
" .... that there is no general principle that the absence of full reasons makes an appeal non-justiciable, and that the effect of non-compliance with rule 3(l)(c) depends on the circumstances of each case."
However, it is implicit in those decisions that, in the absence of what is now rule 39(3), it would have been impossible for the Employment Appeal Tribunal to admit the appeal because, inter alia, it would not have been brought within the prescribed time. There is no equivalent of rule 39(3) of the 1993 Rules in the 1995 regulations and, in those circumstances, I do not consider that any chairman of a social security appeal tribunal has jurisdiction to entertain an application for leave to appeal to a Commissioner in a case where no full statement of the tribunal's decision has been given. In such a case, "the specified time" never starts to run.
"Unanimous decision of the tribunal
[The claimant] is not entitled to income support because he does not satisfy the conditions of entitlement in being in the exempt categories.
Summary of grounds
[The claimant's wife] is in receipt of mobility component only and to fall into the exempt category in regulation 35 she must be in receipt of the care component at the relevant rate. [The claimant] is therefore not within the provisions of reg. 35."
The claimant's application for leave to appeal was received on 18 April 1997 and was refused by the chairman on 23 May 1997 without, so far as I can see, any consideration being given to the issue of a full statement of the tribunal's decision.
"Due to my condition (epilepsy) I am forced to be self employed. However, recently due to the demands of my wife's condition, lack of work, and clients refusing to pay I am working virtually unpaid and last week I worked less than 16 hours!"
The claimant appears to have been given information about income support, which told him that a claimant was entitled to income support if:
"You or your partner have a mental or physical disability which means that you (or your partner) are only able to earn 75% or less of what a person without that disability would be expected to earn."
There had been some discussion between the claimant and the Benefits Agency about what he might do and, on 23 September 1996, he wrote:
"I personally suffer from epilepsy which prevents me from obtaining any decent job let alone 75% less!"
However, by then, the claimant's claim, which was treated as made on 2 July 1996, had been rejected on 9 September 1996 on the ground that the claimant was neither available for work nor exempt from the requirement that he should be available for work.
"The claimant has not registered as unemployed at the Employment Services Jobcentre and therefore cannot be treated as available for work. He does not fall into any category in Schedule 1 and is therefore not excluded from the requirement to be available for work. The claimant does not satisfy the qualifying conditions for entitlement to income support. I ask the tribunal to confirm the decision."
In the adjudication officer's summary of facts, it was recorded:
"5.3 The claimant is an epileptic and states that he is unable to take up employment because of this.
- 5 The claimant has been advised on several occasions that in order to qualify for income support he has to either be available for work and register at an Employment Services Jobcentre or submit medical certificates and claim as sick or his wife can make a claim instead of him. He has also been advised that details of his hours of work and his self employed accounts will have to be seen in order to determine any entitlement to benefit."
For reasons that are obscure, but which seem to have had something to do with a dispute between the claimant and the London Borough of Harrow in whose premises the tribunal was to sit, the claimant decided not to attend the hearing before the tribunal, but he put in a written submission which contained the following comments on the adjudication officer's "summary of facts"
"5-3 Due to my condition and age, I have discovered it is impossible for me to gain employment paying the average weekly wage, or less.
5-4 My wife requires care during the day. That is why she is in receipt of mobility and severe disablement allowances: re: section 37ZB(3) surely takes into account "the care component" of the severe disablement allowance? (Persons caring for another Person)
5-5 The DHSS has never mentioned that my wife can make a claim for income support (instead of myself)
Would this come under ...Persons Incapable of Work Schedule (1) section 5? Also, I can honestly state that I have never been requested/asked to supply details of work, self employed accounts... "in order to determine any entitlement to benefit" Please Note these would be the same details/documents that have been accepted by the Inland Revenue, Council Housing Benefit and prior to this claim: Family Credit."
"6. The tribunal have only considered the condition of entitlement in paragraph 4 of Schedule 1 [to the Income Support (General) Regulations 1987]. For this reason they have erred in law. The decision that the claimant's entitlement was subject to the condition that he was available is flawed. The tribunal were firstly required to see whether the claimant might satisfy another provision exempting him from the availability requirement. The tribunal were required to consider whether due to his disability his working hours and earnings satisfied regulation 6(a) of the General Regs and therefore exempted him from the requirement to be available. The claimant stated that his working capacity was affected by his epilepsy. The tribunal should have considered whether the provisions of Schedule 1, paragraph 6 applied to the claimant. If this applied the claimant is not treated as being in remunerative work. In order to satisfy the provision the claimant's earnings must be reduced to 75 per cent. or less of what a person without that disability and working the same number of hours would reasonably be expected to earn in that employment or in comparable employment in that area or his number of hours of work must be 75 per cent. or less of what a person without that disability would reasonably be expected to undertake in that employment in that area. I submit that this applies to employed earner's employment and to self-employment. The claimant would be required to furnish evidence both of his earnings and his hours so that a determination on the facts could be made around regulation 6(a) of the General Regs.
- If the claimant satisfied this prescribed category he would still be required to provide evidence of his income (section 124(1)(b) of the C&B Act). Any income would fall to be taken into account and if his income was greater than his applicable amount he would not be entitled to income support.
- In conclusion I submit that the tribunal have not given sufficient reasons and findings of fact in support of their decision and have therefore breached regulation 23(2)(b) of the Adjudication Regs."
"A person to whom regulation 6(a) (persons not treated as engaged in remunerative work) applies."
Regulation 6(a) applies to a person who:
" .... is mentally or physically disabled, and by reason of that disability -
(i) his earnings are reduced to 75 per cent. or less of what a person without that disability and working the same number of hours would reasonably be expected to earn in that employment or in comparable employment in that area; or
(ii) his number of hours of work are 75 per cent. or less of what a person without that disability would reasonably be expected to undertake in that employment or in comparable employment in that area."
The question on this appeal is whether or not there is any error of law in the tribunal's decision arising out of their failure to make any specific reference to paragraph 6 of Schedule 1 to the Income Support (General) Regulations 1987.
"In dealing with appeals of these kinds, the insurance tribunal, namely the local appeal tribunal or the Commissioner or Deputy Commissioner as the case may be, is exercising quasi-judicial functions, for at this stage it has conflicting contentions before it, those of the claimant and those of the insurance officer who has disallowed the whole or part of the claim. But there is an important distinction between the functions of an insurance tribunal and those of an ordinary court of law, or even those of an arbitrator. As was pointed out by the Divisional Court in Regina v Medical Appeal Tribunal (North Midland Region), ex parte Hubble  2 QB 228, 240, a claim by an insured person to benefit is not strictly analogous to a lis inter partes. Insurance tribunals form part of the statutory machinery for investigating claims, that is, for ascertaining whether the claimant has satisfied the statutory requirements which entitle him to be paid benefit out of the fund. In such an investigation neither the insurance officer nor the Minister (both of whom are entitled to be represented before the insurance tribunal) is a party adverse to the claimant. If an analogy be sought in ordinary litigious procedure, their functions most closely resemble those of amici curiae. The insurance tribunal is not restricted to accepting or rejecting the respective contentions of the claimant upon the one hand and of the insurance officer or Minister on the other. It is at liberty to form its own view even though this may not coincide with the contentions of either."
In Hubble, the Divisional Court had used the analogy of an inquest rather than an action. It seems to me that there is clearly a duty upon a tribunal to ensure that all relevant questions have been asked of a claimant. It could not be otherwise, given the complexity of social security law and the fact that few claimants have advisors and that many are poorly educated. The asking of questions is largely achieved by ever-more sophisticated claim forms but even the income support claim form, which runs to several pages, cannot ask all possibly relevant questions. Some questions are designed merely to elicit an answer which will reveal whether further questions need be asked later. When a case goes on appeal, it seems to me that a tribunal are not bound to ask questions that have already been asked by the Secretary of State or by an adjudication officer, unless the points have been put in issue, but they are obliged to ask those questions that have not previously been asked but which should have been asked.
"The tribunal accept as correct the findings of the BAMS examining doctor as set out in the report and find that the award of 12 points was correct."
The claimant's application for leave to appeal was dated 30 June 1997. The chairman refused leave. There is no indication that he considered whether to issue a full statement of the tribunal's decision but, as the application was made more than 21 days after the tribunal's decision and no reason was advanced to explain the delay, there is no reason why the chairman should have issued a full statement.
Date: 1 October 1998 (signed) Mr. M. Rowland