DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

Decision

1.	Our decision is that the appeal in CHR/3855/2005 is dismissed, and the applications for leave to appeal in CIS/3746/2006 and CDLA/948/2007 are refused.

Introduction

2.	Under section 14 of the Social Security Act 1998 (“the 1998 Act”), an appeal lies to a Social Security Commissioner “from any decision of an appeal tribunal under section 12… on the ground that the decision of the tribunal was erroneous in point of law”.  In Secretary of State for Work and Pensions v Morina and Another [2007] EWCA Civ 749, [2007] 1 WLR 3033 (also reported as R(IS) 6/07) the Court of Appeal held that that right of appeal does not extend to a challenge to a decision of a legally qualified panel member of the tribunal (“LQPM”) to refuse an extension of time for appealing (and consequently to dismiss the appeal for want of jurisdiction) where the appeal to the tribunal is more than 12 months outside the primary time limit of one month.  In those circumstances, there is no power in the LQPM to give an extension of time because of an express statutory bar (regulation 32(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 99) (“the 1999 Regulations”)).  

3.	The cases now before us concern the scope of the decision in Morina.  In each, the appeal was made after the primary one month time limit for appealing, but before (or arguably before) the expiry of the absolute statutory bar 12 months later.  In those circumstances, under regulation 32 an LQPM has power to extend time for appealing - but, in each of these cases, the LQPM refused to exercise that discretionary power in the claimant’s favour.  The issue before us is whether such a refusal is a “decision of an appeal tribunal under section 12” for the purposes of section 14, i.e. whether such a decision attracts a right of appeal to a Commissioner or whether the right of challenge is limited to judicial review.  In determining the appeal and applications before us, we have been concerned only with the jurisdiction issue and have, with the agreement of the parties, not otherwise considered the merits of the claimants’ individual cases.
4.	At the hearing before us, the claimants in CHR/3855/2005 and CDLA/948/2007 were represented by Mr David Forsdick of Counsel, instructed by the Child Poverty Action Group (“CPAG”); and the claimant in CIS/3746/2006 was represented by Mr Desmond Rutledge of Counsel, instructed by Newcastle Law Centre.  Ms Deok Joo Rhee of Counsel appeared for the Secretary of State for Work and Pensions (“the DWP”) in CDLA/948/2007 and CIS/3746/2006; and Mr Tim Buley of Counsel appeared for HM Revenue and Customs as agents for the Secretary of State in CHR/3855/2005.  We are grateful to all of the representatives for their clear and helpful submissions.

The Statutory Provisions

5.	Section 12(7) of the 1998 Act prescribes that regulations may be made as to the manner in which and the time within which appeals are to be brought.  Regulations 31 and 32 of the 1999 Regulations are made under that provision.  

6.	Under regulation 31 of the 1999 Regulations, the time limit for making an appeal to an appeal tribunal (now known as Social Security & Child Support Appeals Tribunals) is one month from the date of notification of the decision against which the appeal is brought, subject to a limited extension in cases where a statement of reasons for the decision has been requested within that one month period (“the primary time limit”).

7.	Regulation 32 makes provision for late appeals to be admitted, but with an absolute time limit of one year after the expiry of the primary time limit, in the following terms:

“(1)	The time within which an appeal must be brought may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but no appeal shall in any event be brought more than one year after the expiration of the last day for appealing under regulation 31.

(2)	An application for an extension of time under this regulation shall be made in accordance with regulation 33 and shall be determined by [an LQPM]….

(3)	An application under this regulation shall contain particulars of the grounds on which the extension of time is sought, including details of any relevant special circumstances for the purposes of paragraph (4).

(4)	An application for an extension of time shall not be granted unless – 

(a)	the [LQPM] is satisfied that, if the application is granted, there are reasonable prospects that the appeal will be successful; or
(b)	the [LQPM is]… satisfied that it is in the interests of justice for the application to be granted.

(5)	For the purposes of paragraph (4) it is not in the interests of justice to grant an application unless the [LQPM] is satisfied that – 

(a)	the special circumstances specified in paragraph (6) are relevant to the application; or
(b)	some other special circumstances exist which are wholly exceptional and relevant to the application,

and as a result of those special circumstances, it was not practicable for the application to be made within the time limit specified in regulation 31.

(6)	For the purposes of paragraph (5)(a), the special circumstances are that – 

(a) the applicant or a partner or dependant of the applicant has died or suffered serious illness;
(b) the applicant is not resident in the United Kingdom; or
(c) normal postal services were disrupted.

(7)	In determining whether it is in the interests of justice to grant the application, regard shall be had to the principle that the greater the amount of time that has elapsed between the expiration of the time within which the appeal is to be brought under regulation 31 and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application is based.

(8) In determining whether it is in the interests of justice to grant an application, no account shall be taken of the following – 

(a)	that the applicant or any person acting for him was unaware of or misunderstood the law applicable to his case (including ignorance or misunderstanding of the time limits imposed by these Regulations); or
(b)	that a Commissioner or a court has taken a different view of the law from that previously understood and applied.

(9)	An application under this regulation for an extension of time which has been refused may not be renewed.

(10) The [LQPM] who determines an application under this regulation shall record a summary of his decision in such written form as has been approved by the President.

(11)	As soon as practicable after the decision is made a copy of the decision shall be sent or given to every party to the proceedings.” 

8.	Therefore and in summary (and broadly following the jurisdictional analysis of Lawton LJ in White v Chief Adjudication Officer [1986] 2 All ER 905; see paragraph 18 below), if an appeal to the tribunal is brought within the primary time limit, it will proceed as such.  If it is brought outside the primary time limit, the tribunal has no jurisdiction to deal with it unless and until an extension of time has been granted by an LQPM in accordance with regulation 32.  If an appeal is brought later than 12 months after the expiry of the primary time limit, then no extension can be granted.  Where an appeal is outside the primary time limit and no extension has been granted (either because the appeal is brought later than 12 months after the expiry of the primary time limit, or because it was brought within that period but an LQPM has refused to exercise the discretion in the tribunal to extend time), the tribunal must refuse to accept the appeal.  That is what happened in each of the cases before us, to which we now turn.

The Facts

9.	The claimant in CIS/3746/2006 has anxiety and depression and was in receipt of income support on the basis of her incapacity for work.  On 25 April 2006 the claimant was informed that she was no longer entitled to income support because her circumstances did not meet the conditions of entitlement.  She contacted Newcastle Law Centre in July 2006, but since the one month period for appealing had already expired, the law centre wrote to the tribunal on 26 July 2006 asking for the time for appealing to be extended under regulation 32 of the 1999 Regulations.  The letter stated that the claimant’s circumstances had not changed and that she had continued to supply sick notes, and they challenged the decision to terminate benefit on the ground that there was no evidence of a supersession decision identifying a relevant change of circumstances.  On 4 September 2006 the DWP sent the Tribunal Service a note stating that the claimant’s entitlement to income support had ended because her claim for incapacity benefit had ceased, and on 8 September 2006 an LQPM refused to extend the time for appealing, indicating that there were no reasonable prospects that the appeal would be successful and no special or exceptional circumstances within regulation 32(5).  On 12 September 2006 the law centre applied to the tribunal for leave to appeal to the Commissioner against the refusal to admit the late appeal, but the application was refused by a district chairman on the basis that the tribunal had no jurisdiction to consider it.  The claimant applied to the Commissioner for leave to appeal on 4 October 2006 and that application is now before us for determination.

10.	In CDLA/948/2007 the claimant is a minor who now lives in France with his mother.  A decision was made on 20 November 2005 terminating his award of disability living allowance (“DLA”) on the ground that he lived outside the United Kingdom.  On 20 December 2006 (i.e. exactly 12 months after the expiry of the primary time limit for appealing), the claimant’s mother and appointee submitted an appeal asking for the appeal to be admitted out of time on the grounds that the award of DLA was exportable to France under EC Regulation 1408/71, and that there were special circumstances relevant to the application because the claimant and his mother lived in France and had written to the DWP three times challenging the decision of 20 November 2005 without having received a response.  On 17 January 2007 an LQPM refused to extend the time limit for appealing on the grounds that (i) it was outside the primary time limit plus one year; (ii) the appeal had no reasonable prospect of success because the claimant was resident outside the United Kingdom; and (iii) there were no special circumstances for extending the time limit under regulation 5(6).  On 16 February 2007 CPAG wrote on the claimant’s behalf to the tribunal asking the chairman to reconsider the refusal to admit the appeal, and in the alternative applying for leave to appeal to the Commissioner.  Their letter set out the reasons for doubting the correctness of Snares v Adjudication Officer (Case C-20/96), regarding the exportability of DLA - the submission pre-dated the judgment in Commission v European Parliament and Council (Case C-29/05), which effectively overruled Snares - and set out the special reasons for the lateness of the appeal.  Following the refusal of leave to appeal by the LQPM, CPAG renewed the application for leave to appeal to the Commissioner on 2 March 2007, and that application is now before us.

11.	In CHR/3855/2005 the claimant contends that she should have been treated as having been “precluded from regular employment by responsibilities at home” under paragraph 5(7)(b) of Schedule 3 to the Social Security Contributions and Benefits Act 1992 for a period following the birth of her first child prior to 6 April 1978, which is the date when the home responsibilities protection scheme came into force.  The facts of the case are set out at length in paragraph 7 of the determination of Mr Commissioner Rowland in the applications for leave to appeal in CIS/1363/2005, CIS/2322/2005, CJSA/3742/2005 and CHR/3855/2005, and we need not repeat them here.  Suffice it to say that there are issues as between the claimant and the respondent as to (i) the applicability of the relevant European law (including human rights law) to the circumstances of the case, and (ii) whether the appeal is within or outside the primary time limit plus one year.  In any event, on 13 July 2005 an LQPM refused to extend time for appealing on the basis that it fell within that period, but the appeal had no reasonable prospects of success and that none of the special circumstances specified in regulation 32 for justifying the admission of a late appeal existed nor were there any other exceptional circumstances.  A similar decision was made on reconsideration on 15 August 2005.  The claimant sought leave to appeal, which was refused by another LQPM on the basis that there was no right to appeal such a refusal to extend time.  On 9 November 2005, the claimant applied to the Commissioners for leave to appeal, and Mr Commissioner Rowland gave permission.

Secretary of State for Work and Pensions v Morina in the Court of Appeal

12.	Of the four cases before Mr Commissioner Rowland referred to in the preceding paragraph, one was CHR/3855/2005 in which leave to appeal was granted and which is now before us.  In CJSA/3742/2005, Mr Commissioner Rowland refused leave to appeal, and it went no further.  

13.	The third of those four cases was CIS/2322/2005 (Morina), to which we have already referred.  The fourth case was CIS/1363/2005 (Borrowdale), in which the claimant sought to appeal the Secretary of State’s decision to pay benefit by cheque rather than order book.  The Secretary of State was able to do that because of the effect of regulation 26(1) of and Paragraph 1 of Schedule 7 to the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968) which, at the relevant time, provided that “income support shall be paid… by means of an instrument of payment” except where regulations provided otherwise.  Both cheques and order books are instruments of payment and so it was left to the Secretary of State’s discretion whether to pay by order or cheque.  Importantly, by virtue of Paragraph 5(l) of Schedule 2 to the 1999 Regulations, there was no right of appeal in respect of this decision with regard to method of payment, and the decision was an out of jurisdiction matter for the purposes of section 12 - and an LQPM struck out the appeal under regulation 46 of the 1999 Regulations.  The claimant sought to appeal that refusal to the Commissioners.  

14.	In both Morina and Borrowdale, Mr Commissioner Rowland held that he had jurisdiction to hear the appeals from the LQPM’s decisions under regulations 32 and 46 of the 1999 Regulations, but he dismissed both appeals on their merits; and he refused the DWP permission to appeal to the Court of Appeal.  The Court of Appeal later gave permission to appeal and the appeals were heard together.  Before the Court of Appeal, the claimants did not appear; but an advocate to the court was instructed and CPAG were permitted to intervene by way of written representations on behalf of the claimant in CHR/3855/2005.

15.	Maurice Kay LJ identified the scope of the appeals as follows (at paragraph 4):

“Thus the central point of law is whether a Social Security Commissioner has jurisdiction to hear and determine an appeal from an LQPM who has refused to extend time or who has struck out a proposed appeal for want of jurisdiction.”

In each case, the Court of Appeal found that the Commissioner had no such jurisdiction: the decisions under regulations 32 and 46 of the 1999 Regulations were not “decisions” for the purposes of section 12 of the 1998 Act and were therefore not appealable under section 14.  The only means of challenging those decisions was by way of judicial review.

16.	The court considered a number of relevant authorities.  In Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262 (also reported as R(SB) 12/83) (“Bland”), the Court of Appeal held that it had no jurisdiction to consider an application for leave to appeal against the decision of a Commissioner refusing leave to appeal the decision of a Supplementary Benefit Appeal Tribunal because, following Lane v Esdaile [1891] AC 210, the refusal of the Commissioner to grant leave to appeal was not a “decision of a Commissioner” for the purposes of section 14 of the Social Security Act 1980.  Section 14 of the 1980 Act concerned appeals from the Commissioner to the Court of Appeal, the equivalent provisions now being found in section 15 of the 1998 Act.  Sir John Donaldson MR said (at page 267G):

“Section 14 of the Act of 1980 does contemplate an appeal from a decision of the commissioner, and I would accept that in a sense the grant or refusal of leave to appeal to the commissioner is a decision, just as in Ex parte Stevenson [1892] 1 QB 609 it was accepted that the grant or refusal of leave to appeal was an Order of the High Court, but it was not the kind of decision which, in my judgment, section 14 contemplates.  That section relates to a decision which determines the matter in dispute.”

17.	Bland was followed in Kuganathan v Chief Adjudication Officer [1995] TLR 127 in respect of the provisions for appeals from Commissioners to the Court of Appeal found in the Social Security Administration Act 1992 which succeeded section 14 of the 1980 Act and which were later re-enacted in substantially the same form in section 15 of the 1998 Act.  The court considered that that was “the only possible conclusion”.

18.	Bland was also applied in White v Chief Adjudication Officer [1986] 2 All ER 905 (also reported as R(S) 8/85) (“White”), which concerned the provisions in section 14 of the 1980 Act concerning extensions of time for an appeal from a Commissioner to the Court of Appeal.  Under section 14, an application to the Commissioner for permission had to be made within three months, which could be extended by the Commissioner.  The Court of Appeal held that the refusal of a Commissioner to extend the time for appealing to the Court of Appeal was also not a “decision” for the purposes of section 14.  Lawton LJ said (at page [  ]):

“It is clearly a condition precedent to getting leave to apply for leave to appeal that the applicant gets an extension of time.  On my construction of s14 and the regulations, the position is this.  The applicant has no right of appeal at all outside the terms of the statute and the regulations.  The statute gives a right to apply for leave to appeal both to the commissioner and, on his refusing, to this court; but that right of appeal expires at the end of three months unless the applicant is given an extension of time in which to apply for leave to appeal.  Until that extension of time is granted, the applicant has no right of appeal.

This court is a court created by statute.  It can only entertain appeals if the applicant has a right to appeal.  For two reasons it seems to me that Mrs White has not got any right to come to this court for leave to appeal, because, first, she is not appealing from a decision of a commissioner and, second, she cannot begin to appeal unless she can bring herself within the time limits.  It was for the commissioner to decide the time limits.  He decided that the three-month period shall be the operative period.  She is outside that three-month period, so it follows that she has lost the right to apply to this court for leave to appeal.”

Glidewell and Nicholls LJJ agreed, the former suggesting that the only route of challenge to the Commissioner’s failure to extend time would be by way of judicial review.

19.	These authorities strongly supported the Secretary of State’s case in the Morina appeal.  However, the advocate to the court submitted that Bland and White had been swept away (or at least limited in effect) by Rickards v Rickards [1990] Fam 194 (“Rickards”), in which the Court of Appeal, distinguishing Lane v Esdaile, held that the grant or refusal of an extension of time for taking a step in matrimonial proceedings was not analogous to the grant or refusal of leave to appeal.  Lord Donaldson MR referred to his judgment in Bland, and said (at page 203A):

“In retrospect I regret that I added the sentence: ‘That section relates to a decision which determines the matter in dispute.’  That is wrong, since a truly interlocutory or procedural decision could give rise to an appealable question of law, even if it is unlikely that leave to appeal would be given.”

However, in Rickards Lord Donaldson MR also confirmed that a refusal of leave to appeal was not the kind of decision contemplated by section 14 of the 1980 Act.

20.	In Morina and Borrowdale, the advocate to the court and the CPAG sought in effect to re-open Bland and White in the light of Rickards. 

21.	Rejecting the submission that White should no longer be followed in the light of Rickards, Maurice Kay LJ said:

“37.	I cannot accept Mr Kovats’ [the advocate to the court] submission that, in the light of Rickards, we should not follow White.  Our concern is with the question of what is an appealable “decision” under section 14(1) of the Social Security Act 1998. In Rickards, the husband was seeking to appeal a decision which the registrar had had jurisdiction to make and in respect of which the judge had had a discretionary power to grant an extension of time.  The position in Mr Morina’s case is quite different. Once the prescribed period of one month (regulation 31) and the additional extension period of 12 months (regulation 32) had expired, no one could enable Mr Morina to appeal against the decision of the Secretary of State.  There is no general power to extend time which continues after the thirteen months have expired. In the case of Mr Borrowdale, he never did have a right to appeal against the decision of the Secretary of State to pay his income support by cheque. This is because (1) by section 12(1) of the 1998 Act, Schedule 2 to the Act renders certain decisions unappealable; (2) by paragraph 9 of Schedule 2, the list of unappealable decisions may be added to; and (3) by paragraph 5 (j) and (l) of Schedule 2 to the 1999 Regulations, decisions as to the manner and time of the payment of benefits have been added to the list of unappealable decisions. They are, within the meaning of the Regulations (regulation 1(3)), “out of jurisdiction appeals”. Thus, just as Mr Morina was seeking from the Appeal Tribunal something that it had no jurisdiction to grant, so too was Mr Borrowdale. 
38.	This is the context in which regulation 32 and regulation 46 have provided that certain decisions of the Tribunal are allocated to an LQPM.  They relate to unappealable or no longer appealable decisions of the Secretary of State.  In the overwhelming majority of cases, they will be plainly recognisable as such when they arise and there are perfectly good and obvious policy reasons why no further avenue of appeal should be provided.  I acknowledge that there may be a few cases in which there may be room for debate over, say, whether the thirteen months had truly expired or whether a decision really related to “the manner and time of the payment”.  That is no doubt why provision is made for the decision to be taken by the LQPM. One must allow for the possibility that he may get it wrong but that does not necessarily mean that his decision must be considered to be an appealable one under section 14. 
39.	In my judgment, it is neither necessary nor desirable to import the Rickards reasoning into the field of the Social Security Act, particularly when the decisions sought to be appealed are the subject of unencumbered appellate exclusions.  Where a Commissioner in the normal way refuses leave to appeal against a substantive tribunal decision, his refusal is susceptible to judicial review. It is common ground in the present case that, if a decision of the LQPM is unappealable to the Commissioners, it is susceptible to judicial review. Mr Kovats submits that that is a less attractive remedy than the “more accessible” right to apply for leave to appeal to the Commissioners. I do not accept this submission.  I tend to the view that the number of potential cases is relatively small and the potentially meritorious ones even smaller. In my experience, the Administrative Court is not greatly burdened by the number of applications for permission to challenge refusals by the Commissioners of leave to appeal.  I see no reason why a claimant who has been shut out of an appellate remedy by the decision of an LQPM in circumstances such as these should be provided with a more “accessible” remedy than judicial review.  To the extent that the Commissioners may be more accessible, there are countervailing policy reasons why they should be shielded from ill-founded applications and appeals in cases which are unappealable or no longer appealable to the Appeal Tribunal. 
40.	It is expressly provided that some of the decisions of the Secretary of State are not appealable to the Appeals Tribunal (section 12(1) and Schedule 2) and it is settled law that some decisions made within the appellate structure are not further appealable.  I have made a number of references to the decision of a Commissioner refusing leave to appeal against a decision of the Appeals Tribunal (Bland).  In addition to White, concerning the unappealability of a refusal to extend time, it is appropriate to refer also to Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33 (also reported as R(IB) 6/03), in which it was held that a refusal of an adjournment by the Appeals Tribunal is not appealable to the Commissioners because “there is a plain distinction between a decision (that is, a decision upon the actual question whether a claimant is entitled to a particular benefit or not) and what may conveniently be called a determination (that is, a determination of any matter along the way leading to a decision, including a determination of a procedural issue such as an application for an adjournment)”: per Laws LJ at para 14.  I acknowledge that a refusal of an adjournment is not precisely comparable with an “out of jurisdiction” decision.  However, Carpenter does support the proposition that there are instances of unappealability within the Social Security Act which may not be manifest on the face of the legislation.  As Mr Kovats concedes, it is difficult to draw a bright line between the differential uses in the Act and the Regulations of the words “decision” and “determination” because, to some extent, the uses are not deployed with consistency. Moreover, it seems to me that in Carpenter Laws LJ was not limiting his distinction to the situations in which the Act or the Regulations use the word “determination”.” 
22.  Arden LJ said:
“42.	I agree with Maurice Kay LJ that this appeal must be allowed.  I agree with all that he has said save that I would approach the third issue (appealability) as purely one of statutory interpretation. Putting the third issue in question form, the issue is: does s14(1) of the Social Security Act 1998... apply to decisions by an LQPM that the purported appeal is an appeal which Parliament has provided cannot be appealed? 
43.	Maurice Kay LJ has explained in [37] above neither Mr Morina nor Mr Borrowdale ever had a right of appeal.  He has set out the provisions of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 that are relevant and I would add simply that s14(11) of the 1998 Act enables regulations to be made as to the time within which appeals are to be brought and applications made for leave to appeal. 
44.	S 14 of the 1998 Act and regulations 31,32, 46 and 47 of the 1999 regulations together constitute the statutory framework for appeals which are outside the maximum time period and “ out of jurisdiction” appeals (as described by Maurice Kay LJ above).  In my judgment, this statutory framework is closely analogous to that considered by the House of Lords in Lane v Esdaile [1891] AC 210.  The question was whether the House had jurisdiction to hear an appeal against the refusal of the Court of Appeal to grant permission to appeal.  The Appellate Jurisdiction Act 1876 provides that “an appeal shall lie to the House of Lords from any order or judgment of” the Court of Appeal.  The House of Lords unanimously rejected the argument that the refusal of leave to appeal to the Court of Appeal was an “order or judgment” of the Court of Appeal for this purpose.  Lord Halsbury LC held that he would have hesitated to hold that an appeal did not lie if he had looked simply at the language of s3, but he held that the answer was clear when the statutory framework was considered as a whole: 
“when I look not only at the language used, but at the substance of the meaning of the provision, it seems to me to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop the appeal -- that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit is an appeal should be given. Now let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given.  Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself.  How could any Court of Review determine whether leave should be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal?”
45.	So too here the word “decision” in s 14(2) of the 1998 Act looks all-embracing but it has to be given a purposive interpretation.  Mr Morina’s case falls within regulation 32 of the 1999 regulations which provides that appeals cannot be more than one year after the expiration of the last date for appealing under regulation 31.  Mr Borrowdale’s case falls within regulation 46 because it is an out of jurisdiction appeal.  To interpret the word “decision” as including a decision that either of these appeals cannot be brought would be to subvert the provision that an appeal does not lie.  It would produce diametrically the opposite result from that which was clearly intended by the 1999 regulations. 
46.	Mr Kovats submits that, applying article 6 of the European Convention on Human Rights (right of access to a court), the court should proceed on the assumption that a right of appeal is conferred.  This submission contrasts with the second sentence of Lord Halsbury’s speech in Lane v Esdaile [1891] AC 210 that “an appeal is not to be presumed but must be given”.  There has been no analysis of the precise respects in which a decision of the LQPM would not satisfy art 6, but, taking the submission on its face, I would hold that the right of access to court is not excluded by the statutory framework in question here. That is because it is always open to an appellant who contends that his case has been wrongly struck out or dismissed, in circumstances where under the regulations there is no appeal, to bring judicial review proceedings.  The grounds for judicial review may be more limited but it has not been suggested that judicial review proceedings would not satisfy any right under article 6.  Accordingly, this is not a case for a strained interpretation under s3 of the Human Rights Act 1998. 
47.	As this question is to be decided by reference to the words used by Parliament, I consider that the observations of Lord Donaldson MR in Rickards v Rickards do not assist in the instant case. 
48.	For these reasons, I agree with Maurice Kay LJ on the “appealability” issue.”
23.  Sir Anthony Clarke MR added a short judgment, as follows:
“49.	I agree that this appeal should be allowed for the reasons given by Maurice Kay and Arden LJJ.  I do not wish to add anything except on the appealability point. 
50.	I add a few words only to emphasise the point made by Arden LJ that the question is entirely one of statutory construction of a particular statutory provision, namely section 14 of the Social Security Act 1998.  In some contexts the word ‘decision’ might well include an interlocutory decision such as a refusal of an adjournment or an order to disclose documents. All depends upon the particular circumstances.  In the particular context of section 14 of the 1998 Act, I agree that neither of the decisions complained of were appealable.”
The Submissions of the Parties and Discussion

24.	The claimants sought to distinguish their own cases from Morina on the basis that, whilst Morina concerned a case of “an unencumbered appellate exclusion” (i.e. the case fell outside the jurisdiction of the tribunal because it was late, and the LQPM had no power to admit it by extending time), their cases fell within the period of 12 months from the primary time limit and consequently the LQPM did have a power to extend time and admit them.  Of course, this is a factual difference between the cases - but that does not necessarily mean that as a matter of law the cases are distinguishable or that the reasoning of Morina does not apply.  

25.	In an effort to make this legal distinction, Mr Rutledge (for the claimant in CIS/3746/2006) all but accepted that, on the judgment of Maurice Kay LJ, refusal to extend time could never be an appealable decision; but he relied upon the somewhat different reasoning of Arden LJ (with which the Master of the Rolls agreed).  We shall return to Arden LJ’s judgment shortly.

26.	Mr Forsdick supported Mr Rutledge in relation to the judgments of Arden LJ and the Master of the Rolls, but he also relied upon the reasoning of Maurice Kay LJ as follows.  He submitted that the social security legislation is intended to create a comprehensive statutory scheme, in which there is a presumption of a right of appeal against a DWP decision maker’s decision as reflected in the width of section 14.  That presumption can only be rebutted (i) if there is a specific statutory exception, set out in schedule 2 to the 1998 Act (including, by virtue of paragraph 9 of that schedule, schedule 2 to the 1999 Regulations); or (ii) if the existence of a right to appeal would either subvert the purposes of the statutory scheme or serve no useful purpose.  Morina and Bland are examples of circumstances in which to allow an appeal would subvert the purposes of the statutory scheme: in respect of Bland, it was the clear and obvious intention of Parliament that the leave hurdle had to be overcome before there could be any recourse to the higher appellate court; and in respect of Morina, it was the equally clear intention that there should be no ability to extend time to appeal once the primary time limit plus one year had elapsed.  However, the cases before us do not fall into either an express statutory exception, or the category of cases in which to allow an appeal would subvert the purposes of the statutory scheme or be otiose.  Giving a right of appeal in respect of a decision of an LQPM not to exercise his discretion to extend time to appeal under regulation 32 does not undermine the purpose of the statutory scheme, and it has some real worth - because, in exercising that discretion, the LQPM is the first person to consider the merits of the case and it is not empty to allow that exercise to be challenged by way of an appeal.  In that there was power to make the order sought by the applicant (i.e. to extend time for appealing), these cases were analogous to Rickards, and unlike Bland.  

27.	Given the factual difference between Morina and the cases before us to which we have alluded (paragraph 24 above), these submissions have some force; particularly in the light of paragraph 37 of Maurice Kay LJ’s judgment where he concentrates on the facts of the Morina case before him (in which the LQPM had no discretion to extend time to appeal) compared with the Rickards case (in which the judge did have such a discretion).  That paragraph was understandably relied upon heavily by Mr Forsdick.

28.	However, those passages from Maurice Kay LJ cannot be viewed in isolation and, looking at the judgment as a whole, we are not persuaded by Mr Forsdick’s submissions.

29.	The statutory scheme is certainly wide embracing, but it is not truly comprehensive.  In addition to decisions that are expressly excluded from the appeal provisions of section 14 by Schedule 2 to the 1998 Act, “it is settled law that some decisions made within the appellate structure are not further appealable” (Morina at paragraph 40, per Maurice Kay LJ), as shown by Bland, White and Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33 which held that a refusal of an adjournment by an appeal tribunal is not appealable to a Commissioner.  The issue before us is the scope of the exceptions.  

30.	Nor do we consider that there is a presumption of a right of appeal inherent in the scheme.  Whilst we understand the hypothetical benefits that rights of appeal may possibly bring to the integrity and robustness of the scheme as a whole, no presumption of a right of appeal appears from the wording of the relevant statutory provisions and we do not consider it is necessary to import such a right in the light of the European Convention on Human Rights (which we consider further below; paragraph 40).    

31.	Moving on to Maurice Kay LJ’s judgment, we consider that, although the case before him was one of an “unencumbered appellate exclusion” in which the LQPM had no discretion to extend time so that the claimant’s appeal could be in time, when making the comments about jurisdictional limits he did make Maurice Kay LJ undoubtedly also had in mind those cases which fell outside the primary time limit of one month but inside the additional period of 12 months in which there was a discretion in the LQPM to extend time.  In coming to this conclusion, we have borne in mind particularly the following. 

(i)	When he identified the “central point of law” in the Morina appeal Maurice Kay LJ did not suggest that there was any relevant distinction between a case in which an extension of time was not granted because it fell outside the primary time limit plus one year and a case in which an LQPM refused to exercise his discretion to extend time when the appeal was made after the primary time limit but before the further year had expired -  the relevant issue being simply “whether a Social Security Commissioner has jurisdiction to hear and determine an appeal from an LQPM who has refused to extend time…” (paragraph 4: see paragraph 15 above).  

(ii)	Maurice Kay LJ (in paragraph 4) referred to the intervention in the Morina appeal of the claimant in CHR/3855/2005, and therefore clearly had in mind the circumstances of cases in which an LQPM refused to exercise his discretion to extend time (as in the cases before us), as well as a case in which the LQPM had no discretion to extend time (as in Morina itself).

(iii)	The issue in Morina as expressed in submissions made to the Court of Appeal that we have been shown (including those made on behalf of the claimant in CHR/3855/2005 now before us) was the extent to which Rickards had undermined cases such as Bland and White.  The force of the submissions of the CHR/3855/2005 claimant was that “whilst it is correct White has not been expressly overruled, the logic underpinning it has been and Rickards should be followed.  This is especially so as construction of the statutory scheme absent consideration of the authorities reaches the same conclusion - albeit by a different route - from Rickards.”  We shall return to the narrow question of statutory interpretation when we come on to consider the reasoning of Arden LJ.  However, the extent to which Rickards might have undermined Bland and White was clearly in issue before the Court of Appeal - and Maurice Kay LJ’s response to that issue equally clear: he could not accept the submission that the court should not follow White (paragraph 37), and he considered that it was neither desirable nor necessary to import the reasoning of Rickards into the field of social security (paragraph 39)  There is no suggestion that these comments were limited to the facts before him: the reference in paragraph 39 to “particularly when the decisions sought to be appealed are the substance of unencumbered appellate exclusions” (emphasis added) simply underlines the force of the point in relation to a particular sort of case but patently does not qualify the earlier part of the sentence.   

(iv)	In paragraph 40 of his judgment, Maurice Kay LJ specifically referred to a decision refusing leave to appeal against a decision of an appeal tribunal (i.e. Bland) and, in our view critically, a refusal to extend time (i.e. White) as unappealable decisions.  We agree with Mr Buley (Written Submissions, paragraph 12) that the reasoning in White is fatal to the claimants’ arguments.  In that case, the issue was whether an appeal from a decision of a Commissioner refusing to extend time for an appeal to the Court of Appeal was itself a “decision” capable of being appealed to the Court of Appeal, the Commissioner having power to extend time and grant leave.  That was therefore a case analogous to those before us, in that it involved a qualified and not an absolute bar.  The Court of Appeal held that the decision of the Commissioner refusing to extend time was not itself an appealable decision.  Given Maurice Kay LJ’s reference to (and reliance on the reasoning in) White in paragraph 40, we agree with Mr Buley that he cannot possibly be understood as saying that White should only be followed in the social security field in cases which involve an absolute statutory bar.  As we understand his submissions, Mr Forsdick did not suggest any argument to the contrary. 

(v)	Furthermore, as Ms Rhee pointed out, Maurice Kay LJ accepted at paragraph 38 that the effect of his judgment would be to exclude a right of appeal from the decision of an LQPM in cases where there was a dispute of fact as to whether the extended period of the primary time limit plus one year had expired: and he accepted the possibility that in some cases the decision of the LQPM might in fact be wrong.  Where the LQPM erroneously decides that the extended time period has expired (as he arguably did in CDLA/948/2006), the true position is likely to be that the appeal will have been filed after the primary time limit and before the expiry of the additional 12 months, i.e. in the period in which the LQPM does have a discretion to extend.  It would be at least very curious if there were no appeal in these circumstances, but an appeal where an LQPM finds that the appeal was lodged within the extended period but then refuses to exercise his discretion to extend time for appealing.  

(vi)	Indeed, we consider that that example of Maurice Kay LJ illustrates the lack of any conceptual distinction between a case where there is an absolute bar and one that is late but where there is power to admit the appeal: in each case, the LQPM has to decide whether time should or should not be extended, taking into account the timing of the appeal relative to notification of the decision, merits and the other criteria (including the circumstances in which there is an absolute bar) set out in regulation 32.  Once the primary time limit of one month has expired, any appeal is out of time (and therefore out of jurisdiction) unless and until an LQPM has extended time under the provisions of that regulation (see paragraph 7 above).  We shall pick up this theme again when we turn to consider the reasoning of Arden LJ (see paragraphs 35 and following below).   

32.	For these reasons, on a true reading of Maurice Kay LJ’s judgment, we are sure that his reasoning applies equally to appeals that fall within the period between the expiry of the primary time limit and a date 12 months after that expiry (but where the LQPM has refused to extend time to filing the appeal) and to appeals which are issued beyond that period.  Insofar as Mr Rutledge made a concession to that effect, we consider it was well made.

33.	However, Mr Rutledge submitted that, although the decision of the Court of Appeal in Morina was unanimous, the reasoning on the issue of ‘appealability’ was not.  Maurice Kay LJ held that the refusal to extend time in Morina was not appealable by parity of reasoning with Bland and White and he rejected the submission that White should not be followed in the light of Rickards: but Arden LJ approached the issue more narrowly.  In her view the issue was one purely of statutory interpretation that could be answered without recourse to anything but the words of the statutory provisions themselves, which she proceeded to consider and construe.  Sir Anthony Clarke MR agreed with Arden LJ that the question of appealability was one of statutory construction of a particular statutory provision, and that “all depends upon the circumstances”.  Mr Rutledge submitted that the reasoning of the majority of the Court of Appeal therefore left open the question of whether (and, if so, the circumstances in which) an interlocutory decision of an appeal tribunal can ever be a “decision” for the purposes of section 14 of the 1998 Act and specifically whether a decision of an LQPM to refuse to exercise his discretion to extend time for filing an appeal was or was not an unappealable decision.  The question being open to us to decide, he submitted that we should hold that such decisions are appealable.  He submitted that since a decision of an LQPM not to admit a late appeal effectively disposes of the case, an appeal against such a decision on a point of law is precisely the kind of right of appeal which section 14 of the 1998 Act was intended to provide.  There is resonance here with Mr Forsdick’s submission that there is a presumption within the context of this statutory scheme that an appeal is available (see paragraph 31 above).

34.	Mr Rutledge therefore relied upon the difference in reasoning between Maurice Kay LJ and Arden LJ, and on the fact that the Master of the Rolls preferred the latter ensuring that that was the majority reasoning.  We do not accept that the reasoning of the two judgments is irreconcilable (an issue to which we return below in paragraph 36), but in any event we do not consider that the terrain of Arden LJ’s reasoning is any more hospitable for the claimants than that of Maurice Kay LJ.  Indeed, we consider it particularly hostile.

35.	That is because an approach based purely on statutory construction inevitably requires that all decisions taken under regulation 32 are characterised in the same way for the purposes of section 14(1) of the 1998 Act.  As we have indicated (paragraph 5 above), the vires for the time provisions in regulation 32 is found in section 12(7) of the 1998 Act, and we agree with Ms Rhee (Written Submissions, paragraphs 7-8) that the jurisdictional issue is therefore whether a decision of an LQPM made under regulations adopted under section 12(7) is a decision “under section 12” for the purposes of section 14, and accordingly a decision within the meaning of section 14.  Arden LJ in Morina answered that question in the negative: it is not a decision under section 12, and therefore does not give rise to an appeal under section 14.     Indeed, not only is there no conceptual, logical or (in terms of the statutory scheme) systemic difference between (i) a decision that an appeal has been made outside the period of the primary time limit plus one year and (ii) a decision that an appeal has been brought within that period but outside the primary time limit, but also both are made under the very same provision, namely regulation 32(1).  We accept Ms Rhee’s submission that, as a matter of construction, the statutory provisions do not lend themselves to an interpretation according to which some decisions made under regulation 32 are characterised as “a decision under section 12” (and therefore appealable) whilst others are not. As a matter of statutory construction, it is simply inconceivable that Parliament intended that some decisions under regulation 32 should be appealable whilst others should not.  Within the statutory scheme, there is no suggestion that there is any such distinction, nor that there are any criteria for identifying which decisions should fall into either category (appealable or unappealable). 

36.	The claimants sought some support for their submission from the short judgment of Sir Anthony Clarke MR, and specifically where he says: “All depends upon the particular circumstances.”  However, with respect, this is entirely to misunderstand that judgment.  The Master of the Rolls emphasised that he, like Arden LJ, considered the issue of appealability purely one of statutory construction, i.e. they considered that it is clear from the wording of the relevant provisions of the 1998 Act and 1999 Regulations that it is intended that there is no appeal from a decision of an LQPM in respect of a decision under regulation 32 not to extend time.  When the Master of the Rolls referred to all depending on the particular circumstances, he could not have been referring to the factual circumstances of a particular case: rather he was referring to the proper construction of the particular statutory provisions that were applicable.  That is why Rickards (which concerned entirely different provisions) was considered to be of no assistance (see judgment of Arden LJ at paragraph 47) - and why Arden LJ and he considered it unnecessary to refer to the line of cases including Bland and White.  In our view it also explains why the Master of the Rolls expressly agreed with both Maurice Kay and Arden LJJ.  He could not have done so unless he considered their respective reasoning to be compatible - and we do not see any inconsistency in the reasoning.  The case undoubtedly concerned the proper statutory construction of the relevant statutory provisions, especially regulation 32.  All three judges arrived at the same construction.  Arden LJ and the Master of the Rolls did so without recourse to anything but the words of the statutory provisions themselves, because they considered that it was unnecessary to look further than those words.  Maurice Kay LJ took into account broader material, particularly the line of cases including Bland and White.  However, their destination was the same, and their respective reasoning was consistent.  For the reasons we have given, that reasoning was uniformly against the claimants’ submissions before us.  On the basis of the Arden LJ approach, we consider the decision of the Court of Appeal is binding on us so far as the proper statutory construction of the relevant statutory provisions (including regulation 32) is concerned.  Insofar as the Court of Appeal’s reasoning is not binding upon us (because the case before them - Morina - concerned an unencumbered appellate exclusion, whereas the cases before us do not), the comments made in that case are of the strongest persuasive authority and, in our respectful view, they are correct - and we gratefully adopt them.

Conclusion
	
37.	For the reasons we have given, our decision in each of the three cases before us is as set out in paragraph 1.
Postscript

38.	It is clear from the very stringent conditions imposed by regulation 32 for the admission of a late appeal that a claimant who misses the primary one month time limit for appealing is entering hostile territory, and against that background we do not regard the lack of a right of appeal to a Commissioner in such cases as inconsistent with the scheme of the regulations as a whole.   Indeed, it seems to us entirely consistent.
39.	We recognise that the effect of our conclusion in these cases is that decisions under regulation 32 which are erroneous in law will be challengeable only by way of judicial review.  In Morina (at paragraph 39), Maurice Kay LJ did not accept the submission made to the Court of Appeal that judicial review is a less attractive remedy than the more accessible right to apply for leave to appeal to the Commissioners because (i) the number of potential cases is relatively small and did not burden the Administrative Court, (ii) there was no reason why a claimant shut out of an appellate remedy should be entitled to anything more accessible than judicial review, and (iii) to the extent that the Commissioners were more accessible, there were countervailing policy considerations as to why they should be protected from ill-founded applications and appeals in cases which are unappealable or no longer appealable to the appeal tribunal.  
40.	Subject to the provisions of Article 6 of the European Convention on Human Rights (the right to a fair trial), it is of course a matter for Parliament as to which (and the circumstances in which) decisions are appealable; and it is open to Parliament to circumscribe the time limits in which appeals are to be made as they have done in relation to benefit appeals under section 12(7) and regulation 32.   Furthermore, whilst it has been recognised that the potential availability of judicial review is not necessarily sufficient to avoid a breach of Article 6 (see, e.g., R (Thompson) v The Law Society [2002] EWCA Civ 167), it was not suggested to us that a refusal of an LQPM to extend time in the circumstances of the cases to be challengeable by way of judicial review only would be a breach of Article 6.  In our view, it clearly would not.  
41.	However, in terms of access to justice, insofar as Maurice Kay LJ suggested that a claimant would regard an application to the Administrative Court for judicial review as being as straightforward or attractive as an application to a Commissioner for leave, we would not necessarily agree.  Leaving aside the potential costs and fees that are involved in an Administrative Court application - and the involvement of the tribunal as a party - claimants and their representatives (normally experienced and able advisers from the voluntary sector) are more used to dealing with the Commissioners and their office.  The Commissioners are judges who have been identified as being especially equipped to travel the interpretive journey referred to by Maurice Kay LJ (at paragraph 1 of Morina).  Their procedures are particularly designed to be used by benefit claimants and their advisers.  For ourselves as Commissioners, we are not concerned to be shielded from applications which may be of little merit - like any appellate body, a significant proportion of our applications inevitably fall into this category, and Commissioners are willing and able to deal with them quickly and robustly at the leave stage - but we do have some concerns that claimants with genuine merits may possibly be put off from pursuing a challenge because of perceived difficulties in pursuing a claim in the Administrative Court.
42.	We appreciate that these are largely matters of policy with which we are not concerned.  However, the advent of the reforms brought about by the Tribunals, Courts and Enforcement Act 2007 may enable some of these concerns - expressed before both the Court of Appeal in Morina and before us in these appeals - to be met.  Those reforms envisage the jurisdictions of the Social Security & Child Support Appeals Tribunal being transferred to a new tribunal (the First-tier Tribunal), and those of the Commissioners (together with other second-tier tribunal appeals) being transferred to a second new tribunal (the Upper Tribunal): appeals being made from the First-tier Tribunal to the Upper Tribunal only on points of law, and only with permission.  The Upper Tribunal will be a superior court of record, as well as a tribunal.  Under the relevant statutory provisions (section 31A of the Supreme Court Act 1981, Part 1 of Schedule 2 to the Constitutional Reform Act 2005, and section 18(6) of the 2007 Act itself), the Lord Chief Justice is enabled to transfer categories of judicial review case from the Administrative Court to the Upper Tribunal, which will be manned by judges who have particular experience in the substantive law and procedure of the relevant jurisdictions.  It is proposed that the procedures of the new tribunal will be designed to ensure that claimants who wish to challenge First-tier Tribunal decisions are properly enabled to do, whilst appeals of no merit are determined with appropriate robustness at the permission stage.  Whilst any transfer is of course entirely a matter for the Lord Chief Justice, the 2007 Act at least provides the mechanics for ensuring that some of the concerns expressed by claimants in Morina and in these appeals about the appropriateness of challenges being dealt with in the Administrative Court are met.  We consider that such transfer is worthy of serious consideration.

 His Honour Judge Gary Hickinbottom
		 Chief Commissioner

A Lloyd-Davies
Commissioner

E A L Bano
Commissioner

 4 July 2008