CIS/4533/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the claimant’s appeal for want of jurisdiction. 

REASONS

2.	I held an oral hearing of this appeal.  The claimant was represented by Mr Ian Miller of the Welfare Rights Service of Kingston-upon-Hull City Council and the Secretary of State was represented by Miss Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.  I am very grateful to both Mr Miller and Ms Haywood for their helpful submissions.

3.	On 7 February 2001, the Secretary of State decided that £284.40 income support had been overpaid to the claimant and was recoverable from him.   The claimant appealed.  On 20 August 2001, the tribunal, constituted by a single legally qualified panel member, Mrs V M Pettifer, allowed the appeal.  She issued a decision notice stating that the reason for the decision was that the decisions under which the payments had been made had not been superseded.  On 17 September 2001, the Secretary of State asked for a full statement of the reasons for the tribunal’s decision and a copy of the record of proceedings.  On 8 October 2001, Mrs Pettifer wrote a “post-hearing note” in the following terms:

“On writing up the full decision I consider the tribunal misdirected itself as to the necessity for the decisions of 20 April 2000 and 21 June 2000 to have been superseded.  I consider the decision should be set aside and reheard by a fresh tribunal.”

4.	That note was referred to a full-time legally qualified panel member, Mr J Holden.  On 11 October 2001, he directed that the decision of 20 August 2001 be set aside under section 13(2) of the Social Security Act 1998.  Not surprisingly, that drew a protest from Mr Miller, who had represented the claimant before the tribunal, and Mr Holden therefore gave reasons for his decision.

“I have decided to set aside the decision of the Tribunal (section 13(2) applies) because it was erroneous in law in the following respects:

the Tribunal misdirected itself as to the supersession of decisions, and as a consequence did not go on to decide the substantive issue in the case.

“1.	An application has been made under s. 14(10(a) of the Social Security Act to a District Chairman by the Chairman of a Tribunal, on the basis of s. 13(2) of the same Act, for a decision to be set aside, because the Tribunal misdirected itself.  Where there has been a clear error of law, it is just and expedient for this procedure to be followed, rather than that there should be a considerable wait whilst this matter is put before a Commissioner.

“2.	In this case the Tribunal purported to determine that the decisions of 20th April 2000 and 20th June had not been superseded, so that there could be no recovery of the overpayment which was the subject-matter of the case.  As Commissioner Mitchell pointed out in CIS/45/90 at para 6 “having regard to the terms of section 53(4) (this) Matter should have been dealt with by the Tribunal by calling for identification of the relevant decisions as a determination upon the appropriate grounds for review”.  However, the Tribunal did select the two dates mentioned, but did not give reasons for having done so.  It is a necessary precondition of such a determination that there has been identification of relevant decisions, ie those of an AO (now DM) awarding benefit.  The Tribunal could not with certainty interpret the print outs at pp 24 and 25, without adjourning for a PO to explain the codings.  That meaning of the print out is not self-explanatory and the status of a print out is anyway not clear: (see Mr Miller’s print out at p35 para 2 of the Scheduled Documents).  Without knowing the codings the Tribunal could not be sure of the status or intention of the various entries.  Relevant decisions may have been missed, and it is not clear that the ‘decisions’ referred to in the decision notice were decisions, and – if decisions – were relevant.

“3.	There is a considerable difference in the situation of adjudication now from that which existed in 1996.  Supersession (which can potentially take place at any time) and revision have replaced review:  and there has been provision made by statute for supersession or revision of an entitlement decision to be made at a different time from an overpayment decision resulting from it (whereas previously these decisions had to be exactly contemporaneous).

“4.	Set aside as this case is, all the issues of fact and law canvassed by Mr Miller in his submission remain alive and the case is still fully at large.”

The claimant applied for leave to appeal against Mr Holden’s decision.  Mr Holden granted leave on 2 November 2001.

5.	It is common ground that Mr Holden’s decision is erroneous in point of law but Ms Haywood submits that I have no jurisdiction to set it aside.

6.	The Social Security Act 1998 makes provision for the determination of claims for social security benefits by the Secretary of State.  Under section 12, appeals lie to appeal tribunals.  So far as is material, sections 13 and 14 provide:

“13.–(1) This section applies where an application is made to a person under section 14(10)(a) below for leave to appeal from a decision of an appeal tribunal.
  (2)	If the person considers that the decision was erroneous in point of law, he may set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal.
…

“14.–(1)  Subject to the provisions of this section, an appeal lies to a Commissioner from any decision of an appeal tribunal under section 12 or 13 above on the ground that the decision of the tribunal was erroneous in point of law.
…
  (3)	An appeal lies under this section at the instance of any of the following –
(a)	the Secretary of State;
(b)	the claimant and such other person as may be prescribed;
(c)	in any of the cases mentioned in subsection (5) below, a trade union; and
(d)	a person from whom it is determined that any amount is recoverable under or by virtue of section 71 or 74 of the Administration Act.
…
  (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; or
(b)	subject to and in accordance with regulations, of a Commissioner.
…”

7.	I agree with Mr Miller and Ms Haywood that Mr Holden had no jurisdiction to set aside Mrs Pettifer’s decision because there had been no application for leave to appeal under section 14(10)(a).  He was not entitled to treat Mrs Pettifer’s post-hearing note as such an application because not only had she not purported to make such an application but also she had no power to make one.  Nor should he have treated the Secretary of State’s application for a statement of reasons as an application for leave to appeal.  There are times when it is appropriate to treat an application for a statement of reasons as an application for leave to appeal but that can only be so where it is clear that the applicant wishes to appeal and would not object to be treated as having applied for leave.  In the present case there was no reason to presume the Secretary of State wished to appeal and Ms Haywood made it plain that he had not wished to do so.  He was perfectly entitled to ask for a statement of reasons merely to assist in the implementation of the decision or to retain a record of the tribunal’s findings of fact or so as to understand the reasoning so that appropriate action might be taken, or appropriate submissions might be made, in another case.  Neither he nor the claimant should have been subjected to the inconvenience and expense of another hearing before a tribunal when neither had wished to challenge the first decision.

8.	Mr Holden’s decision was also erroneous in point of law because it was made in breach of the rules of natural justice as the claimant had been given no opportunity to object to the setting aside.  The Secretary of State has, as I understand it, given a general waiver of his right to make submissions on a claimant’s application.  However, if the Secretary of State applies for leave to appeal against a decision favourable to a claimant and the legally qualified panel member proposes to exercise the power under section 13 to set aside the decision, the claimant should be given an opportunity for making comments.

9.	Mr Holden further erred in finding Mrs Pettifer’s decision to be erroneous in law because she had not given reasons for finding there to have been relevant decisions on 20 April 2000 and 21 June 2000.  She had not purported to give a full statement of reasons and could still have done so.  She could therefore not be criticised for not having given reasons (see R(IS) 11/99).  Similarly, he erred in assuming in the absence of such a statement of reasons that she had been unable to interpret the computer print-outs.

10.	However, I agree with Ms Haywood that no appeal lies to a Commissioner against Mr Holden’s decision.  Section 14 provides only for an appeal against a decision of an “appeal tribunal”.  Mr Holden was not, and was not purporting to be, an “appeal tribunal”.  He was merely purporting to be “such other person as may be prescribed” for the purposes of section 14(10)(a).  Mr Miller relies on the reference to section 13 in section 14(1) but it seems to me that, as Ms Haywood submits, that must refer to the new determination by an appeal tribunal after an earlier decision of an appeal tribunal has been set aside.  The reference may be unnecessary and unhelpful, but it is not sufficient to turn the “person” mentioned in section 13 into an “appeal tribunal”.

11.	Accordingly, I have no jurisdiction to hear this appeal.  I can nonetheless give some guidance.

12.	What should have happened in this case ?  In my view, Mrs Pettifer, having had a change of heart, should have provided the statement of reasons requested by the Secretary of State but would have been quite entitled to add to it a statement that she considered that she had erred in law with a brief explanation.  It would also have been perfectly proper for her expressly to have invited an application for leave to appeal.  It would then have been a matter for the Secretary of State whether he wished to make such an application.  Mr Holden should have reacted to Mrs Pettifer’s post-hearing note by making those suggestions to her.

13.	What should happen now ?  An application for judicial review of Mr Holden’s decision would have been a possible avenue but it would hardly have been proportionate even if the parties had been in dispute about his jurisdiction.  As there is no dispute, judicial review would be absurd.  There seems no reason why Mr Holden should not simply set aside his decision if he now accepts that it was misconceived.  Alternatively, the parties should submit to the tribunal that it has no jurisdiction to consider the case referred by Mr Holden because the appeal has already been determined by Mrs Pettifer and her decision has not been validly set aside by a person entitled to do so (applying the approach taken by the Tribunal of Commissioners in R(I) 7/94).  In either event Mrs Pettifer’s decision would be restored and the Secretary of State would be able to indicate whether he still wished her to provide a statement of reasons.  If the Secretary of State does not wish to pursue the alleged overpayment any further or to seek a statement of reasons for Mrs Pettifer’s decision, another solution would be for the case now pending before a tribunal in consequence of Mr Holden’s decision to be postponed sine die and then no-one need take any further action.  I suggest that the Secretary of State’s representative should write to the clerk to the tribunal, suggesting how the case should be dealt with and that he should send a copy of his letter to Mr Miller who will be able to express assent or dissent.

14.	Mr Miller submitted that, if Mrs Pettifer’s decision were to be restored, it would not be open to the Secretary of State to pursue the overpayment.  As the issue has not yet arisen and may not arise, I do not consider I should express any view on it.  In the absence of either a statement of reasons for Mrs Pettifer’s original decision or an explanation for her change of mind, it would also be unwise for me to express any views as to the merits of her decision.

15.	Those responsible for proposing legislation in this field may wish to consider whether it would be desirable for there to be a right of appeal to a Commissioner from decisions of a legally qualified panel member.  Given the nature of such decisions, appeals would be rare but this case may illustrate the desirability of having some proportionate way of dealing with the exceptional case in which a significant error is made.

(signed)	MARK ROWLAND
Commissioner
12 December 2002