[2004] UKSSCSC CIS_1344_2004 (30 June 2004)

CIS/1344/2004

NOTICE OF DETERMINATION OF APPLICATION FOR LEAVE TO APPEAL

I refuse leave to appeal.

REASONS

1.	On 14 January 2004, the Eastbourne Appeal Tribunal (comprising of one member, who was a legal member) dismissed the claimant’s appeal of the Secretary of State’s decision of 16 September 2003 that he was not entitled to Income Support from and including 9 June 2003.  The claimant now seeks leave to appeal from that tribunal decision.

2.	The claimant raises only one ground of appeal, namely that the relevant legal member was not qualified under the terms of the Social Security Act 1998 insofar as he did not have a general qualification as defined under Section 71 of the Courts and Legal Services Act 1990 because he was not in possession of a practising certificate issued by the Law Society at the time of his decision.  Therefore, it is submitted, the member had no jurisdiction to make the decision he purported to make.  No criticism of the decision is otherwise made.

3.	The relevant statutory provisions are as follows:

(i)	Under Section 7(2)(a) of the Social Security Act 1998, the legal member of an Appeal Service tribunal must have a “general qualification (construed in accordance with Section 71 of the Courts and Legal Services Act 1990)”.

(ii)	Under the 1990 Act, a person has such a qualification “if he has a right of audience in relation to… all proceedings in County Courts or Magistrates’ Courts” (Section 71(3)(a)), which is “a right granted by an authorised body” (Section 71(4)).  The “authorised body” for a solicitor in England is the Law Society of England & Wales (Sections 119(1) and 27(9)).

(iii)	Under Section 31(2) of 1990 Act, “every solicitor shall be deemed to have been granted by the Law Society… a right of audience before every court in relation to all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the Law Society….)”.
 
(iv)	 By Section 119(1) of the 1990 Act, “solicitor” is defined as “solicitor of the Supreme Court”, i.e. someone who, in accordance with the Solicitors Act 1974, has his name on the roll of solicitors maintained by the Law Society.  The Law Society has an obligation to maintain the roll as a list of all those who are currently solicitors (Section 6(1) of the 1974 Act).  That someone may be on the roll as a solicitor, even if he does not have a practising certificate, is made clear beyond doubt by Section 76 of the 1974 Act (which concerns “non-practising solicitors”).

4.	These provisions are perhaps more convoluted than they need be.  However, their effect is clear.  If someone is on the roll of solicitors maintained by the Law Society, then he is a solicitor.  As such, he benefits from the deeming provisions of Section 31(2) of the 1990 Act.  He has a right of audience in all courts, even if he cannot exercise that right because of Law Society regulations which may restrict the exercise of the right (e.g by restricting the exercise of the right to those with a practising certificate).  However, by having his name on the roll, he has the “the general qualification” for the purposes of Section 7 of the Social Security Act 1998.

5.	In short, where a solicitor has his name on the solicitors’ roll, he is qualified to be the legal member of an Appeal Service tribunal.

6.	There are similar provisions in relation to barristers, who, by virtue of Section 31(1) of the 1990 Act, are deemed to have been granted rights of audience before every court although these rights are exercisable only in accordance with the regulations of the General Council of the Bar.  Therefore, if a person has been called to the Bar by an Inn of Court and has not been disbarred, he will be able to be a tribunal legal member even if the exercise of his rights of audience is curtailed because of the regulations of the Bar Council.

7.	For the sake of completeness, I should mention that Section 31 of the 1990 Act in its current form was substituted by Section 36 of the Access to Justice Act 1999 on 27 September 1999.  However, prior to that, although mechanically different, there were equally effective deeming provisions deriving (so far as solicitors were concerned) from the then Section 71(7) of the 1990 Act (repealed when the new Section 31 was introduced), which provided that:

“A solicitor who does not have a right of audience certificate by reason only of not having a practising certificate in force shall be deemed to have such a right, unless his not having a practising certificate in force is the result of disciplinary proceedings”.  

This provision meant that, even prior to September 1999, someone on the solicitors’ roll without a practising certificate satisfied the requirements for being the legal member of a tribunal.

8.	On 8 June 2004, I issued a direction that the legal member in this case file a statement indicating that he was at the relevant time (14 January 2004) on the roll of solicitors.    He has not yet done so, nor can he be criticised for not doing so because his time has not yet expired.  However, the claimant himself filed further evidence on 18 June, which enables me to decide this application.  He has apparently telephoned the Law Society, which has confirmed that this legal member has not held a practising certificate since 1998, but he has remained on the solicitors’ roll.  I accept this evidence, and I do not require either the legal member or the Law Society to file any further evidence.    

9.	The only ground of appeal in this case is that the legal member did not satisfy that qualification.  For the reasons set out above, someone on the solicitors’ roll satisfies the relevant qualification to be a legal member of an Appeal Service tribunal.  The legal member was, at the relevant time, on the solicitors’ roll.  The ground of appeal is consequently misconceived, and any appeal would be bound to fail.

10.	For these reasons, I dismiss the application for leave.  

His Honour Judge Gary Hickinbottom
Chief Commissioner
30 June 2004
(Signed on original)