Secretary of State for Work & Pensions v Morina & Anor

A legally qualified panel member who decides whether a social security appeal is out of time or outside the tribunal’s jurisdiction acts as the Appeal Tribunal. However, a decision refusing an extension beyond the absolute statutory time limit, or striking out an appeal against a decision which legislation makes unappealable, cannot itself be appealed to a Social Security Commissioner under section 14 of the Social Security Act 1998.

Treating such a ruling as appealable would defeat the statutory exclusion of the underlying appeal. The claimant’s remedy is judicial review. Its availability also preserves access to a court for the purposes of article 6 of the Convention.

Mr Morina sought to challenge an Income Support overpayment decision more than three years after it had been made. A legally qualified panel member refused to extend time. Mr Borrowdale sought to appeal against the payment of Income Support by cheque, although decisions about the manner of payment were excluded from appeal. A legally qualified panel member struck out that appeal for want of jurisdiction.

Social Security Commissioner Rowland held in CIS/2322/2005 and CIS/1363/2005 that he had jurisdiction to hear both appeals, but dismissed them on their merits. The Secretary of State appealed the jurisdictional rulings despite having succeeded on the merits.

The Court of Appeal considered whether the Secretary of State could appeal as the successful party, whether each panel member acted as the Appeal Tribunal, and whether the resulting procedural decisions were appealable to a Commissioner.

1. The appeals were allowed unanimously. Section 15 of the Social Security Act 1998, which permits an appeal from any decision of a Commissioner, differs from legislation confining appeals to a formal judgment or order. The Commissioner had in substance made two decisions: that he possessed jurisdiction and that each claimant’s appeal failed on its merits. The Secretary of State could challenge the adverse jurisdictional decision and seek rejection for want of jurisdiction instead of dismissal on the merits. Permission was also justified by the issue’s general importance. This did not create a general right for successful parties to appeal immaterial reasoning: Lake v Lake [1955] P 336 was distinguishable.

2. A legally qualified panel member deciding under regulations 32 or 46 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 acts as the Appeal Tribunal. Such a member has no separate statutory existence outside that tribunal. Schedule 1 paragraph 12 of the 1998 Act authorises delegation to officers of the Secretary of State, meaning civil servants, but does not provide the authority for decisions by legally qualified panel members. Decisions about extensions of time and jurisdiction therefore remain decisions of the Appeal Tribunal, although it may be differently constituted for different purposes.

3. Those decisions were nevertheless unappealable under section 14 of the 1998 Act. Mr Morina sought an extension after the absolute 13-month period had expired, when no person possessed power to permit an appeal. Mr Borrowdale challenged the manner of payment, which Schedule 2 to the 1999 Regulations excluded from appeal. Permitting an appeal against the panel member’s recognition of either exclusion would subvert the statutory scheme. Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262, White v Chief Adjudication Officer [1986] 2 All ER 905, Lane v Esdaile [1891] AC 210 and Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33 supported the existence of procedural decisions which the social security appellate structure does not make further appealable. Rickards v Rickards [1990] Fam 194 concerned an ordinary discretionary extension and was distinguishable.

4. The claimants’ remedy against an erroneous panel-member decision was judicial review. Its availability meant that access to a court was preserved for article 6 purposes. No strained interpretation under section 3 of the Human Rights Act 1998 was required.

1. Court of Appeal (Civil Division): The Secretary of State’s appeals were allowed unanimously. The Commissioner lacked jurisdiction to entertain appeals against the legally qualified panel members’ decisions.

2. Social Security Commissioner: In CIS/2322/2005 and CIS/1363/2005, Commissioner Rowland held that he possessed jurisdiction but dismissed both claimants’ appeals on their merits. He refused the Secretary of State permission to appeal because the Secretary of State had succeeded on the merits.

3. Appeal Tribunal: A legally qualified panel member refused Mr Morina’s application to appeal out of time under regulation 32 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Another legally qualified panel member struck out Mr Borrowdale’s appeal for want of jurisdiction under regulation 46.