UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CIB_3937_2000 (28 June 2001)

 
R(IB) 4/02


Mr. D. Williams CIB/3937/2000

28.6.01

Tribunal practice – period within which application for statement of reasons must be made

The Secretary of State terminated entitlement to incapacity credits. A tribunal confirmed that decision at a paper hearing on 24 July 2000. A decision notice signed by the chairman and bearing that date, but no date of issue, was sent to the claimant, together with a standard covering notice indicating that the claimant had "one month from today" to apply for a full statement. A request for a statement was received by the Appeals Service on 28 August 2000. A different chairman decided that the tribunal chairman should not be asked to provide a statement as the time for requesting a statement was not extended, and accordingly no statement was produced. The claimant appealed to the Commissioner.

Held, allowing the appeal, that:

the period of one month in which to apply for a statement under regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 commences on the day the decision notice is sent by post to the parties;

that period is a clear calendar month, so that it starts on the day after the day on which the decision notice is given or sent to the parties;

when applying for a statement under regulation 53(4), notice sent by post is given by the applicant when it is posted to the appropriate address, and not when it is received;

on the evidence the claimant's request for a statement was in time, and fairness requires that the decision of the tribunal must be set aside for failure to produce a statement.

[Note: Regulation 53(4) was replaced with effect from 20 May 2002 under regulation 16 of the Social Security and Child Support (Decisions and Appeals) (Miscellaneous Amendments) Regulations 2002. An applicant must now "apply to the clerk …. within one month ….".

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I allow the appeal.
2. The appellant is appealing with my permission against the decision of the Leeds appeal tribunal on 24 July 2000. The decision of the tribunal was that the appeal was dismissed and the decision of the Secretary of State of 28 March 2000 was confirmed. The decision of the Secretary of State was "as a result of the determination on incapacity, I have superseded the decision dated 17/1/00. Therefore [the claimant] is not entitled to incapacity credits from and including 28/3/00."
3. For the reasons below, the decision of the tribunal is erroneous in law. I set it aside. I refer the appeal to a freshly constituted tribunal to determine the appeal in accordance with this decision.

Should the appellant have received a full statement?

4. I am concerned in this decision only with the question whether the appellant should have been issued with a statement of facts and reasons by the tribunal chairman, and I do not need to deal with the substance of the appeal.
5. The tribunal heard the case by way of paper hearing on 24 July 2000, at the request of the appellant on form TAS1. A standard form of decision notice was signed and dated 24 July 2000. It gives no indication of when or whether it was issued to the parties. There is a standard form record of proceedings also signed and dated 24 July 2000, but again there is no indication on it of when or whether it was issued to the parties. The appellant received the decision notice at some point because she wrote a note to the Benefits Agency on a copy of the standard notice that accompanies decision notices sent to appellants. At the top she wrote "Please send to Appeals Service. I don't have the address", and at the end she made a request interpreted as an application for a full statement. It is clear from other papers that it was received on 28 August by the Appeals Service. I add for completeness that the standard form notice issued to (and returned by) the appellant states:

You have one month from today to apply for a full statement and a setting aside.

This means I must receive your application no later than one calendar month from the date you are given the decision.

6. The appellant's note was sent to a chairman (not the chairman of the tribunal)

by a clerk accompanied on a form GAPS 390/97 (application received more than one month after the date of issue of the decision) stating that:

The decision was issued on 24/ 7/ 2000

The application was received on 28 /8/ 2000

I am treating the application as a statement request

The chairman's response was to check a box on the form that the tribunal chairman not be asked to provide a statement, as the time for requesting a statement was not extended and reasons given for an extension of time do not amount to special circumstances. No statement was produced by the tribunal chairman.

The GAPS record

7. When the papers were forwarded to the Commissioner with the applicant's request for leave, a copy of the Appeals Service GAPS record (the computerised record of the progress of each case held on the Service's Generic Appeals Process System) was produced for the case. I directed that it be added to the papers. The relevant part indicates:

26/07/00 DORMANT, APPEAL HEARD FOR DESTRUCTION

26/07/00 GAPS 173/97 (S) – to Appellant

GAPS 173/97 Covering letter with decision notice

26/07/00 GAPS 173/97 (S) – to Appeals Officer – S/M

GAPS 173/97 Covering letter with decision notice

29/08/00 INTERLOCUTORY REFERRAL, AWAIT ADVICE

Translated, I think this means that nothing was done about the case administratively (so far as the GAPS record shows) until 26 July, when the computer operative suppressed "(S)" what would otherwise have been the automatic issue of a decision notice and covering notice (GAPS 173/97) to both the appellant and the Appeals Officer for the Benefits Agency. Nothing was then recorded until the record on 29 August of the note from the appellant.

8. When the papers first came before me to consider granting permission to appeal without a full statement, I raised several issues about this course of events with the Secretary of State. It appeared to me that the chairman had been misinformed by the clerk and that, at least arguably, the note from the appellant was not out of time. As I was not satisfied with the response by the Secretary of State's representative to that direction, I issued a further direction for an oral hearing of the application. Shortly before the date of hearing, the Office of the Solicitor to the Department of Social Security made a further submission changing the official response to my first direction and inviting me to deal with the matter without a hearing. I cancelled the hearing and granted leave to appeal with further directions. I have since had a further submission from the Secretary of State not supporting the appeal, but have had no further reply from the appellant (who was invited, but not directed, to make a submission).

When was the decision notice issued in this case?

9. The decision notice and record of proceedings were signed on 24/07/00. As no parties were present, the notices could not have been given to either party. As recorded above, the contemporary evidence of the date of issue of the decision notice is the negative evidence of the GAPS record on 26/07/00. There should have been at least three separate records of the actual issue of the decision notice and record of proceedings, but in this case there are none. When asked about the date of issue, the Secretary of State's representative at first replied "I am advised that where such action is completed by the tribunal clerk, it is carried out on the date of the hearing. I therefore submit that the decision notice was posted on 24. 7. 00." It was because I was not persuaded by that and other aspects of the submission that I directed the oral hearing.
10. In the submission that accompanied the request to cancel the oral hearing, the Office of the Solicitor to the Department submitted in part:

3. Further enquiries of the Appeals Service reveal that although an "S" appears in the GAPS record indicating that the computer generated letters which accompany the decision notice were suppressed as the tribunal clerk manually issued these, it does not necessarily mean that the clerk issued them on the day of the hearing. It is also not necessarily the case that a decision would be issued on that day. We are informed that clerks might prepare a decision notice at the hearing but bring it back to the office to issue it on a later date.

4. The Appeals Service informs us that clerks should annotate the decision if it was issued on the day of the hearing, however, the claimant's decision notice was not so annotated.

5. Further, a control sheet, which should be marked with the date of issue of a decision, has no entry marked in respect of the decision in the claimant's case.

6. Therefore, due to the uncertainty about when the decision notice was actually issued to the claimant, the Secretary of State concedes that it is possible that the claimant's letter, which was received by the Appeals Service on 28 August 2000, and treated as a request for a statement of Reasons, could have been a timely request under regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

In other words, the Secretary of State conceded that there is no direct evidence of precisely when the decision notice was issued, and in particular that the GAPS record did not supply that evidence. Does that concession mean that it should be accepted that the appellant made her application in time?

How long did the appellant have to apply for a full statement?

11. Regulation 53 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (decisions of appeal tribunals) provides:

(3) As soon as may be practicable after an appeal or referral has been decided by an appeal tribunal, a copy of the decision notice prepared in accordance with paragraph (1) and (2) shall be sent or given to every party to the proceedings who shall also be informed of –

(a) his right under paragraph (4); and

(b) … the conditions governing appeals to a Commissioner.

(4) A party to the proceedings may apply in writing to the chairman, or in the case of a tribunal with only one member, to that member, for a copy of the 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 54.

12. Regulation 54 provides, subject to stringent limits, some scope for allowing a late application for a statement of reasons. None of the special circumstances in regulation 54 apply in this case. This means that it is important to decide the precise extent of the time limit available to the appellant.

When does the period start?

13. The period within which the time limit in regulation 53(4) begins is the day (or the latest of the days) on which the decision notice is sent or given to every party to the proceedings. From the wording of paragraph (4) it appears to begin only when everyone involved in the case (rather than the individual party making the application) has been sent or given a copy of the notice.
14. When is the notice given or sent to every party? The Secretary of State submitted that this was determined by regulation 2(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (service of notice or documents). Regulation 2 provides:

Where, by any provision of the Act or of these Regulations –

(a) any notice or other document is required to be given or sent to the clerk to the tribunal or to an officer authorised by the Secretary of State, that notice or document shall be treated as having been so given or sent on the day that is received by the clerk to the appeal tribunal or by an officer authorised by the Secretary of State, and

(b) any notice (including notification of a decision of the Secretary of State) or other document is required to be given or sent to any person other than the clerk to the appeal tribunal or an officer authorised by the Secretary of State, that notice or document shall, if sent by post to that person's last known address, be treated as having been given or sent on the day that it was posted.

In the view of the Secretary of State, the relevant rule is in regulation 2(b) because the Secretary of State receives notice as a "party to the proceedings" and the notice is not sent to an authorised officer of the Secretary of State. I expressed some doubt about this, as the notice was in fact sent to an officer authorised by the Secretary of State (the Appeals Officer – see the GAPS record). If that is so, the notice is sent or given only when an authorised officer receives it. I did not hold the oral hearing directed in part to hear argument on this issue, but on consideration I accept the approach taken by the Secretary of State to this regulation as applied to regulation 53(4).

"within one month"

15. The next issue is when "within one month" ends. In the first submission, the Secretary of State's representative drew attention to CIS/550/1993 and R(S) 6/63, and accepted those authorities as establishing, in my view correctly, that "month" means "calendar month", and that the period of a month does not include the date of notification itself. That is consistent with the general view taken in the law, as evidenced by rule 6.7 of the Civil Procedure Rules and the case of Radcliffe v Bartholemew [1892] 1 QB 161, to which I drew attention in my directions. The period under regulation 53(4) is a clear calendar month. In other words, if the decision notice was sent on 24 July, the application is properly made if made by the end of 24 August. I express concern that the standard form leaflet sent in this case appears to imply that the month starts on the day of giving the decision, not the day after giving the decision, as the Secretary of State accepts.

"may apply in writing to the chairman"

16. The next issue is when a party applies in writing to the chairman. Here again, regulation 2 causes problems because an applicant cannot apply directly to a chairman or single member. GAPS 173/97 deals with that administratively by the following standard passage:

If you require a statement which explains the tribunal's findings on questions of fact and its reasons for the decision, I must receive your request by .

refers to the field from the GAPS record fed automatically into the standard letter. I do not know what date would have been fed in on this case, or the details of the computer programme on which it is based. However, GAPS 173/97 was suppressed and not sent, so the appellant did not have that guidance. Instead she received the notice in the papers, quoted above, telling her that "I" (unidentified) "must receive your application not later than one month from the date you are given the decision."

17. The GAPS formulation and the wording of the leaflet gives me concern because they do not appear to be in accordance with the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Nor does the standard form (Interlocutory referral) used by the clerk to ask the chairman for a decision on a statement, quoted in paragraph 6 above. GAPS 173/97 (and I assume also the decision notes just referred to) requires notice to be given to the clerk to the tribunal and not the chairman, and refers in all cases to the date of receipt of that notice. The standard form interlocutory notice also refers to when the notice is received.
18. Reference to receipt of notice, rather than sending notice, must be based on regulation 2(a), rather than regulation 2(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. But regulation 53(4) requires that the notice be sent to the chairman or single member. The tribunal chairman is not named in regulation 2(a). But the express wording of regulation 2(a) is that it applies only "where, by any provision of the Act or these Regulations, any notice … is required to be given or sent to the clerk to the appeal tribunal". Regulation 53(4) does not require this, nor does any other provision of the Act or Regulations. Nor can it be argued either consistently with judicial independence or with the view taken by the Secretary of State of regulation 2 (noted above) that the chairman is "an officer authorised by the Secretary of State". It follows that notice to the chairman or single member under regulation 53(4) is, if sent by post, given when the letter is posted to the appropriate address. While it is obviously administratively convenient that the notice be sent to the clerk, as agent for the chairman, that does not change the underlying notice rule. It is for that reason that I express concern about the standard forms and practices being used by the Appeals Service in applying regulation 53(4), as they appear to be based on the wrong notice rule.

The time limit rule in summary

19. An applicant wishing to apply for a full statement has a full calendar month starting on the day after the day (or the latest of the days, if more than one) on which the decision notice is issued to all parties in which to apply in writing for a full statement. To meet the time limit, the applicant must either hand in a written application at the appropriate address, or post it by regular post to that address by the end of that day. For example, if a decision notice is sent out by the clerk on 26 July, then an applicant has until the end of 26 August to give it, or post it, to the right address.

Application to this case

20. Applying that rule to this case, I have no evidence before me of precisely when the decision notice was sent to the appellant, nor whether it was sent to the Secretary of State. As the notice was sent to the appellant, and no point has been taken by the Secretary of State, I am prepared to assume it was sent at the same time to both parties. That is likely to be on 26 July. There is no evidence that it was earlier than that date, but it is likely that it was not after that date, so I accept that the month within which notice could be given started on 26 July. It therefore ended on 26 August. The appellant's notice was received by the Appeals Service, on redirection by the Benefits Agency, on 28 August, having been received by the Benefits Agency on 25 August. As 25 August 2000 was a Friday, I assume it must have been sent on to the Appeals Service on that day to be received the following Monday. It was sent to the chairman at the correct address on 25 August. It was in time.
21. The chairman should have issued a statement of facts and reasons. He did not (although that is not his fault). Given that the error that led to the chairman not being asked to give a full statement in this case was at least in part an error by tribunal clerks, and therefore by the Secretary of State, fairness requires that the decision of the tribunal must be set aside for failure to produce a statement. I do not accept the submissions of the Secretary of State in these circumstances that the notice requesting a full statement was "probably" sent within the time, because I find that it was so sent. Turning briefly to the substance of the case, I am also not persuaded by the submissions of the Secretary of State that the question whether the appellant could comply with the all work test is beyond doubt, and direct a rehearing.
22. The appellant was not represented in this appeal, and chose not to appear at the tribunal. She is strongly advised, before the appeal comes for rehearing, to consider obtaining the help of a Citizen's Advice Bureau, welfare rights office, solicitor, or other professional adviser in connection with her appeal, and also to consider asking for, and attending, an oral hearing of the tribunal. Only if she attends can the tribunal consider her own evidence about why the previous award of incapacity benefit was ended on 28 March 2000.

Date: 28 June 2001 (signed) David Williams

Commissioner