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[2008] UKSSCSC CJSA_3513_2007 (31 March 2008)

CJSA 3513 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision.

The Secretary of State for Work and Pensions is appealing with my permission against a decision of the London (Fox Court)) tribunal on 28 03 2007 under reference 242 06 04336.

DIRECTIONS FOR REHEARING

A The rehearing will be at an oral hearing.

B The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

C The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the parties have any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a district chairman.

REASONS FOR THE DECISION

This appeal arises out of the untimely and sudden death of a full time tribunal chairman, Mr Singh, on 21 May last year. The general issue before me in these sad circumstances is what actions can be taken by another chairman to deal with applications that follow such an event. But I first deal with the specific issues in this appeal.

The tribunal's decision

The appeal involves a refusal of a claim for jobseeker's allowance. The claimant was considered by a decision maker acting for the Secretary of State not to be available for work and/or to be involved in a trade dispute at the relevant times. The decision in the official submission to the tribunal states that the decision applies from 18 08 2005 to 10 12 2005. The disallowance decision decided that the trade dispute continued for part of this period and that non-availability continued throughout the period.

The claimant appealed and the tribunal heard the case on 28 03 2007. The formal decision of the tribunal is:

"The appeal is allowed.

The decision of the Secretary of State issued on 2 11 2005 is revised.

As to the availability issue the appellant was available.

As to the actively seeking work issue the appellant was actively seeking work."

There is no statement of reasons for the decision, although one was requested within the correct time limit. This is because the chairman died before producing one. I also have not been provided with any record of proceedings. I do not know whether there is one held by the tribunal or whether this is not available because of the chairman's death. In the event that makes no difference to the decision I must make.

As a result, the decision as quoted is left to read in isolation. And the appellant cannot produce a statement of reasons to accompany the application to appeal. The problem is essentially the same in factual terms as that discussed fully and authoritatively in R(IS) 11/99. CIB 4833 1998, to the same effect, adds useful further analysis. Those decisions deal with the primary and secondary legislation before the Social Security Act 1998 changed the procedural rules about appeals. I do not therefore adopt those decisions as applicable as they stand to the new statutory provisions. But the core issue at the heart of those decisions is the same issue as here. It is how to deal with a decision that is plainly faulty when a strict reading of the procedural rules combined with a turn of events with which the rules do not deal together prevent an appeal being processed properly.

This procedural problem is fully within the kinds of problem discussed by Lord Woolf MR in his leading judgment in the Court of Appeal in R v Secretary of State for the Home Department ex parte Jeyeanthan [1999] EWCA Civ 3010, [1999] 3 All ER 231. He lays down the approach to be taken to problems such as this. I do not need to set out the full judgment at length. At paragraph 11 of his analysis, Lord Woolf avoided the sharp categorisation of procedural rules as either mandatory (that is, procedures that must be followed) or directory (procedures that should be followed). His guidance on dealing with procedural defects is:

"In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances".

That guidance was endorsed by the House of Lords the following year in Attorney General's Reference No 3 of 1999 [2001] 2 AC 91. Lord Steyn, giving the leading judgment, set out his approach to the procedural issue in that appeal (at p 117):

"My Lords, I acknowledge at once that reasonable minds may differ as to the correct interpretation of a subsection which has no parallel in PACE or any other statute. Nevertheless, there do seem to be secure footholds which may lead to a tolerably clear answer. It is not along the route adopted by the prosecution of asking whether the relevant provision is mandatory or directory. In London and Clydeside Estates Ltd. v. Aberdeen District Council [1980] 1 WLR 182, and 188-190, Lord Hailsham of St Marylebone L.C. considered this dichotomy and warned against the approach "of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments." In R. v. Immigration Appeal Tribunal, ex parte Jeyeanthan [1999] 3 All ER 231, at 237A-B, Lord Woolf, M.R. now Lord Chief Justice, echoed this warning and held that it is "much more important to focus on the consequences of the non-compliance." This is how I will approach the matter."

Their Lordships recently returned to the issue in Seal v Chief Constable of South Wales Police [2007] UKHL 31, Lord Woolf being a member of the House for that decision. The question was whether an individual could bring an appeal under section 139 of the Mental Health Act 1983 without leave of a High Court judge. Lord Woolf (at paragraphs 33 and 34) set out the guidance of Lord Hailsham in the Aberdeen again and noted that both counsel accepted his own guidance based on that approach as authoritative in Seal. He noted that the guidance (cited above) applied in "all the circumstances, Parliament not having made clear what were to be the consequences of non-compliance with the statutory requirement" (paragraph 33). But His Lordship was, with Baroness Hale, in the minority in the decision. Lord Bingham gave the leading judgment for the majority of the House. He commented that the argument of counsel based on Jeyeanthan had "considerable force". But he concluded that in that case the clear wording of section 139 made the requirement of leave one that could not be sidestepped or ignored. He also noted that the failure of the claimant in that case was not a failure to obtain leave (which, his Lordship considered, could be granted retrospectively) but to act within the generous time limit allowed.

I take from those endorsements (and the regular citation of Jeyeanthan in other courts and tribunals - see for example R(H) 1/07) that Lord Woolf's guidance about the application of Lord Hailsham's principles to jurisdictions such as this is the approach that I am to adopt. There is a procedural defect here. A party asked for a statement of reasons within the appropriate time. That statement was not, and cannot now be, given to the party. Technically that is a breach of regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the 1999 Regulations"). It is a breach that cannot be remedied by a tribunal and for which the regulations provide no alternative. If the chairman who determined the application and I were both to reject the application simply because there could be no statement of reasons, an arguable result would be that the claimant's appeal was left substantively undetermined with neither the claimant nor the Secretary of State able to take matters further. So the parties will be denied their rights of appeal and the claimant any undetermined entitlement he had to benefit. That cannot be a fair outcome, and is not to be applied unless Parliament has made it clear that that is the approach to be taken.

In my view, the terms of this legislation do not make that clear. This is a result of faulty regulatory drafting, not of an explicit and unambiguous section in an Act as in Seal.

The approach of "doing what is just" is delivered by the fairness and practical sense of R(IS) 1/99 and similar decisions in this statutory context as well as the context in which they were made. The test in R(IS) 11/99 is: are the grounds of appeal justiciable without any full statement of the tribunal's reasons? Without going beyond the unusual context of this case, I consider that is how I should approach this appeal in order to achieve the result to be pursued following Lord Woolf's analysis.

This tribunal decision is ambiguous and incomplete on its face. It decides to revise the decision of the Secretary of State but does not state how. It is not clear how, or if, the tribunal decided the trade dispute question that was under appeal to it. It is not clear to what period its decision about availability and seeking work applied – the whole period, or the period after the trade dispute ended? If the latter, how was this done by revision rather than supersession? Nor is it clear whether both parties had been given notice that the tribunal would determine a new question that did not form part of the decision for the Secretary of State, namely that of seeking work actively. There is no submission to the tribunal on this point from the Secretary of State in the papers, and it is not mentioned in the grounds of appeal for the claimant. And it is not clear what action the Secretary of State was supposed to take as a result of the decision.

My decision on the appeal

I have the authority to, and therefore must in fairness, set the decision aside. There must be another oral hearing and a redetermination of the appeal. I note the points made by the claimant about this, but regret that the unfortunate circumstances prevent his appeal being decided fully without a further hearing. I do so without an oral hearing at this level, although the claimant asked for one at one stage of the proceedings. The oral hearing that is important is the one before the tribunal on the merits of the claim. The claimant's comments are addressed to that rather than the technical points that form the rest of this decision.

The general issues

The Secretary of State asked for a statement of reasons within the time allowed. There was no statement of reasons. Instead, the regional chairman of the tribunal informed the Secretary of State that because of the death of the chairman the decision notice should be treated as the statement of reasons. The secretary of state's representative then applied, under protest, for permission to appeal. That was refused. The application was then made here and I granted it. Could a chairman or commissioner have dealt with this case in another way? The chairman who dealt with the application for a full statement did so with commendable openness. But the reality is that there are no rules to assist a chairman in dealing with such applications after the death of the tribunal chairman but before a statement of reasons has been prepared.

I agree with the secretary of state's representative that only the tribunal chairman could provide the statement of reasons in this case. The chairman sat alone as the tribunal, so there is no question of asking another member to undertake the task. I do not therefore need to consider if there is room for CIS 2132 1998 to apply within the terms of regulation 53(4) of the 1999 Regulations. (That decision discussed the possibility of another member of the tribunal recording in writing an oral tribunal decision where the chairman was unable to do so, but it did so in the context of previous procedural rules). Nor can another chairman provide the statement. Regulation 53(4) is unambiguous as it applies to a one-member tribunal:

"in the case of a tribunal with only one member, that member shall record a statement of the reasons…"

Regulation 58(6) of the 1999 Regulations provides, since its amendment some years ago, that where it is "impracticable" for the application to the chairman to be decided by that chairman then it may be determined by another chairman. Leaving aside niceties of the English language, that must in fairness apply here. So a chairman stepping in to deal with another chairman's decision has power to determine the application by accepting it, refusing it, or rejecting it.

In this case the chairman used this power to try and step round the absence of a statement or reasons by directing that the decision notice be treated as the statement of reasons for the decision. And he made it clear that any application for leave to appeal should be accompanied by a copy of his direction to the clerk and the decision notice in place of the statement of reasons. The Secretary of State appealed using that approach, while objecting to the course of action taken. The claimant's comments were sought on the assumption that this was a valid application. Having noted the comments, the chairman refused permission to appeal. He did so on the grounds that his jurisdiction to grant permission was challenged. He also invited the applicant to apply to a commissioner for guidance on the way forward.

The secretary of state's representative argued that another chairman had no jurisdiction to direct that the decision notice be treated as the statement of reasons. It followed that there was no statement of reasons. Regulation 58(1) of the 1999 Regulations provides that an application can only be made in the period following the issue of a statement of reasons. There are no exceptions to this rule, even for cases such as this where production of a statement of reasons is impossible. The Secretary of State therefore could not comply with it because the tribunal could not comply with the underlying duty in regulation 53 to provide those reasons. I agree with that conclusion. No chairman other than the original chairman has the power to make any decision about the tribunal's statement of reasons. Any application to appeal in a case like this must therefore be made without the statement of reasons. Another chairman can then deal with the application under regulation 58(6)(b).

A commissioner's powers

A commissioner can grant permission to appeal in these circumstances. That is uncontentious. Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations 1999 gives me power to consider an application for permission to appeal provided that the applicant has first sought permission from a chairman and a chairman has either refused permission or rejected the application. Regulation 27 of those Regulations gives me power to waive any irregularity in procedure under the Regulations. I therefore have power to consider this application even if the chairman was incorrect in refusing permission and should instead have rejected the application. And given the terms of regulation 9(1) read with regulation 27 I do not need to decide whether the chairman who did determine the application was right or wrong in refusing permission rather than rejecting the application. It is enough that the applicant applied to the chairman and a chairman with the power to do so made a determination that was not a grant of leave.

A chairman's powers

What are the powers of another chairman? In my view he or she can deal with the matter under section 13(2) of the Social Security Act 1998 if the subsection applies to the case. I do not agree with the contention for the Secretary of State that this is not an option open to the chairman. The secretary of state's representative cites no authority for the proposition that section 13(2) cannot apply in this case, but was, without saying so, following the decision of the Commissioner in CDLA 1685 2004.

CDLA 1685 2004 was a case where a chairman declined to issue a statement of reasons because the clerk had lost part of the record of proceedings. (It is the duty of the clerk to keep that record, not the chairman: regulation 55(2) of the 1999 Regulations.)

The Commissioner rejected an argument for the Secretary of State that a chairman could set aside the decision under section 13(2). This was because:

"it is implicit in section 13(1) that the section applies only were the application made under section 14(10)(a) is one that the chairman has power to consider. Section 14(11) permits the imposition of a time limit for making an application for leave to appeal under section 14(1)(a). Regulation 58(1) of the 1999 Regulations imposes a dime limit of one month from the date the applicant was sent the statement of reasons…"

The Commissioner supported his view by pointing out that the failure to provide a statement of reasons can be regarded as a failure to provide a document relating to the proceedings under regulation 57(1)(a) of the 1999 Regulations. In addition, there is always the right to appeal to a commissioner.

With respect, I do not find that reasoning persuasive in this case, where it was impossible to produce a statement of reasons. I do not consider that regulation 57(1)(a) could apply. There cannot be a failure to produce a document under that provision if the document does not exist and cannot be brought into existence. Nor is it clear that there is always an error of law in that a chairman refused to give reasons when the reality is that the chairman has died and did not refuse to give reasons. But there was an in-time application for reasons. I note that the Commissioner does not cite any authority in CDLA 1685 2004. Nor can I find any other specific authority on the point or that decision save for the brief decision of the same Commissioner in CF 741 2006 where he follows his earlier decision while commenting that the result is absurd in his view.

While noting those views, and without questioning the outcome of those specific cases, I do not follow them here. I prefer and follow the strong guidance of Lord Woolf, as set out above, to look at the system as a whole unless the legislation unambiguously requires another approach (as the majority of their Lordships found in Seal). I do not consider that section 13(1) restricts the application of the power in section 13(2) only to applications that comply with all the requirements that have to be met for leave to appeal to be granted by a chairman. The wording of section 13(1) is:

"This section applies where an application is made to a person under section 14(10)(a) below for leave to appeal …"

Section 14(10) provides that no appeal lies without leave of (a) an appropriate chairman or (b) a commissioner. The reference to subsection (10)(a) therefore serves to identify the person to whom an application must be made. It does not identify the procedural requirements to be met in making that application. Those are in subsection (11). I do not agree with the Commissioner in CDLA 1685 2004 that there is a necessary implication from this that the only applications to which subsection (1) applies are those that are valid in accordance with regulations under subsection (11). And his reference to an implication makes plain that it is not an explicit provision. In my view, there is an application within subsection (1) if it is to the right person even if a statement of reasons does not accompany it.

On that basis, section 13(1) does not prevent the use of section 13(2) in this case. And I note the views of the Secretary of State in CDLA 1685 2006 as supporting that approach on broader grounds. Section 13(2) procedure did not exist when R(IS) 11/99 was decided. So it formed no part of the Commissioner's reasoning in that and similar cases at that time. It is consistent with the guidance in Jeyeanthan that a chairman authorised to do so can consider the application of section 13(2) to a case such as this. At the same time I agree with the Secretary of State that I have no right to determine any appeal against a decision refusing to use the subsection. But that is not the issue here. It is for a chairman to decide if he or she has power to use section 13(2) in a case where an application is not accompanied by a statement of reasons, subject only to judicial review.

Another approach may also be available to a chairman. It may be that the tribunal's decision fails to decide the whole appeal before it. Was there a decision on the trade dispute point? I am unable to take any view on that. It is not mentioned in the decision. There are no reasons. And there is no record of proceedings. If the tribunal did not determine the whole of the appeal then, following normal judicial practice, the matter remained undecided at the time of the chairman's death. If he died before completing the full appeal, then it must be referred to another chairman and tribunal to undertake the appeal afresh. That is not an appeal, and needs no application, because there is no full final decision.

If the chairman considers that the tribunal did reach a final decision, but does not consider that section 13(2) applies, then he or she must treat the application to appeal as made without a statement of reasons. It is then his or her duty, in the light of the guidance given by Lord Woolf, "to do what is just in all the circumstances". That can be met by a rejection of the application accompanied by an explanation inviting further application to a Commissioner and confirmation why the problem has arisen. I suggest that in such a case it be made clear by the chairman whether the applicant made a timely application for reasons and why no statement of reasons has been provided.

David Williams

Commissioner

31 03 2008

[Signed on the original on the date stated]