R(is) 12/01

Mr. M. J. Goodman	CIS/20002/2000
4.9.00 
Tribunal practice - decision by tribunal awarding benefit in respect of one period of claim and adjourning consideration of later period - whether a final decision in relation to period for which award made and if so whether later tribunal has power to reconsider that decision
Tribunal practice - refusal by tribunal of jurisdiction to reconsider decision of earlier tribunal - whether subject to right of appeal to the Commissioner
Tribunal practice - leave to appeal granted and then purportedly rescinded by chairman - whether chairman had power to rescind
The claimant was a single woman living with her parents as a member of their household. She was in receipt of income support and attendance allowance (which was later replaced by disability living allowance). On 31 July 1990 she appealed against an adjudication officer’s decision of 27 July 1990 refusing to award severe disability premium, relying on a decision of the Commissioner (CIS/787/1991) which was later the subject of appeal to the Court of Appeal and then the House of Lords in Chief Adjudication Officer v. Bate (R(IS) 12/96). On 24 July 1992 a tribunal awarded her severe disability premium for the period 11 April 1988 to 8 October 1989 and adjourned for later consideration of the subsequent period. On 6 March 1995 a tribunal heard the appeal in respect of the period from 9 October 1989 and awarded severe disability premium up to 1 December 1994 in the light of the Court of Appeal’s judgment in Bate given on 30 November 1994, remitting the matter to the adjudication officer for calculation. The period from 2 December 1994 onwards was adjourned pending further submissions from both parties as amending Regulations had come into force from that date and the claimant argued that they were not intended to apply to existing claimants. On 
16 May 1996 the decision of the House of Lords in Bate reversed the effect of the Court of Appeal’s judgment. On 17 August 1999 a tribunal hearing the reconvened appeal found that the tribunal of 
6 March 1995 had conclusively dealt with the period 9 October 1989 to 1 December 1994 and it did not have jurisdiction to reopen the appeal in relation to that period, and accepted the claimant’s withdrawal of the appeal in respect of the period from 2 December 1994. The adjudication officer applied to the chairman for leave to appeal to the Commissioner which was granted, but following representations from the claimant’s representative that there had been no decision against which an appeal could be made the chairman purported to rescind the grant of leave. Nevertheless the Commissioner heard the appeal.
Held, dismissing the appeal, that: 
1.	the decision of the 1999 tribunal represented a declining of jurisdiction and the question of whether the tribunal had jurisdiction or not was a question of law which the Commissioner could consider (para. 25);
2.	once a Chairman had given leave to appeal to the Commissioner, he was functus officio and he had no power thereafter to vary or rescind his grant of leave (para. 26);
3.	the part of the decision of the tribunal of 6 March 1995 awarding severe disability premium from 9 October 1989 to 1 December 1994 was a final decision and consequently the decision of the tribunal of 17 August 1999 that it had no jurisdiction to rehear or reopen the appeal in relation to that period was correct in law (para. 22);
4.	it was competent to a tribunal finally to decide one part of an appeal period or one issue that is under appeal to it and then to adjourn another issue and, although it may well be that a tribunal ought not normally to do this, in the circumstances of this case it was clear that, in view of the changes in the legislation and the complicated nature of the caselaw, the tribunal of 1995 did all that it possibly could do and acted quite properly in adjourning the period from and including                          2 December 1994 (para. 24).
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the Secretary of State’s appeal against the decision of the appeal tribunal dated 17 August 1999 as that decision is not erroneous in law: Social Security Administration Act 1992, section 23.
2.	This is an appeal by the Secretary of State against the unanimous decision of an appeal tribunal dated 17 August 1999, which allowed the appeal (re. severe disability premium) of the claimant, a single woman, born on 15 November 1946, who unfortunately has been mentally and physically handicapped from birth. She lives with her parents. Her mother is her social security appointee. 
3.	On my direction, the appeal was the subject of an oral hearing before me on 17 August 2000, at which neither the claimant nor her mother were present. They were, however, ably represented by Mr. D. Abrahams of Counsel. The Secretary of State was represented by Mr. L. Scoon, of the Office of the Solicitor to the Departments of Health and Social Security. I am much indebted to Mr. Abrahams and Mr. Scoon for their assistance to me at the hearing.
4.	The facts of this case are accurately summarised by the Secretary of State’s representative in his written appeal dated 15 November 1999, (the abbreviations used in it are “AA/DLA” attendance allowance/disability living allowance; “AO” adjudication officer; “SDP” = severe disability premium for income support “Bate v. CAO” = the case of Bate v. Chief Adjudication Officer in the Court of Appeal, before that Court’s decision was reviewed by the House of Lords). Paragraphs 3 to 5 of the Secretary of State’s appeal read as follows:
“The claimant is a single woman who lives with her parents as a member of their household. She has been in receipt of income support and AA/DLA throughout the period of the appeal. On 31 July 1990 the claimant appealed against the AO’s decision of 27 July 1990 not to award SDP.
On 24 July 1992 a tribunal awarded SDP for the period 11 April 1988 to        8 October 1989 and adjourned thereafter. On 6 March 1995 a tribunal awarded SDP for the period 9 October 1989 to 1 December 1994 following the Court of Appeal judgment in Bate v. CAO. The period from 2 December 1994 onwards was adjourned pending further submissions from both parties.
On 17 August 1999 a further tribunal found that it did not have the authority to correct the erroneous decision of the tribunal dated 6 March 1995 despite the fact that the earlier tribunal had been adjourned and a final decision had not been issued. It was held that the award of SDP must remain in place. It is against this tribunal decision that the AO now appeals.”
5.	The actual decision of the tribunal of 6 March 1995 was as follows:
“[The claimant’s] applicable amount is to include the severe disability premium for the period from 9 October 1989 to 1 December 1994. The matter is remitted to the adjudication officer for calculation with power to either party to restore to the list in the event of a dispute. The hearing of the appeal in respect of the period from 2 December 1994 is adjourned.”
6.	The actual decision of the tribunal of 17 August 1999 was as follows:
“The tribunal accepts the appellant’s withdrawal of the claim in respect of the period from and including 2 December 1994 and has no jurisdiction to rehear or reopen the appeal in relation to the period 9 October 1989 to                        1 December 1994, the tribunal holding that that period was conclusively dealt with by the decision of [the social security appeal tribunal] given on 6 March 1995”.”
The tribunal gave detailed reasons for that decision.
7.	My decision, for the reasons given below, is that that 1999 tribunal decision was correct, with the result that the award by the 1995 tribunal of severe disability premium for the inclusive period from 9 October 1989 to 1 December 1994 must stand and, after calculation by the appropriate Benefits Agency officer, must be paid to, or on behalf of, the claimant. That is so even though (i) the subsequent House of Lords’ decision in Bate v. CAO [R(IS) 12/96] would have meant that there was no entitlement for that period, if it had not already been awarded by the 1995 tribunal (ii) the 1995 tribunal adopted the common practice of leaving it to the adjudication officer to calculate the relevant income support addition, with liberty to the parties to apply to the tribunal if there was a dispute as to the calculation.
8.	I ought to add at this point that the relevant parts of the Income Support (General) Regulations 1987, S.I. 1987 No 1967, i.e. paragraph 13(2) of Schedule 2 (severe disability premium) and regulation 3 (definition of non-dependant) have been amended several times. They have also been the subject of considerable case law, including the decision of the House of Lords in Bate v. Chief Adjudication Officer [1996] 1. WLR 814 [R(IS) 12/96], reversing the Court of Appeal’s decision in 
that case, reported in [1995] 3 FCR 145 and in the Times Newspaper on                             12 December 1994. It is partly as a result of those changes in the law that the complicated situation arose in this case. I detail the facts fully below.
9.	On 5 January 1988 an adjudication officer gave a decision that the claimant was not entitled to the severe disability premium from 11 April 1988 (the date of commencement of the income support scheme) because she did not satisfy the conditions in paragraph 13(2)(a)(ii) (non-dependants etc) of Schedule 2 to the 1987 Regulations. On 25 July 1990 an application was received from the claimant’s mother asking for a review of this earlier refusal decision on the ground that there had been “a recent court case whereby people such as her daughter would be entitled to the severe disability premium”. This doubtless was a reference to the Commissioner’s decision which was the subject of consideration by the Court of Appeal when the Bate case was before it (see above). On 27 July 1990 the adjudication officer refused to review the claimant’s claim to income support. The claimant’s appeal from that refusal was ultimately heard by a SSAT tribunal on 6 March 1995.
10.	The Chairman’s note of evidence states that the claimant’s solicitor “contended that in accordance with the Court of Appeal decision in Bate v. Chief Adjudication Officer [the claimant] was entitled to severe disability premium up until the beginning of December 1994” [i.e. to 1 December 1994, because on                       2 December 1994 regulations came into force which had the effect of reversing the Court of Appeal’s decision]. The chairman’s note continues by saying that the presenting officer “... indicated that this was the position in the light of the present state of the law”. The claimant’s solicitor is then reported as stating “…  that he wished to raise the position with regard to the new regulations which came into force on 2 December 1994.” He then referred to some Scottish Commissioners’ decisions and contended that “in the light of these cases it could not be said that the amending regulations were intended to apply to existing claimants”. I should note at this point that the claimant’s particular contention has subsequently, in the light of case law properly been withdrawn, but it was a live contention at the date of the tribunal on      6 March 1995. 
11.	The unanimous decision of the tribunal of 6 March 1995 is quoted in paragraph 5 above. They gave as their reasons for that decision,:
“The tribunal was satisfied on the basis of the evidence and in accordance with the Court of Appeal decision in Bate v. CAO ... that there were no non-dependants living with the claimant prior to 2 December 1994. when the Income-Related Benefits Scheme (Miscellaneous Amendments) (No. 6) Regulations 1994 came into force.”
12.	That part of the tribunal’s decision reading “[The claimant’s] applicable amount is to include the severe disability premium for the period from                         9 October 1989 to 1 December 1994”. has never been implemented by the Secretary of State and she has not been paid the extra amount applicable to such premium for that period, though she has as a result of earlier tribunal proceedings been paid the amount applicable to the severe disability premium for the inclusive period from 
11 April 1988 to 8 October 1989. At the hearing before me Mr. Scoon indicated that it was not intended to try to disturb that award or ask for any repayment of the sums paid for that period. 
13.	It follows therefore that what is in issue in this case is whether or not the claimant is entitled to severe disability premium for the period from 9 October 1989 to 1 December 1994 (the period awarded by the tribunal of 6 March 1995). It is common ground between the parties that, as the result of the 1994 Amendment Regulations etc., there can be no entitlement from 2 December 1994 onwards. 
14.	The Secretary of State’s explanation (ably reiterated and amplified by Mr. Scoon at the hearing before me) for not paying the amount applicable to the premium for the period from 9 October 1989 to 1 December 1994 (the 1995 tribunal’s award) is as follows. It is the view of the Secretary of State that the decision of the tribunal of 6 March 1995 was not a final decision but was inchoate because the whole of the claimant’s possible entitlement to the premium was in effect before the tribunal right up to the date that the tribunal held its hearing on 6 March 1995 (it being common ground that under the case-law then in existence a tribunal was bound to deal with all matters that arose to the date of its hearing) Mr. Scoon emphasised that the tribunal had not dealt with the period from 2 December 1994 to the date of the hearing on      6 March 1995. The reason why they had not is indicated in paragraph 10 above. 
15.	This matter came again before an appeal tribunal (following various events and correspondence) on 17 August 1999. After hearing detailed legal argument from the claimant’s solicitor and from the presenting officer the tribunal of 6 March 1995 gave as its unanimous decision, 
“The tribunal accepts the appellant’s withdrawal of the claim in respect of the period from and including 2 December 1994 and has no jurisdiction to rehear or reopen the appeal in relation to the period 9 October 1989 to 1 December 1994 the tribunal holding that that period was inclusively dealt with by the decision of [the social security appeal tribunal] given on 6 March 1995.”
16.	So far as the withdrawal of the appeal for the period from and including         2 December 1994 is concerned, it was agreed after some discussion at the hearing before me on 17 August 2000 that that the leave to withdraw can be regarded as having been properly given by the chairman alone at the tribunal of 17 August 1999 under regulation 6(2)(b) of the Social Security (Adjudication) Regulations 1995. I confirm that this is correct and that it was also proper for the same chairman who had earlier refused leave to withdraw to change his mind and grant leave to withdraw at the hearing on 17 August 1999. There is therefore no need for the period from              2 December 1994 onwards to be considered by any appeal tribunal.
17.  	The Secretary of State’s appeal is therefore only against that part of the decision of the tribunal of 17 August 1999 which refused to deal with the period from 9 October 1989 to 1 December 1994 on the ground that it had “... no jurisdiction to rehear or reopen the appeal in relation to the period 9 October 1989 to                          1 December 1994 the tribunal holding that that period was conclusively dealt with by the decision of [the social security appeal tribunal] given on 6 March 1995”. In other words the tribunal were saying that the matter was res judicata (already decided). 
18.	In support of his appeal Mr. Scoon on behalf of the Secretary of State cited the requirement of regulation 22(3) of the Social Security (Adjudication) Regulations 1995, as follows:
“22(3) Where an oral hearing is adjourned and at the hearing after the adjournment the tribunal is differently constituted ... the proceedings at that hearing shall be by way of a complete rehearing of the case.”
19.	Mr. Scoon argued that, because the case was only “part-heard” when it came before the tribunal on 17 August 1999 and because of regulation 22(3), that tribunal should, as it was differently constituted from the original tribunal, have completely reheard the case i.e. reconsidered the period from 9 October 1989 to                             1 December 1994, which period the 1995 tribunal had in fact dealt with in its decision of 6 March 1995. 
20.	Mr. Scoon cited in support of that contention the decision of a tribunal of Commissioners in R(U)3/88 which considered the operation of the predecessor of regulation 22(3) of the Adjudication Regulations 1995. Mr. Abrahams on behalf of the claimant submitted that regulation 22(3) of the 1995 regulations did not apply at all to this present appeal because there had been no adjournment by the 1995 tribunal of the period now in issue i.e. the period from 9 October 1989 to 1 December 1994. On the contrary, they had (he said) dealt with it categorically by saying that the claimant’s applicable amount was to include the severe disability premium for that period. The only matter, said Mr. Abrahams, that the tribunal had adjourned was the “appeal in respect of the period commencing from 2 December1994..”
21.	The issue thus between the parties was whether or not the statement in the 1995 tribunal’s decision that “[the claimant’s] applicable amount is to include the severe disability premium for the period from 9 October 1989 to 1 December 1994” was in itself a final decision and therefore an award which should have been paid by the Secretary of State. Alternatively was it inchoate because of the subsequent reference by the tribunal to adjourning the appeal in respect of the period commencing from 20 December 1994? A number of Commissioners’ decisions were cited to me, including a decision by Mr. Commissioner Mesher on file CIS/628/1994, particularly at paragraph 7. There the Commissioner was considering the operation of the predecessor of regulation 22(3) of the Adjudication Regulations 1995, which was in the same terms. The Commissioner left open the question whether a decision of a tribunal was final “where an appeal tribunal is considering clearly distinct claims or questions and does not determine all claims and questions in the first hearing”. Both Mr. Abrahams and Mr. Scoon, in answer to a question by me, said that there was no Commissioner’s decision reported or otherwise that dealt precisely with a type of “decision” like that of the tribunal of 6 March 1995, now before me.
22.	In my judgment, the first part of the decision of the tribunal of 6 March 1995 i.e. that the claimant’s “applicable amount is to include the severe disability premium for the premium from 9 October 1989 to 1 December 1994” is a final decision constituting an award of the amount of the premium (subject to the adjudication officer’s calculation). There has not been any appeal by the Secretary of State against the 1995 tribunal’s decision nor any setting aside of it. Mr. Scoon indicated he did not now wish to ask for leave to appeal against the 1995 tribunal’s decision). It follows that the decision of the tribunal of 17 August 1999 that it “has no jurisdiction to rehear or reopen the appeal in relation to the period 9 October 1989 to 
1 December 1994 the tribunal holding that that period was conclusively dealt with by the decision of [the social security appeal tribunal] given on 6 March 1995” is correct in law, I have therefore dismissed the Secretary of State’s appeal against that decision. 
23.	So far as concerns regulation 22(3) of the Adjudication Regulations 1995, in my view Mr. Abrahams is correct in saying that there had been no adjournment of the question relating to the period from 9 October 1989 to 1 December 1994. There is therefore nothing on which regulation 22(3) can operate. Alternatively, in my view, the decision of the tribunal of Commissioners in R(U) 3/88 has no bearing on the present position. The situation there was that only some of the evidence had been taken by the first tribunal and the second, differently constituted, tribunal had to take further evidence. In the case before me, the tribunal of 6 March 1995 had heard all the evidence and had had legal submissions relating to the period from                        9 October 1989 to 1 December 1994. There was nothing further to be done in relation to that period at that time.
24.  	Section 60 of the Social Security Administration Act 1992 relating to the finality of any “decision of any claim or question” tends to the same conclusion. It is competent to a tribunal finally to decide one part of an appeal period or one issue that is under appeal to it and then to adjourn another issue. It may well be that a tribunal ought not normally to do this but in the circumstances of this case it was clear that, in view of the changes in the legislation and the complicated nature of the case-law the tribunal of 1995 did all that it possibly could do and acted quite properly in adjourning the period from and including 2 December 1994. But that did not in my judgment affect the finality of its award for the period from 9 October 1989 to 
1 December 1994. The 1999 tribunal were therefore right in declining jurisdiction in relation to that period.
25.	Lastly, I should refer to an entirely different procedural matter which was the subject of a ruling by me at the hearing on 17 August 2000. That question arose as follows. After the appeal tribunal of 17 August 1999 had given its decision, the Secretary of State (then the adjudication officer) applied (by letter dated                  23 September 1999) to the chairman for leave to appeal to the Commissioner from the tribunal’s decision of 17 August 1999. On 13 October 1999 the Chief 
Adjudication Officer was notified by the clerk of the tribunal that the chairman had decided to grant the adjudication officer’s application for leave to appeal to the Commissioner. After that, the Chief Adjudication Officer made, in pursuance of that leave, a written appeal dated 15 November 1999. On 19 November 1999, the claimant’s solicitor wrote to the chairman a detailed letter indicating that it was considered on behalf of the claimant that the chairman had no jurisdiction to grant leave to appeal to the Commissioner and asking the chairman to “rescind your decision to grant leave to appeal” on the ground that there had been no “decision” of the tribunal of 17 August 1999. As a result of that, the chairman, by a letter dated 
26 November 1999, purported to rescind his grant of leave to appeal, on the ground that there had been no decision as such of the tribunal on 17 August 1999 but merely an allowing of the withdrawal of the appeal from 2 December 1994 onwards and a statement that the 1995 tribunal’s decision was binding. However, that represented a declining by the 1999 tribunal of jurisdiction and the question of jurisdiction or not is a question of law which the Commissioner can consider. 
26.	The question then is whether the tribunal chairman’s having purported to rescind his earlier grant of leave to appeal was legally effective. If it was then what would have to have happened would be for the Secretary of State to apply directly to the Commissioner for leave to appeal. I heard argument on this point and I indicated at the hearing and reiterate now that, in my view, once a chairman has given leave to appeal to the Commissioner, he is functus officio and he has no power thereafter to vary or rescind his grant of leave. Consequently I have treated the claimant’s leave as still effective, as is also the Secretary of State’s appeal in pursuance of it.

Date: 4 September 2000	(signed) Mr. M. J. Goodman
Commissioner