UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CIB_62_2008 (13 June 2008)

 


[2008] UKSSCSC CIB_62_2008 (13 June 2008)

CIB/62/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I refuse the claimant leave to appeal from the decision of the Fox Court appeal tribunal dated 19 July 2006.

REASONS

2. I held an oral hearing of this Application. The claimant was represented by Mr Ahmad Butt of Islington People's Rights and the Secretary of State was represented by Ms Judith Butler of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions. I am grateful to both advocates for their helpful and succinct submissions.
3. On 10 March 2006, the claimant appealed to an appeal tribunal against a decision of the Secretary of State to the effect that he was not incapable of work. He had been diagnosed as suffering from depression and had been treated as incapable of work from 16 August 2005 but an examining medical officer had found no signs of depression on 7 February 2006. The appeal was struck out by a clerk on 19 April 2006, presumably for failure to return the form stating whether or not the claimant wished there to be an oral hearing. It was reinstated by a tribunal chairman on 4 July 2006 and listed for hearing as a paper hearing, which took place on 19 July 2006. The appeal was dismissed. The claimant requested a statement of reasons. This was not produced until 5 October 2006, partly, I suspect, due to the ill health of the chairman. The statement of reasons was issued on 10 October 2006. On 3 November 2006, the Department for Work and Pensions received from the claimant a form GL24 designed for appealing from a decision of the Secretary of State. However, it clearly evinced an intention to appeal against the tribunal's decision. In the grounds of appeal, it was said –

"I do not agree with the decision as I believed that I was to have a trial date for my appeal which even though I rang the appeal section I was not informed otherwise. Also more importantly I was under the impression that I was appealing my income support being stopped as I did not receive/return a medical form so you have not got the info needed."

In fact, there had been a separate appeal in respect of income support entitlement but it had been made late and a tribunal chairman had decided not to accept it for consideration.

4. The form GL24 was eventually received by the clerk to the appeal tribunal on 7 December 2006. I imagine the delay in forwarding it was simply because it will have taken some time for the Department for Work and Pensions to work out what it was that the claimant was challenging. The clerk appears to have treated the form as a late request for the setting aside of the tribunal's decision and, on the same day, it was referred to a chairman on that basis. On 5 January 2007, the clerk notified the parties that the chairman had refused to set aside the decision.
5. There matters lay for some months, during which period the claimant apparently had no income. It is not entirely clear why that was so because he wrote to Jobcentre plus on 28 March 2007 and was given in a response dated 24 April 2007 the number to contact if he wished to make a new claim for either income support or jobseeker's allowance. In any event, he contacted Islington People's Rights in or before June 2007 and, after further correspondence with Jobcentre Plus, they wrote to the clerk to the appeal tribunal in September 2007 to find out what had happened and eventually asked for the case to be put before a tribunal chairman on the basis that the form GL24 had been received by the Department for Work and Pensions within the one-month period permitted for applying to the tribunal for the decision to be set aside.
6. Unfortunately, the tribunal file had by then been destroyed, leaving only the computer "GAPS" record. The chairman was informed by the clerk that the form GL24 had been treated as a late application for the setting aside of the tribunal's decision but was wrongly informed that it "was automatically refused as out of time". In the light of that information, he, not surprisingly, said that it should have been put before a tribunal chairman and, on 6 November 2007, he decided to extend the time for making the application. However, on 30 November 2007, he said that he accepted the evidence of the GAPS record that the claimant had requested a paper hearing and he refused the application. That decision was issued to the claimant on 4 December 2007. On 27 December 2007 (having incorrectly first tried to apply to a Commissioner), the claimant applied to the chairman for leave to appeal against the decision of 19 July 2006. On 4 February 2008, the chairman refused leave to appeal. The claimant now renews the application before me.
7. The first question that arises – one that I confess I overlooked at the oral hearing – is whether I have any power to grant the application. Regulation 9 of the Social Security Commissioners (Procedure) Regulations 1999 (S.I. 1999/1495) provides –

"9.  - (1) An application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.


    (2) Subject to paragraph (3) an application to a Commissioner shall be made within one month of notice of the refusal or rejection being sent to the applicant by the appeal tribunal.


    (3) A Commissioner may for special reasons accept a late application or an application where the applicant failed to seek leave from the chairman within the specified time, but did so on or before the final date.


    (4) In paragraph (3) the final date means the end of a period of 13 months from the date on which the decision of the appeal tribunal or, if later, any separate statement of the reasons for it, was sent to the applicant by the appeal tribunal."

8. The drafting of this regulation is not all that it might be. One difficulty was considered in CIB/4791/2001, where Mr Commissioner Jacobs said –

"13. The final question is whether, the chairman having admitted the late application for special reasons (and having in my judgment had power to do so), I also need to be satisfied that there are special reasons for accepting it. That arises because it is arguable that, under Reg. 9(3) of the Commissioners Procedure Regulations, a Commissioner can only accept and deal with an application where "the applicant failed to seek leave from the chairman within the specified time" if there are special reasons. However, it is in my judgment implicit in Reg. 9(3) that a late application to the chairman which has been accepted (but refused) by the chairman does not need acceptance by a Commissioner in order to make it a valid application to the Commissioner, provided that the chairman had power to accept the application. The need for acceptance by the Commissioner in my judgment only arises where the application has been rejected by the chairman, or has been purportedly accepted but without jurisdiction to do so."

9. A second, minor, difficulty arises because nothing in the either paragraph (2) or (3) says explicitly that an application made to a Commissioner after a tribunal chairman has rejected an application may only be accepted where there are special reasons, but that is generally taken to be implicit in paragraph (3).
10. A third difficulty arises in relation to paragraph (4). The "specified time" for applying to a chairman is presumably the one month specified in regulation 58(1)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991), which generally runs from the date the statement of reasons for the tribunal's decision is sent to the applicant but, by virtue of regulation 58(1A)(b), runs from the date an application for setting aside is refused if the refusal is for reasons other than a refusal to extend the time for making the application. Regulation 58(5) then permits a chairman to consider an application "made within one year of the last date for making an application within that period". It has already been observed in paragraph 11 of CIB/4791/2001 that regulation 58(5) of S.I. 1999/991 and regulation 9(4) of S.I. 1999/1495 are not synchronised so that a Commissioner may admit an application that a chairman would have been bound to reject as being one day beyond the absolute time limit imposed by regulation 58(5) of S.I. 1999/991. Of more relevance here is that regulation 9(4) of S.I. 1999/1495 makes no allowance for the extension of time permitted by regulation 58(1A) of S.I. 1999/991 so that a Commissioner may be precluded from admitting an application in circumstances where a chairman has rejected, but could have accepted, an application.
11. This is important in the present case because the chairman regarded the application for leave to appeal made on 27 December 2007 to be in time by virtue of regulation 58(1A)(b) of S.I. 1999/991, based on his ruling of 6 November 2007 and his final refusal of the application for setting aside on 30 November 2007. The trouble is that he was unaware that a tribunal chairman had already refused the application for setting aside on or before 5 January 2007. Unless a ruling disposing of an application may properly be set aside, it is not possible to make a further ruling on that application. Accordingly, it seems to me that the rulings of 6 November 2007 and 30 November 2007 were invalid.
12. That being so, the application for leave to appeal made to the chairman on 27 December 2007 was not made within the specified time and was made after the final date as defined in regulation 9(4) of S.I. 1999/1495. However, if the refusal of the setting aside application was made in January 2007 and was made on grounds other than a refusal to extend the time for making the application for setting aside, the chairman could have accepted the application for leave to appeal under regulation 58(5) of S.I. 1999/991 and, provided he did extend time, I could determine the application before me under the approach taken in CIB/4791/2001. It seems highly likely that the refusal to set aside the tribunal's decision was made less than a year before the application for leave to appeal, and I am prepared to accept that it is probable that the chairman extended the time for making the application for setting aside before refusing it. Accordingly, the application for leave to appeal made to the chairman was made within the year allowed by regulation 58(5) of S.I. 1999/991. The chairman accepted it for consideration because he believed it to be in time. It seems to me that I should get round the difficulties caused by regulation 9(4) of S.I. 1999/1495 by imputing to the chairman a decision to admit a late application, if I consider that leave to appeal should be granted in this case. That enables me to deal with the case on the basis of the submissions made at the oral hearing, in which I considered the relevance of the claimant's delay to the grant of leave to appeal.
13. There are, in substance, two grounds of appeal. The first is that the tribunal erred in law in hearing the case on the papers when the claimant had asked for an oral hearing and the second is that the tribunal failed adequately to deal with the claimant's challenge to the examining medical officer's report. I do not consider that there is anything in the second ground. The claimant had said that the report did not reflect what was asked of him or his answers and he gave some examples but, if, as the tribunal believed, he had asked that his appeal be dealt with on the papers, it was quite open to the tribunal to take the view that, in the absence of any new medical evidence supporting the claimant and in the absence of any further evidence from him, the substance of the report should be accepted. I do not accept that the apparent shortness of the examination compared with the length of the report was a matter on which the tribunal was required to comment when the issue had not been expressly raised by the claimant. Nor was the tribunal obliged to hold an oral hearing when the claimant had apparently rejected the opportunity of having one. Essentially, this application turns on whether the claimant has any prospects of proving that the case was wrongly listed as a paper hearing and that turns largely on the significance of the tribunal's file having been destroyed.
14. Under regulation 39 of S.I. 1999/991, a claimant must be given an opportunity of asking for an oral hearing of an appeal to an appeal tribunal and is generally entitled to an oral hearing if he or she asks for one. Because a case is usually struck out under regulation 46(1)(d) of S.I. 1999/991 if no response is made to a direction to notify a clerk whether an oral hearing is desired, a file should contain positive evidence either that an oral hearing was requested or that one was not requested. I do not consider that the Tribunals Service can be regarded as bound to keep such material for longer than the clerk is bound to keep a record of proceedings, which is six months from the last judicial action in the case (see regulation 55(3) of S.I. 1999/991). In the present case the last relevant judicial action was the refusal to set aside the decision of the tribunal, notified on 5 January 2007. It is my understanding that it is the practice to destroy files shortly after the end of the period of six months since the last relevant judicial action. The first contact made by the claimant, through his representatives, with the clerk to the tribunal was over eight months after the refusal to set aside the decision. There is therefore no reason to suppose that there was anything improper about the destruction of the papers.
15. The destruction of the papers is important because the file would almost certainly have provided the answer to the claimant's appeal. The GAPS record showed that the case had been listed for a paper hearing but did not show why. The documents (i.e., the form TAS1 or the application for reinstatement) in the file should have proved conclusively either that the claimant had been entitled to an oral hearing or that he had not. If there had not been such a document when there should have been, or if the file had been destroyed prematurely, it would almost certainly have been right to accept the claimant's assertion that he had asked for such a hearing. However, if the file was destroyed quite properly, no such inference in the claimant's favour can be drawn.
16. Moreover, there are reasons for drawing inferences against the claimant in this case. Where documents have been destroyed, reliance may be placed on a general presumption that procedures have been followed properly. That presumption may be rebutted by evidence to the contrary, but the file would not have been destroyed if the claimant had not delayed for over eight months before making any approach to the clerk to the tribunal following the refusal to set aside the tribunal's decision. Where a party's delay causes the destruction of important evidence that would have avoided the need to rely on the presumption that procedures have been followed properly, it seems to me right to insist on strong alternative evidence in order to rebut that presumption, because otherwise that party would have gained an advantage through the delay, since, although the evidence might have supported that party's case, it might equally well have supported the other party's case. A mere assertion is likely to be insufficient to overcome the presumption. Thus, just as the improper destruction of documents may lead to an adverse inference being drawn against the party destroying them, delay that leads to the proper destruction of documents after a due passage of time may result in an adverse inference being drawn against the party who has delayed.
17. Whether there is culpable delay justifying such an adverse inference will depend upon the circumstances of the case. In R(IS) 11/92, the Commissioner held that no presumption was to be made in either party's favour where documents had been destroyed after an appropriate passage of time but that was in the context of an application for review, which could be made at any time. Here, the claimant wishes to appeal and there have been clear time limits of which the claimant will have been given notice. It is apparent from the letter issued on 4 December 2007 that the claimant would have been reminded of the right to apply for leave to appeal in the letter issued on 5 January 2007, assuming that the chairman had extended time as is necessary if I am to have any jurisdiction in this case at all. (If the chairman did not extend time and rejected the application for setting aside because it was late, which it was, the claimant could perhaps have complained that the chairman should in fact have treated the application as an application for leave to appeal rather than an application for setting aside, given that the GL24 was headed as an appeal. Although the chairman would doubtless have refused leave to extend the time for applying for leave to appeal on the same ground as he refused to extend the time for applying for the setting aside, the claimant would have been given information about making a further application to a Commissioner, whereas he might not have been reminded of his right of appeal if the chairman had simply refused to extend the time for applying for the setting aside. However, the claimant was not blameless himself. Had he followed the instructions given to him with the statement of reasons, instead of obtaining the inappropriate form GL24, he would have sent his application straight to the clerk to the appeal tribunal and it would not have been late and so the claimant would have been reminded of his right of appeal had the application been refused.)
18. It is easy to understand why the claimant has delayed at various stages in this case and, if the delay had not had such dire consequences, a lenient view might well be appropriate. However, where delay by a claimant is a cause of possible prejudice to the Secretary of State because documents have ceased to be available, it is appropriate to take a more stringent approach, particularly if, as here, it has at all times been open to the claimant to make a new claim for benefit. Accordingly, I take the view that, had the chairman realised the application to him for leave to appeal was late, he should have refused to admit it, in which case I have no jurisdiction. Even if he had admitted it and, as he did, refused leave, I too should refuse leave because the appeal has no prospects of success in view of the strength of the presumption that procedures have been properly followed that there must be in a case where the relevant documents have been destroyed due to delay on the applicant's part.

(signed on the original) MARK ROWLAND

Commissioner

13 June 2008