Statutory Instruments
2002 No. 3237
SOCIAL SECURITY
The Social Security Commissioners (Procedure) (Tax Credits Appeals) Regulations 2002
Made
18th December 2002
Laid before Parliament
28th November 2002
Coming into force
1st January 2003
The Lord Chancellor, in exercise of the powers conferred upon him by sections 79(2) and 84 of the Social Security Act 1998(1), and by sections 14, 15, 16, 28 and 39(2) of, and Schedules 4 and 5 to, the Social Security Act 1998 as applied and modified by the Tax Credits (Appeals) Regulations 2002(3), after consultation in accordance with section 79(2) of the Social Security Act 1998 and paragraph 8 of Schedule 4 to that Act(4) and with the Council on Tribunals in accordance with section 8 of the Tribunals and Inquiries Act 1992(5), makes the following Regulations, a draft of which has, in accordance with section 80(1) of the Social Security Act 1998 been laid before and approved by resolution of each House of Parliament:
PART 1GENERAL PROVISIONS
Citation, commencement and duration
1.—(1) These Regulations may be cited as the Social Security Commissioners (Procedure) (Tax Credits Appeals) Regulations 2002 and shall come into force on 1st January 2003.
(2) These Regulations shall cease to have effect on such day as is appointed by order made under section 63(1) of the Tax Credits Act 2002(6) (tax credit appeals etc.: temporary modifications).
Interpretation
2. In these Regulations, unless the context otherwise requires—
“the 1998 Act” means the Social Security Act 1998, as applied and modified by the Tax Credits (Appeals) Regulations 2002;
“the 2002 Act” means the Tax Credits Act 2002;
“appeal” means an appeal which by virtue of section 63 of the 2002 Act is from an appeal tribunal to a Social Security Commissioner;
“appeal tribunal” means an appeal tribunal constituted under Chapter 1 of Part 1 of the 1998 Act;
“authorised officer” means an officer authorised by the Lord Chancellor, or in Scotland by the Secretary of State, in accordance with paragraph 6 of Schedule 4 to the 1998 Act;
“chairman” means—
the person who was the chairman or the sole member of the appeal tribunal which gave the decision against which leave to appeal is being sought; or
any other person authorised to deal with applications for leave to appeal to a Commissioner against that decision under section 14 of the 1998 Act;
“joint claimant” means a person making a claim under section 3(3)(a) of the 2002 Act;
“legally qualified” means being a solicitor or barrister, or in Scotland, a solicitor or advocate;
“month” means a calendar month;
“office” means an Office of the Social Security Commissioners;
“party” means a party to the proceedings;
“penalty proceedings” means proceedings taken under Schedule 2 of the 2002 Act;
“proceedings” means any proceedings before a Commissioner, whether by way of an application for leave to appeal to, or from, a Commissioner, or by way of an appeal, or otherwise;
“respondent” means—
any person or organisation other than the applicant or appellant who is one of the principal parties as defined in section 13 of the 1998 Act;
any other person taking part in the proceedings in accordance with section 14 of the 1998 Act or at the direction or with the leave of the Commissioner;
“summons”, in relation to Scotland, corresponds to “citation” and regulation 20 shall be construed accordingly;
“tax credit” means a child tax credit or a working tax credit, construing those terms in accordance with section 1(1) and (2) of the 2002 Act.
General powers of a Commissioner
3.—(1) Subject to the provisions of these Regulations, a Commissioner may adopt any procedure in relation to proceedings before him.
(2) A Commissioner may—
(a)extend or abridge any time limit under these Regulations (including, subject to regulations 7(3) and 11(2), granting an extension where the time limit has expired);
(b)expedite, postpone or adjourn any proceedings.
(3) Subject to paragraph (4), a Commissioner may, on or without the application of a party, strike out any proceedings for want of prosecution or abuse of process.
(4) Before making an order under paragraph (3), the Commissioner shall send notice to the party against whom it is proposed that it should be made giving him an opportunity to make representations why it should not be made.
(5) A Commissioner may, on application by the party concerned, give leave to reinstate any proceedings which have been struck out in accordance with paragraph (3) and, on giving leave, he may give directions as to the conduct of the proceedings.
(6) Nothing in these Regulations shall affect any power which is exercisable apart from these Regulations.
Transfer of proceedings between Commissioners
4. If it becomes impractical or inexpedient for a Commissioner to continue to deal with proceedings which are or have been before him, any other Commissioner may rehear or deal with those proceedings and any related matters.
Delegation of functions to authorised officers
5.—(1) The following functions of the Commissioners may be exercised by legally qualified authorised officers, to be known as legal officers to the Commissioners—
(a)giving directions under regulations 6 and 16;
(b)determining requests for or directing hearings under regulation 18;
(c)summoning witnesses, and setting aside a summons made by a legal officer, under regulation 20;
(d)postponing a hearing under regulation 3;
(e)giving leave to withdraw or reinstate applications or appeals under regulation 21;
(f)waiving irregularities under regulation 22 in connection with any matter being dealt with by a legal officer;
(g)extending or abridging time, directing expedition, giving notices, striking out and reinstating proceedings under regulation 3.
(2) Any party may, within 14 days of being sent notice of the direction or order of a legal officer, make a written request to a Commissioner asking him to reconsider the matter and confirm or replace the direction or order with his own, but, unless ordered by a Commissioner, a request shall not stop proceedings under the direction or order.
Manner of and time for service of notices, etc.
6.—(1) A notice to or document for any party shall be deemed duly served if it is—
(a)delivered to him personally; or
(b)properly addressed and sent to him by prepaid post at the address last notified by him for this purpose, or to his ordinary address; or
(c)served in any other manner a Commissioner may direct.
(2) A notice to or other document for a Commissioner shall be delivered or sent to the office.
(3) For the purposes of any time limit, a properly addressed notice or other document sent by prepaid post, fax or email is effective from the date it is sent.
PART 2APPLICATIONS FOR LEAVE TO APPEAL AND APPEALS
Application to a Commissioner for leave to appeal
7.—(1) An application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.
(2) Subject to paragraph (3) an application to a Commissioner shall be made within one month of notice of the refusal or rejection being sent to the applicant by the appeal tribunal.
(3) A Commissioner may for special reasons accept a late application or an application where the applicant failed to seek leave from the chairman within the specified time, but did so on or before the final date.
(4) In paragraph (3) the final date means the end of a period of 13 months from the date on which the decision of the appeal tribunal or, if later, any separate statement of the reasons for it, was sent to the applicant by the appeal tribunal.
Notice of application to a Commissioner for leave to appeal
8.—(1) An application to a Commissioner for leave to appeal shall be made by notice in writing, and shall contain—
(a)the name and address of the applicant;
(b)the grounds on which the applicant intends to rely;
(c)if the application is made late, the grounds for seeking late acceptance; and
(d)an address for sending notices and other documents to the applicant.
(2) The notice in paragraph (1) shall have with it copies of—
(a)the decision against which leave to appeal is sought;
(b)if separate, the written statement of the appeal tribunal’s reasons for it; and
(c)the notice of refusal or rejection sent to the applicant by the appeal tribunal.
(3) Where an application for leave to appeal is made by the Board, they shall send each respondent a copy of the notice of application and any documents sent with it when they are sent to the Commissioner.
Determination of application
9.—(1) The office shall send written notice to the applicant and each respondent of the determination of an application for leave to appeal to a Commissioner.
(2) Subject to a direction by a Commissioner, where a Commissioner grants leave to appeal under regulation 7—
(a)notice of appeal shall be deemed to have been sent on the date when notice of the determination is sent to the applicant; and
(b)the notice of application shall be deemed to be a notice of appeal sent under regulation 10.
(3) If a Commissioner grants an application for leave to appeal he may, with the consent of the applicant and each respondent, treat and determine the application as an appeal.
Notice of appeal
10.—(1) Subject to regulation 9(2), an appeal shall be made by notice in writing and shall contain—
(a)the name and address of the appellant;
(b)the date on which the appellant was notified that leave to appeal had been granted;
(c)the grounds on which the appellant intends to rely;
(d)if the appeal is made late, the grounds for seeking late acceptance; and
(e)an address for sending notices and other documents to the appellant.
(2) The notice in paragraph (1) shall have with it copies of—
(a)the notice informing the appellant that leave to appeal has been granted;
(b)the decision against which leave to appeal has been granted; and
(c)if separate, the written statement of the appeal tribunal’s reasons for it.
Time limit for appealing after leave obtained
11.—(1) Subject to paragraph (2), a notice of appeal shall not be valid unless it is sent to a Commissioner within one month of the date on which the appellant was sent written notice that leave to appeal had been granted.
(2) A Commissioner may for special reasons accept a late notice of appeal.
Acknowledgement of a notice of appeal and notification to each respondent
12. The office shall send—
(a)to the appellant, an acknowledgement of the receipt of the notice of appeal;
(b)to each respondent, a copy of the notice of appeal.
PART 3PROCEDURE
Representation
13. A party may conduct his case himself (with assistance from any person if he wishes) or be represented by any person whom he may appoint for the purpose.
Respondent’s written observations
14.—(1) A respondent may submit to a Commissioner written observations on an appeal within one month of being sent written notice of it.
(2) Written observations shall include—
(a)the respondent’s name and address and address for sending documents;
(b)a statement as to whether or not he opposes the appeal; and
(c)the grounds upon which the respondent proposes to rely.
(3) The office shall send a copy of any written observations from a respondent to every other party.
(4) Where there is more than one respondent, the order of and time for written observations shall be as directed by a Commissioner under regulation 16.
Written observations in reply
15.—(1) Any party may submit to a Commissioner written observations in reply within one month of being sent written observations under regulation 14.
(2) The office shall send a copy of any written observations in reply to every other party.
(3) Where—
(a)written observations have been received under regulation 14; and
(b)each of the principal parties expresses the view that the decision appealed against was erroneous in point of law;
a Commissioner may make an order under section 14(7) of the 1998 Act setting aside the decision and may dispense with the procedure in paragraphs (1) and (2).
Directions
16.—(1) Subject to paragraph (2), where a Commissioner considers that an application or appeal made to him gives insufficient particulars to enable the question at issue to be determined, he may direct the party making the application or appeal, or any respondent, to furnish any further particulars which may be reasonably required.
(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 that part of Great Britain where the hearing takes place.
(3) A Commissioner may, before determining the application or appeal, direct the appeal tribunal to submit a statement of such facts or other matters as he considers necessary for the proper determination of that application or appeal.
(4) At any stage of the proceedings, a Commissioner may, on or without an application, give any directions as he may consider necessary or desirable for the efficient despatch of the proceedings.
(5) Without prejudice to regulations 14 and 15, or to paragraph (4), and subject to paragraph (2), a Commissioner may direct any party before him, to make any written observations as may seem to him necessary to enable the question at issue to be determined.
(6) An application under paragraph (4) shall be made in writing to a Commissioner and shall set out the direction which the applicant seeks.
(7) Unless a Commissioner shall otherwise determine, the office shall send a copy of an application under paragraph (4) to every other party.
Non-disclosure of medical evidence
17.—(1) Where, in any proceedings, there is before a Commissioner medical evidence relating to a person which has not been disclosed to that person and in the opinion of the Commissioner the disclosure to that person of that evidence would be harmful to his health, such evidence shall not be disclosed to that person.
(2) Evidence such as is mentioned in paragraph (1)—
(a)shall not be disclosed to any person acting for or representing the person to whom it relates;
(b)shall not be disclosed to a joint claimant of the person to whom it relates or any person acting for or representing that joint claimant;
(c)in a case where a claim for a tax credit is made by reference to the disability of a person other than the claimant or joint claimant and the evidence relates to that other person, shall not be disclosed to the claimant, joint claimant or any person acting for or representing the claimant or joint claimant;
unless the Commissioner considers that it is in the interests of the person to whom the evidence relates to disclose it.
(3) Non-disclosure under paragraphs (1) or (2) does not preclude the Commissioner from taking the evidence concerned into account for the purpose of the proceedings.
Requests for hearings
18.—(1) Subject to paragraphs (2), (3), (4) and (5), a Commissioner may determine any proceedings without a hearing.
(2) In appeals against a determination in penalty proceedings, where a request for a hearing is made by the party on whom the penalty has been imposed, a Commissioner shall grant the request.
(3) Where a request for a hearing is made by any party other than as provided by paragraph (2), a Commissioner shall grant the request unless he is satisfied that the proceedings can properly be determined without a hearing.
(4) Where a Commissioner refuses a request for a hearing, he shall send written notice to the person making the request, either before or at the same time as making his determination or decision.
(5) A Commissioner may, without an application and at any stage, direct a hearing.
Hearings
19.—(1) This regulation applies to any hearing of an application or appeal to which these Regulations apply.
(2) Subject to paragraph (3), the office shall give reasonable notice of the time and place of any hearing before a Commissioner.
(3) Unless all the parties concerned agree to a hearing at shorter notice, the period of notice specified under paragraph (2) shall be at least 14 days before the date of the hearing.
(4) If any party to whom notice of a hearing has been sent fails to appear at the hearing, the Commissioner may proceed with the case in that party’s absence, or may give directions with a view to the determination of the case.
(5) Any hearing before a Commissioner shall be in public, unless the Commissioner for special reasons directs otherwise.
(6) Where a Commissioner holds a hearing the following persons or organisations shall be entitled to be present and be heard—
(a)the person or organisation making the application or appeal;
(b)the claimant;
(c)the Board;
(d)a trade union, employers' association or other association which would have had a right of appeal under the 1998 Act;
(e)a person acting for another in making a claim for a tax credit, or acting for another in making an application for a direction under section 19(9) of the 2002 Act;
(f)a person acting for another in giving notification of a change of circumstances;
(g)a person acting for another in response to a notice given under section 17 of the 2002 Act; and
(h)with the leave of the Commissioner, any other person.
(7) Any person entitled to be heard at a hearing may address the Commissioner and—
(a)in the case of an appeal against a determination in penalty proceedings, the party on whom the penalty has been imposed may give evidence, call witnesses and put questions directly to any other person called as a witness;
(b)in all other cases, a person entitled to be heard may with the leave of the Commissioner, give evidence, call witnesses and put questions directly to any other person called as a witness.
(8) Nothing in these Regulations shall prevent a member of the Council on Tribunals or of the Scottish Committee of the Council in his capacity as such from being present at a hearing before a Commissioner which is not held in public.
Summoning of witnesses
20.—(1) Subject to paragraph (2), a Commissioner may summon any person to attend a hearing as a witness, at such time and place as may be specified in the summons, to answer any questions or produce any documents in his custody or under his control which relate to any matter in question in the proceedings.
(2) A person shall not be required to attend in obedience to a summons under paragraph (1) unless he has been given at least 14 days' notice before the date of the hearing or, if less than 14 days, has informed the Commissioner that he accepts such notice as he has been given.
(3) Upon the application of a person summoned under this regulation, a Commissioner may set the summons aside.
(4) A Commissioner may require any witness to give evidence on oath and for this purpose an oath may be administered in due form.
Withdrawal of applications for leave to appeal and appeals
21.—(1) At any time before it is determined, an applicant may withdraw an application to a Commissioner for leave to appeal against a decision of an appeal tribunal by giving written notice to a Commissioner.
(2) At any time before the decision is made, the appellant may withdraw his appeal with the leave of a Commissioner.
(3) A Commissioner may, on application by the party concerned, give leave to reinstate any application or appeal which has been withdrawn in accordance with paragraphs (1) and (2) and, on giving leave, he may make directions as to the conduct of the proceedings.
Irregularities
22. Any irregularity resulting from failure to comply with the requirements of these Regulations shall not by itself invalidate any proceedings, and the Commissioner, before reaching his decision, may waive the irregularity or take steps to remedy it.
PART 4DECISIONS
Determinations and decisions of a Commissioner
23.—(1) The determination of a Commissioner on an application for leave to appeal shall be in writing and signed by him.
(2) The decision of a Commissioner on an appeal shall be in writing and signed by him and, unless it was a decision made with the consent of the parties or an order setting aside a tribunal’s decision under section 14(7) of the 1998 Act, he shall include the reasons.
(3) The office shall send a copy of the determination or decision and any reasons to each party.
(4) Without prejudice to paragraphs (2) and (3), a Commissioner may announce his determination or decision at the end of a hearing.
Correction of accidental errors in decisions
24.—(1) Subject to regulations 4 and 26, the Commissioner who gave the decision may at any time correct accidental errors in any decision or record of a decision.
(2) A correction made to, or to the record of, a decision shall become part of the decision or record, and the office shall send a written notice of the correction to any party to whom notice of the decision has been sent.
Setting aside decisions on certain grounds
25.—(1) Subject to regulations 4 and 26, on an application made by any party, the Commissioner who gave the decision in proceedings may set it aside where it appears just to do so on the ground that—
(a)a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or his representative or was not received at an appropriate time by the Commissioner; or
(b)a party or his representative was not present at a hearing before the Commissioner.
(2) An application under this regulation shall be made in writing to a Commissioner within one month from the date on which the office gave written notice of the decision to the party making the application.
(3) Unless the Commissioner considers that it is unnecessary for the proper determination of an application made under paragraph (1), the office shall send a copy of it to each respondent, who shall be given a reasonable opportunity to make representations on it.
(4) The office shall send each party written notice of a determination of an application to set aside a decision and the reasons for it.
Provisions common to regulations 24 and 25
26.—(1) In regulations 24 and 25, the word “decision” shall include determinations of applications for leave to appeal, orders setting aside tribunal decisions under section 14(7) of the 1998 Act and decisions on appeals.
(2) There shall be no appeal against a correction or a refusal to correct under regulation 24 or a determination given under regulation 25.
PART 5APPLICATIONS FOR LEAVE TO APPEAL TO THE APPELLATE COURT
Application to a Commissioner for leave to appeal to the Appellate Court
27.—(1) Subject to paragraph (2), an application to a Commissioner under section 15 of the 1998 Act for leave to appeal against a decision of a Commissioner shall be made in writing, stating the grounds of the application, within three months from the date on which the applicant was sent written notice of the decision.
(2) Subject to a direction by a Commissioner, in calculating any time for applying for leave to appeal under paragraph (1), there shall be disregarded any day before the day—
(a)on which notice was sent of a correction of a decision or the record of it under regulation 24; or
(b)on which notice was sent of a determination that a decision shall not be set aside under regulation 25.
(3) A person who under regulation 18 of the Tax Credits (Claims and Notifications) Regulations 2002(7) may act for another in making a claim for a tax credit is authorised for the purposes of section 15 of the 1998 Act to apply for leave to appeal against the decision of a Commissioner.
(4) Regulations 21(1) and 21(3) shall apply to an application to a Commissioner for leave to appeal from a Commissioner’s decision as they apply to the proceedings in that regulation.
Signed by authority of the Lord Chancellor
Rosie Winterton
Parliamentary Secretary
Lord Chancellor’s Department
18th December 2002
Explanatory Note
(This note is not part of the Regulations)
These Regulations regulate the procedure of the Social Security Commissioners in determining appeals and applications arising from decisions of appeal tribunals in relation to tax credits.
The Tax Credits (Appeals) Regulations 2002 made under section 63(8) of the Tax Credits Act 2002 provide for regulations to be made under Chapter 2 of Part 1 of the Social Security Act 1998 to apply in respect of tax credits appeals. These Regulations will apply until the Treasury makes an order under section 63(1) of that Act.
1998 c. 14. Section 84 is an interpretation provision and is cited because of the meaning assigned to the word “prescribe”.
Section 39 as modified by S.I. 2002/2926 is an interpretation provision and is cited because of the meaning assigned to the word “prescribe”.
S.I. 2002/2926.
The functions of the Lord Advocate under section 79(2) and paragraph 8 of Schedule 4 were transferred to the Secretary of State by the Transfer of Functions (Lord Advocate and Secretary of State) Order 1999 (S.I. 1999/678), Article 2(1) and the Schedule. Those functions were then treated as being exercisable in or as regards Scotland, for the purposes of section 63 of the Scotland Act 1998 (c. 46), by the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 (S.I. 1999/1748), Article 3 and paragraph 19 of Schedule 1, and transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750), Article 2 and Schedule 1. Paragraph 8 of Schedule 4 was applied and modified by the Tax Credits (Appeals) Regulations 2002 (S.I. 2002/2926).
S.I. 2002/2014.