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Reinstatement of struck out appeals
47.
A legally qualified panel member may reinstate an appeal which has been struck out in accordance with regulation 46 or 48(2) where -
(a) the appellant has made representations or, as the case may be, further representations in support of his appeal with reasons why he considers that his appeal should not have been struck out, to the clerk to the appeal tribunal, in writing within one month of the order to strike out the appeal being issued, and that panel member is satisfied in the light of those representations that there are reasonable grounds for reinstating the appeal;
(b) that panel member is satisfied that the appellant did not receive the notification required under regulation 46(4);
(c) that panel member is satisfied that the appeal is not an appeal which may be struck out under regulation 46; or
(d) that panel member is satisfied that notwithstanding that the appeal is one which may be struck out under regulation 46, it is not in the interests of justice for the appeal to be struck out.
Misconceived appeals
48.
- (1) Where the appellant has been given notice under regulation 46(4) of the intention to strike out an appeal on the ground that it is a misconceived appeal, he shall within 14 days of the issue of such notice notify the clerk to the appeal tribunal in writing that -
(a) he wishes the question of whether his appeal is misconceived to be determined by an appeal tribunal as a preliminary issue at an oral hearing; or
(b) he is content for an appeal tribunal to consider the question of whether his appeal is misconceived as a preliminary issue without an oral hearing and make representations in writing to the clerk to the appeal tribunal as to why he considers that the appeal is not misconceived.
(2) Where the appellant fails to notify or to make representations to the clerk to the appeal tribunal in writing as required by paragraph (1) within the period specified in that paragraph, a legally qualified panel member may strike out the appeal.
(3) Where the appellant notifies the clerk to the appeal tribunal under paragraph (1) within the period specified in that paragraph that he wishes an appeal tribunal to determine the question of whether his appeal is misconceived as a preliminary issue at an oral hearing, the appeal tribunal shall hold an oral hearing for that preliminary issue.
(4) Where the appeal tribunal determines as a preliminary issue that the appeal is a misconceived appeal, the appeal shall be struck out and the clerk to the appeal tribunal shall notify the appellant that the appeal has been struck out.
(5) Where the appeal tribunal determines as a preliminary issue that the appeal is not a misconceived appeal -
(a) the appeal tribunal shall refer the appeal and all the supporting documentation to the Department together with a statement of the reasons why the appeal tribunal considers that the appeal is not misconceived;
(b) the clerk to the appeal tribunal shall notify the appellant of the referral of the appeal to the Department and send the appellant a copy of the reasons why the appeal tribunal considers that the appeal is not misconceived;
(c) the Department may revise or supersede the decision against which the appeal is brought; and
(d) if the Department does not revise or supersede the decision against which the appeal is brought in the appellant's favour, the Department shall refer the appeal for determination by an appeal tribunal.
(6) Chapter IV of this Part shall apply to an oral hearing held under this regulation.
CHAPTER IV
Oral hearings
Procedure at oral hearings
49.
- (1) Subject to the following provisions of this Part, the procedure for an oral hearing shall be such as the chairman or, in the case of an appeal tribunal which has only one member, such as that member, shall determine.
(2) Except where paragraph (3) applies, not less than 14 days notice (beginning with the day on which notice is given and ending on the day before the hearing of the appeal is to take place) of the time and place of any oral hearing of an appeal shall be given to every party to the proceedings, and if such notice has not been given to a person to whom it should have been given under the provisions of this paragraph the hearing may proceed only with the consent of that person.
(3) Any party to the proceedings may waive his right to receive not less than 14 days notice of the time and place of any oral hearing by giving notice to the clerk to the appeal tribunal.
(4) If a party to the proceedings to whom notice has been given under paragraph (2) fails to appear at the hearing, the chairman or, in the case of an appeal tribunal which has only one member, that member, may, having regard to all the circumstances including any explanation offered for the absence, proceed with the hearing notwithstanding his absence, or give such directions with a view to the determination of the appeal as he may think proper.
(5) If a party to the proceedings has waived his right to be given notice under paragraph (2), the chairman or, in the case of an appeal tribunal which has only one member, that member, may proceed with the hearing notwithstanding his absence.
(6) Any oral hearing shall be in public except -
(a) where the appellant requests a private hearing; or
(b) where the chairman or, in the case of an appeal tribunal which has only one member, that member, is satisfied that intimate personal or financial circumstances may have to be disclosed or that considerations of national security are involved, in which case the hearing shall be in private.
(7) Any party to the proceedings shall be entitled to be present and be heard at an oral hearing.
(8) A person who has the right to be heard at a hearing may be accompanied and may be represented by another person whether having professional qualifications or not and, for the purposes of the proceedings at the hearing, any such representative shall have all the rights and powers to which the person whom he represents is entitled.
(9) The following persons shall also be entitled to be present at an oral hearing (whether or not it is otherwise in private) but shall take no part in the proceedings -
(a) the President;
(b) any person undergoing training as a panel member or as a clerk to an appeal tribunal;
(c) any person acting on behalf of the President in the training or supervision of panel members or in the monitoring of standards of decision-making by panel members; and
(d) with the leave of the chairman or, in the case of an appeal tribunal which has only one member, that member, and the consent of every party to the proceedings actually present, any other person.
(10) Nothing in paragraph (9) affects the rights of any person mentioned in sub-paragraphs (a) and (b) of that paragraph at any oral hearing where he is sitting as a member of the tribunal or acting as its clerk, and nothing in this regulation prevents the presence at an oral hearing of any witness.
(11) Any person entitled to be heard at an oral hearing may address the tribunal, may give evidence, may call witnesses and may put questions directly to any other person called as a witness.
(12) For the purpose of arriving at its decision, an appeal tribunal shall, and for the purpose of discussing any question of procedure may, notwithstanding anything contained in these Regulations, order all persons not being members of the tribunal, other than the person acting as clerk to the appeal tribunal, to withdraw from the hearing except that -
(a) the President or any person mentioned in paragraph (9)(c); and
(b) with the leave of the chairman or, in the case of an appeal tribunal which has only one member, that member, any person mentioned in paragraph (9)(b) and (d),
may remain present at any such sitting.
Manner of providing expert assistance
50.
- (1) Where an appeal tribunal requires one or more experts to provide assistance to it in dealing with a question of fact of special difficulty under Article 8(4), such an expert shall, if the chairman or, in the case of a tribunal which has only one member, that member, so requests, attend at the hearing and give evidence and if the chairman or that member considers it appropriate, the expert shall enquire into and provide a written report on the question.
(2) A copy of any written report received from an expert in accordance with paragraph (1) shall be supplied to every party to the proceedings.
Postponement and adjournment
51.
- (1) Where a person to whom notice of an oral hearing is given wishes to request a postponement of that hearing, he shall do so in writing to the clerk to the appeal tribunal stating his reasons for the request, and the clerk to the appeal tribunal may grant or refuse the request as he thinks fit or may pass the request to a legally qualified panel member who may grant or refuse the request as he thinks fit.
(2) Where the clerk to the appeal tribunal or, as the case may be, the legally qualified panel member refuses a request to postpone the hearing he shall -
(a) notify in writing the person making the request of the refusal; and
(b) place before the appeal tribunal at the hearing both the request for the postponement and notification of its refusal.
(3) The legally qualified panel member or the clerk to the appeal tribunal may of his own motion at any time before the beginning of the hearing postpone the hearing.
(4) An oral hearing may be adjourned by the appeal tribunal at any time on the application of any party to the proceedings or of its own motion.
(5) Where a hearing has been adjourned and it is not practicable, or would cause undue delay, for it to be resumed before an appeal tribunal consisting of the same member or members, the appeal or referral shall be heard by a differently constituted appeal tribunal and the proceedings shall be by way of a complete rehearing.
Physical examination at oral hearings
52.
For the purposes of Article 20(3), an appeal tribunal may not carry out a physical examination except in a case which relates to -
(a) the extent of a person's disablement and its assessment in accordance with section 68(6) of, and Schedule 6 to, the Contributions and Benefits Act;
(b) the extent of a person's disablement and its assessment in accordance with section 103 of that Act; or
(c) diseases or injuries prescribed for the purposes of section 108 of that Act.
CHAPTER V
Decisions of appeal tribunals and related matters
Decisions of appeal tribunals
53.
- (1) Every decision of an appeal tribunal shall be recorded in summary by the chairman or, in the case of an appeal tribunal which has only one member, by that member.
(2) The decision notice specified in paragraph (1) shall be in such written form as shall have been approved by the President and shall be signed by the chairman or, in the case of an appeal tribunal which has only one member, by that member.
(3) As soon as may be practicable after an appeal or a referral has been decided by an appeal tribunal, a copy of the decision notice prepared in accordance with paragraphs (1) and (2) shall be sent or given to every party to the proceedings who shall also be informed of -
(a) his right under paragraph (4); and
(b) the conditions governing appeals to a Commissioner or, as the case may be, a Child Support Commissioner.
(4) A party to the proceedings may apply in writing to the chairman or, in the case of an appeal tribunal which has only one member, to that member, for a copy of a statement of the reasons for the tribunal's decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54.
(5) If the decision is not unanimous, the decision notice specified in paragraph (1) shall record that one of the members dissented and the statement of reasons referred to in paragraph (4) shall include the reasons given by that member for dissenting.
Late applications for statement of reasons for tribunal decision
54.
- (1) The time for making an application for a copy of the statement of the reasons for an appeal tribunal's decision may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but no application shall in any event be made more than three months after the date of the sending or giving of the notice of the decision of the appeal tribunal.
(2) An application for an extension of time under this regulation shall be made in writing 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) The application for an extension of time shall not be granted unless the legally qualified panel member is satisfied that 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 the 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 53(4).
(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 the 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 application for a copy of the statement of reasons for an appeal tribunal's decision 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 is based.
(8) In determining whether it is in the interests of justice to grant the 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) Any person who, under paragraph (11), receives a copy of the decision may, within one month of the decision being sent to him, apply in writing for a copy of the reasons for that decision and a copy shall be supplied to him.
(13) In this regulation "Commissioner" includes -
(a) the Commissioner within the meaning of section 39(1) of the Social Security Act 1998[48]; and
(b) a Child Support Commissioner appointed under section 22 or 23 of the Child Support Act 1991.
Record of tribunal proceedings
55.
- (1) A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.
(2) Such record shall be preserved by the clerk to the appeal tribunal for six months from the date of the decision made by the appeal tribunal to which the record relates and any party to the proceedings may within that period apply in writing for a copy of that record and a copy shall be supplied to him.
Correction of accidental errors
56.
- (1) The clerk to the appeal tribunal or, where the clerk refers the matter to a legally qualified panel member, that member, may at any time correct accidental errors in any decision, or the record of any such decision, of an appeal tribunal made under a relevant statutory provision or the Child Support Order.
(2) A correction made to, or to the record of, a decision shall be deemed to be part of the decision or record of that decision and written notice of it shall be given as soon as practicable to every party to the proceedings.
(3) In this regulation and regulation 57 "relevant statutory provision" has the same meaning as in Article 28(3).
Setting aside decisions on certain grounds
57.
- (1) On an application made by a party to the proceedings, a decision of an appeal tribunal made under a relevant statutory provision or the Child Support Order may be set aside by a legally qualified panel member in a case where it appears just to set the decision aside on the ground that -
(a) a document relating to the proceedings in which the decision was made was not sent to, or was not received at an appropriate time by, a party to the proceedings or the party's representative or was not received at an appropriate time by the person who made the decision; or
(b) a party to the proceedings in which the decision was made or the party's representative was not present at a hearing relating to the proceedings.
(2) In determining whether it is just to set aside a decision on the ground set out in paragraph (1)(b), the legally qualified panel member shall determine whether the party making the application gave notice that he wished to have an oral hearing, and if that party did not give such notice the decision shall not be set aside unless the chairman or, in the case of an appeal tribunal which has only one member, that member, is satisfied that the interests of justice manifestly so require.
(3) An application under this regulation shall be made in accordance with regulations 31 to 33.
(4) Where an application to set aside a decision is entertained under paragraph (1), every party to the proceedings shall be sent a copy of the application and shall be afforded a reasonable opportunity of making representations on it before the application is determined.
(5) Notice in writing of a determination on an application to set aside a decision shall be sent or given to every party to the proceedings as soon as may be practicable and the notice shall contain a statement giving the reasons for the determination.
Application for leave to appeal to a Commissioner from an appeal tribunal
58.
- (1) An application for leave to appeal to a Commissioner from a decision of an appeal tribunal under Article 13 or 14 shall -
(a) be made within the period of one month commencing on the date the applicant is sent a written statement of the reasons for the decision against which leave to appeal is sought; and
(b) have annexed to it a copy of that written statement of the reasons for the decision.
(2) Where an application for leave to appeal to a Commissioner is made by the Department, the clerk to the appeal tribunal shall, as soon as may be practicable, send a copy of the application to every other party to the proceedings.
(3) Any party to the proceedings who is sent a copy of an application for leave to appeal in accordance with paragraph (2) may make representations in writing within one month of the date on which the application is sent.
(4) A person determining an application for leave to appeal to a Commissioner shall take into account any further representations received from the applicant before the determination is made, and shall record his decision in writing and send a copy to every party to the proceedings.
(5) Where there has been a failure to apply for leave to appeal within the period of time specified in paragraph (1)(a) but an application is made within one year of the last date for making an application within that period, a legally qualified panel member may, if for special reasons he thinks fit, accept and proceed to consider and determine the application.
(6) Where in any case it is impracticable, or it would be likely to cause undue delay for an application for leave to appeal against a decision of an appeal tribunal to be determined by the person who was the chairman or, in the case of an appeal tribunal which had only one member, that member, the application shall be determined by a legally qualified panel member.
PART VI
REVOCATIONS
Revocations
59.
- (1) The Regulations listed in column (1) of Schedule 3 are hereby revoked to the extent specified in column (3) of that Schedule.
(2) Notwithstanding their revocation for particular purposes, the Regulations listed in column (1) of Schedule 3 shall continue to have full effect up to and including 28th November 1999 in relation to any benefit to which these Regulations do not apply for the time being by virtue of regulation 1(1).
(3) So much of any document as refers expressly or by implication to any regulation revoked by paragraph (1) shall, in so far as the context permits, for the purposes of these Regulations be treated as referring to the corresponding provision of these Regulations.
Sealed with the Official Seal of the Department of Health and Social Services for Northern Ireland on
L.S.
John O'Neill
Assistant Secretary
29th March 1999.
I concur.
Irvine of Lairg, C.
9th April 1999
Notes:
[48]
1998 c. 14back
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