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Neutral Citation Number:
Reported Number: R(IS)6/07
File Number: CIS 1363 2005
Appellant: (Secretary of State for Work and Pensions v Morina and Borrowdale [2007] EWCA Civ 749)
Judge/Commissioner: Judge M. Rowland
Date Of Decision: 23/07/2007
Date Added: 26/06/2006
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 In each case the appellant applied to the Commissioner for leave to appeal against a procedural decision made by a legally qualified panel member (LQPM): in Mr Morina’s case the decision was to refuse to admit a late appeal that was outside the absolute time limit of 13 months imposed by regulation 32(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and in Mr Borrowdale’s case the decision was to strike out his appeal under regulation 46 for want of jurisdiction as the disputed decision was listed as unappealable in Schedule 2 to the Regulations. The Secretary of State argued that the Commissioner had no jurisdiction to hear either appeal. The Commissioner accepted that he had jurisdiction but dismissed the appeals on their merits. The Commissioner refused the Secretary of State leave to appeal to the Court of Appeal on the ground that the Court should decide whether to grant leave to a successful party. The Secretary of State renewed the application to the Court of Appeal, contending that in making the decisions in question an LQPM was not an appeal tribunal, or alternatively that such decisions were not “decisions” appealable to a Commissioner under section 14(1) of the Social Security Act 1998. Held, granting permission and allowing the appeal, that: 1. section 15 of the Social Security Act 1998 provided for an appeal to the Court of Appeal on a question of law against “any decision of a Commissioner”, rather than “any judgment or order” as in appeals from the High Court, and therefore where, as in these cases, there were in reality two decisions, one as to jurisdiction and the other as to the merits, the Court was not precluded from hearing an appeal by the successful party on the point on which he had lost, although it was to be expected that such appeals would be permitted only where a point of general significance was raised (Lake v Lake [1955] P 336 distinguished) (paragraph 10); 2. since decisions to extend time or strike out were inherently judicial rather than administrative and since there was no provision in the 1998 Act empowering the Secretary of State to make regulations which conferred decision-making power in connection with an appeal on any body other than one acting as an appeal tribunal, in making procedural decisions to extend time or to strike out an appeal an LQPM was an appeal tribunal (paragraphs 28 to 30); 3. (per Kay LJ) however 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) were authority for the proposition that some interlocutory decisions were not “decisions” for the purposes of section 14(1) of the Social Security Act 1998, because they did not determine the matter in dispute, and Rickards v Rickards [1990] Fam 194 was to be distinguished because there the judge had the power to grant the application whereas in both the present cases the appellant was seeking from the appeal tribunal something it had no jurisdiction to grant (paragraphs 32 to 40); 4. (per Arden LJ and Sir Anthony Clarke MR) purely as a matter of statutory construction and applying the purposive approach set out in Lane v Esdaile [1891] AC 210 to analogous legislation, section 14(1) cannot apply to a decision by an LQPM that the purported appeal is an appeal that Parliament has provided cannot be made because such a construction would produce diametrically the opposite result from that which was clearly intended by the legislation (paragraphs 42 to 45 and 50).
Decision(s) to Download: CIS 1363 2005-00.doc CIS 1363 2005-00.doc  
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