UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CA_4297_2004 (22 August 2005)

CA/4297/2004

Decision

1. Leave to appeal having been granted by Mr Commissioner Bano on 4^th January 2005, this appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(b) of the Social Security Act 1998 I set aside the decision of the Birmingham tribunal made on 28^th July 2004 under reference U/04/024/2004/04225. I refer the matter to a completely differently constituted tribunal for a fresh hearing and decision in accordance with the directions given below. I regret the delay in dealing with this matter but the file was not passed to me until 1^st August 2005. I refer the matter for a fresh hearing because it seems to me that the procedure adopted in this case has meant that justice has not necessarily been seen to have been done and a fresh hearing will redress any justifiable grievance on that basis.
2. The claimant should consider requesting the tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence, including the evidence referred to below. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.

Background and Procedure

3. My decision is based on procedural matters and I do not propose to go into any great detail about the substantive facts. The claimant was born on 15^th April 1934 and has had difficulties with arthritis and with breathing. He had been entitled to a fixed period award of lower rate attendance allowance (daytime needs) from 7^th July 2002 to 6^th July 2004. On 20^th February 2004 the Secretary of State refused to renew an award of attendance allowance with effect from 7^th July 2004. On 11^th May 2004 the claimant appealed to the tribunal against this decision of the Secretary of State.
4. The tribunal considered the matter on 28^th July 2004 and confirmed the decision of the Secretary of State. The claimant attended, but was not represented at, the hearing. The record shows that a copy of the decision notice was issued to the claimant on the day of the hearing. In a letter to the tribunal Appeal Service dated 13^th August 2004 and received on 16^th August the claimant indicated his dissatisfaction with the decision and requested a copy of the statement of the reasons for the tribunal's decision. This document is usually referred to as "the full statement" to distinguish it from the decision notice and the record of proceedings. These matters are dealt with in regulation 53 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, to which I make further reference below.
5. The full statement was signed by the chairman of the tribunal on 26^th August 2004 and was issued to the parties the following day. Confusingly, the date of the tribunal hearing is wrongly given on the full statement as 11^th May 2004. That was in fact the date that the claimant appealed to the tribunal. As I have stated, the tribunal hearing was on 28^th July 2004.
6. In a further letter to the tribunal Appeal Service dated 16^th September 2004 and received on 20^th the claimant again indicated his dissatisfaction with the decision, this time in some detail. This letter was treated, quite properly, as an application for leave to appeal to the Commissioner against the decision of the tribunal. The application was not put before the chairman of the original tribunal but was referred to the District Chairman of the tribunal (see below for the legal status and powers of the District Chairman). The District Chairman did not make a determination at that stage but on 24^th September 2004 directed that the papers be sent back to the chairman of the tribunal and that the clerk to the tribunal should:

"Ask if he could please add a paragraph explaining why [attendance allowance] has not been allowed and renewed i.e. (if possible) why it was granted last time and not this".

7. On 6^th October 2004 the chairman of the original tribunal drafted a 7-paragraph note in response, which he signed on 27^th October. Very little of this actually dealt with the point raised by the District Chairman; most of it expanded on the general reasons for the decision, but reference was also made to the fact that since the earlier award the claimant had had an operation in connection with the collapse of his right lung. The claimant was given the opportunity to make any further comment, which he did in a letter dated 4^th November 2004.
8. On 17th November 2004 the District Chairman refused leave to appeal without giving any reasons, and the claimant subsequently renewed his application before the Commissioner. Leave to appeal was granted on 4^th January 2005 by Mr Commissioner Bano, who stated: "The findings of fact in the statement of reasons were inadequate and it is arguable that the chairman did not have power to issue a supplementary statement in response to the district chairman's direction".
9. The Secretary of State submits that there is no statutory power for a chairman to supplement a statement of reasons at a later date but supports the decision of the tribunal on the basis of the adequacy of the original full statement and a consideration of the facts. Reference is made to the decision of Mr Commissioner Jacobs in CDLA/1807/2003 and the Secretary of State argues (correctly in my view) that the present case is to be distinguished from that case.

Legal Provisions – The Full Statement

10. So far as is relevant, regulation 53(4) of the 1999 regulations provides that:

53(4) A party to the proceedings may apply in writing to the clerk to the tribunal for a statement of the reasons for the tribunal's decision … and following that application the chairman … shall record a statement of the reasons and a copy of that a statement shall be given to every party to the proceedings as soon as may be practicable.

11. The provision of the statement is important, both because it explains to the parties why the tribunal made the decision that it did make, and because it is relevant to the question of appeal from the tribunal to the Commissioner. Subject to limited exceptions, it is necessary to have a copy of the full statement in order to exercise the right to apply for leave to appeal to the Commissioners. So far as is relevant, regulation 58 of the 1999 regulations provides as follows:

58(1) An application for leave to appeal to a Commissioner from a decision of an appeal tribunal shall-

(a) be sent to the clerk to the appeal tribunal within the period of one month of the date of the applicant being sent a written statement of the reasons for the decision against which leave to appeal is being sought; and

(b) have annexed to it a copy of that written statement of the reasons for the decision.

Legal Provisions – The District Chairman

12. Chairmen of tribunals are referred to in the legislation and regulations as "legally qualified panel members". Most chairmen of tribunals are fee paid, on the basis of receiving a fee for each day of sitting. Sometimes they are referred to as "part time chairmen" although this is not quite accurate. Some chairmen are salaried chairmen, who may be full time or part time but who are often referred to as "full time chairmen". A small number of chairmen, one in each region, are known as a "Regional Chairmen" but most salaried chairmen are known as "District Chairmen" because they supervise the judicial work in a particular district.
13. Section 14(10)(a) of the Social Security Act 1998 provides that there is no right of appeal from a tribunal to a Commissioner without the leave of the person who chaired the tribunal, or in prescribed cases the leave of such other person as may be prescribed. (Section 14(10)(b) provides for leave to be given by a Commissioner.)
14. Section 13 of the Act applies where an application has been made to a person under section 14(10)(a) for leave to appeal from a tribunal to the Commissioner. Section 13(2) provides:

13(2) If the person considers that the decision is 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.

15. Regulation 58(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides:

58(6) Where an application for leave to appeal against a decision of an appeal tribunal is made –

(a) if the person who … was the chairman of the appeal tribunal when the decision was given was a fee-paid legally qualified panel member, the application may be determined by a salaried legally qualified panel member; or

(b) if it is impractical or would be likely to cause undue delay for the application to be determined by whoever … was the chairman of the appeal tribunal when the decision was given, the application may be determined by another legally qualified panel member.

16. Thus the powers of the District (and Regional) Chairmen in this context are to consider (and grant or refuse) applications for leave to appeal against decision of tribunals they or any other chairman has chaired, or to set aside the decision and refer the case where they or any other chairman has chaired the tribunal. In practice, the power under section 13(2) is usually exercised by a District Chairman.

Conclusions on the Above Provisions

17. On the face of the regulations there is simply no provision for a further or additional or alternative or substitute statement of reasons to be issued by the chairman of the tribunal and there are no provisions for any other chairman to require that this be done.
18. There are good policy reasons why there should be no such provisions. If there were, there could be confusion as to when the time limit for applying for leave to appeal should run. There would be difficulty in securing that the subsequent statement of reasons was truly that of the whole tribunal and not that of the chairman alone (and this was a point made by Mr Commissioner Jacobs in CDLA/1807/2003). There would be a danger that the District chairman or whoever requested the further reasons would actually be introducing into the reasoning an issue never raised before the tribunal or on which the parties had had the opportunity to comment, and this would not be consistent with the duty to act fairly and in accordance with the rules of natural justice (or, indeed, in compliance with article 6 of the European Convention on Human Rights).

The Barke Case

19. In Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578 the Court of Appeal considered the power of the Employment Appeal Tribunal ("EAT") to invite the employment tribunal which made the decision under appeal to the EAT, to clarify, supplement or give its written reasons before the EAT proceeds to a final determination of the appeal. This power was incorporated into the Employment Appeal Tribunal Practice Direction 2004. The Court of Appeal held that the practice was authorised by the provisions of rule 30 of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. The Court of Appeal also concluded that even in the absence of rule 30 the EAT would be acting lawfully in pursuing the above practice.
20. However, that decision of the Court of Appeal did not deal with the powers of the employment tribunal itself (that is, the tribunal from the decision of which the appeal to the EAT lies). It seems to me that the decision has no bearing on the powers of the chairmen of the tribunal with whom the appeal before me is concerned. It is not necessary for me to comment in this decision on the powers of Social Security Commissioners when considering applications or appeals from such tribunals, and I do not do so explicitly, although I recognise that there are implications of what I am deciding.
21. The Court of Appeal in Barke was influenced by the considerations set out by Lord Phillips, as Master of the Rolls, in English v Emery Reimgold & Strick Ltd [2002] EWCA Civ 605 at para 24:

"We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite at the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons … an appeal followed by a rehearing will involve a hideous waste of costs".

22. The underlining is mine. It is not for me to comment on the balance of considerations in employment cases. However, as far as concerns the typical case that comes for a decision on an application for leave to appeal to the Commissioner, it seems to me that the balance goes the other way from that which the Court of Appeal decided in relation to employment appeals. Most (although not all) appeals to the Commissioner (after the grant of leave) are decided speedily without oral hearings and on the basis of relatively brief written submissions. If the case is sent back to the tribunal any waste of costs will be relatively limited and certainly not "hideous. A chairman considering an application for leave to appeal who is unhappy with the reasons given by the tribunal can set the decision aside and refer it under section 13(2) without even the troubling the Commissioner, and this procedure is relatively efficient in resource terms. Thus, in this kind of case I would give priority to the considerations in the underlined words from the judgment of Lord Phillips.

H. Levenson

Commissioner

22^nd August 2005