UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CF_741_2006 (30 June 2006)

CF/741/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeal. I set aside the decision of the Bedford appeal tribunal dated 12 September 2005 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2. The claimant appealed to the appeal tribunal against a decision superseding an award of child benefit and deciding that £554.85 had been overpaid and was recoverable from her. It appears that she did not disagree with the supersession and merely challenged the recoverability of the overpayment on the ground that she had not failed to disclose the material fact but had actually reported it. I infer from her appeal to me that she was unsuccessful. I am obliged to draw that inference because the Appeals Service lost both the decision notice and the record of proceedings and when the claimant, within the prescribed time, expressed her desire to appeal and requested a statement of reasons, the chairman said that she was unable to provide one without the record of proceedings. By then some two months had elapsed since the hearing. She suggested that the claimant should "request set-aside action be taken". Ideally such a course of action ought to be possible but I am doubtful that regulation 57(1)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) permits setting aside in these circumstances and section 13 of the Social Security Act 1998 certainly does not because, absurdly in my view, a chairman has no power to grant leave to appeal in the absence of a statement of reasons and therefore cannot set a decision aside instead of giving leave (see my decision in CDLA/1685/2004 where I gave fuller consideration to this issue). Consequently, the claimant now appeals against the tribunal's decision with my leave.
3. When I granted leave to appeal, I suggested that the appeal would have to be allowed and the case remitted for rehearing. Her Majesty's Revenue and Customs have not commented. The claimant has submitted that the case should "be thrown out".
4. The appeal must be allowed because the claimant was entitled to a statement of reasons following her request within the prescribed time. It was an error of law not to provide the statement, particularly as, without such a statement of reasons, she could not properly consider exercising her right to apply for leave to appeal. She could not do that because, in this case, the mere fact that the appeal to the tribunal was dismissed is not sufficient to show that the tribunal erred in law. Her Majesty's Revenue and Customs had an arguable case. In those circumstances, given that they were not to blame for the lack of a statement of reasons, it would be unfair for me to direct that their case "be thrown out". On the other hand, the claimant also had an arguable case and I cannot merely give a decision to the same effect as the tribunal's but provide reasons. The only fair way of resolving this case is to direct that a different tribunal now hear the claimant's case afresh. Except for the fact that there has been considerable delay, neither party is then prejudiced.

(signed on the original) MARK ROWLAND

Commissioner

30 June 2006