The Social Security and Child Support (Decisions and Appeals) (Miscellaneous Amendments) Regulations 2002

• ““official error” means an error made by—

  1. (a)

     an officer of the Department for Work and Pensions or the Board acting as such which no person outside the Department or the Inland Revenue caused or to which no person outside the Department or the Inland Revenue materially contributed;

  2. (b)

     a person employed by a designated authority acting on behalf of the authority, which no person outside that authority caused or to which no person outside that authority materially contributed,

  but excludes any error of law which is shown to have been an error by virtue of a subsequent decision of a Commissioner or the court;”; and

• ““partner” means—

  1. (a)

     where a person is a member of a married couple or an unmarried couple, the other member of that couple; or

  2. (b)

     where a person is polygamously married to two or more members of his household, any such member;”.

“(a)

he or they commence action leading to revision within one month of the date of notification of the original decision; or

(b)

an application for a revision is received by the Secretary of State or the Board or an officer of the Board at the appropriate office—

(i)

subject to regulation 9A(3), within one month of the date of notification of the original decision;

(ii)

where a written statement is requested under paragraph (1)(b) of regulation 28 and is provided within the period specified in head (i), within 14 days of the expiry of that period;

(iii)

where a written statement is requested under paragraph (1)(b) of regulation 28 and is provided after the period specified in head (i), within 14 days of the date on which the statement is provided; or

(iv)

within such longer period as may be allowed under regulation 4.”;

“(4A)

Where there is an appeal against an original decision (within the meaning of paragraph (1)) within the time prescribed in regulation 31, or in a case to which regulation 32 applies within the time prescribed in that regulation, but the appeal has not been determined, the original decision may be revised at any time.”;

“(5A)

Where—

(a)

the Secretary of State or the Board or an officer of the Board, as the case may be, makes a decision under section 8 or 10, or that decision is revised under section 9, in respect of a claim or award (“decision A”) and the claimant appeals against decision A;

(b)

decision A is superseded or the claimant makes a further claim which is decided (“decision B”) after the claimant made the appeal but before the appeal results in a decision by an appeal tribunal (“decision C”); and

(c)

the Secretary of State or the Board or an officer of the Board, as the case may be, would have made decision B differently if he or they had been aware of decision C at the time he or they made decision B,

decision B may be revised at any time.”;

“(7A)

Where a decision as to a claimant’s entitlement to a disablement pension under section 103 of the Contributions and Benefits Act is revised by the Secretary of State, or changed on appeal, a decision of the Secretary of State as to the claimant’s entitlement to reduced earnings allowance under paragraph 11 or 12 of Schedule 7 to that Act may be revised at any time provided that the revised decision is more advantageous to the claimant than the original decision.”; and

“(4)

An application for an extension of time shall not be granted unless—

(a)

the panel member is satisfied that, if the application is granted, there are reasonable prospects that the appeal will be successful; or

(b)

the panel member, the Secretary of State or the Board, as the case may be, are satisfied that it is in the interests of justice for the application to be granted.”;

“(7)

Where a person to whom a form is returned, or from whom further particulars are requested, duly completes and returns the form or sends the further particulars, if the form or particulars, as the case may be, are received by the Secretary of State or the Board within—

(a)

14 days of the date on which the form was returned to him by the Secretary of State or the Board, the time for making the appeal shall be extended by 14 days from the date on which the form was returned;

(b)

14 days of the date on which the Secretary of State’s or the Board’s request was made, the time for making the appeal shall be extended by 14 days from the date of the request; or

(c)

such longer period as the Secretary of State or the Board may direct, the time for making the appeal shall be extended by a period equal to that longer period directed by the Secretary of State or the Board.”; and

“(10)

The Secretary of State or the Board may discontinue action on an appeal where the appeal has not been forwarded to the clerk to an appeal tribunal or to a legally qualified panel member and the appellant or an authorised representative of the appellant has given written notice that he does not wish the appeal to continue.”.

“(6)

An oral hearing shall be in public except where the chairman, or in the case of an appeal tribunal which has only one member, that member, is satisfied that it is necessary to hold the hearing, or part of the hearing, in private—

(a)

in the interests of national security, morals, public order or children;

(b)

for the protection of the private or family life of one or more parties to the proceedings; or

(c)

in special circumstances, because publicity would prejudice the interests of justice.”;

“(7)

At an oral hearing—

(a)

any party to the proceedings shall be entitled to be present and be heard; and

(b)

the following persons may be present by means of a live television link—

(i)

a party to the proceedings or his representative or both; or

(ii)

where an appeal tribunal consists of more than one member, a tribunal member other than the chairman,

provided that the person who constitutes or is the chairman of the tribunal gives permission and the appellant consents.”;

“(10)

Nothing in paragraph (9) affects the rights of—

(a)

any person mentioned in sub-paragraphs (a) and (b) of that paragraph where he is sitting as a member of a tribunal or acting as its clerk; or

(b)

the clerk to the tribunal,

and nothing in this regulation prevents the presence at an oral hearing of any witness or of any person whom the chairman, or in the case of an appeal tribunal which has only one member, that member, permits to be present in order to assist the appeal tribunal or the clerk.”; and

“(13)

In this regulation “live television link” means a live television link or other facilities which allow a person who is not physically present at an oral hearing to see and hear proceedings and be seen and heard by those physically present.”.

“(13)

In calculating the time specified for applying in writing for a statement of the reasons for the tribunal’s decision there shall be disregarded any day which falls before the day on which notice was given of—

(a)

a correction of a decision or the record thereof pursuant to regulation 56; or

(b)

a determination that a decision shall not be set aside following an application made under regulation 57, except where the decision was not set aside because of a refusal to extend the time for applying.”.

“(3)

An application under this regulation shall—

(a)

be made within one month of the date on which—

(i)

a copy of the decision notice is sent or given to the parties to the proceedings in accordance with regulation 53(3); or

(ii)

the statement of the reasons for the decision is given or sent in accordance with regulation 53(4),

whichever is later;

(b)

be in writing and signed by a party to the proceedings or, where the party has provided written authority to a representative to act on his behalf, that representative;

(c)

contain particulars of the grounds on which it is made; and

(d)

be sent to the clerk to the appeal tribunal.”; and

“(6)

The time within which an application under this regulation must be made may be extended by a period not exceeding one year where the conditions specified in paragraphs (7) to (11) are satisfied.

(7)

An application for an extension of time shall be made in accordance with paragraph (3)(b) to (d), shall include details of any relevant special circumstances for the purposes of paragraph (9) and shall be determined by a legally qualified panel member.

(8)

An application for an extension of time shall not be granted unless the panel member is satisfied that—

(a)

if the application is granted there are reasonable prospects that the application to set aside will be successful; and

(b)

it is in the interests of justice for the application for an extension of time to be granted.

(9)

For the purposes of paragraph (8) it is not in the interests of justice to grant an application for an extension of time unless the panel member is satisfied that—

(a)

the special circumstances specified in paragraph (10) are relevant to that application; or

(b)

some other special circumstances exist which are wholly exceptional and relevant to that application,

and as a result of those special circumstances, it was not practicable for the application to set aside to be made within the time limit specified in paragraph (3)(a).

(10)

For the purposes of paragraph (9)(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.

(11)

In determining whether it is in the interests of justice to grant an application for an extension of time, the panel member shall have regard to the principle that the greater the amount of time that has elapsed between the expiry of the time within which the application to set aside is to be made and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application for an extension is based.

(12)

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

“(4)

A person determining an application for leave to appeal to a Commissioner shall record his determination in writing and send a copy to every party to the proceedings.”; and

“(6)

Where an application for leave to appeal against a decision of an appeal tribunal is made—

(a)

if the person who constituted, or was the chairman of, the appeal tribunal when the decision was given was a fee-paid legally qualified panel member, the application may be determined by a salaried legally qualified panel member; or

(b)

if it is impracticable, or it would be likely to cause undue delay, for the application to be determined by whoever constituted, or was the chairman of, the appeal tribunal when the decision was given, the application may be determined by another legally qualified panel member.”.

“5.

A decision, being a decision of the Secretary of State unless specified below as a decision of the Board, under the following provisions of the Claims and Payments Regulations—

(a)

regulation 430 (decision of the Secretary of State or the Board as to making a claim for benefit);

(b)

regulation 4A(3)31 (sufficiency of a claim at office displaying the ONE logo if claim not on approved form);

(c)

regulation 6(4AA)32 (accepting properly completed claim for jobseeker’s allowance after claimant attends a place to make claim);

(d)

regulation 6(4AB)33 (accepting properly completed claim for jobseeker’s allowance up to one month after notification of intent to claim);

(e)

regulation 6(8) and (9)34 (specifying time for properly completing and submitting claim for disability living allowance or attendance allowance);

(f)

regulation 735 (decision by the Secretary of State or the Board as to evidence and information required);

(g)

regulation 936 and Schedule 1 (decision by the Secretary of State or the Board as to interchange of claims with claims for other benefits);

(h)

regulation 1137 (treating claim for maternity allowance as claim for incapacity benefit);

(i)

regulation 15(7)38 (approving form of particulars required for determination of retirement pension questions in advance of claim);

(j)

regulations 20 to 2439 (decision by the Secretary of State or the Board as to the time or manner of payments);

(k)

regulation 25(1)40 (intervals of payment of attendance allowance and disability living allowance where claimant is expected to return to hospital);

(l)

regulation 2641 (manner and time of payment of income support);

(m)

regulation 26A42 (time and intervals of payment of jobseeker’s allowance);

(n)

regulation 27(1) and (1A)43 (decision by the Board as to manner and time of payment of tax credits);

(o)

regulation 3044 (decision by the Secretary of State or the Board as to claims or payments after death of claimant);

(p)

regulation 30A45 (payment of arrears of joint-claim jobseeker’s allowance where nominated person can no longer be traced);

(q)

regulation 3146 (time and manner of payments of industrial injuries gratuities);

(r)

regulation 3247 (decision by the Secretary of State or the Board as to information to be given when obtaining payment of benefit);

(s)

regulation 3348 (appointments by the Secretary of State or the Board where person unable to act);

(t)

regulation 3449 (decision by the Secretary of State or the Board as to paying another person on the beneficiary’s behalf);

(u)

regulation 34A(1)50 (payment, out of benefit, of mortgage interest to qualifying lender);

(v)

regulation 35(2)51 (payment to third person of maternity expenses or expenses for heating in cold weather);

(w)

regulation 3652 (decision by the Secretary of State or the Board to pay partner as alternative payee);

(x)

regulation 3853 (decision by the Secretary of State or the Board as to the extinguishment of right to payment of sums by way of benefit where payment not obtained within the prescribed period, except a decision under paragraph (2A) (payment request after expiration of prescribed period));

(y)

regulations 42 to 4654 (mobility component of disability living allowance and disability living allowance for children);

(z)

regulation 47(2) and (3)55 (return of instruments of payment etc. to the Secretary of State or the Board).”; and

“Loss of Benefit for Breach of Community Order19A.

A decision of the Secretary of State that a relevant benefit shall not be payable or shall be reduced in accordance with a determination of a court made under section 62(1) of the Child Support, Pensions and Social Security Act 200056 where the only ground of appeal is that the court’s determination was made in error.”.

“(cc)

the Institute of Certified Public Accountants in Ireland;”; and

“(b)

an officer of—

(i)

the Department for Work and Pensions; or

(ii)

the Commissioners of Inland Revenue,

acting as such;”.

“(5)

An application for an extension of time shall not be granted unless—

(a)

the panel member is satisfied that, if the application is granted, there are reasonable prospects that the appeal will be successful; or

(b)

the panel member or the relevant authority, as the case may be, is satisfied that it is in the interests of justice for the application to be granted.”;