UK Social Security and Child Support Commissioners' Decisions

 
THE SOCIAL SECURITY COMMISSIONERS Commissioner's Case No.: CDLA 652 2004 SOCIAL SECURITY COMMISSIONERS (PROCEDURE) REGULATIONS 1999

Name:

Tribunal: Coventry

Tribunal Date: 23 October 2003

Tribunal Register No:

NOTICE OF DETERMINATION OF APPLICATION FOR LEAVE TO APPEAL

No written statement of the reasons for the tribunal's decision was obtained and so the application to the chairman was not made within the specified time and was rejected. I also do not accept the application as I consider that there are no special reasons for doing so.

REASONS
1. This application relates to an original decision of the Secretary of State refusing a claim for disability living allowance on 25 April 2002. This went to an appeal tribunal on 10 December 2002. I granted permission to appeal from, and with the subsequent consent of both parties set aside, that decision on 24 April 2003 in CDLA 681 2003.
2. The appeal was reheard by another tribunal on 23 October 2003 at an oral hearing with both parties represented. There is a full record of proceedings of the hearing. That decision was made on the day and issued to the parties on the day.
3. On 8 December 2003 the claimant's representative asked for a full statement. The representative acknowledged that the request was late, and indicated the reason. This was that the appellant had gone abroad without telling the representative when the representative had contacted him about getting the statement. The claimant had only recently returned. A formal request form was enclosed signed by the claimant and the representative. A chairman refused the application for the following reason:

"The appellant was represented at the hearing and so the representative would have been able to apply for a full statement under those circumstances knowing that the applicant was abroad."

4. The application was renewed before the Commissioner. The representative argued that the delay was because the organisation of which the representative was a member had followed their internal procedures in getting the claimant's separate consent to obtain the statement, and that this was in accordance with CSDLA 2 2001 (starred under the former system as *109/01).
5. The problem in CSDLA 2 2001 was that two separate applications for permission to appeal had been made about the same tribunal decision in the name of the claimant, one by a welfare rights officer and one by a firm of solicitors. The application by the welfare rights officer was in time, and the application by the solicitors was late. One had been refused by a tribunal chairman, but it was not clear which one. The welfare rights officer had asked for the statement on behalf of the claimant, whom he had represented at the tribunal. The Commissioner decided after detailed consideration that the welfare rights officer was not the representative for the purposes of the appeal. But at no time in the very detailed consideration of what happened in that case, and of the authority of various people to take various actions, did anyone question the right of the welfare rights officer at the tribunal to obtain a statement of reasons without further reference to his client and on the basis of the authority produced to the tribunal for the officer to take the case before it.
6. Of course, the authority to act for a client depends entirely on what is agreed between the client and the representative. But I see nothing in CSDLA 2 2001 that requires a further express authority to be produced by a representative, or be obtained from a client, before a statement of reasons is requested. Nor do I see any problem in law in the appeals tribunal accepting an application for a statement of reasons from a representative notified to the tribunal as representative by a client where there is no indication that the representative has a limited authority, or that the authority has been revoked. Regulation 33(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides that an appeal to an appeal tribunal may be made either by a person with a right of appeal or "where the person … has provided written authority for a representative to act on his behalf, by that representative". Regulation 49(8) separately allows anyone to be represented at a tribunal and gives the representative "all the rights and powers to which the person whom he represents is entitled".
7. I have not seen the actual authority in this case (and I am not sure if the appeal tribunal has). But I see no reason why, in the light of these rules, the notification sent to the appeal tribunal by the claimant on 10 July 2002 on the standard Appeals Service enquiry form (in answer to question 5: "If you already have a representative, please give their name and full address") should be regarded as not covering a request for a statement of reasons under regulation 53.
8. Further, if the representative's organisation consider it appropriate to have a procedure separately authorising a request for a statement, then it should also have procedures in place to ensure it can make timely applications with authority. That is aside from the fact that it might reasonably be expected that if the claimant wanted to appeal, then he would tell his representative if he was going away. The time limits under regulation 53 are well known to representatives, and the limited extension available under regulation 54 also well known.
9. Regulation 9 of the Social Security Commissioners (Procedure) Regulations 1999 gives me power to admit this application only if there are special reasons. Are there any special reasons? In CSDLA 2 2001 the Commissioner also discussed the application of "special reasons" to that case. It is of the essence of a power to grant permission only for special reasons that this is a discretion to be applied judicially in individual cases, and I would go no further than emphasising that it asks the person exercising the discretion to look to see if there is anything special about the case. The Commissioner in that case did so by reference to both the substance of the case and the way the application was made.
10. Turning to this application, I do not accept that the procedures adopted by the representatives and applied to the case constitute special reasons, for the reason identified by the chairman. Are there any other special reasons in the application? This was, as stated, a rehearing by the tribunal after a Commissioner's decision setting aside a previous tribunal decision on a consent basis and giving guidance on the new decision. There was an oral hearing with both parties represented. The record of proceedings indicates that it was a full hearing. In the absence of a statement, I cannot consider the issue of adequacy of the tribunal decision ((R(IS) 11/99)). There is no argument, and no obvious sign, that there was any unfairness about the procedure at the tribunal. The tribunal indicated in its decision that the claimant's condition had deteriorated since the decision under appeal but – rightly given sections 8 and 12 of the Social Security Act 1998 – that it could not take this into account. I can see nothing approaching a special reason in this case.
11. The representative will be aware of the claimant's rights to make any appropriate fresh application to increase the level of disability living allowance payable if the claimant's condition is worse.

David Williams

Commissioner

17 March 2004

[Signed on the original on the date shown]