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Neutral Citation Number:
Reported Number: R(IS)11/99
File Number: CIS 3299 1997
Appellant:
Respondent:
Judge/Commissioner: Judge M. Rowland
Date Of Decision: 01/10/1998
Date Added: 21/06/2002
Main Category: Commissioners' procedure and practice
Main Subcategory: Commissioners' jurisdiction
Secondary Category: Tribunal procedure and practice (including UT)
Secondary Subcategory: tribunal practice
Notes: Commissioners’ jurisdiction – no full statement of tribunal’s decision – whether jurisdiction to hear appeal Tribunal practice - inquisitorial role - whether duty to ask questions already asked by the Secretary of State - whether duty to adjourn when claimant absent Under regulation 23 of the Social Security (Adjudication) Regulations 1995 as amended by the Social Security (Adjudication) and Child Support Amendment (No. 2) Regulations 1996, every decision of a social security appeal tribunal had to be recorded in summary in a decision notice. The chairman then had the power to issue a full statement of the tribunal’s decision, stating their findings and reasons, at any time and had a duty to provide one on a request made within 21 days after the decision notice was sent or given to the parties. In CIS/3299/1997, the claimant’s claim for income support was disallowed on the ground that he was neither available for work nor exempt from the requirement that he should be available for work. In reaching that conclusion, the adjudication officer overlooked the question whether the claimant’s circumstances fell within regulation 6(a) of the Income Support (General) Regulations 1987 which applied to people whose ability to work was restricted by disability. The claimant appealed, arguing that his disability meant that he was unable to work to a sufficient extent but not giving all the information required for a decision as to whether regulation 6(a) applied to him. He did not attend the hearing before the tribunal and his appeal was dismissed. He sought leave to appeal within 21 days, without specifically asking for a full statement of the tribunal’s decision and leave was refused by the chairman who did not issue a full statement. The claimant was granted leave to appeal by a Commissioner. In CIB/4189/1997, the claimant was held by a tribunal not to satisfy the all work test. She did not ask for a full statement of the tribunal’s decision and did not ask the chairman for leave to appeal until more than 21 days had elapsed. Leave to appeal was refused by the chairman, who did not issue a full statement, but was granted by a Commissioner. There was raised on both appeals the question whether the Commissioner had jurisdiction to hear a case in the absence of a full statement of the tribunal’s decision, given that the time for applying to a chairman for leave to appeal was the period of three months after a full statement of the tribunal’s decision was issued and that a copy of the full statement was to be annexed to an application for leave. Held, allowing the appeal in CIS/3299/1997 and dismissing the appeal in CIB/4189/1997, that: 1. there was a duty to give reasons for a tribunal's decision only if a full statement of the tribunal’s decision was requested or provided and a summary of grounds in a decision notice could not be challenged for inadequacy (paragraphs 6 and 7); 2. a tribunal’s decision would not be erroneous in point of law for breach of the chairman’s duty to provide a full statement on a request made within 21 days if the decision notice in fact contained an adequate statement of reasons (paragraph 8); 3. where there was no full statement of reasons a tribunal might be shown to have erred in law if the point of law was justiciable without there being evidence of the tribunal's reasoning or if sufficient evidence of their reasoning could be gleaned from the decision notice (paragraph 9); 4. a chairman had no jurisdiction to grant leave to appeal if no full statement had been issued but a Commissioner could grant leave if there were special reasons for doing so notwithstanding a failure to apply to a chairman within the specified time and could waive the requirement that a full statement be annexed to an application and, accordingly, had jurisdiction to hear an appeal even though no full statement had been issued (paragraphs 14 to 17); 5. a tribunal had a duty to ensure that all relevant questions had been asked of a claimant but were not bound to ask questions that had already been asked by the Secretary of State or an adjudication officer (paragraph 31); 6. the tribunal in CIS/3299/1997 had been unable to ask material questions relating to regulation 6(a) but fairness had not required an adjournment because the claimant had not been wholly unaware that the extent of his ability to work was relevant, the tribunal were entitled to take the view that the claimant would have been unlikely to succeed on that issue and the claimant had chosen not to appear before the tribunal (paragraph 32); 7. the inquisitorial role of the tribunal required them to draw the claimant’s attention in their reasons to the material point previously overlooked by the adjudication officer, the decision notice in CIS/3299/1997 did not do so and, as the claimant’s application for leave to appeal had again referred to the extent of his ability to work, it should have been regarded as a request for a full statement made within 21 days and the tribunal’s decision was erroneous in point of law because no such statement had been provided (paragraphs 36 to 38); 8. the tribunal in CIB/4189/1997 had not been obliged to ask the claimant about an activity with which she had previously told the Benefits Agency she had no difficulties and had not failed to ask her about other activities (paragraph 41); 9. there was no reason why the chairman in CIB/4189/1997 should have issued a full statement and in the absence of one the tribunal's decision could not be impugned for inadequacy of reasons (paragraphs 40 and 42).
Decision(s) to Download: is11_99.doc is11_99.doc