Rydqvist v Secretary of State for Work and Pensions

An appeal withdrawn in accordance with the applicable rules leaves no extant appeal for the tribunal to determine. A presenting officer’s consent cannot confer jurisdiction which the tribunal lacks. The possibility that a fresh appeal might have been brought out of time does not preserve jurisdiction where no application for an extension has been made and the statutory conditions have not been addressed. Procedural-irregularity principles concerning substantial compliance and waiver do not apply to that jurisdictional defect. The appeal was therefore dismissed.

The claimant appealed an adjudication officer’s decision that he was not entitled to Jobseeker’s Allowance because specifying a minimum wage restricted his availability for employment. His solicitors then gave written notice withdrawing the appeal, and no adjudication officer opposed the withdrawal. The tribunal nevertheless heard and determined the substantive appeal. The Social Security Commissioner set aside the tribunal’s decision for want of jurisdiction and refused permission to appeal.

The claimant appealed to the Court of Appeal, arguing that the withdrawal was conditional or ineffective and that the tribunal could have treated the matter as a late appeal. The central issues were whether the withdrawal was effective and whether the tribunal had jurisdiction to proceed.

1. Appeal dismissed. The withdrawal letter was unequivocal and unconditional. Under regulation 6 of the Social Security Adjudication Regulations 1995, an appeal originating in an adjudication officer’s decision could be withdrawn before the hearing unless the clerk had previously received notice opposing withdrawal from an adjudication officer. No such notice had been given. The withdrawal was therefore effective.
2. After withdrawal there was no extant appeal. The fact that matters remained disputed did not give the tribunal jurisdiction to decide them. Nor could the presenting officer confer jurisdiction by agreeing to the hearing.
3. The reasoning in R v The Home Secretary ex parte Jeyeanthan [2000] 1 WLR 351 concerned procedural irregularities, including substantial compliance, waiver and curable non-compliance. It did not govern a case in which the tribunal lacked jurisdiction. A possible application for an extension of time could not cure the defect because no such application had been made and the stringent requirements of regulation 3 had not been addressed.
4. Peter Gibson LJ treated the wider observations in Jeyeanthan about jurisdictional requirements as obiter and noted the difficulty of reconciling them with the principle in Essex County Council v Essex Incorporated Church Union [1963] AC 808 that consent cannot confer statutory jurisdiction beyond its limits.
5. Chadwick LJ agreed with the jurisdictional reasoning. He added that, after the six-month period relevant under regulation 9 of the Jobseeker’s Allowance Regulations 1996 had expired, it would be improper to insist that a claimant specify a minimum wage which imposed a restriction. However, had the tribunal possessed jurisdiction, its factual finding that the claimant intended to impose such a restriction would have been difficult to disturb.

Nelson J agreed with both judgments. The formal order was: appeal dismissed; no application for costs; detailed assessment of the claimant’s costs.

• Court of Appeal: Appeal from the Social Security and Child Support Commissioners dismissed. The tribunal had lacked jurisdiction to determine the withdrawn appeal.
• Social Security and Child Support Commissioners: Commissioner Levenson held that the tribunal’s decision was made without jurisdiction and refused permission to appeal.
• Social Security Appeal Tribunal: Despite the withdrawal, the tribunal confirmed the adjudication officer’s decision for the period 11 November 1996 to 12 February 1997.