Morina v Secretary of State for Work and Pensions; Borrowdale v Secretary of State for Work and Pensions [2007] EWCA Civ 749, [2007] All ER (D) 353 (Jul)
Court of Appeal, Civil Division
Sir Anthony Clarke MR, Arden and Maurice Kay LJJ
23 July 2007
The Court of Appeal is not necessarily precluded from hearing appeals by the secretary of state for work and pensions on jurisdictional points against a decision of a social security commissioner, notwithstanding the fact that he was the successful appellant before the commissioner; a social security commissioner does not have jurisdiction to hear an appeal from a legally qualified panel member who has refused to extend time or who has struck out a proposed appeal for want of jurisdiction.
Natalie Lieven QC (instructed by the solicitor to the Department for work and pensions) for the secretary of state. Steven Kovats (instructed by the treasury solicitor) as advocate to the court.
Two cases before the court concerned social security procedure and jurisdiction. In the first case, M appealed out of time against a decision to recover overpaid income support by way of set-off against jobseeker’s allowance. A legally qualified panel member (LQPM) of the Appeal Tribunal refused the application pursuant to the Social Security and Child Support (Decisions and Appeals) Regulations 1999, (SI 1999/991) reg 32(2). M applied to a social security commissioner for permission to appeal. The commissioner granted permission to appeal without prejudice to the right of the secretary of state to argue that the commissioner lacked jurisdiction. The secretary of state did in fact argue against jurisdiction. The commissioner held that he had jurisdiction, but he went on to dismiss M’s appeal. The secretary of state sought permission to appeal on the issue of jurisdiction. He was refused permission by the commissioner on the ground that he had been a successful appellant. He appealed to the Court of Appeal.
In the second case, B was a recipient of income support who was notified by the secretary of state that in future his benefit would be paid by cheque. His appeal thereafter proceeded on the same lines as M’s case. The issues arose as to (i) whether or not the court could or should hear the secretary of state’s appeals, in view of the fact that he was the successful appellant before the commissioner; and (ii) whether a social security commissioner had jurisdiction to hear and determine an appeal from an LQPM who had refused to extend time or had struck out a proposed appeal for want of jurisdiction.
LORD JUSTICE MAURICE KAY:
An analysis producing the result that the court did not have jurisdiction to hear the secretary of state’s appeals would take the form: (i) the Social Security Act 1998 (SSA 1998), s 15 provided for an appeal against “any decision of a Commissioner”; (ii) the “decision” in each of the cases was to be found in para 1, dismissing the claimant’s appeal; (iii) the secretary of state was not seeking to challenge that decision; (iv) by analogy with Lake v Lake [1955] 2 All ER 538, he had no right to challenge the reasoning on an issue upon which he was unsuccessful—jurisdiction—when the ultimate decision was wholly favourable to him.
That analysis was not correct in this context. It was significant that the wording of SSA 1998, s 15 did not replicate that of the Supreme Court Act 1981, s 16. It concerned “any decision” rather than “any judgment or order”. To that extent, Lake was not applicable as a matter of construction. However, the policy aspect of Lake had to be borne in mind. It did not apply so as to shut out an appeal by the successful party before the commissioner. The “decision” referred to by the commissioner was in each case and in reality two decisions—first, that he had jurisdiction to hear the appeal and, second, that the appeal should be dismissed on the merits. While it was difficult to imagine circumstances in which the secretary of state, having succeeded on the merits, should be permitted to appeal in relation to some aspect of the reasoning of the commissioner on the merits, that did not necessarily preclude an appeal by him on the jurisdiction point which he lost. Moreover, the secretary of state was seeking to establish that the appeals of the claimants should have been rejected for want of jurisdiction rather than dismissed on the merits.
Having said that, however, his lordship was not to be taken to be enabling a whole range of “winners’ appeals”. It was significant that, in this case, the subject-matter of the proposed appeals was a ruling by the commissioner on a fundamental legal issue of jurisdiction. His lordship would expect the court to refuse the successful party below permission to appeal against an immaterial finding of no general significance.
If and to the extent that the matter involved discretion, his lordship would exercise it to grant permission.
LADY JUSTICE ARDEN:
Section 14 of SSA 1998 and regs 31, 32, 46 and 47 of the 1999 regulations together constituted the statutory framework for appeals which were outside the maximum time period and out of jurisdiction appeals. That statutory framework was closely analogous to that involving the jurisdiction of the House of Lords to hear an appeal against the refusal of the Court of Appeal to grant permission to appeal. The word “decision” in s 14(2) of SSA 1998 looked all-embracing but it had to be given a purposive interpretation.
M’s case fell within reg 32 of the 1999 regulations, which provided that appeals could not be more than one year after the expiration of the last date for appealing under reg 31. B’s case fell within reg 46 because it was an out of jurisdiction appeal.
Thus claimants in the position of M and B did not have a right to seek leave to appeal from an LQPM to the commissioners and the commissioners did not have jurisdiction to entertain such appeals. Such decisions were unappealable, and an aggrieved claimant was limited to relief by way of judicial review.
Sir Anthony Clarke MR delivered a concurring judgment.
