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Neutral Citation Number:
Reported Number:	R(IS)6/09
File Number:	CHR 3855 2005
Appellant:
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	04/07/2008
Date Added:	14/07/2008
Main Category:	Commissioners' procedure and practice
Main Subcategory:	Commissioners' jurisdiction
Secondary Category:
Secondary Subcategory:
Notes:	Commissioners’ jurisdiction – procedural decision made by legally qualified panel member – whether there is a right of appeal to a Commissioner – scope of Secretary of State for Work and Pensions v Morina and another In each case, the appeal was made to the tribunal after the primary one-month time limit for appealing, but before (or arguably before) the expiry of the absolute statutory bar 12 months later. In those circumstances, under regulation 32 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, a legally qualified panel member (LQPM) has power to extend time for appealing, but, in each of these cases, the LQPM refused to exercise that discretionary power in the claimant’s favour. The issue for the Tribunal of Commissioners was whether such a refusal was a “decision of an appeal tribunal under section 12” for the purposes of section 14 the Social Security Act 1998, ie whether such a decision attracted a right of appeal to a Commissioner or whether the right of challenge was limited to judicial review. In Secretary of State for Work and Pensions v Morina and Another [2007] EWCA Civ 749, [2007] 1 WLR 3033 (also reported as R(IS) 6/07) the Court of Appeal had held that that right of appeal did not extend to a challenge to a decision of a LQPM to refuse an extension of time for appealing where the appeal to the tribunal was more than 12 months outside the primary time limit of one month, in which circumstances there was no power in the LQPM to give an extension of time because of the express statutory bar. The difference in these cases was that the LQPM had a discretion to extend the time limit. Held, dismissing the appeal in CHR/3855/2005 and refusing the applications in CIS/3746/2006 CDLA/948/2007, that: 1. in Morina Maurice Kay LJ had commented that it was neither desirable nor necessary to import the reasoning of Rickards v Rickards [1990] Fam 194 into the field of social security and Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262 (also reported as R(SB) 12/83) and White v Chief Adjudication Officer [1986] 2 All ER 905 (also reported as an appendix to R(S) 8/85) remained authority for the proposition that some interlocutory decisions were not “decisions” for the purposes of section 14(1) of the 1998 Act, because they did not determine the matter in dispute. There was no suggestion in the reasoning that Maurice Kay LJ’s comments were limited to the facts of Morina (paragraphs 28 to 32); 2. the reasoning of Arden LJ and the Master of the Rolls in Morina, based solely on statutory construction, did not support the claimants in the present case because an approach based purely on statutory construction inevitably requires that all decisions taken under regulation 32 are characterised in the same way for the purposes of section 14(1) of the 1998 Act and the decision of the Court of Appeal was binding so far as the proper statutory construction of the relevant statutory provisions was concerned (paragraphs 35 and 36); 3. insofar as the Court of Appeal’s reasoning in Morina was not binding because the case before it concerned an unencumbered appellate exclusion, the comments made in that case were, in the Commissioners’ view, correct (paragraph 36).
Decision(s) to Download:	R(IS) 6 09bv.doc