| |
Late appeals
32.
- (1) The time for bringing an appeal may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but no appeal shall in any event be brought more than one year after the expiry of the last day for appealing under regulation 31.
(2) An application for an extension of time under this regulation shall be made in accordance with regulation 33 and shall be determined by a legally qualified panel member.
(3) An application under this regulation shall contain particulars of the grounds on which the extension of time is sought, including details of any relevant special circumstances for the purposes of paragraph (4).
(4) An application for an extension of time shall not be granted unless the legally qualified panel member is satisfied that -
(a) if the application is granted there are reasonable prospects that the appeal will be successful; and
(b) it is in the interests of justice for the application to be granted.
(5) For the purposes of paragraph (4), it is not in the interests of justice to grant an application unless the legally qualified panel member is satisfied that -
(a) the special circumstances specified in paragraph (6) are relevant to the application; or
(b) some other special circumstances exist which are wholly exceptional and relevant to the application,
and as a result of those special circumstances it was not practicable for the application to be made within the time limit specified in regulation 31.
(6) For the purposes of paragraph (5)(a), the special circumstances are that -
(a) the applicant or a spouse 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.
(7) In determining whether it is in the interests of justice to grant an application, the legally qualified 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 appeal is to be brought under regulation 31 and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application is based.
(8) In determining whether it is in the interests of justice to grant an application, no account shall be taken of the following -
(a) that the applicant or any person acting for him was unaware of, or misunderstood, the law applicable to his case (including ignorance or misunderstanding of the time limits imposed by these Regulations); or
(b) that a Commissioner or a court has taken a different view of the law from that previously understood and applied.
(9) An application under this regulation for an extension of time which has been refused may not be renewed.
(10) The legally qualified panel member who determines an application under this regulation shall record a summary of his decision in such written form as has been approved by the President.
(11) As soon as practicable after the decision is made a copy of the decision shall be sent or given to every party to the proceedings.
(12) In this regulation "Commissioner" includes -
(a) a Commissioner within the meaning of section 39(1) of the Social Security Act 1998[43]; and
(b) a Child Support Commissioner appointed under section 22 or 23 of the Child Support Act 1991[44].
Making of appeals and applications
33.
- (1) An appeal, or an application for an extension of time for making an appeal to an appeal tribunal, shall be in writing either on a form approved for the purpose by the Department or in such other format as it accepts as sufficient for the purpose and shall -
(a) be signed by -
(i) the person who has a right of appeal to an appeal tribunal under Article 22(1) to (3) of the Child Support Order (including that Article as extended by paragraph 3 of Schedule 4C to that Order), Article 13(2) of the Recovery of Benefits Order or Article 13(2) of the Order, or
(ii) where the person mentioned in head (i) has provided written authority to a representative to act on his behalf, by that representative;
(b) be sent or delivered to an office of the Department;
(c) contain particulars of the grounds on which it is made; and
(d) contain sufficient particulars of the decision, the certificate of recoverable benefits or, as the case may be, the subject of the application to enable that decision, certificate or subject of the application to be identified.
(2) A form which is not completed in accordance with the instructions on it -
(a) except where paragraph (3) applies, does not satisfy the requirements of paragraph (1); and
(b) may be returned by the Department to the sender for completion in accordance with those instructions.
(3) Where the Department is satisfied that the form, although not completed in accordance with the instructions on it, includes sufficient information to enable the appeal or application to proceed, it may treat the form as satisfying the requirements of paragraph (1).
(4) Where an appeal or application is made in writing otherwise than on the approved form ("the letter"), and the letter includes sufficient information to enable the appeal or application to proceed, the Department may treat the letter as satisfying the requirements of paragraph (1).
(5) Where the letter does not include sufficient information to enable the appeal or application to proceed, the Department may request further information in writing ("further particulars") from the person who wrote the letter.
(6) 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 and the form or, as the case may be, further particulars are received by the Department within -
(a) 14 days of the date on which the form was returned to him by the Department;
(b) 14 days of the date on which the Department's request was made ("the date of request"); or
(c) such longer period as the Department may direct,
the time for making the appeal shall be extended by 14 days from the date on which the form was returned, the date of request or, as the case may be, the date of the Department's direction.
(7) Where a person to whom a form is returned or from whom further particulars are requested does not complete and return the form or send further particulars within the period of time specified in paragraph (6) -
(a) the Department shall forward a copy of the form or, as the case may be, the letter, together with any other relevant documents or evidence to a legally qualified panel member; and
(b) that panel member shall determine whether the form or the letter satisfies the requirements of paragraph (1), and shall inform the appellant or applicant and the Department of his determination.
(8) Where -
(a) a form is duly completed and returned or further particulars are sent after the expiry of the period of time allowed in accordance with paragraph (6); and
(b) no decision has been made under paragraph (7) at the time the form or the further particulars are received by the Department,
that form or those further particulars shall also be forwarded to the legally qualified panel member who shall take into account any further information or evidence set out in the form or further particulars.
Death of a party to an appeal
34.
- (1) In any proceedings, on the death of a party to those proceedings, the Department may appoint such person as it thinks fit to proceed with the appeal in the place of such deceased party.
(2) A grant of probate or letters of administration to the estate of the deceased party, whenever taken out, shall have no effect on an appointment made under paragraph (1).
(3) Where a person appointed under paragraph (1) has, prior to the date of such appointment, taken any action in relation to the appeal on behalf of the deceased party, the effective date of appointment by the Department shall be the day immediately prior to the first day on which such action was taken.
PART V
APPEAL TRIBUNALS FOR SOCIAL SECURITY, CONTRACTING-OUT OF PENSIONS AND CHILD SUPPORT
CHAPTER I
The panel and appeal tribunals
Persons appointed to the panel
35.
For the purposes of Article 7(3), the panel shall include persons with the qualifications specified in Schedule 2.
Composition of appeal tribunals
36.
- (1) Subject to the following provisions of this regulation, an appeal tribunal, including an appeal tribunal determining a misconceived appeal as a preliminary issue in accordance with regulation 48, shall consist of a legally qualified panel member.
(2) Subject to paragraphs (3) to (5), an appeal tribunal shall consist of a medically qualified panel member and a legally qualified panel member where -
(3) An appeal tribunal shall consist of a financially qualified panel member and a legally qualified panel member where -
(a) the issue, or one of the issues, raised on the appeal or referral, relates to child support or a relevant benefit; and
(b) the appeal or referral may require consideration by members of the appeal tribunal of issues which are, in the opinion of the President, difficult and which relate to -
(i) profit and loss accounts, revenue accounts or balance sheets relating to any enterprise,
(ii) an income and expenditure account in the case of an enterprise not trading for profit, or
(iii) the accounts of any trust fund.
(4) Where the composition of an appeal tribunal would fall to be prescribed under both paragraphs (2) and (3), it shall consist of a medically qualified panel member, a financially qualified panel member and a legally qualified panel member.
(5) Where the composition of an appeal tribunal is prescribed under paragraph (1), (2) or (3), the President may determine that the appeal tribunal shall include such an additional member drawn from the panel as he considers appropriate for the purposes of providing further experience for that additional member or assisting the President in the monitoring of standards of decision-making by panel members.
(6) An appeal tribunal shall consist of a legally qualified panel member, a medically qualified panel member and a panel member with a disability qualification in any appeal which relates to an attendance allowance or a disability living allowance under Part III of the Contributions and Benefits Act or a disability working allowance under section 128 of that Act[47].
Assignment of clerks to appeal tribunals
37.
The Department shall assign a clerk to service each appeal tribunal and the clerk so assigned shall be responsible for summoning members of the panel to serve on the tribunal.
CHAPTER II
Procedure in connection with determination of appeals and referrals
Consideration and determination of appeals and referrals
38.
- (1) The procedure in connection with the consideration and determination of an appeal or a referral shall, subject to the following provisions of these Regulations, be such as a legally qualified panel member shall determine.
(2) A legally qualified panel member may give directions requiring a party to the proceedings to comply with any provision of these Regulations and may at any stage of the proceedings, either of his own motion or on a written application made to the clerk to the appeal tribunal by any party to the proceedings, give such directions as he may consider necessary or desirable for the just, effective and efficient conduct of the proceedings and may direct any party to the proceedings to provide such particulars or to produce such documents as may be reasonably required.
(3) Where a clerk to the appeal tribunal is authorised to take steps in relation to the procedure of the tribunal he may give directions requiring any party to the proceedings to comply with any provision of these Regulations.
Directions concerning oral hearings
39.
- (1) Where an appeal or a referral is made to an appeal tribunal, the clerk to the appeal tribunal shall direct the appellant and any other party to the proceedings to notify the clerk to the appeal tribunal in writing whether he wishes to have an oral hearing of the appeal or referral or whether he is content for the appeal or referral to proceed without an oral hearing.
(2) Except in the case of a referral, a direction under paragraph (1) shall include a statement informing the appellant that, if he does not respond in writing to the direction within the period specified in paragraph (3), the appeal may be struck out in accordance with regulation 46.
(3) A notification given in accordance with paragraph (1) shall be sent to the clerk to the appeal tribunal within 14 days of the date of issue of the direction under that paragraph or within such longer period as the clerk to the appeal tribunal may direct.
(4) Where a party to the proceedings notifies the clerk to the appeal tribunal in accordance with paragraph (3) that he wishes to have an oral hearing of the appeal or referral, the appeal tribunal shall hold an oral hearing.
(5) The chairman or, in the case of an appeal tribunal which has only one member, that member, may of his own motion direct that an oral hearing of the appeal or referral be held if he is satisfied that such a hearing is necessary to enable the appeal tribunal to reach a decision.
Withdrawal of appeals and referrals
40.
- (1) An appeal may be withdrawn by the appellant or an authorised representative of his or, as the case may be, a referral may be withdrawn by the Department either -
(a) at an oral hearing; or
(b) at any other time before the appeal or referral is determined, by giving notice in writing of the withdrawal to the clerk to the appeal tribunal.
(2) If an appeal or, as the case may be, a referral is withdrawn in accordance with paragraph (1)(a), the clerk to the appeal tribunal shall send notice in writing to any party to the proceedings who is not present when the appeal or referral is withdrawn, informing him that the appeal or, as the case may be, referral has been withdrawn.
(3) If an appeal or, as the case may be, a referral is withdrawn in accordance with paragraph (1)(b), the clerk to the appeal tribunal shall send notice in writing to every party to the proceedings informing them that the appeal or, as the case may be, referral has been withdrawn.
Medical examination required by appeal tribunal
41.
For the purposes of Article 20(2), the prescribed condition which shall be satisfied is that the issue, or one of the issues, raised on the appeal -
(a) is whether the claimant satisfies the conditions for entitlement to -
(i) the care component of a disability living allowance specified in section 72(1) and (2) of the Contributions and Benefits Act,
(ii) the mobility component of a disability living allowance specified in section 73(1), (8) and (9) of that Act,
(iii) an attendance allowance specified in sections 64 and 65(1) of that Act,
(iv) a disability working allowance specified in section 128(1)(b) of that Act,
(v) incapacity benefit under section 30A of that Act, or
(vi) severe disablement allowance under section 68 of that Act;
(b) relates to the period throughout which the claimant is likely to satisfy the conditions for entitlement to an attendance allowance or a disability living allowance;
(c) is the rate at which an attendance allowance is payable;
(d) is the rate at which the care component or the mobility component of a disability living allowance is payable;
(e) relates to either statutory sick pay or statutory maternity pay and the appeal is made by the employer concerned;
(f) relates to the extent of a person's disablement and its assessment in accordance with Schedule 6 to the Contributions and Benefits Act;
(g) is whether the claimant suffers a loss of physical or mental faculty as a result of the relevant accident for the purposes of section 103 of that Act;
(h) relates to any disease or injury prescribed for the purposes of section 108 of that Act; or
(i) relates to any payment arising under, or by virtue of a scheme having effect under, section 111 of, and Schedule 8 to, that Act.
Non-disclosure of medical advice or evidence
42.
- (1) Where, in connection with the consideration and determination of an appeal or a referral there is before an appeal tribunal medical advice or medical evidence relating to a person which has not been disclosed to him and in the opinion of the chairman or, in the case of an appeal tribunal which has only one member, that member, the disclosure to that person of that advice or evidence would be harmful to his health, such advice or evidence shall not be required to be disclosed to that person.
(2) Advice or evidence such as is mentioned in paragraph (1) shall not be disclosed to any person acting for or representing the person to whom it relates or, in a case where a claim for benefit is made by reference to the disability of a person other than the claimant and the advice or evidence relates to that other person, shall not be disclosed to the claimant or any person acting for or representing him, unless the chairman or, in the case of an appeal tribunal which has only one member, that member, is satisfied that it is in the interests of the person to whom the advice or evidence relates to do so.
(3) A tribunal shall not be precluded from taking into account for the purposes of the determination advice or evidence which has not been disclosed to a person under the provisions of paragraph (1) or (2).
Summoning of witnesses and administration of oaths
43.
- (1) A chairman or, in the case of an appeal tribunal which has only one member, that member, may by summons require any person in Northern Ireland to attend as a witness at a hearing of an appeal, application or referral at such time and place as shall be specified in the summons and, subject to paragraph (2), at the hearing to answer any question or produce any documents in his custody or under his control which relate to any matter in question in the appeal, application or referral but -
(a) no person shall be required to attend in obedience to such summons unless he has been given at least 14 days notice of the hearing or, if less than 14 days notice is given, he has informed the tribunal that the notice given is sufficient; and
(b) no person shall be required to attend and give evidence or to produce any document in obedience to such summons unless the necessary expenses of attendance are paid or tendered to him.
(2) No person shall be compelled to give any evidence or produce any document or other material that he could not be compelled to give or produce on a trial of an action in a court of law in Northern Ireland.
(3) In exercising the powers conferred by this regulation the chairman or, in the case of an appeal tribunal which has only one member, that member, shall take into account the need to protect any matter that relates to intimate personal or financial circumstances, is commercially sensitive, consists of information communicated or obtained in confidence or concerns national security.
(4) Every summons issued under this regulation shall contain a statement to the effect that the person in question may apply in writing to the chairman or, in the case of an appeal tribunal which has only one member, that member, to vary or set aside the summons.
(5) A chairman or, in the case of an appeal tribunal which has only one member, that member, may require any witness, including a witness summoned under the powers conferred by this regulation, to give evidence on oath and for that purpose there may be administered an oath in due form.
Confidentiality in child support appeals and referrals
44.
- (1) In the circumstances specified in paragraph (2), for the purposes of paragraph 7 of Schedule 1 to the Order, in a child support appeal or referral, the prescribed material is -
(a) the address of the absent parent, the parent with care, the child or any other person with care of the child; or
(b) any information the use of which could reasonably be expected to lead to the location of any person specified in sub-paragraph (a).
(2) Except where the appeal is brought against a reduced benefit direction within the meaning of Article 43(11) of the Child Support Order, paragraph (1) applies where, in response to an enquiry from the Department, the absent parent or, as the case may be, the parent with care has within 14 days of the issue of that enquiry notified the Department that he would like the information specified in paragraph (1) which relates to him to remain confidential.
(3) In this regulation "absent parent" and "parent with care" have the same meanings as in Article 2(2) of the Child Support Order.
Consideration of more than one appeal under Article 22 of the Child Support Order
45.
An appeal tribunal which is considering an appeal under Article 22 of the Child Support Order in respect of a departure direction which relates to a maintenance assessment may, if it considers it appropriate to do so, consider at the same time any appeal under that Article in respect of another departure direction which relates to the same maintenance assessment.
CHAPTER III
Striking out of appeals
Appeals which may be struck out
46.
- (1) Subject to paragraphs (2) and (3), an appeal may be struck out by the clerk to the appeal tribunal -
(a) where it is an out of jurisdiction appeal and the appellant has been notified by the Department that an appeal brought against such a decision may be struck out;
(b) for want of prosecution including an appeal not made within the time specified in these Regulations; or
(c) subject to regulation 39(2), for failure of the appellant to comply with a direction given under these Regulations where the appellant has been notified that failure to comply with the direction could result in the appeal being struck out.
(2) Where the clerk to the appeal tribunal determines to strike out the appeal, he shall notify the appellant that the appeal has been struck out and of the procedure for reinstatement of the appeal as specified in regulation 47.
(3) The clerk to the appeal tribunal may refer any matter for determination under this regulation to a legally qualified panel member for decision by that panel member rather than the clerk to the appeal tribunal.
(4) Subject to regulation 48, a misconceived appeal may be struck out by a legally qualified panel member but such an appeal shall not be struck out unless the appellant has been given notice of -
(a) the intention to strike out the appeal;
(b) the ground on which the intention to strike out is based; and
(c) the requirement to notify the clerk to the appeal tribunal in writing of the matters specified in regulation 48(1)(a) or (b) and that failure to comply with this requirement may result in the appeal being struck out.
Notes:
[43]
1998 c. 14back
[44]
1991 c. 48back
[45]
Section 30A was inserted by Article 3(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 (S.I. 1994/1898 (N.I. 12))back
[46]
Section 68 was amended by Article 11 of, and paragraph 18 of Schedule 1 to, the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and regulation 2(2) of S.R. 1994 No. 370back
[47]
Section 128 was amended by Article 12 of, and paragraph 32 of Schedule 1 to, the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and paragraph 17 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995 (S.I. 1995/2705 (N.I. 15))back
| |
