Have a case where the appeal is before the coming into force of the SSA 1998 (it seems to have sat around at TAS for 5 years!).

It is an appeal against a review and removal of Incapacity Benefit on the basis that claimant failed the All Work Test (as then was).

Raises a number of issues on which I have posted separate queries.

This one is about the fact that my client has waited for determination of this issue for over 5 years. I know that if it was a case started after the coming in to force of the HRA we might be able to argue that as under Article 6 he has a right to an independent tribunal within a reasonable time the remedy should be that the tribunal pronounces the decision against which he appeals as of no effect (see suggestion to this effect at para 24 of CIS/4220/2002).

However, this is not a case to which HRA can apply (I think so anyway-as dispute started pre HRA). I would be interested to know any views on:

• Whether we could argue that the right to the case being heard within a reasonable time existed in English Common law in any event? I know there was a HB JR case called Bewry that suggested a fair trial concept did exist in any event- wondered whether this extended to the time period as well.
  
• What the prospects of him relying on convention rights are at least from the time the Act came in to force....
  

Sounds a thorny issue. I agree that you could not use the HRA as several cases have now decided that it cannot be used retrospectively.

However, using good old fashioned natural justice you might be able to get somewhere. It strikes me that had the claimant not responded to a Chair's direction for five years then his/her appeal would have been struck out. You could argue that the HRA principle of "equality of arms" is merely putting into words one aspect of "natural justice" which has existed in common law for centuries. As the department is so clearly advantaged and enjoys a level of leeway that the claimant could not have done in this case then you could argue that the treatment of the two parties is so imbalanced as to breach the rules of natural justice. How you then get from that premise to the remedy though is another issue. It does not necessarily follow that that the decision is wrong even though the rules of natural justice may have been breached.

Also, in the days before the DMA Regs, a review of IB was carried out under s.25 of the SSAdmin Act. Under that they would have needed to show the change in circs (as the most common ground of review) and actually point to what that change was. As the decision is likely to pre-date Commissioner Mesher's decision to that effect (i.e. saying what the change was - and sorry, don't know the ref) then it could simply be that the BA as was simply failed to discharge its burden of proof and had no grounds for review - especially as it has had so much time to put it right.

It may also be that their report describes the BAMS doctor (as was) as "independent", which, as subsequent case law has shown, is simply not the case. Any of these, coupled with a potential breach in the rules of natural justice, might be enough to persuade a Chair, who will doubtless have his or her own (and probably not very complimentary) opinions on the matter, to find that the department has not proven its case.

Just some thoughts - hope they help.

Matt Brown
Exeter CAB

Just came across this on 6.10.04. Very late I know but there's a piece about delays and HRA in Journal of Social Security Law 2003 issue 2 page D55
I can send copy if you wish
Clive

Are you sure??

The HRA has retrospective effect, and TAS is bound by it if it makes a decision on any case on or after 2nd October, 2000. If the case has not been heard by TAS, it must apply the HRA by virtue of Sections 3 and 6... see para 36 of CDLA/1019/99

However, the decisions of the commissioners (including the above), have mostly referred to whether the HRA applied at the time they considered the case when the HRA was in force, against the decision of TAS, when the decision made with the HRA not being in force.

Commissioner's can not make successful something that was not before TAS as it would not have been an error of law when TAS decided the appeal, the Commissioner's could not therefore apply it to the facts of that case.

However, TAS must now apply the HRA on the facts of the case before it. TAS is the 'court of first instance' and it can not simply ignore S. 3 and S. 6 of the HRA, though the DWP can argue that the HRA was not a matter for it to consider when it made it's decisions, (which would be correct), my arguement to TAS would be that it's duty is to look again at the facts of the case, and make a decision, and as such can not deviate from the HRA...

Here endith the surmon...

Currently I have referred this case on and the punter is judicially reviewing TAS and the DWP arguing that his appeal should be allowed simply on the basis of the lack of a hearing within a reasonable time.

The issue of whether a delay in a hearing, some of which is prior to the HRA being in force and some of which is after is a bit of a brain bender.

Anyway if the JR goes through then hopefully all of these issues will be addressed.

CSIS/460/02 said that when considering retrospectivity of HRA ie when a public authority instigates a process, then the benefit decision eg stopping IB or, in the case concerned the decision that there was an overpayment, does not count as instigating the process. It was decided that it is the bringing of the appeal that is the instigation and therefore there is no retrospectivity.

Decision is on the Comms website and has a few useful things to say about overpayments too.