UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CSI_1256_2001 (15 April 2001)

 


DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner's Case No: CSI 1256 2001

1. The Commissioner has no jurisdiction, albeit that leave to appeal to a Commissioner was granted by a Commissioner. This is for the reasons set out below.
2. The situation is therefore this. The setting aside dated 2 May 2001 by a district chairman acting under s.13(2) of the Social Security Act 1998 (s.13(2)), of the decision of the tribunal sitting in Glasgow on 21 December 2000 (the tribunal), remains operative and must be implemented. The said tribunal decision having been set aside, the claimant's appeal dated 4 February 2000 to a tribunal remains outstanding. It requires resolution by a fresh tribunal hearing.

Background

3. On 1 September 1999 the claimant claimed disablement benefit in respect of prescribed disease number D7, known as occupational asthma. The decision-maker made an adverse decision on 11 January 2000 which is the subject of the claimant's appeal to a tribunal.
4. When the case came before the tribunal it confirmed the Secretary of State's decision and dismissed the appeal.
5. Now represented, by letter dated dated 16 January 2001 the claimant asked for a set aside. The same district chairman (DC1) who had chaired the tribunal hearing made a determination, under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (regulation 57), refusing such set aside. It was indicated to the claimant on the notice of determination of the setting aside application that she should consider whether or not she wished to apply for leave to appeal.
6. Presumably the claimant then applied for leave to appeal to the Commissioner, although a copy of an application at that stage is not in the file. However, the letter dated 16 January 2001 which asked for set aside said that, if that application was not accepted, it was wished to request leave to appeal to the Commissioner and set out relevant grounds. This must have been resubmitted because a referral was made to DC1 on 15 March 2001 noting that a leave to appeal application was attached.
7. On 2 May 2001, DC1 set aside the tribunal decision under s.13(2) stating that the decision was erroneous in law because the record of proceedings had been lost and this made it appropriate to set the tribunal decision aside.
8. On 30 May 2001 a further referral was made to DC1. This pointed out that the original file had now been found containing the record of proceedings and he was asked whether the appeal should still be relisted for hearing. DC1 directed in the affirmative, saying that the decision had been made.
9. On 9 August 2001 the appeal came before a differently constituted tribunal, chaired by DC2. That tribunal adjourned for the file to be returned to DC1:-

" … for him to consider an appropriate decision on the leave to appeal application."

It was recorded that the adjournment had been ordered because:

"[DC1] set the earlier decision aside because of a lack of a record of proceedings. A record of proceedings has now been found and is now on file."

10. On 27 August 2001 DC1 issued the following determination:-

"On reconsideration, I withdraw the decision of 2/5/01 setting the tribunal decision of 21/12/00 aside. This decision was based on clear error of fact, in that it proceeded on the basis that the record of proceedings had been lost, when in fact this is not the case.

I have reconsidered the application for leave to appeal and decided that it is appropriate to refuse this application."

11. Having been informed that the chairman had refused permission to appeal to the Commissioner, the representative on the claimant's behalf renewed the application to the Commissioner. The repeated grounds of appeal asserted inadequacies on the part of the tribunal. The Commissioner granted leave to appeal without giving reasons and the Secretary of State submits that the tribunal mis-applied the relevant legislation.

My decision and reasons

Structure governing the making of an appeal from a tribunal to a Commissioner

12. The relevant statutory criteria are set out in ss.13 and 14 of the Social Security Act 1998 (the Act). So far as applicable to this case, they read:-

"13.- (1) This section applies where an application is made to a person under section 14(10)(a) below for leave to appeal from a decision of an appeal tribunal.

(2) If the person considers that the decision was erroneous in point of law, he may set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal.

(3) If each of the principal parties to the case expresses the view that the decision was erroneous in point of law, the person shall set aside the decision and refer the case for determination by a differently constituted tribunal.

…………..

14.- (1) Subject to the provisions of this section, an appeal lies to a Commissioner from any decision of an appeal tribunal under section 12 or 13 above on the ground that the decision of the tribunal was erroneous in point of law.

……….

(7) If each of the principal parties to the appeal expresses the view that the decision appealed against was erroneous in point of law, the Commissioner may set aside the decision and refer the case to a tribunal with directions for its determination.

(8) Where the Commissioner holds that the decision appealed against was erroneous in point of law, he shall set it aside and –

(a) he shall have power –

(i) to give the decision which he considers the tribunal should have given, if he can do so without making fresh or further findings of fact; or

(ii) if he considers it expedient, to make such findings and to give such decision as he considers appropriate in the light of them; and

(b) in any other case he shall refer the case to a tribunal with directions for its determination.

………

(10) No appeal lies under this section without the leave –

(a) of the person who constituted, or was the chairman of, the tribunal when the decision was given or, in a prescribed case, the leave of such other person as may be prescribed; or

(b) subject to and in accordance with regulations, of a Commissioner.

…….."

Powers of the Chairman

13. When a chairman (or a legally qualified panel member under regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) is presented with an application for leave to appeal to a Commissioner, there are therefore three options. He may either set the tribunal decision aside, acting under s.13(2) or s.13(3), or he may decide to grant, or alternatively refuse, leave to appeal. As the Commissioner pointed out in CF/6923/99, setting aside a decision of a tribunal under s.13 is in lieu of it being decided to grant or refuse leave to appeal. Thus (see paragraph 6 of CF/6923/99):-

"…. a decision may not be set aside under [s.13] once the application for leave to appeal has been determined. That is because the person to whom the application for leave to appeal is made ceases to be seised of the matter once the application is determined and the applicant then becomes entitled to bring the matter before a Commissioner by way of a renewed application or an appeal as the case may be."

14. In CSI/559/98, a decision made under the former Social Security (Adjudication) Regulations 1995, a chairman first refused leave to appeal to the Commissioner which was intimated to the claimant and then, on reconsideration in the light of additional information, the chairman granted leave to appeal. At paragraph 10, the Commissioner said:-

"…. the chairman had no jurisdiction to reconsider and reverse his previous decision on the application for leave. Any element of convenience cannot be relied upon in a statutory adjudication system. In any event it is only necessary to consider the chaotic results which would ensue if an initial grant of leave was purported to be able to be reversed in this way." (Commissioner's emphasis)

Did DC1 exceed his powers?

15. In my view, he did. His original instinct, that a decision under s.13(2) had been made and could not be changed, was right. It is unfortunate that a tribunal chaired by DC2 adjourned and referred the matter back to him, leading to a decision which DC1 had no power to make. He was by then functus officio, as he had completed the discharge of his powers and duties as a tribunal chairman.
16. There is no statutory provision allowing a chairman to change a determination under s.13(2). A chairman has no power to withdraw or supersede a decision based on error of fact. Setting aside his earlier determination under regulation 57 would be inappropriate for two reasons. Firstly, there was no application made by a party to the proceedings and secondly such set aside relates only to a decision of an appeal tribunal. There is no comparable provision in the Social Security and Child Support (Decisions and Appeals) Regulations 1999, with respect to setting aside decisions under regulation 57 and correction under regulation 56, to regulation 32 of the Social Security Commissioners (Procedure) Regulations 1999. That last cited regulation specifically provides that the word "decision":-

"… shall include determinations of applications for leave to appeal, orders setting aside tribunal decisions under s.14(7) of the Act and decisions on appeals and references."

17. DC1, having made his decision under s.13(2), had no further role to play. He had no power to set aside that determination nor had he power to consider granting or refusing leave to appeal to a Commissioner

Powers of the Commissioner

18. Under s.14(1) of the Act, an appeal lies to a Commissioner from any decision of an appeal tribunal under s.13. This has no application here. The determination under s.13(2) is not a decision of an appeal tribunal. So s.14(1) must refer to the decision on re-hearing by a tribunal to which the case is remitted following the use of s.13.
19. As the application for leave to appeal to the Commissioner was disposed of by DC1 on 2 May 2001 setting aside the tribunal decision and then referring the case for determination by a differently constituted tribunal, (by a separate re-hearing direction on the same date), the Commissioner has no jurisdiction. No application for leave to appeal was still extant which could be granted or refused. Similarly, I can give no directions to the new tribunal because my powers to do so arise only when I am validly seised of an appeal.
20. I therefore make no comment on the submissions from the parties. Likewise, I have no jurisdiction to make an order under s.14(7) of the Act, as that power arises only when I have an appeal properly before me.

Summary

21. For the reasons set out above, I have no jurisdiction in the case. The practical effect, however, is what the claimant wishes, viz. a remittal to a differently constituted tribunal for a rehearing of her appeal. This arises from DC1's set aside of the tribunal decision under s.13(2), such set aside being dated 2 May 2001.

(signed)

L T PARKER

Commissioner

Date: 15 April 2002