UK Social Security and Child Support Commissioners' Decisions

DECISION OF THE PENSIONS APPEAL COMMISSIONER
1. My decision is given under section 6A(4)(a)(i) of the Pensions Appeal Tribunals Act 1943:

I SET ASIDE the decision of the Manchester Pensions Appeal Tribunal, held on 11 January 2007 under reference ENT/00701/2006, because it is erroneous in point of law.

I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISION is that the tribunal had no jurisdiction to hear the appeal.

REASONS
2. This is an appeal brought by the Secretary of State with the leave of the President of the Pensions Appeal Tribunal. The claimant has made short observations, but has not addressed the issues raised by the appeal. He has asked for an oral hearing, but I refuse that request as the law is clear. The Secretary of State has made detailed observations on the issues raised.

The issues

3. There are two issues in this case. Did the tribunal have jurisdiction to hear the appeal? If it did not, did it have power so to decide?

The relevant history

4. The claimant served from 21 February 1952 to 20 August 1959. He submitted a claim for a war pension in respect of deafness in February 1999. This was rejected on 23 May 2000. On 23 May 2003, he submitted an appeal form in respect of that rejection. This was referred to a Pensions Appeal Tribunal which, on 2 July 2003, allowed the appeal to be brought.
5. There then followed correspondence between the advisers to the Veterans Agency and the President of the Pensions Appeal Tribunal. The former argued that the appeal was too late to be admitted. The latter's view was that any mistake could only be corrected by judicial review. The appeal was eventually listed for hearing. It was heard on 11 January 2007 by a tribunal chaired by the President and was allowed in part.
6. Despite the fact that the Secretary of State had submitted that the tribunal had no jurisdiction, the tribunal did not refer to the issue in its reasons. It only dealt with issues of entitlement.

Adequate reasons

7. The tribunal was under a duty to provide reasons for its decision. The Secretary of State raised the issue of the tribunal's jurisdiction and the tribunal was obliged to deal with that argument. It did not do so and thereby went wrong in law. The President, in accordance with what appears to be the common practice in the Pensions Appeal Tribunal, only explained why the tribunal had accepted jurisdiction when the Secretary of State applied for leave to appeal. I shall return to this practice in CAF/2150 and 2151/2007, in which I am holding an oral hearing in December 2007.
8. I do not need to rely on inadequacy reasons to set aside the tribunal's decision in this case, because it made a more fundamental error.

The legislation

9. The legislation governing the time for making an appeal and the making of late appeals is found in and under section 8 of the Pensions Appeal Tribunals Act 1943. No time limit was set until amendments were made under the Child Support, Pensions and Social Security Act 2000. This case fell within the transitional provisions of section 58(3)(a) and (4) of the 2000 Act. They apply because the claim had been rejected before the amendments came into force on 9 April 2001. The effect of these provisions was to allow 12 months in which to appeal, the time to run from the date the amendments came into force.
10. The Pensions Appeal Tribunals (Late Appeal) Regulations 2001 were made under the amended section 8 of the 1943 Act. They came into force on 9 April 2001 and allowed the time for bringing an appeal to be extended by a maximum of 12 months provided that prescribed circumstances were satisfied.
11. Remember that the claimant's appeal was not lodged until May 2003.

Why the Pensions Appeal Tribunal allowed the appeal to be brought

12. The chairman used what is obviously a standard form to record the tribunal's decision:

'3. The Secretary of State's decision was notified on 23/5/00 and the Appeal was received by the Secretary of State on 23/5/03.

4. The application relates to an entitlement decision made before 9 April 2001. The law allows a claimant until 8 April 2002 to lodge an appeal against the decision. The law also enables time to be extended, so that a late appeal can be brought, if a reasonable excuse for the period of delay is shown.

5. The grounds of the Tribunal's decision are that:

The circumstances put in the application do establish a reasonable excuse for the whole period of delay.'

13. The claimant's appeal was brought too late. That is clear from the dates quoted by the chairman. I do not know how the tribunal made the mistake it did. It may simply have misunderstood the law. Or it may have been misled by the way that the form is constructed. Or it may be the view of the Pensions Appeal Tribunal, through its President, that time could be extended to allow the appeal to be brought in the circumstances of this case. Whatever the reason, the tribunal was wrong in law to allow the appeal to be brought.

Analysis

14. The earlier tribunal had no power to allow the claimant to bring his appeal. That is beyond doubt on the legislation.
15. A time limit for bring proceedings is a limit on the tribunal's statutory jurisdiction: Rogers v Bodfari (Transport) Ltd [1973] ICR 325. Consequently, the earlier tribunal acted outside its jurisdiction.
16. However, could the later tribunal simply decide on its jurisdiction regardless of that decision or did it bind it until set aside on judicial review?
17. There is abundant authority that the second tribunal was not allowed to exercise the jurisdiction that the earlier tribunal purported to confer upon it.
18. I have considered three decisions by Commissioners.
19. In R(I) 14/65, leave to appeal to a Commissioner was given by a medical appeal tribunal on an application that was made outside the maximum time allowed. The Commissioner held that the purported grant of leave 'has no meaning' (paragraph 7).
20. In R(I) 7/94, a decision of a tribunal on an appeal was subject to an application that it be set aside. The application was first refused by a tribunal, but was then referred to another tribunal, which purported to allow it. The appeal was then reheard. A Tribunal of Commissioners held that the application had been determined when it was refused, so that there was no longer an outstanding application when the next tribunal purported to allow it. In the result, there was no jurisdiction to rehear the appeal. In its analysis, the Tribunal of Commissioners commented that a tribunal only had jurisdiction if it had a valid application (paragraph 30) and in order to be valid an 'application must also be made within the time limit prescribed' (paragraph 31).
21. In R(SB) 1/95, a tribunal chairman accepted an appeal to a social security appeal tribunal on an invalid application – the date of the decision under appeal was misstated. The Commissioner held that, as a result, the tribunal had no jurisdiction to hear the appeal, notwithstanding the lack of objection by either the adjudication officer or the claimant (paragraphs 12 and 13).
22. I have also considered three decisions of the Court of Appeal to the like effect.
23. In R v Secretary of State for the Home Department, ex parte Choudhary [1978] 1 WLR 1177, an immigration officer had stamped a passport with indefinite leave to remain. The Court of Appeal decided that stamp was 'clearly invalid', as the officer had no power to put the stamp on the passport or to give indefinite leave (page 1182 D-E and F-G).
24. In Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295, the Immigration Appeal Tribunal dismissed an appeal, but the chairman purported to set aside its decision. When the case came on for rehearing, the new Immigration Appeal Tribunal decided that it did not have jurisdiction. This was confirmed by the Court of Appeal on the grounds that (i) the rules governing the Appeal Tribunal did not authorise a chairman to set aside a decision and (ii) there was no power for a tribunal to review its own decisions unless authorised by statute. This deprived the second Appeal Tribunal of any jurisdiction whether or not 'a purported decision plainly made without power can be ignored or must first be quashed by the High Court': see the penultimate paragraph in Sedley LJ's judgment on page 2302. In other words, the tribunal had no jurisdiction even if the setting aside order remained valid until quashed.
25. Finally, in Carter v Ahsan [2005] ICR 1817, the Employment Appeal Tribunal directed the rehearing of the claimant's cases before an employment tribunal. The tribunal reached a conclusion, but withheld promulgation to await the outcome of an appeal to the Court of Appeal in another case. The Court held in that case that an employment tribunal had no jurisdiction to deal with the key issue raised by the claimant. Nonetheless, the tribunal promulgated its decisions. Those decisions were eventually considered by the Court of Appeal, which undertook a detailed analysis of the nature of jurisdiction. The Court held that the tribunal had had no jurisdiction once the Court of Appeal had given its decision in the other case and was 'under a positive duty of its own to reconsider its jurisdiction' at that point (Rimer J at paragraph 75).
26. In each of those cases, the reasons were expressed slightly differently. That reflects the circumstances of the particular cases and, no doubt to some extent, the preferences of the Commissioners and judges. However, they are united by a clear thread. A tribunal must have jurisdiction if it is to hear an appeal. It cannot acquire that jurisdiction by an earlier mistake. This does not give the later tribunal the power to set aside or quash the earlier decision. However, it does mean that the later tribunal will not be allowed to accept the jurisdiction that has been erroneously conferred on it.

The President's comment

27. At the leave stage, the President of the Pensions Appeal Tribunal commented:

'if the Secretary of State's submission … is correct, it would appear to be the case that in every single instance where a Late Appeal is admitted by a Tribunal so that the substantive appeal then comes before a later Tribunal, the later Tribunal must reconsider its jurisdiction and in effect revisit the Late Appeal decision on each single occasion. That cannot be a desirable course of events.'

28. There are two responses to that comment. One is that, however undesirable the course of events may be, it has to be borne with fortitude in view of the decisions that I have cited. The other may bring more comfort. This is that the later tribunal need only consider issues that deprived the earlier tribunal of jurisdiction. It need not consider issues that were within the earlier tribunal's jurisdiction but perhaps wrongly decided, such as whether there truly were 'exceptional circumstances' for the purposes of the 2001 Regulations: see paragraph 32 of R(I) 7/94 and the detailed discussion in Carter v Ahsan. And for practical purposes, a later tribunal will only reconsider an issue of jurisdiction if it is raised by one of the parties or is readily apparent from the papers.

Disposal

29. I allow the appeal and set aside the tribunal's decision. There is only one decision that the tribunal could properly have given, which was to find that it had no jurisdiction. I have substituted that decision.
30. The claimant may feel that he has been deprived, through a mere technicality, of the benefit conferred on him by the tribunal on 11 January 2007. I understand why he might feel that way. However, the jurisdiction of a statutory tribunal is not a technicality. It is a matter of constitutional importance for tribunals that are statutory in their authority to act only within that authority.

Signed on original on 18 October 2007

Edward Jacobs Commissioner