PLH                                                                             Commissioner's File:  CIB 1454/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Incapacity Benefit
Appeal Tribunal:	Sutton 
Tribunal case ref:	U/45/176/2000/03663
Tribunal date:	27 June 2001
Reasons issued:	21 December 2001

[ORAL HEARING]

Introduction
1.	This is an appeal by the claimant against the decision of the Sutton appeal tribunal consisting of a chairman sitting alone on 21 June 2001, when she determined that the claimant could not be treated as having made a claim for incapacity benefit before she actually submitted a properly completed claim form on 21 February 2000, and consequently confirmed the decision of an officer on behalf of the Secretary of State to refuse the additional entitlement the claimant was seeking on that claim for the period from 1 September 1991 to 20 November 1999; that is a period of over eight years extra benefit in addition to the maximum normal backdating of her benefit for three months before her actual claim, which has already been awarded and is undisputed. 
2.	I held a combined oral hearing of this and two other cases in which the tribunal’s power to deal with such “claims” questions at all was put in issue by the Secretary of State. In this case CIB 1454/02 the claimant was represented by Rory O’Kelly, welfare benefits adviser to Mind in Croydon.  In cases CIS 540/02 and CIS 758/02 (which were respectively an appeal by the claimant against the decision of a tribunal determining that he had not submitted a valid claim until certain details omitted from the original claim form were supplied, and an appeal by the Secretary of State against the decision of a tribunal that the claimant should be treated as having made a valid claim for income support despite not having supplied evidence expressly stated in the claim form to be required), the claimants were represented by Stewart Wright, solicitor and Legal Officer of the Child Poverty Action Group which was backing them as test cases. The Secretary of State was represented in all three cases by James Maurici of Counsel, instructed by the solicitor to the Department for Work and Pensions, assisted by Mr W Spencer and other members of the department.  Since the oral hearing which covered the main issues of principle I have had the benefit of further written submissions from the parties in each case on their practical effects.  To all who appeared and contributed to the oral and written arguments I am grateful, not only for the comprehensive material provided to assist me, but also for putting up over two full hearing days with the inadequate court accommodation in which the Commissioners and those who appear before them have for too long been expected to try and do their work: the prolonged administrative inaction over this is unfair to everyone involved. 
Appeal jurisdiction on claims questions
3.	In these three cases it has been contended on behalf of the Secretary of State that appeal tribunals constituted under the Social Security Act 1998 no longer have the jurisdiction possessed by their predecessor tribunals under the United Kingdom social security schemes before that Act was brought into force, to decide whether in any individual case a claim for benefit has been validly made in accordance with the formal requirements prescribed by the Secretary of State, and if so when was the effective date of that claim. 
4.	These are questions needing to be decided in virtually every case as part of determining entitlement to benefit.  They currently arise in most cases under regulation 4 Social Security (Claims and Payments) Regulations 1987 SI No. 1968, which prescribes the formal manner in which a claim for benefit is to be made.  The regulation has had various amendments and additions made to it from time to time so that it now also imposes a set of requirements of some complexity, in particular for income support and jobseekers allowance claimants, about the information and evidence that has to be provided before a claim is to be treated as complete and effective.  
5.	Compliance with those requirements (whether correctly viewed as substantive, or merely formal) is made an essential condition of entitlement to benefit in all but a small minority of cases, by section 1(1) Social Security Administration Act 1992 which lays down that:
“1. - (1)	Except in such cases as may be prescribed … no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied – 
(a)  he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or 
(b)  he is treated by virtue of such regulations as making a claim for it.”
6.	The relevant regulations are the Claims and Payments Regulations just cited, made under powers now in section 5 of the 1992 Act.  They require the making of a claim in compliance with the specified requirements for all benefits except a small category of exceptions  under regulation 3, which does not apply to any of these cases.  As already noted, the present form of regulation 4 imposes more detailed and stringent requirements on claims for income support or jobseekers allowance, by a set of amending regulations introduced from 6 October 1997.  
7.	It is accepted by all sides, and in my view clear beyond argument, that any question whether the requirements prescribed in the Claims and Payments regulations have been complied with in any particular claimant’s case so as to meet the first essential condition of entitlement to benefit under section 1 of the 1992 Act is a question that arises either as part of deciding a claim for a “relevant benefit” or as one that falls to be decided “under or by virtue of a relevant enactment” for the purposes of section 8 Social Security Act 1998, by which the initial determination of all such questions under the Act is to be made by the Secretary of State: see section 8(1)(a), 8(1)(c).  
Previous law
8.	Under the law before that section came into force, there is in my judgment no doubt that when a disputed question of fact arose between the claimant and departmental administrative staff over whether, or when, an effective claim in compliance with the prescribed requirements had been made so as to meet the first condition of entitlement, it would have been a question to be determined by an adjudication officer under section 20 Social Security Administration Act 1992, with a consequent right of appeal to an appeal tribunal.  That was the accepted position established by Commissioners’ decisions and applied in practice over many years, a clear distinction being recognised between such factual questions which were matters for the “statutory adjudicating authorities” (the adjudication officer and the appeal tribunal), and the prescribing of the forms to be used, or the exercise of administrative discretion to waive their use in individual cases, which were questions expressly reserved to the Secretary of State and carried no right of appeal: see in particular decisions R(U) 9/60 and R(SB) 5/89.
9.	The principle of those decisions, and that well understood distinction, remained in my judgment fully applicable and unaffected at all times down to the coming into force of the 1998 legislation.  In particular, it remained unaffected by the introduction of the more complicated requirements for income support and jobseekers allowance claims (from 6 October 1997, by 1997 SI No 973).  As before, while the claim was required to be made on a form approved by the Secretary of State and certain matters were expressly reserved for his discretion, the essential questions whether an individual claimant had or had not complied with the requirements, or fell within any of the newly specified classes of exceptions for inability to produce full information at the time of the original claim, were all questions of objective fact, falling to be determined on evidence in the normal way.  If disputes arose on such questions, there was nothing in the 1997 amendments that took their resolution away from the statutory adjudicating authorities, and it would have been surprising if there had been.  
10.	I do not therefore agree with the departmental view reflected in the very helpful historical note provided by Mr Spencer at the hearing, suggesting that the 1997 amendments to the content of what was required to constitute a completed claim had in some way operated to alter the existing jurisdiction, or cut down a claimant’s rights of appeal on factual questions of whether or when the requirements had in his case been complied with. It may perhaps have been thought that the decision of the Court of Appeal in R v Secretary of State ex p CPAG  [1990] 2 QB 540 (declining to grant judicial review to force the Secretary of State to refer cases to adjudication officers without delay) enabled such questions to be kept away from the statutory adjudicating authorities, but if so that was clearly a misconception, in my judgment.  The case does not purport to address any question of jurisdiction over how or by whom such questions are to be determined when a dispute does arise in relation to a claim or what is alleged to be a claim.  On that, despite the  “lack of clarity” in the department’s approach to appeal rights noted by the SSAC in their report on the 1997 amendments (CM 3586 para 39), the position under the pre-1998 Act law remained in my view as it always was: as explained by the Commissioner, Mr J S Watson QC, in case R(SB) 29/83 (cf. also R(IS) 4/93), to “bring in issue” the question in a fair way, a decision had at some stage to be given on whether the required claim information had been furnished to establish entitlement from the date sought. That was for the adjudication officer (formerly the benefit officer) to give, and the claimant then had his right of appeal to a tribunal if he remained dissatisfied. 
1998 Act changes
11.	Under the 1998 Social Security Act,  the separate machinery for reference of claims and questions to adjudication officers (who had a measure of independent status:  ex p CPAG per Lord Woolf at page 551A) was all swept away.  All decisions, as well as all administrative actions, in relation to a person wishing to claim benefit were now to be made and taken by the Secretary of State himself (in practice of course by officers acting on his behalf) without differentiation.  As already noted, under sections 8(1)(a) and (c) it is for the Secretary of State to decide any claim for a relevant benefit, and to make any decision that falls to be made under or by virtue of a relevant enactment; and these are agreed to include all the decisions in point in these cases on whether or when a claim for such benefit counted on the individual facts as complete and effective. 
12.	The scope of a person’s appeal rights against any such decision is governed by section 12 by which, so far as material: 
“12. - (1)	This section applies to any decision of the Secretary of State under section 8 … above … which –
(a) is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act; …
(2)	In the case of a decision to which this section applies – 
… the claimant and such other person as may be prescribed shall have a right to [appeal to an appeal tribunal];
but nothing in this subsection shall confer a right of appeal in relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision.
(3)	Regulations under subsection (2) above shall not prescribe any decision or determination that relates to the conditions of entitlement to a relevant benefit for which a claim has been validly made or for which no claim is required.”
13.	It is inherent in the Secretary of State’s case that decisions of the kind in point here (namely whether on the facts the prescribed requirements to constitute a valid claim have been complied with and if so the date at which that was so) fall within the general class of decisions “made on a claim for … a relevant benefit” within section 12(1)(a) above.  That is necessarily implicit in his reliance on the regulations referred to below as excluding such decisions from the right of appeal under Schedule 2 to the Act or directly under section 12(2); but in any event, insofar as there may be thought to be any doubt about the point, I am satisfied that decisions on such questions concerning claims do, as a matter of ordinary construction, fall within the class of those made “on a claim” for the purposes of section 12(1)(a).  To hold otherwise would involve saying that Parliament itself intended to legislate away the pre-existing appeal rights consistently upheld under the previous law, and leave it to the discretion of the Secretary of State alone to legislate them back in again if he chose, by regulations under section 12(1)(b) and Sch. 3. In my judgment that is not the effect of section 12, and the Secretary of State did not so argue.
14.	It follows that such decisions are decisions to which section 12 applies, and so automatically carry appeal rights, unless there is something that validly takes them out.
Exclusion of right of appeal on claims questions
15.	It is common ground that a valid exclusion of the right of appeal against decisions of the kind in point in each of these cases is not to be found in any of the specific paragraphs of Schedule 2 or elsewhere in the primary legislation itself.  The Secretary of State’s contentions are therefore based entirely on the exclusions he has purported to introduce himself in subordinate legislation. For the power to do this, reliance is placed on paragraph 9 of Schedule 2, which adds to the list of decisions against which no appeal lies “Such other decisions as may be prescribed”; and further or alternatively on the qualifying words at the end of section 12(2) (the subsection that actually enacts the right of appeal) that “nothing in this subsection shall confer a right of appeal in relation to a prescribed decision”.  For this purpose, “prescribed” means prescribed by regulations made by the Secretary of State, with section 12(2) and paragraph 9 of Schedule 2 each being identified as a separate regulation-making power, subject to affirmative resolution procedure so that the relevant instrument may not be made unless a draft has first been laid before and approved by each House of Parliament: sections 79, 80, 84.  
16.	The regulations at issue here are in the Social Security and Child Support (Decisions and Appeals) Regulations 1999 SI No. 991, which were duly laid, approved and made under that procedure. Schedule 1 to the Regulations recites both section 12(2) and Schedule 2 paragraph 9 in the 1998 Act as powers exercised in making them.  
17.	By regulation 27 of those regulations as in force at the time relevant for these appeals:
“27. - (1)  No appeal lies to an appeal tribunal against a decision set out in Schedule 2 [sc. of the regulations: see below].
(2)  In paragraph (1) and Schedule 2, ‘decision’ includes determinations embodied in or necessary to a decision.
(3)  An appeal made against a decision specified in paragraph (1) may be struck out in accordance with regulation 46.”
18.	Regulation 46 provides that an appeal may be struck out by the clerk to the appeal tribunal “where it is an out of jurisdiction appeal and the appellant has been notified by the Secretary of State that an appeal brought against such a decision may be struck out”; the tribunal clerks and staff being persons in the employment of the Secretary of State himself, and not required to be legally qualified, so that by this means attempts at appealing on prescribed questions may be got rid of administratively without any judicial or legal involvement.  
19.	Schedule 2 to the regulations sets out the further list of “Decisions against which no appeal lies” which in its original form, applicable at the time of each of these cases, contained at paragraph 5 a blanket exclusion of all decisions of the Secretary of State under the Claims and Payments regulations, subject only to a small list of individual exceptions such as questions under regulation 19 as to the time for claiming benefit.  That list did not include regulation 4, under which the main factual questions of whether or when a claim is complete and effective arise, or regulation 10 under which there is a special rule for identifying the date of claim in some incapacity benefit cases, potentially relevant in case CIB 1454/02.  
20.	Paragraph 5 has since been recast, and from 20 May 2002 takes the form of a number of more specific exclusions instead of one blanket exclusion with piecemeal exceptions: see the amending regulations 2002 SI No 1379, reg 21.  However it is common ground that this does not affect the questions of principle I have to decide, and that these remain relevant in the great majority of cases, since the new paragraph 5 purports expressly to exclude from any right of apppeal any decision of the Secretary of State under regulation 4 “as to making a claim for benefit”.  There is no express exclusion of decisions on the date of claim in incapacity cases under regulation 10 of the Claims and Payments regulations, but any relaxation that involved came too late to have any effect on the tribunal decision in CIB 1454/02.  
21.	It is conceded that if the regulations so made by the Secretary of State are valid in accordance with their terms, the effect of no longer differentiating between what used to be “Secretary of State’s questions” such as the forms to be used for claiming, and questions of whether or when an individual has in fact complied with the requirements so as to have made a valid claim, is to take away the right of appeal to a tribunal which formerly existed on the latter kind of question, since all questions on claims under regulation 4 are now for the Secretary of State to decide and are listed as non-appealable. 
22.	The two main questions argued before me were whether the Secretary of State’s regulations to this apparent effect were within his powers at all under the primary legislation, and whether even if they were so at the time they were made, he ceased to be able to rely on them from 2 October 2000 as a result of the changes in United Kingdom law made by the Human Rights Act 1998 from that date: in particular because of Article 6 of the Convention on Fundamental Rights and Freedoms, by which everyone is entitled, in the determination of his civil rights and obligations, to a fair and public hearing by an independent and impartial tribunal established by law.
Ultra vires challenge
23.	The argument for the claimants on the first of these questions points to the apparent mismatch between section 12(1)(a)/schedule 2 paragraph 9 Social Security Act 1998, which appears to confer on the Secretary of State an unqualified power to prescribe decisions of any kind to be added to the list excluded from the right of appeal, and the separate provision in section 12(2) itself allowing him to exclude classes of decision from the right of appeal under the subsection, but in that case only subject to the express restriction in section 12(3) that this does not extend to decisions relating to the conditions of entitlement to benefit “for which a claim has been validly made or for which no claim is required”.  To give useful effect to that restriction, it was argued, Parliament cannot be taken to have intended regulations to be made under Schedule 2 paragraph 9 in disregard of it, when they could not be so made under section 12(2).  
24.	It was further argued that, given the express requirement in section 1 of the Administration Act for a valid claim as a condition of entitlement, the previous history of appeal rights in relation to such questions, and what was suggested should be a presumption against taking away rights of access to courts and tribunals on normal justiciable issues, the phrase “the conditions of entitlement  … for which a claim has been validly made” should be read all in one breath.  This, as I understood the argument, was said to enable the condition of making such a claim to be read as within the restriction protecting the right of appeal on conditions of entitlement, rather than outside it as the final words of section 12(3) would on a more normal reading suggest.  
25.	The scope of the prohibition in section 12(3) is already the subject of direct authority in case CJSA 69/01, where the Commissioner gave his decision on the basis that the enabling power for regulation 27 of the Decisions and Appeals Regulations was that in section 12(2) of the 1998 Act, so that the scope of section 12(3) was an essential question.  He rejected the argument just identified that the prohibition should be construed more broadly than its actual wording suggests, and held that it did not prevent the Secretary of State from prescribing questions under regulation 4 of the Claims and Payments regulations so as to exclude them from the right of appeal.  Placing emphasis on the words “for which a claim has been validly made …” (which must have been added in for some purpose, and would, it seems to me, be completely superfluous if the argument for the claimant was right) he held at paragraph 7 of his decision that it was open to the Secretary of State to provide by regulations under section 12(2) 
“… for there to be no appeal in respect of a decision of the Secretary of State under the Claims and Payments Regulations so far as they relate to the situation where no claim has been validly made.  The regulations are not, therefore, in my judgment ultra vires in that respect.”
26.	I respectfully agree with that construction of section 12(3) of the Act, which appears to be the plain meaning of the language used.  It means that even applying the prohibition in section 12(3), the Secretary of State’s regulations excluding rights of appeal from decisions that no valid claim has been constituted under regulation 4 of the Claims and Payments regulations do not infringe it, and are permitted under the primary legislation.  They are not required to be made, but neither are they prohibited.  
27.	It is not therefore necessary for me to consider for the purpose of these cases whether a corresponding limitation must be implied into the apparently separate regulation-making power under Schedule 2 paragraph 9, incorporated by reference into section 12(1) itself by section 12(1)(a).  This I respectfully agree with the Commissioner in case CF 3565/01 is a separate and at least equally relevant regulation-making power in its own right, as section 80 of the Act and its mention in Schedule 1 to the 1999 Regulations show.  On any footing the drafting of the Act is not perfect, but the precise interaction of the two powers does not have to be considered here: even if the same prohibition has to be implied into both for consistency, it does not prevent claims questions being excluded from the right of appeal.
28.	For those reasons, the 1999 Regulations were not in my judgment ultra vires the enabling powers in the Social Security Act 1998 at the time they were made.  
29.	I reach that conclusion applying ordinary principles of construction to the provisions of the primary legislation conferring the regulation-making powers. On these there is so far as these cases are concerned no such ambiguity or manifest absurdity as would warrant my using any Parliamentary material as an aid to construction, though I was in fact shown some such material, in the form of extracts from the debate in the House of Commons on 13 May 1998 when the Lords amendments to what became section 12 of the 1998 Act, including section 12(3), were approved (HC Deb cols. 398 to 405). While illustrative of the way in which the section managed to get into its present form I confess that, even if admissible, I would not have found this of clear assistance on the questions I have to decide.  What was said on behalf of the Government appears mainly to demonstrate a mistaken understanding of the extent of the existing appeal rights on those claims questions left unprotected by the final words of what became section 12(3), and to reinforce the wisdom of those who objected in committee and at earlier stages of the Parliamentary procedure to the Secretary of State being allowed such very wide powers to exclude appeal rights against his own decisions, in circumstances that could perfectly well have been made clearer to Parliament at the time, but were not.  None of that, however, alters the fact that the legislation Parliament did see fit to pass actually empowered the Secretary of State to introduce regulations in the terms he later published and made.
Human Rights Act challenge
30.	The real question is therefore in my judgment whether the validity of those regulations is affected by the coming into force of the Human Rights Act 1998 from 2 October 2000 onwards.  Two important points on the operation of that Act in this context can be made initially.  First, I accept the submission on behalf of the claimants that so far as these three cases are concerned the Act was fully applicable.  As the argument developed it was I think accepted on behalf of the Secretary of State that no question arose of its “retrospective effect” being more limited, and in my view that was right.  At the time each tribunal sat in 2001 it was required to give effect to Article 6, and the question is whether it was then acting lawfully or unlawfully in hearing and determining the claims issues as it in fact did.  A fortiori, the Act is fully applicable to the question of whether it would now be lawful or unlawful for me to do what the Secretary of State is asking, which is to set aside the decision of each tribunal on the ground that it acted wrongly in dealing with those issues at all, and to take away any benefit the claimants got as a result.  
31.	It must in my judgment be right that the Human Rights Act has been fully applicable to such questions at all times since 2 October 2000.  The question of what a court or tribunal should itself be doing so as not to infringe Convention rights under Article 6 seems to me a different question from the kind that sometimes arises on an appeal against the content of a pre-HRA decision of the Secretary of State, which it is argued infringed a Convention right even though not unlawful under UK law at the time.  In such cases the extent of the retrospective operation of the Human Rights Act and its interaction with section 12(8)(b) Social Security Act 1998 have of course to be carefully considered (cf. CDLA 1338/02): but under Article 6 the issue is simpler.
32.	Second, the consequence (what was referred to in the submissions as the “remedy”) under the Human Rights Act for these cases if the Secretary of State’s regulations do infringe Article 6 must in my judgment follow from what has just been said about the nature of the question, and the context of section 12 of the Social Security Act by which a claimant has a right of appeal against any decision of the type in point here unless validly deprived of it by regulations.  
33.	By section 6 of the Human Rights Act both the tribunals and I are, as public authorities, forbidden to cause or allow an infringement of Article 6 in the decisions we give except to the extent that we are compelled by or under primary legislation: Wilson v First County Trust Ltd (No 2) [2002] QB 74, [2001] EWCA Civ 633, para 10. Secondary legislation such as these regulations must, to the extent that it is (a) inconsistent with a Convention right (b) incapable of being construed so as to conform with it and (c) not entrenched by a provision of primary legislation, simply yield to the superior force of the primary legislation in the Human Rights Act from 2 October 2000 and, to that extent, be treated as no longer part of the domestic law of this country. That is the clear effect of the overriding primary duties imposed on courts and tribunals as public authorities under sections 3 and 6(1) as regards subordinate legislation outside the special protection in sections 3(2)(c) and 6(2)(b).  
34.	To determine whether the Secretary of State’s arguments would have meant the tribunal, and would now mean me, acting contrary to section 6(1) I have therefore to consider what is required for compliance with Article 6 in the present context, and whether the decision and appeal system applying to claims questions under the 1998 Social Security Act and the Secretary of State’s regulations complies with it.  
35.	Civil rights and obligations:  there is in my judgment no doubt that the determination of questions of entitlement to any social security benefits to which the Claims and Payments regulations apply is a determination of the claimant’s civil rights and obligations for the purposes of Article 6.  That is so whether the benefit involved is an insurance benefit dependent on the payment of contributions, a universal benefit not so dependent, or a means‑tested one, and was conceded by the Secretary of State before me.  It is independent of any question of how far any such benefits count as a “possession” for the purposes of Article 1 Protocol 1 to the Convention (which, on the present state of authority, includes only the contributory benefits: cf. R (Reynolds) v Secretary of State [2002] EWHC Admin 126).  The wider scope of Article 6 follows inevitably from the fact that Parliament has made all relevant benefits including the means‑tested ones a matter of defined legal right for those who meet the prescribed conditions for entitlement; not a discretionary administrative handout.  
36.	Independent and impartial:  it was again in my view rightly conceded by the Secretary of State that his own determination of a claims question is not that of an “independent and impartial tribunal” for the purposes of Article 6.  I agree it cannot be:  CF 3565/01, para 12.  Conversely it was common ground that the status of an appeal tribunal under the Social Security Act 1998 is such that, at least once one gets in front of the tribunal itself, the appeal is capable of constituting the fair hearing and determination required by Article 6, and in my judgment that is also so.  
37.	I only say “capable” because although every appeal tribunal must have a legal chairman and can be safely presumed in the normal course to be independent and fair, it is the whole process and the way it actually works in the individual case that have to be judged for the purposes of Article 6.  Tribunal chairmen and members are rightly jealous of their independence, and great efforts are made to ensure that persons involved in the appeal process (who in the nature of things may often be unrepresented, disabled or otherwise disadvantaged) do get fair and just treatment; but of course the possibility of failures in individual cases by administrative mishandling or delays, conflicts of interest affecting individual tribunal members, or procedural defects, can never be entirely excluded, and such things may have to be considered under Article 6 from time to time.  
38.	I am happy to record however that in none of the present cases is there any question of any criticism of that nature.  The irony is that in each of them the claimant did receive a full hearing and determination by the tribunal of all relevant claims issues, which I am quite satisfied fully complied with all domestic rules of natural justice and all applicable requirements of Article 6; it is the Secretary of State who is trying to shut this out, and say that any benefit derived from the independent hearing must be taken away.
39.	The first argument on his behalf was that by making the regulations in the terms he has the Secretary of State has managed to turn all claims questions into an internal administrative matter of form, preventing there ever being any legally determinable issue or “contestation” about them to which Article 6 can apply.  I reject that.  While it is true that the Secretary of State’s initial determination of any question under section 8 of the 1998 Social Security Act is not itself a legal proceeding or litis contestatio of the kind to which the requirements of Article 6 for a public hearing and so forth can be usefully applied, it seems to me that this argument takes far too narrow a view of what Article  6 requires.  In effect, it enables the Article to be stultified, since if the only question is whether there is compliance once an issue is referred to a court or a tribunal, but a non-independent executive body can exclude a material issue from ever being so referred, the protection of any civil rights that depend on that issue is lost.  Section 1 of the Administration Act makes the existence of a valid claim an essential issue in determining a claimant’s civil right to benefit, and in my judgment what Article 6 obviously requires is a scrutiny of the entire system to see if fair, independent and impartial determination of that issue is provided at any stage.
40.	That there is some measure of flexibility within the apparently absolute wording of Article 6 was not in dispute before me, and is clearly established by the European jurisprudence and recent authority in this country where its effect on various types of administrative or quasi-judicial decisionmaking procedures has been considered.  From those it is plain that the availability of judicial review to challenge administrative decisions against which no statutory or other appeal process is provided may properly be taken into account, and may in some contexts be sufficient to remedy what would otherwise be a failure of the system to comply with Article 6.  I do not however need to refer to those authorities in detail, since it is plain that the question of whether an Article 6-compliant system is or is not provided is one to be determined empirically, according to the nature of the particular rights and decisionmaking involved, and it was common ground that there was no authority bearing directly on the decision of claims questions under the Social Security Acts.  
41.	In my judgment, the correct underlying principle for me to apply is that to be found in the judgment of the Court of Human Rights in Tolstoy Miloslavsky v.  United Kingdom (1995) 20 EHRR 441 relied on on behalf of the claimants: that while there is a margin of appreciation enabling a State in some circumstances to limit by regulation the right of access to a court or tribunal to have a material issue affecting a civil right determined, this must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right to it is impaired; and must pursue a legitimate aim, and be proportionate:  see para 59.  
42.	I also find of assistance and relevance the principles explained by Lord Slynn in R (Alconbury Developments Ltd) v. Secretary of State [2001] UKHL 23; [2002] 2 WLR 1389 at paras 49ff, in holding that where decisions on matters of discretion and judgment such as are involved in planning applications are concerned, the legal control of executive action provided by judicial review and the Wednesbury principle of irrationality provides a sufficient compliance with Article 6, which does not in that context require a complete judicial rehearing of the merits of such discretionary or policy decisions on the facts of the individual case.  
43.	That principle can, in my judgment, be quite clearly accepted as applying also to the kind of policy or discretionary decisions always reserved to the Secretary of State under the Claims and Payments regulations, such as the personal and other details and information that claimants are required to supply in the official forms, and whether in a particular case an “informal” claim not on the prescribed form should be accepted by discretionary waiver of the requirements. Under the pre‑1998 law those were “Secretary of State’s questions” and thus separate from the adjudication and appeal system, and are in my judgment within the principle approved by the House of Lords in Alconbury.  So are decisions by the Secretary of State on whether education should be “recognised” for the purposes of child benefit under section 142 Social Security Contributions and Benefits Act 1992 on which it was held in CF 3565/01, following Alconbury, that the exclusion of appeal rights by the Decisions and Appeals regulations schedule 2 para 2 did not infringe Article 6.  
44.	In my judgment it is necessarily inherent in what the House of Lords said in Alconbury, and is explicit in the judgment of the Court of Appeal in Runa Begum v. Tower Hamlets LBC [2002] EWCA Civ 239; [2002] 1 WLR 2491 delivered by Laws LJ which I have found of particular assistance, that the nature of the decisionmaking process in relation to any given type of determination has to be looked at to see where it lies on a spectrum, according to whether “judgment and discretion, rather than fact finding, play the predominant part”:  para 43 ibid.  If the process is predominantly an objective fact-finding exercise, involving applying prescribed legal rules to facts that have to be found from evidence in an individual case, then it must in my judgment follow that it is less easy to find compliance with Article 6 in a system which consists only of a non‑independent administrative single stage not itself complying with the Article at all, overseen only by judicial review on irrationality, etc., grounds and without any right to a hearing on the facts, merits and evidence before an independent tribunal at any stage.  In such cases, the reality may be that there has never been an independent determination of such issues, because at no stage is there an Article 6-compliant body having “full jurisdiction” to determine them:  see the analysis of the meaning of this expression and the emphasis on the difference between a fact-finding exercise and the determination of policy issues at paras 31 to 32.
45.	In my judgment, the factual issues about whether a claimant in a particular case has complied with the Secretary of State’s requirements under regulation 4 of the Claims and Payments regulations so as to make a complete and valid claim for benefit, and thus comply with the first essential condition of entitlement, fall clearly at the fact- finding end of this spectrum.  Even with the additional complications introduced by the extra requirements in 1997, they are pre‑eminently matters involving the determination of an objective state of fact on the evidence in a particular case, and applying to it a set of prescribed legal rules.  
46.	The effect of the Secretary of State’s regulations, excluding those questions from the rights of appeal that would otherwise apply as they do to other essential conditions of entitlement, is to provide a system under which there is no independent, or even quasi-independent, fact-finding body at the initial administrative stage, and no right of access to such a body at any stage.  That cannot provide compliance with the requirements of Article 6;  and in my judgment even taking the most expansionist view of the scope of the Administrative Court’s functions on a judicial review application, it cannot be said that the type of control that Court exercises (with every application requiring leave, and any remedy discretionary) provides an alternative route to the “full jurisdiction” that in my judgment is needed by Article 6 in this context, namely for an independent tribunal to consider and determine the facts and decide for itself if the claimant meets the conditions for entitlement.  
47.	On the legitimate aims and proportionality of the regulations purporting to exclude such questions from the normal statutory avenue of appeal, it is in my judgment relevant to take into account the state of the law as it stood up to the introduction of the 1998 changes.  This did provide appeal rights on these questions in exactly the same way as for any other question that fell to be determined by an adjudication officer without, so far as any of the authorities or material before me shows, there being any particular difficulty about operating the system in that way.  By contrast, the restriction of the possibility of challenge to judicial review applications only (described by the Social Security Advisory Committee in its report, supra, as “unacceptable”) would be likely to make for reduced access for claimants, much greater administrative cost at any rate in such cases as were accepted by the Administrative Court for consideration, and even in those an incomplete substitute for the comparatively quick, easy and hitherto generally satisfactory procedure affording a free hearing on such issues as a matter of right before a tribunal having full jurisdiction to deal with the facts.
48.	In my judgment therefore the claimants’ arguments on Article 6 are entitled to succeed, and regulation 27 of and paragraph 5 of Schedule 2 to the Decisions and Appeals regulations are to be treated as of no effect from 2 October 2000 so far as they purport to exclude the appeal rights which previously existed, and otherwise arise under section 12 Social Security Act 1998, against decisions on whether or when a claim has been validly made in accordance with the prescribed requirements in the particular case so as to meet the first condition of entitlement under section 1 Social Security Administration Act 1992.  The tribunals in each of these cases were accordingly within their jurisdiction to deal with and determine those issues as they did, and I would be acting unlawfully and contrary to section 6(1) Human Rights Act 1998 if I were to accept the submissions of the Secretary of State and hold otherwise.  
49.	This is not, I emphasise, an earth-shaking result: it merely restores the scope of claimants’ appeal rights to where they were before (and for that matter were thought still to be, by the Secretary of State’s officers dealing with these cases when the original decisions were issued and referred on appeal to the tribunals in the usual way).  The practical effects in the three cases now need to be considered separately.  
Consequences in the present case
50.	In the present case CIB 1454/02 the chairman’s reasons for determining the case against the claimant on the evidence before her were that, although she considered she had jurisdiction to determine the appeal on the question referred to her, namely whether the claim made on 21 February 2000 was within the prescribed time for claiming in respect of the eight-year period back to 1 September 1991 for the purposes of regulation 19 of the Claims and Payments regulations, and for that purpose she also had jurisdiction to determine when an effective claim was made or fell to be treated as made under any other provision of the regulations, she did not find that the special rule in regulation 10, which was the one the claimant relied on for saying she was still in time for claiming back to 1991, actually applied on the facts. 
51.	By regulation 10:
“10.-(1) Paragraph (2) applies to a claim for incapacity benefit … for a period of incapacity for work of which the claimant gave his employer notice of incapacity under regulation 7 of the Statutory Sick Pay (General) Regulations 1982, and for which he has been informed in writing by his employer that there is no entitlement to statutory sick pay.
(2) A claim to which this paragraph applies shall be treated as made on the date accepted by the claimant’s employer as the first day of incapacity, provided that he makes the claim – 
(a)	within the appropriate time specified in paragraph 2 of Schedule 4 beginning with the day on which he is informed in writing that he was not entitled to statutory sick pay;…”
Schedule 4 sets out the prescribed times for claiming benefit for the purposes of regulation 19(1) (and thus of meeting the condition of making a claim “within the prescribed time” under section 1(1)(a) of the 1992 Administration Act, essential for entitlement).  For incapacity benefit the time is “The day in respect of which the claim is made and the period of 3 months immediately following it”: or to put it in simpler terms, you can get the entitlement for up to three months before the date of your claim.  
52.	For that purpose it seems to me obviously essential, before the entitlement and the application of regulation 19 can be properly determined, to know what counts as the date of your claim; and in my judgment the chairman was entirely right in holding, as she did, that the appeal against the decision that the claimant had been given all that was due under regulation 19 required her to look at any applicable provisions elsewhere in the Claims and Payments regulations, including regulation 10, that affected the answer to that question.  There is nothing in regulation 10 itself that makes its application a discretionary matter for the Secretary of State or expressly provides for any decisionmaking at all: it is simply a mandatory provision that a claim must be treated as made at an earlier specified date if certain factual conditions are met.  Both for the reasons already given that it is contrary to Article 6 of the Convention to exclude such factual questions from the right of appeal, and for the reason given by the chairman that they are in any event a necessary part of determining whether the claimant has claimed within the time limit laid down in regulation 19(1) and thus within the proper scope of the appeal before her, she was in my judgment right to consider and decide the point, and I reject the Secretary of State’s arguments to the contrary.
53.	Despite Mr O’Kelly’s arguments however I am equally unpersuaded that the chairman was in error in her decision on the point on the actual facts of the case.  These were that the claimant had had to take early retirement from her employment as a schoolteacher on medical grounds in 1991, and had been continuously on sick leave receiving contractual sick pay under her employer’s scheme from the start of her incapacity on 17 April 1991 to the last day of her employment on 31 August of that year. The terms of the scheme were generous, and covered or included her entitlement to statutory sick pay down to the termination of her employment, after which she went on to early retirement benefit under the Teachers’ Superannuation Scheme: pages 40-48, 51. There was no evidence that any notification of non-entitlement to statutory sick pay for the period after her employment ended had been issued by her employer, and the chairman accepted that no such notification had been given at the time, or before her actual claim for incapacity benefit was made many years later: see paragraph 2 of her lucid and well summarised statement of reasons at page 64.  Nor, as Mr Spencer points out in the recent submission on behalf of the Secretary of State, was there any evidence at all of the claimant having given her employer a notice of incapacity under the sick pay regulations as respects the period after the termination of her employment for which she subsequently sought to claim: indeed it seems highly unlikely that she would have done such an apparently pointless thing at the time.  
54.	Consequently, even setting aside the point that incapacity benefit was only introduced in 1995, there was no evidence that the two essential conditions in regulation 10(1) for paragraph (2) of the regulation to apply to her claim in respect of that period were in fact met; and the chairman’s decision that in those circumstances “regulation 10(1) and (2) do not come into play” was in my judgment correct, and the only reasonable conclusion that could be reached. 
55.	The further argument that the letter of 10 April 2000 at page 51 should have been held to amount to the required notification of non-entitlement under regulation 10(1) so as to make the claim retrospectively effective to 1 September 1991 was equally hopeless in my view, and rightly rejected in paragraphs 3-4 of the chairman’s decision.  That letter, which is addressed not to the claimant but the benefits agency in response to an enquiry from them only after the actual claim in this case had been made, was written by the school bursar: it merely confirms that her statutory sick pay was incorporated into what she received under the school’s sick pay scheme, from the first day of her incapacity on 17 April 1991 and throughout the remainder of her employment down to 31 August, and adds (understandably in the circumstances) that “I am unable to trace whether a form SSP1 was issued in her retirement”.  
56.	I do not see how such a letter written many years after the claimant’s employment had ceased, and actually confirming, rather than denying, her entitlement to statutory sick pay from the first day of the relevant period of incapacity and throughout the remainder of her employment, could possibly be construed as the notification of non-entitlement in response to a notice by the employee required by regulation 10(1) to bring paragraph (2) into operation as regards the period of claim, which began only when her employment had ended.  I do not accept Mr O’Kelly’s suggestion that what is said in paragraph 3 of the chairman’s reasons on page 64 about a document provided only after the date of the actual claim being impossible to bring within the terms of regulation 10, and in particular the period under paragraph (2)(a), amounts to a finding that the letter was indeed such a notification: that would have been inconsistent with the terms of the letter itself and the lack of any notice from the employee, but in any event I do not read paragraph 3 as so intended, or as in any way qualifying the chairman’s reasons for holding regulation 10(1) and (2) inapplicable on the facts. 
57.	For those reasons, I dismiss the claimant’s appeal and confirm the decision that she has no entitlement to incapacity benefit for the period before 21 November 1999 on her claim made on 21 February 2000.

(Signed)
P L Howell
Commissioner
9 January 2003