THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSDLA/1049/00

SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: D J MAY QC

ORAL HEARING

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the appeal against the decision of the social security appeal tribunal given at Greenock on 9 June 1998 is incompetent and inept.  I have no jurisdiction to entertain it.  It is dismissed.

2.	I directed an oral hearing of this appeal.  The claimant is represented by Mr Lee Oliver, the Welfare Rights Officer of Inverclyde Council.  The Secretary of State is represented by Mr Bartos, Advocate, instructed by Miss Ferrier, Solicitor of the Office of the Solicitor of the Advocate General.  

3.	This is the second occasion that this case has been before me in relation to attempts by the claimant to appeal against the decision of the tribunal referred to in paragraph 1.  On the first occasion I was presented with an application for leave to appeal to the Commissioner against the decision of the tribunal.  In a determination, recorded at pages 46-48 of the bundle, I found that the application was premature, was incompetent and was dismissed.  The reason for that was that there was an outstanding application for leave to appeal to the chairman which had never been placed before the chairman and which was undetermined.  

4.	In paragraph 11 of that determination I said:-

"While I fully accept that the inevitable result of the placing of the application for leave before the chairman would have been a rejection of it upon the basis of the absence of a full statement of facts and reasons it was not for the clerk to the tribunal to fail as is apparently the case here to place the application for leave before the tribunal chairman.”

The reason why I considered that the inevitable result of placing the application before the chairman would have been a rejection of it was because of the absence of a full statement of the tribunal’s decision.  In CIS/3299/97 Commissioner Rowland said:-

“…..I do not consider that any chairman of a social security appeal tribunal has jurisdiction to entertain an application for leave to appeal to a Commissioner in a case where no full statement of the tribunal’s decision has been given.  In such a case, ‘the specified time’ never starts to run.”

In CSIB/257/99 I accepted Commissioner Rowland’s view.  Mr Bartos has submitted to me that, apart from the time limit for appealing being shorter, the necessity for the full statement is the same whether the application was being brought under regulation 24(1) and regulation 3 and schedule 2 paragraph 7 of the Social Security (Adjudication) Regulations 1995, as amended from 28 April 1997 or subsequently the Social Security and Child Support (Decisions and Appeals) Regulations 1999, Regulation 58.  The time limit under both schemes commences with the date on which a copy of the full statement was sent to the applicant.  I accepted that submission and Mr Oliver did not dissent from it.

5.	Notwithstanding the relevant statutory provisions and what I said in paragraph 11 of my previous determination in this case, for some inexplicable reason a District Chairman, Mr Lunney, to whom the claimant’s application for leave to appeal was transmitted for determination, granted leave to appeal to the Commissioner.

6.	Following upon this purported grant of leave, the claimant submitted a notice of appeal to the Commissioner.  It was Mr Bartos’s submission that I had had no jurisdiction to hear this appeal under s.14(1) of the Social Security Act 1998.  Mr Oliver did not dissent from that proposition and I accepted it for the reasons set out.  

7.	It was Mr Bartos’ submission that, as the decision of the chairman in granting leave was incompetent, I was entitled at my own hand to hold that the grant was a nullity and that it was not necessary for it to be reduced by the Court.  For myself, I have always considered that the Commissioner has such an inherent power.  That was also the view taken by Commissioner J G Mitchell QC where he held a purported grant of leave by the Chairman upon reconsideration of an initial refusal of leave was a nullity.  He proceeded to deal with the appeal before him on that basis.  I refer to paragraph 10 of CSI/559/98.  Commissioner Heggs in CIB/227/00 also held a purported grant of leave invalid and of no effect .  

8.	It follows from that conclusion that, as the grant of leave was incompetent and a nullity, the appeal lodged following that purported grant was one without jurisdiction and incompetent I so hold.

9.	Mr Oliver, however, raised a further issue.  It was his submission that the grant of leave by the District Chairman, Mr Lunney, was incompetent also by reason of the fact that he was not the chairman of the tribunal which heard the appeal.  That was Mr Cairns. Mr Oliver referred me to regulation 58(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 which provides:-

	“(6)	Where in any case it is impracticable, or it would be likely to cause undue delay for an application for leave to appeal against a decision of an appeal tribunal to be determined by the person who was the chairman, or in the case of an appeal tribunal which has only one member, that member, of that tribunal, the application shall be determined by a legally qualified panel member.”

It was Mr Oliver’s submission that the grant of leave in this case was a simple grant of leave by the District Chairman, Mr Lunney.  There was no indication that it was impractical or that it would be likely to cause undue delay for the application to have been put before Mr Cairns.  

10.	It was his submission that in these circumstances the grant of leave was null.  Support was drawn for this submission by a decision of Commissioner Heggs referred to above.  In that decision she said:-

	“If it is considered that regulation 58(6) should be invoked, full reasons should be given at the time such application for leave is determined.  I agree with Mr Bagshaw that the leave to appeal in the present case was invalid and of no effect.”

11.	Mr Bartos indicated that whilst the Secretary of State, whose appeal it was in that case, had not sought to appeal that decision of Commissioner Heggs (which is not surprising by virtue of the fact that she took it upon herself to grant leave and determined the appeal before her in a manner which was favourable to the Secretary of State), he indicated that the point is to be the focus of an appeal before Commissioner Rowland in the near future.  As it was accepted by both parties in this case that the appeal was incompetent for other reasons, he was not prepared to address this issue which is understandable, as Mr Oliver raised it for the first time in his submission to me.  Mr Oliver, on the other hand, submitted in response that in his submission that, as the application had not been put before the chairman, it ought to have been placed before, if I also held on the grounds set out by him that the appeal was incompetent, this would open the door to the application being placed before Mr Cairns.

12.	In the event, I am not disposed in the circumstances to take any view on this issue upon the basis that the parties have both agreed that for other reasons the appeal before me is incompetent.  It was said by Mr Oliver that it is now the practice for a full-time chairman to deal with all applications for leave to appeal to the Commissioner.  There may be sound reasons for this, including the avoidance of delay.  If that is the case, I permit myself the observation that the point raised by Mr Oliver could be avoided by the interlocutory determinations of a full time chairman containing within them an explanation why regulation 58(6) was being invoked.  Without such an indication, determinations and applications are arguably challengeable, though I put it no higher than that.

13.	I do not consider that it is for me to give any indication as to what any future procedure in this case might be. I have held that the appeal is incompetent, and thus have no locus to express views nor give any directions in relation to the case nor to take any further steps in relation to it myself.  It is for the claimant herself, on advice, to make up her own mind as to how she wishes to further progress the case.

14.	In that connection it will be seen that I take a different view from Commissioner Heggs in the decision referred to above.  She, having found that the application for leave to appeal before her was invalid, granted leave herself and processed to determine the merits of the appeal.  That is not a course I consider I could competently take and it follows that I not agree with the approach she took.  There is no indication that in the case before her that there was ever any application for leave direct to her.  Further, the legal basis upon which she granted leave is stated simply to be s.14(10)(b) of the Social Security Act 1998.  All that section says:-

“Subsection (10)   No appeal lies under this section without the leave –
(a)	of the person who constituted, or was the chairman of, the tribunal when the decision was given or, in a prescribed case, the leave of such other person as may be prescribed; 
(b)	subject to and in accordance with the regulations, of a Commissioner.”

The relevant regulations are Regulation 9 of the Social Security Commissioners (Procedure) Regulations 1999.  I do not see how, within the compass of these regulations, she was empowered to grant leave to appeal in the circumstances of the case before her and she has not explained why she did so.  Certainly, in this case, there is no application before me for leave to appeal, and, even if there had been, I do not see how I could have either granted or refused it, as none of the circumstances set out in regulation 9 apply.  Mr Bartos also referred me to CP/7025/1999.  This case was decided by Commissioner Angus.  It is not at all clear whether he was holding that the chairman’s grant of leave in that case was a nullity.  It must be inferred that this was the case, as, to use his own words, “to put the matter beyond doubt” he granted leave himself.  The basis upon which he granted leave appears to have involved the use of regulation 3(3) of the Commissioners Procedure Regulations 1999 which apply only if there is a transitional question arising.  The Commissioner does not make it clear what transitional question was involved in the case before him.  It is further not clear on what basis he considers that he was entitled to treat the application for leave as having been made directly to him when as a matter of fact this was clearly not the case.  There is a common thread in both the 1987 and 1999 Commissioners’ Regulations that the only application which can be made directly to the Commissioners are ones in which a claimant has failed to make a timeous application and there are special reasons for its lateness – see both regulation 3(2) of the 1987 Regulations and regulation 9(3) of the 1999 Regulations.  In these circumstances then, if the Commissioner had properly identified a “transitional question”, I do not see how he could have granted leave on the basis of a direct application when one had never been made, and when, even if one had been made, under both sets of regulations direct applications can be made only in circumstances in which they were late, and then could be admitted only when there were special reasons.  It thus follows that I do not accept the reasoning for the approach taken by the Commissioner in that case.  Further, in any event, regulation 3(3) of the 1999 Regulations was not identified by either of the parties in this case as having application to it.  It should further be noted that Commissioner Angus did not rely, rightly in my view, in taking the course he did on regulation 3(2)(f), as that regulation can be invoked only in a transitional case where the claimant had not sought leave.  In the case before him, the claimant had in fact sought leave.  Thus, while I consider that Mr Bartos properly cited it to me, it has no application in this case and was in any event wrongly decided. 

15.	The appeal fails.

					(signed)
					D J MAY QC
					Commissioner
					Date:  19 October 2001