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Issue 3: Statutory Interpretation of section 9(5) of the Social Security Act 1998 - PH and SM v Secretary of State for Work and Pensions
Issue 3: Statutory Interpretation of section 9(5) of the Social Security Act 1998 - PH and SM v Secretary of State for Work and Pensions
The Appellant adopts the obiter observations of Judge Poole KC (as she then was) in PH and SM, in particular that the changes in the statutory framework following the repeal of Regulations 31 and 32 of the 1999 Regulations and the introduction of mandatory reconsideration support the view that, for official error cases without a time bar, the right to appeal is preserved, with time running from notification of the refusal to revise. Notably, Judge Poole KC observed at paragraph 13:
Further, the commentary to Volume III of Sweet and Maxwell’s Social Security Legislation 2018/19 paragraph 1.401 notes that no attempt was made in R(IS)15/04 to argue that Section 9(5) of the 1998 Act (concerning the time periods for appeals) should be read as including a refusal to revise (which would have the effect that the decision for the purpose of an appeal is regarded as made on the date of the refusal to revise, consistently with my interpretation of Rule 22 of the Tribunal Rules set out below). If that argument was made now, the reasoning in CJ and SG tends to suggest it would be accepted. This is consistent with the new approach to the commencement of the limitation period in Rule 22 of the Tribunal Rules. [emphasis and underlining added]
- Heading
- Introduction
- Issues
- Background facts
- Procedural history
- Submissions
- The Respondent’s submissions
- Analysis and reasons
- B: Notification of the Recoverability Decisions
- The Statutory Framework: Failure to notify and recoverability
- Notification as a Precondition for Recovery
- Findings: Official Error
- Jurisdiction
- Statutory Foundations of Tribunal Jurisdiction
- Issue 1: Legal Effect and Jurisdictional Consequences of an Unnotified Revised Entitlement Decision
- Issue 2: Appeal Rights and Refusal to Revise for Official Error: Statutory and Convention Analysis
- Issue 3: Statutory Interpretation of section 9(5) of the Social Security Act 1998 - PH and SM v Secretary of State for Work and Pensions
- Statutory Framework
- Case Law on Mandatory Reconsideration
- Analysis of the Appellant’s Proposed Statutory Construction of Section 9(5) of the 1998 Act
- Issue 4: Application of Adesina and the Principles Governing Time-Limits
- Conclusions