Decision No: A1/02-03(IVB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INVALIDITY BENEFIT

Application for leave to appeal to the
 Social Security Commissioner
on a question of law from the decision of 
Banbridge Social Security Appeal Tribunal
dated 10 August 1995

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	In this case the claimant seeks leave to appeal against the decision of the Social Security Appeal Tribunal whereby it was held, disallowing an appeal from the decision of an adjudication officer, that the claimant was not entitled to Invalidity Benefit from and including 3 March 1995.

2.	A hearing of the application was arranged at which the claimant was represented by Mr Allamby of the Law Centre (Northern Ireland) while the Department was represented by Mr Morrison (with Mr Fletcher in attendance) of the Decision Making and Appeals Unit.

3.	The primary issue in this application for leave to appeal, in the first instance, was whether a Commissioner has jurisdiction to hear the application for leave to appeal.  The matter was listed by me to deal specifically with this issue.  

4.	The facts of the case, as far as jurisdiction is concerned, are as follows.
An adjudication officer made the original decision in this case on 5 March 1995 disallowing Invalidity Benefit from and including 3 March 1995.  Invalidity Benefit was replaced by Incapacity Benefit from and including 17 April 1995 by reason of changes in the relevant statutory scheme.  The claimant then appealed this decision.  Her appeal was heard and disallowed by a Social Security Appeal Tribunal on 10 August 1995.  This Tribunal was constituted under the provisions of Section 38 and 39 of the Social Security Administration (Northern Ireland) Act 1992 but ceased to exist, accept for certain transitional purposes, with effect from 29 November 1999 due to further statutory changes.  The decision of the Tribunal was issued to all the parties on 26 September 1995.  The claimant did not apply for leave to appeal to a Commissioner until 14 March 2002 by a letter dated 25 February 2002.  By this time entirely new arrangements for the constitution of Appeal Tribunals had been put in place by the provisions of the Social Security (Northern Ireland) Order 1998.  In these circumstances the application was put before a chairman of the Appeal Tribunal on 13 April 2002.  This was the same person who had been the chairman of the Social Security Appeal Tribunal at the original appeal hearing.  The chairman then rejected the application because it had not been made within the time limit set by regulation 58(5) of the Social Security (Decision and Appeals) Regulations 1999.  These are the appropriate regulations presently governing the time limits for making appeals to a Commissioner.

5.	The first question that arises is whether the Chairman, who was the legally qualified member, was correct to reject the application under regulation 58 (5).  This regulation states:

“(5) Where there has been a failure to apply for leave to appeal within the period of time specified in paragraph (1)(a) but an application is made within one year of the last date for making an application within that period, a legally qualified panel member may, if for special reasons he thinks fit, accept and proceed to consider and determine the application.”

Regulation 58 (1)(a) is in the following terms:

“58.-(1)  An application for leave to appeal to a Commissioner from a decision of an appeal tribunal under Article 15 of the Recovery of Benefits Order or under Article 13 or 14 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; and …”

6.	There is no doubt that this legislation appears to be relevant in this case as there has been a failure to apply for leave to appeal within the period of one month of the applicant being sent a written statement of the reasons for the decision but such a conclusion does not take into account the transitional provisions set out in the torturously named Social Security (1998 Order) (Commencement No.8 and Savings, Consequential and Transitional Provisions) Order (Northern Ireland) 1999.

7.	Mr Morris submitted that the legally qualified member had overlooked the provisions of Article 18(26) of this Order which states: -

“Where paragraph (25) applies, any application for leave to appeal which is made for the purposes of Article 15(10)(a) of the Order shall be made no later than three months from the date on which a copy of the statement of the decision of the social security appeal tribunal or, as the case may be, the medical appeal tribunal was given or sent to the applicant.”

Article 18(25) is in the following terms:

“Subject to paragraph (26), any decision of a social security appeal tribunal or a medical appeal tribunal in relation to a relevant benefit shall be treated as a decision of an appeal tribunal.”

[This legislation is identical to that set out in the equivalent legislation in Great Britain where it can be found in paragraph 1(1) and (2) of Schedule 14 of the Social Security Act 1998 (Commencement No.9, and Savings and Consequential and Transitional Provisions) Order 1999].

The reference to Article 15(10)(a) is a reference to Article 15(10)(a) of the Social Security (1998) Order which states that no appeal lies to a Commissioner without the leave of the Chairman, while Article 15(10)(b) of the same Order refers to the granting of leave by a Commissioner.  

8.	Therefore the Social Security (1998 Order)(Commencement No.8 and Savings, Consequential and Transitional Provisions) Order (Northern Ireland) 1999 has put in place transitional provisions which allow the decisions of the old Social Security Appeal Tribunals to be treated as decisions of the new Appeal Tribunals.  (Rather oddly, these new Tribunals have never been given a specific name).  In particular the transitional legislation provides that a person whose appeal was decided by a Social Security Appeal Tribunal had no more than 3 months from the date he or she had been given or were sent the Tribunal’s decision in which to make an application to a Chairman for leave to appeal to a Commissioner.

9.	Mr Allamby does not take issue with Mr Morrison’s submissions on this point.  However, the question then arises whether the claimant now has a right to appeal to a Commissioner.  Mr Allamby submits that she has.  Mr Morrison submits to the contrary.  

10.	Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999 is in the following terms:

“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.”

Therefore to make an application for leave to appeal to a Commissioner, an applicant must first seek leave from the Chairman, who is the legally qualified member.  If the Chairman refuses or rejects the application, regulation 9 sets out the time limits for a further application to a Commissioner.  The rest of regulation 9 is in the following terms:

“(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.”

11.	However, as I have indicated earlier in this decision, the Chairman ought not to have rejected the application under regulation 58(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 but ought to have found the application by the claimant to him to be invalid because of the provisions of Article 18(26) of the Social Security (1998 Order) (Commencement No.8 and Savings, Consequential and Transitional Provisions) Order (Northern Ireland) 1999.

12.	In light of the determination of Mrs Commissioner Brown in LA18/01-02(DLA) it is clear, if a Chairman refuses to receive or consider an invalid application for leave to appeal, that the application has not been rejected for the purposes of regulation 9(1).  Otherwise, as pointed out by Mrs Commissioner Brown at paragraphs 19 and 20 of this case, an applicant could seek leave from the Chairman many years after the full decision was issued to an applicant and, provided the applicant applied to a Commissioner within one month of the Chairman’s ruling on that application, he could be said to have made a timeous application to the Commissioner.  

13.	As the Chairman ought to have found that the application by the claimant was invalid, my initial conclusion is that I do not have any jurisdiction to consider the present application because there was no valid refusal or rejection of the application for leave to appeal by the Chairman and a Commissioner’s jurisdiction to refuse or grant leave depends on a valid refusal or rejection of the application by the Chairman for leave to appeal.

14.	However, Mr Allamby relies on the provisions of regulation 3 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999 which is in the following terms: -

“Transitional provisions

3. – (1) Subject to paragraphs (2) and (3), these Regulations shall apply to all proceedings before the Commissioners on or after 7th June 1999.

(2) In relation to any appeal or application for leave to appeal from any social security, disability or medical appeal tribunal constituted under Part II of the Administration Act these Regulations shall have effect with the modifications that –

(a)	“appeal tribunal” includes a reference to any such tribunal;

(b)	“chairman” includes a reference to a person authorised to deal with applications for leave to appeal under the Social Security (Adjudication) Regulations (Northern Ireland) 1995

(c)	“Department” includes a reference to an adjudication officer;

(d)	“Article 15(7) of the Order” includes a reference to sections 21(6A) and 46(4A) of the Administration Act as modified by paragraph 4 of Schedule 5 to the Order.

(e)	“42 days” shall be substituted for “one month” in regulations 9(2) and 13(1); and

(f)	under regulation 9 a Commissioner may for special reasons accept an application for leave to appeal even though the applicant has not sought to obtain leave to appeal from the Chairman.

(3) Any transitional question under any application, appeal or reference in consequence of the coming into operation of these Regulations shall be determined by a Commissioner who may for this purpose give such directions as he may think just, including modifying the normal requirements of these Regulations in relation to the application, appeal or reference.”

Prima facie as the original Social Security Appeal Tribunal was constituted under Sections 38 and 39 of the Social Security Administration (Northern Ireland) Act 1992, which were contained in part II of the Act, the modifying provisions contained in sub-paragraphs (2) and (3) are potentially relevant.

15.	Mr Allamby submitted that sub-paragraph (3) allows a Commissioner considerable discretion in dealing with any transitional question arising as a consequence of the coming into operation of these new regulations and that such a discretion extends to modify the normal requirements of the regulations in relation to any application.  Mr Allamby accepted that the application for leave to appeal is outside the absolute time limit contained in regulation 9 but submitted that regulation 9 is subject to the transitional provisions set out in regulation 3 which give Commissioners power to modify the normal requirements of the Regulations and also submitted that a Commissioner ought to exercise such powers in this case.  

16.	Mr Allamby accepted that the claimant would then still have to show special reasons why the application should be granted, as under the old regulations (the Social Security Commissioners Procedure Regulations (Northern Ireland) 1987), there was a discretion to accept special reasons without any specified time limit (regulation 3(5)) if the old specific time limit of 42 days (regulation 3(3)) was not complied with.  

17.	Mr Morrison pointed out that the new rules in the 1999 Regulations mirrored two elements of the 1987 regulations, namely, having a specific time limit and a discretion to accept special reasons.  However, in the new Regulations the specific time limit was reduced to one month (regulation 
9(2)) and the discretion to accept special reasons was restricted to a specific time scale of a further 12 months, creating a maximum time limit of 13 months (regulation (3) and (4)).  Transitional protection is offered by regulation 3 of the 1999 regulations, regulation 3(2)(e) modifying the new specific time limit of one month by maintaining the old 42 day limit for transitional cases.

18.	However, regulation 3(2)(f) of the 1999 Regulations waives the requirement in transitional cases for an application for leave to appeal to be brought in the first place to a Chairman.  Mr Allamby submitted that this provision gives a Commissioner complete discretion, subject to finding special reasons, to grant leave in appropriate cases.  He further relied on the Great Britain decision of Mr Commissioner May QC in CSDLA551/99, in which it was held that there is no time limit in transitional cases within which to apply direct to a Commissioner for leave to appeal.

19.	Mr Morrison submitted that regulation 3(2)(f) only serves to waive the requirements of paragraph (1) of regulation 9 of the 1999 Regulations – and that a Commissioner is entitled in transitional cases to accept for special reasons an application for leave to appeal even though the applicant has not sought leave to appeal from the Chairman as required by paragraph (1).  However he submitted that the provisions of paragraphs (3) and (4) still apply.  In effect this means that where an application to a Commissioner is made after the “final date”, the application would be invalid.  Mr Allamby submitted that if this proposition is correct, regulation 3(2)(f) would not have any purpose.  Mr Morrison, on the other hand, has pointed out that it had a purpose, although limited to the period ending 13 months after the change from the “old Tribunals” to the “new Tribunals” on 6 September 1999 – the operative date for Incapacity Benefit cases.  Mr Morrison submitted that during this period the need for a Chairman’s ruling under regulation 9(1) was waived by virtue of regulation 3(2)(f).  Thereafter any application would be invalid, being out of time.  

20.	I agree with Mr Morrison on this issue.  It seems to me that if the legislator had intended to retain the old discretionary rule contained in regulation 3(5) of the 1997 Regulations, then it would have done so by inserting in the new regulation 3(2) another category to that effect.  Accordingly I conclude that I am not entitled to purport to use regulation 3(3) to modify or ameliorate the requirements set out clearly in regulation 9(2) to (4).  In coming to this conclusion I appreciate that I am taking a different view to that of Mr Commissioner May QC in CSDLA 551/99.

    21.	In addition I am far from satisfied that there is a transitional question as required by regulation 3(3).  It is a transitional case but the time limits have been specifically addressed and modified by regulation 3(2)(e).  Also I am mindful of the words “Any transitional question arising under any application …”  in regulation 3(3).  I consider that such a regulation cannot retrospectively validate an invalid application as the words appear to me to be only capable of referring to matters that arise under an application that already is valid.

22	Therefore I conclude that, as the Chairman ought to have found that the application by the claimant was invalid, I do not have any jurisdiction to consider the present application because there was no valid refusal or rejection of the application for leave to appeal by the Chairman and a Commissioner’s jurisdiction to refuse or grant leave depends on a valid refusal or rejection of the application by the Chairman for leave to appeal.  As the Tribunal Chairman (i) had no power to reject the application made on 14 March 2002 and (ii) did not refuse leave, I conclude that there can be no valid application before a Commissioner in this case.  I therefore cannot consider this purported application as it is invalid.

				
(Signed):	JOHN A H MARTIN QC
				
CHIEF COMMISSIONER

				
		     26 MARCH 2003