UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CSDLA_168_2008 (05 September 2008)

???DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

I find no error of law in the decision of a tribunal sitting in Glasgow on 5 December 2007 (the tribunal). The tribunal's decision therefore stands.

The issue

This is the effect on time limits of an "incorrect correction" by a clerk, in particular as governing a chairman's duty to provide a full statement of the reasons for the tribunal's decision.

Background

According to the tribunal documents, the history of this case is as follows:

(a) A new claim for disability living allowance (DLA) was made on 10 July 2006. On that form the claimant gives herself the title "Mrs"; this involves consciously striking out "Miss".

(b) A report is requested from her general practitioner (GP) under the name "Mrs [H.S]", to which no correction was made by the GP on 17 August 2006.

(c) An adverse decision is made by a decision maker (DM) on 6 October 2006, which her current representative organisation (the representative) appeals on her behalf, on 23 October 2006; the claimant's name, written in manuscript, is given on the appeal letter as "Mrs [H.S]".

(d) Case papers are prepared on behalf of the DM in which the claimant is throughout referred to as "Mrs [H.S]", or "[H.S]" or "Ms [S]" but never "Miss [H.S]"

(e) A first tribunal sits on 7 February 2007, to which the claimant comes with the representative. No objection is taken at any stage by either of them to the favourable outcome given on a decision notice naming the claimant as "Mrs [H.S]".

(f) The Secretary of State takes an appeal to the Commissioner, which is successful (CSDLA/293/2007, dated 25 July 2007).

(g) In connection with the above, the representative requests medical evidence, referring to the claimant as "Ms [H.S]".

(h) A written submission from the representative dated 5 December 2007 is lodged for the benefit of the new tribunal, headed:

"Summary Opening Submission to the Tribunal

Appellant: Mrs [H.S]"

The person who wrote the above is Mr Stephen Craig, who has throughout handled this present application to the Commissioner, including the request for the correction referred to below.

(i) The tribunal convenes on 5 December 2007 with the claimant and Mr Craig in attendance.

(d) A decision notice from the tribunal, confirming the wholly adverse decision by the DM under appeal to it, is issued to the parties that day. It names the appellant in its heading, although not in the terms of the decision, as "Mrs [H.S]". No objection is then taken. It may be helpful in the present case to set out the decision notice in full:

"APPEAL TRIBUNAL

Held at Glasgow on 05/12/2007

Before S Boyd, G Gray, Dr MacLeod

Appellant: Mrs [H.S.]	Tribunal Ref. 897/06/00476 NI No WL277989B
Respondent: Secretary of State for Work and Pensions

DECISION NOTICE

Unanimous decision of the Tribunal

The appeal is refused.

The appellant is not entitled to either component of Disability Living Allowance with effect from 10.07.2006.

This is because she does not satisfy the statutory criteria of either component at any rate.

Signed Chairman: Susan Boyd Date: 05/12/2007

Decision Notice issued to Appellant on: 05/12/2007
Respondent on: 05/12/2007

(e) By fax dated 14 January 2008 a written statement of reasons was requested, with a postscript asserting for the first time in the course of the proceedings, that "… my title is Miss, not Mrs, as stated in the decision notice". No correction of any document was at that stage requested. I note with interest that in "Miss [H.S.]", given as the name in manuscript at the top of the page, the "I" in "Miss" had clearly been altered from an "R". The request acknowledges that it is late by giving reasons for the delay.

(f) On 16 January 2008 the chairman refused to extend the time for requesting a statement.

(g) On 24 January 2008, Mr Craig, by fax, then requested a correction:

"The appellant's title is incorrectly stated to be Mrs. in the decision notice. This should be corrected to Miss."

There was no accompanying evidence in support of this changed position.

(h) By letter to the representative dated 29 January 2008 (which I cannot locate in the tribunal file, but which accompanies the application for leave to appeal to the Commissioner) the clerk wrote:

"… I enclose the corrected decision. Please note that the time limit for requesting a statement … starts from the date this letter was sent to you, and not from the date the original tribunal decision was given or sent to you."

(i) The letter was accompanied by a copy of the decision notice, in which "Mrs" is crossed out and "Miss" inserted in its place in the box naming the parties, when describing who is "Appellant". There is no express mention in either document of the statutory power under which the clerk acted and, from subsequent events, it is clear that the clerk has acted without referral to the chairman.

(j) Mr Craig, by fax dated 6 February 2008, again requested a statement of reasons, stating in an asterisked note when giving the tribunal hearing date as 5 December 2007, that "a corrected decision notice was issued on 29 January 2008".

(k) By a determination sent to the representative on 11 February 2008, the chairman refused the statement request, pointing out:

"The decision has not been corrected and remains as before whether the appellant's name is prefixed by Miss, Mrs. or nothing."

(l) By fax dated 12 March 2008, Mr Craig asked the chairman for leave to appeal to the Commissioner, on the grounds that the request for reasons was issued timeously and therefore the tribunal was in breach of its duty to provide one. This application was rejected by the chairman for want of jurisdiction and the matter came directly to a Commissioner and within time. In the circumstances, I waived the irregularity that there was no statement of reasons.

I granted leave to appeal to the Commissioner and allowed the Secretary of State two months for a response. The grant of leave, a copy of which also went to Mr Craig at the same time, set out the relevant issues. The decision maker (DM) on behalf of the Secretary of State does not support the appeal. Mr Craig requested an extension of time up to six weeks for a submission in response. This was granted and in his submission of 6 August 2008, Mr Craig argues that the DM has not answered the point that "…the Chairman does not have jurisdiction to overturn a notice of correction issued by the clerk".

He requested an oral hearing but asked that if it was refused then that he was provided with a final opportunity to make further written submissions before a decision was made. The legal officer refused the request for the oral hearing but granted a further extension of 14 days for another submission from Mr Craig. Mr Craig then expressed regret that he had not found enough available time to prepare such a submission but continued to maintain that the appeal involved questions of law of special difficulty, suitable for an oral hearing.

All the submissions in the case, by both the Secretary of State and Mr Craig, and the rulings of the legal officer, refer to the matter as one of an outstanding application for leave to appeal to the Commissioner; but leave to appeal was granted on 22 April 2008 and notified to the parties on 23 April 2008. Having considered all the circumstances of the case, the arguments made, the issues arising and the delay already occasioned, I am satisfied that the appeal can properly be determined without an oral hearing.

Statutory provisions

The relevant provisions of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No. 991) [the regulations], as amended but as they stood at all applicable dates, provide as follows:

"6. – Supersession of decisions

(1) Subject to the following provisions of this regulation, for the purposes of
section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).

(2) A decision under section 10 may be made on the Secretary of State's own initiative or on an application made for the purpose on the basis that the decision to be superseded-

…

(c) is a decision of an appeal tribunal or of a Commissioner-

(i) that was made in ignorance of, or was based upon a mistake as to, some material fact; …

...

53.- Decisions of appeal tribunals

(1) Every decision of an appeal tribunal shall be recorded in summary by the chairman, or in the case of an appeal tribunal which has only one member, by that member.

(2) The decision notice specified in paragraph (1) shall be in such written form as shall have been approved by the President and shall be signed by the chairman, or in the case of an appeal tribunal which has only one member, that that member.

…

(4) Subject to paragraph (4A), a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal's decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54 and following that application the chairman, or in the case of a tribunal with only one member, that member shall record a statement of the reasons and a copy of that statement shall be given to every party to the proceedings as soon as may be practicable.

(4A) Where-

(a) the decision notice is corrected in accordance with regulation 56; …

…

the period specified in paragraph (4) shall run from the date on which notice of the correction … is sent to the applicant.

…

54.- Late application for a statement of reasons of tribunal decision

(1) The time for making an application for the statement of the reasons for a tribunal's decision may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but, subject to regulation 53(4A), no application shall in any event be brought more than three months after the date of the sending or giving of the notice of the decision of the appeal tribunal.

(2) An application for an extension of time under this regulation shall be made in writing and shall be determined by a legally qualified panel member.

…

(9) An application under this regulation for an extension of time which has been refused may not be renewed.

…

56.- Correction of accidental errors

(1) The clerk to the appeal tribunal or a legally qualified panel member may at any time correct accidental errors in the notice of any decision of an appeal tribunal …

(2) A correction made to a decision notice shall be deemed to be part of the decision notice and written notice of the correction shall be given as soon as practicable to every party to the proceedings.

…

57A.- …

(2) There shall be no appeal against a correction made under regulation 56 or a refusal to make such a correction …

(3) Nothing in this Chapter shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from these Regulations.

…

58.- Application for leave to appeal to a Commissioner from an appeal tribunal.

…

(1) Subject to paragraph (1A), 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 sought; …

…

(1A) Where after the written statement of the reasons for the decision has been sent to the parties to the proceedings-

(a) the decision notice is corrected in accordance with regulation 56; …

…

the period specified in paragraph (1)(a) shall run from the date on which notice of the correction … is sent to the applicant.

…"

My conclusion and reasons

The primary remedy for a claimant where a tribunal's reasoning is based upon a material mistaken factual premise, and whether or not that is the fault of a tribunal, is regulation 6 of the regulations (as set out above), which allows supersession in such circumstances. If a tribunal later realises that its reasoning was legally defective, the solution is an appeal on error of law. Regulation 56 is not designed to allow a change to what was deliberately recorded.

The correction rule, under regulation 56, has a different rationale. The correction provision embodies what is sometimes known to lawyers as the "slip rule". It is utilised where a tribunal does not, in fact, say what it intended to say: there has been what is colloquially described as " a slip of the pen", which is how the rule gets its name. A tribunal may, for example, either by itself making a clerical mistake when recording or on account of a typographical error, cite the wrong number for a statutory provision, or state a date other than that intended, or make a mathematical miscalculation. The result is that the decision does not state what the tribunal intended it to state. Here, however, the claimant had only ever been represented to the tribunal as "Mrs [H. S.]", so that thus describing her was what was always intended, and no question under regulation 56 ever properly arose.

Moreover, even if describing the claimant as "Mrs [H. S.]" rather than "Miss [H. S.]" had not been what the tribunal intended to say, and leaving out of account the irrelevance of the distinction to the matter in dispute at the tribunal hearing, I am doubtful that those words fell within the concept of the "decision notice". Naming the parties, the location of a tribunal, case reference and national insurance numbers, all form part of the heading to the decision notice and do not constitute a part of the notified substantive decision which is capable of a correction under regulation 56. If there is an error in the heading, then it could, arguably, be amended under regulation 57A(3); in any event, no one is going to quarrel with such an amendment, but it does not affect time limits.

The present appeal throws up the undesirability of giving a clerk the power of correction. It is questionable how far a clerk can know whether the decision notice contains an accidental error, in the sense that the notice does not represent what the tribunal had intended at the time to say. If the chairman in the present case had been asked to make a correction, undoubtedly she would have refused to do so, on the basis that such was inappropriate in the circumstances; as is indeed the case, but a clerk purported to make a correction. Although no statutory provision is quoted in the clerk's letter, the clerk clearly thought she was using the power under regulation 56 because she told Mr Craig that the time for requesting a statement, "… starts from the date this letter was sent to you …".

A chairman has no power to make a declaration as to the validity of a purported correction notice nor, therefore, to set it aside. However, a chairman must determine whether or not she has a duty to issue a statement of reasons. The present chairman was right that she had no such duty. She was entitled to treat the clerk's action as ineffective under regulation 56, and irrespective of whether the opposite might be the case under regulation 57A(3). On that basis, any request for a statement of reasons had to be considered in relation to the date the decision notice was given, which was 5 December 2007. But a late application for a statement of reasons referable to that date had already previously been made and refused. Under regulation 54(9) an application for an extension of time to make a late application for a statement of reasons may not be renewed.

Even had there been a valid correction under regulation 56, extending the time for applying for a statement of reasons for the tribunal's decision under regulation 53(4A) of the regulations can operate only where relevant time limits have not yet been activated. This is apparent from the terms of regulation 58(1A): A chairman in the circumstances there set out is not required to produce a second written statement of reasons for the decision, because the time limits for requesting such provision have already been utilised. It must follow, in my judgement that, if a chairman refuses to provide a statement of reasons, such refusal being permissible in the contemporaneous circumstances, then the prescribed period has already begun; a later request for a correction does not begin a fresh period, even if there has indeed been a slip of the pen which falls under regulation 56. This is also compatible with regulation 54(9), that a refused application for an extension of time may not be renewed. The legislative scheme must be read as a whole.

It nevertheless appears that, where a party has not already set running the time limits by applying for a statement of reasons, and a genuine correction is later sought, that he or she may utilise regulation 54(1). Due to amendments, the text of the latter part of regulation 54(1), "but, subject to regulation 43(4A), no application shall in any event be brought more than three months after the date of the sending or giving of the notice of the decision of the appeal tribunal", sits awkwardly with the final words of the said regulation 53(4A), "the period specified in paragraph (4) will run from the date on which notice of a correction … is sent to the applicant". The date of sending, on the one hand, the notice of decision and, on the other hand, that of the correction are two different dates and all that regulation 56(2) provides is that "a correction made to a decision notice shall be deemed to be part of the decision notice …". However, to make sense of regulation 54(1), the "three months" referred to presumably encompasses three months after the date of sending or giving of the correction notice.

A situation could therefore arise where a party does not request any statement of reasons until after a correction notice sought, say, some two years after the date of a tribunal hearing; this would seem to trigger a mandatory duty on a chairman to provide such a first statement of reasons, if thereafter requested in time. Similarly, under regulation 58(1A), a correction long after the issue of a statement of reasons, could, within a month, lead to an application for leave to the Commissioner some years after a relevant tribunal hearing. However, such cases must be rare and, in any event, the power under regulation 56 is discretionary. If no prejudice has been occasioned by the accidental error, in terms of arguably dissuading a party from either requesting a full statement or seeking leave to appeal to the Commissioner, until the error was realised, the answer is to refuse to make the correction. It would be wise for a clerk to refer any such matter to the chairman.

Summary

I judge that there is no error of law in the present case in the refusal by the chairman to provide a statement of reasons, (and no other arguable error is, or could be, suggested). This is because:

a) There was no proper use of regulation 56 which was effective to extend the time for applying for a statement of reasons of the tribunal's decision. This is on two alternative grounds, firstly, that what was sought to be corrected did not fall within the notice of the decision and, secondly, that in relation to the title given to the claimant, the tribunal made no accidental error, because what was notified was what the tribunal always intended to say.

b) Even if there was scope for a correction under regulation 56, as the chairman had already refused to give a statement of reasons under regulation 54(1), at a stage when regulation 53(4A) did not bite, time limits had already run their course.

I further note:

a) If a tribunal's decision was made in ignorance or mistake of a material fact, supersession may be an appropriate remedy.

b) There may be power to amend a mistake in a document, which mistake is in other than what is technically "the decision notice", but acting under regulation 57A(3).

c) Where a correction is sought long after the original date of the decision notice, it may be appropriate for the correction to be refused.

d) Although a clerk to the appeal tribunal has a power to act under regulation 56, it may be considered wise to refer the matter to a legally qualified panel member.

e) Given the history of this appeal, it is questionable whether the correction application was other than an abuse of process; this may, in itself, justify a chairman taking a view that time limits have not been extended by any resultant action under regulation 56.

(signed)

L T PARKER

Deputy Commissioner

Date: 5 September 2008