SOCIAL SECURITY — Appeal to social security commissioner — Jurisdiction — Claimants appealing from decisions of Secretary of State to legally qualified panel member — Social security commissioner accepting jurisdiction to hear claimants’ appeals from member but dismissing them on merits — Whether commissioner having jurisdiction to hear appeals — Whether Court of Appeal having jurisdiction to entertain appeals by Secretary of State on jurisdiction of commissioner to hear appeals — Social Security Act 1998, ss 14, 15 — Social Security and Child Support (Decisions and Appeals) Regulations 1999, regs 32, 46

Secretary of State for Work and Pensions v Morina; Same v Borrowdale [2007] EWCA Civ 749

CA (Sir Anthony Clarke MR, Arden and Maurice Kay LJJ): 23 July 2007

The Court of Appeal had jurisdiction under s 15 of the Social Security Act 1998 to hear an appeal by the Secretary of State challenging the jurisdiction of the social security commissioner to determine an appeal from a legally qualified panel member (“LQPM”) of the social security appeal tribunal where the commissioner had accepted jurisdiction but dismissed the appeal on the merits. However, the commissioner had no jurisdiction under s 14(1) of the Act to determine appeals from an LQPM on decisions from which the Act gave no right of appeal. The claimants’ remedy was to seek judicial review.

The Court of Appeal so held, allowing the appeal of the Secretary of State for Work and Pensions from two decisions of Mr Commissioner Rowland on 12 June 2006 in which he had held that he had jurisdiction to hear the appeals against the decisions of an LQPM by (1) Ismet Morina in relation to an extension of time to appeal and (2) John Henry Borrowdale in respect of payment of an undisputed sum by cheque, but on the merits had dismissed both appeals.

MAURICE KAY LJ said that the central point of law was whether a social security commissioner had jurisdiction under s 14(1) of the Social Security Act 1998 to hear and determine an appeal from an LQPM who had refused to extend time or who had struck out a proposed appeal for want of jurisdiction. The threshold issue was whether the Court of Appeal could hear the Secretary of State’s appeals since he had been the successful appellant before the commissioner. S 15 of the 1998 Act provided for an appeal against any decision of a commissioner. In reality the commissioner had made two decisions, first that he had jurisdiction to hear the appeal and second, that the appeal should be dismissed on the merits. While the Secretary of State, having succeeded on the merits, should not be permitted to appeal against the commissioner’s reasoning on the merits, the court could hear appeals on the jurisdiction point on which the Secretary of State had lost. The LQPM’s decision that Mr Morina’s proposed appeal was out of time and time could not be extended had been made under reg 32 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The LQPM’s decision to strike out Mr Borrowdale’s proposed appeal for lack of jurisdiction had been made under reg 46. It was therefore necessary to consider whether the commissioner had had jurisdiction to hear appeals against those decisions. In White v Chief Adjudication Officer [1986] 2 All ER 905 the Court of Appeal had held that a commissioner’s refusal to extend time was not a “decision” under s 14 of the Social Security Act 1980 because it did not determine the outcome of the appeal and accordingly the court had no jurisdiction. The present court was concerned with what was an appealable “decision” under s 14(1) of the 1998 Act. The 1998 Act rendered certain decisions unappealable by, inter alia, s 12(1) of that Act. Regs 32 and 46 of the 1999 Regulations allocated to the LQPM unappealable or no longer appealable decisions of the Secretary of State. The commissioners had no jurisdiction to entertain such appeals from an LQPM. The claimants’ relief was limited to judicial review.

ARDEN LJ and SIR ANTHONY CLARKE MR delivered concurring judgments.

Appearances: Nathalie Lieven QC (Solicitor to Department of Work and Pensions) for the Secretary of State; Steven Kovats (Treasury Solicitor) as advocate to the court.

Reported by: Susan Denny, barrister