Social Security
(Determination of Claims and Questions) (Jersey) Order 1974[1]
PART 1
DETERMINATION OF CLAIMS AND QUESTIONS BY DETERMINING OFFICER
1 Functions
of determining officers[3]
(1) Any
question arising under or in connection with the Law, including any claim for
benefit, shall be determined by a determining officer and, where required under
Article 1A, redetermined by a second determining officer.
(2) The
determining officer shall give notice in writing of the determination, and of
the reasons for it, to the claimant.[4]
(3) In
the case of a determination which results in a change to a person’s
classification for the purposes of Article 3 of the Law (a “classification change”), the determining
officer shall give notice in writing of the determination, and of the reasons
for it, to –
(a) the
person whose classification has changed (in sub-paragraph (b), the “first person”); and
(b) where
the change is one by virtue of which a second person –
(i) becomes, or
becomes treated as, the first person’s employer, or
(ii) ceases
to be or to be treated as the first person’s employer,
that second person.[5]
(4) Notice
given to a person under paragraph (2) or (3) shall also contain a
statement –
(a) in
the case of a determination by the first determining officer –
(i) of the
person’s right to have the matter reconsidered by a second determining
officer in accordance with Article 1A, and
(ii) that,
if the right is not exercised, there is no further right of appeal;
(b) in
the case of a redetermination, of the person’s right to appeal to the
Social Security Tribunal in accordance with Article 3.[6]
1A Reconsideration by second
determining officer[7]
(1) A
person who has received notice of a determination under Article 1(2) or
(3) and who is dissatisfied with that determination may request redetermination
of the matter by a second determining officer.
(2) A
request under paragraph (1) shall be made –
(a) in writing,
stating the reasons for the request; and
(b) within
21 days of receiving the notice of determination.
(3) Where
a request under paragraph (1) relates to a classification change, the
second determining officer shall ensure that an affected person is given such
opportunity as may be reasonable to make representations in relation to the
redetermination.
(4) For
the purposes of this Article and Article 3, “affected person” means any person, other
than the person who requested the redetermination, who is –
(a) a
person whose classification has changed as a result of the determination, or
would change if the matter were redetermined;
(b) a
person who, by virtue of the classification change, becomes or becomes treated
as, or ceases to be or to be treated as, an employer; or
(c) a
person who would, if the matter were redetermined, become or become treated as,
or cease to be or to be treated as, an employer.
2 Determination
to be conclusive for purposes of proceedings under the Law, etc.[8]
(1) Where
in any proceedings –
(a) for
an offence under the Law;
(b) involving
any question as to the payment of contributions under the Law; or
(c) for
the recovery of any sums due to the Social Security Fund,
any question arises that
is to be determined by a determining officer, that determination (including
that of a second determining officer if he or she has made a determination),
shall be conclusive for the purpose of those proceedings unless an appeal
against that determination is pending or the time for so appealing has not
expired.
(2) If
any such question has not been determined and is necessary for the
determination of the proceedings, the question shall be referred to the
determining officer for determination in accordance with the procedure (subject
to the necessary modifications) prescribed in this Part.
(3) Where
any such appeal is pending or the time for appealing has not expired or where
any question has been referred to the determining officer in accordance with paragraph (2),
the court dealing with the case shall adjourn the proceedings until such time
as a final determination of the question has been obtained.
PART 2
APPEALS AND REFERENCES
3 Appeals
to the Social Security Tribunal[9]
(1) The
second determining officer shall give notice in writing, to the person who
requested the redetermination and to any other affected person, of –
(a) the
second determining officer’s decision, and the reasons for it; and
(b) subject
to paragraph (3), the person’s right of appeal to the Social
Security Tribunal.
(2) An
appeal against the redetermination may be made to the Social Security Tribunal
by any person receiving a notice under paragraph (1).
(3) No
appeal against a redetermination may be made to the Social Security Tribunal on
any question mentioned in Article 33(5) of the Law.
4 Registrar[10]
(1) The
Judicial Greffier shall discharge the functions of the Registrar imposed by
this Order and any other enactment.
(2) A reference in any
other enactment to the Registrar appointed under this Article shall be
construed as a reference to the Judicial Greffier.
5 [11]
6 [12]
7 [13]
8 Constitution of Social Security Tribunal[14]
(1) The
Social Security Tribunal shall comprise –
(a) a
chairman and one or more deputy chairmen, being persons holding a qualification
in law; and
(b) up to
12 other members.
(2) The
members shall each be appointed by the States on the recommendation of the
Minister made after consulting the Jersey Appointments Commission established
by Article 17 of the Employment
of States of Jersey Employees (Jersey) Law 2005.
(3) A
member of the Tribunal shall hold office for such period as is specified in his
or her appointment and after expiry of such period is eligible for
re-appointment for such period as is specified in his or her new appointment.
(4) A
member may continue in office, after the expiry of his or her term of office,
for the purposes of completing any proceeding that the member has begun to hear
before the expiry of the term of office.
(5) A
member of the Tribunal shall cease to hold office on resigning in writing
delivered to the Minister.
(6) Any
member of the Tribunal shall cease to hold office –
(a) on
becoming bankrupt;
(b) on
the appointment, under Part 4 of the Capacity
and Self-Determination (Jersey) Law 2016, of a delegate in relation to the member;
(c) on
being received into guardianship under the Mental
Health (Jersey) Law 2016;
(d) if
qualified for membership under paragraph (1)(a), on ceasing to be so
qualified; or
(e) on
being removed from office by the Royal Court, if the member is guilty of
misconduct or has been unable to carry out his or her duties because of
ill-health or other commitments for a continuous period exceeding
6 months.[15]
(7) A
member of the Tribunal shall not be removed from office for any other reason.
(8) For
the purposes of hearing any case referred to it under this Part the Tribunal
shall consist of the chairman or a deputy chairman and 2 other members selected
by the Registrar.
(9) However,
a person shall not hear any case if he or she –
(a) was
involved in an earlier determination of the case; or
(b) has
any personal or pecuniary interest, whether direct or indirect, in the outcome.
9 Appeal Procedure[16]
(1) A
person aggrieved by a decision of a second determining officer under Article 3
may appeal to the Tribunal within 14 days of receiving notification of the
decision.
(2) However,
an appeal made outside the 14 day period, but within 28 days of
receiving notification of the determination, may be allowed with the consent of
the chairman of the Tribunal.
(3) Every
appeal shall be made in writing to the Registrar on a form approved by the
Registrar for that purpose, or in such manner as the Registrar may accept as
sufficient in the circumstances of the case.
10 Further particulars[17]
(1) The
Tribunal may at any time require the applicant or the determining officer to
furnish it with further particulars in writing and within such time as it may
direct with regard to any appeal, and may at any stage of the proceedings allow
the amendment of any application for appeal or any statement or particulars and
extend the time for furnishing any statement or particulars.
(2) If,
after the expiration of the time, or where the time has been extended,
expiration of the extended time, for furnishing any statement or particulars
under paragraph (1), the applicant has failed to do so, the appeal shall
be treated as having been abandoned.
11 Special procedure in cases of groundless appeals[18]
(1) Where,
in the opinion of a determining officer, an application for appeal is made on
grounds that are bound to fail, the determining officer may, within 14 days
of receiving the application, request the Registrar to place the papers before
the chairman or deputy chairman of the Tribunal.
(2) If,
on considering the papers, the chairman or deputy chairman of the Tribunal is
of the opinion that the appeal is bound to fail, he or she shall send a notice
to the applicant stating that –
(a) he or
she has considered the application for appeal and is of the opinion that the
appeal is bound to fail; and
(b) unless
the applicant renews his or her application to the Tribunal within 14 days
of receiving the notification, the appeal shall be treated as having been
abandoned.
12 Decision without a hearing[19]
If the applicant and the
Minister agree and the Tribunal thinks that the case can properly be determined
on the particulars supplied by the parties without a hearing, it may decide the
matter without a hearing on the particulars so supplied.
13 Procedure of Tribunal[20]
(1) The
parties to the appeal shall be the applicant and the Minister and each party or
any person acting on behalf of that party may make representations to the
Tribunal.
(2) The
Tribunal shall sit in public unless the Tribunal considers it necessary to sit
in private.
(3) However,
no person other than the Registrar shall be present while the Tribunal is considering
its decision.
(4) The
Tribunal may adjourn the hearing from time to time as it thinks fit.
(5) The
Tribunal may, if it thinks fit, admit any duly authenticated written statement
or other material as prima facie evidence of
any fact or facts in any case in which it thinks it just and proper to do so.
(6) The
Tribunal may, if it thinks fit, call for such documents and examine such
witnesses as appear to it likely to afford evidence relevant and material to
the issue, although not tendered by either the applicant or the Minister.
(7) If,
after notice of the hearing has been duly given, the applicant or the Minister
fails to appear at the hearing, the Tribunal may proceed to determine the
review notwithstanding the absence of both or either of them, or may give such
directions with a view to the determination of the application as the Tribunal
thinks just and proper.
(8) The
Tribunal may require any party to proceedings before the Tribunal under this Order
or any witness in the proceedings to give evidence on oath and, for that
purpose, the chairman or deputy chairman presiding over the Tribunal shall have
power to administer an oath.
(9) Where,
in connection with the determination of any claim or question, there is before
the Tribunal medical advice or medical evidence relating to the applicant that
has not been disclosed to the applicant and, in the opinion of the chairman or
deputy chairman, the disclosure to the applicant of that advice or evidence
would be harmful to the applicant’s health, such advice or evidence shall
not be required to be disclosed to the applicant, but the Tribunal shall not by
reason of such non-disclosure be precluded from taking it into account for the
purpose of the review.
(10) On
the appeal of any case under this Article, the Tribunal may confirm, reverse or
vary the decision of the second determining officer and shall give its decision
in public.
(11) The
decision of the majority of the members of the Tribunal shall be the decision
of the Tribunal and there shall be a written record of the decision signed by
the chairman or deputy chairman as the case may be which –
(a) includes
the names of the Tribunal members;
(b) includes
the reasons for the decision; and
(c) records
any dissent and the reasons for such dissent,
and the Registrar shall
send a copy of such written record to the parties as soon as practicable after
the review has taken place.
(12) Where
the Tribunal has made a decision adverse to the applicant, the applicant shall
be advised that the decision on the facts is final but that he or she may
appeal to the Royal Court on a point of law.
(13) Subject
to this Article, the Tribunal may regulate its own procedure.
14 Appeals and
references to Royal Court[21]
(1) A
person aggrieved by a decision of the Tribunal may, on a point of law only,
appeal to the Royal Court.
(2) An
appeal under paragraph (1) may be made –
(a) in
the first instance, only with leave of the Tribunal; or
(b) in
the second instance, only with leave of the Royal Court where the Tribunal has
in the first instance refused leave to appeal.
(3) The
Tribunal shall, if it is unable to reach a decision as to whether or not to
grant leave to appeal, refer the application for leave to appeal, to the Royal
Court.
(4) Subject
to paragraph (5), an application for leave to appeal under paragraph (2)(a)
must be made before the end of the period of 4 weeks beginning with the date of
the Tribunal’s decision or order.
(5) The
Tribunal may vary the period specified in paragraph (4) if, in the
circumstances of the case, the Tribunal is satisfied it would be fair and just
to do so.
(6) An
application for leave to appeal under paragraph (2)(b) shall be made
within such period as may be specified by Rules of Court (within the meaning of
Article 13 of the Royal
Court (Jersey) Law 1948).
(7) An
application for leave to appeal under paragraph (2) may include an
application to stay a decision or order of the Tribunal pending the appeal.
(8) No
appeal shall lie from a decision of the Tribunal refusing leave for the
institution or continuance of, or for the making of an application in,
proceedings by a person who is the subject of an order under Article 1 of
the Civil
Proceedings (Vexatious Litigants) (Jersey) Law 2001.
(9) The
Tribunal or a determining officer may refer any point of law to the Royal Court
for the Royal Court to give a ruling on the point.
PART 3
REVIEW OF DECISIONS
15 Review of
decisions of determining officer and the Tribunal
(1) Any
decision of the determining officer or the Tribunal may be reviewed at any time
by the determining officer or, on a reference from the determining officer, by
the Tribunal, if –
(a) the
determining officer or the Tribunal is satisfied that the decision was given in
ignorance of, or was based on a mistake as to, some material fact;
(b) there
has been any relevant change of circumstances since the decision was given; or
(c) the
decision was based on the decision of any question to which Article 33(5)
of the Law applies, and the decision of that question is revised.[22]
(2) A
question may be raised with a view to such a review as aforesaid by means of an
application in writing to the determining officer, stating the grounds of the
application.
(3) On
receipt of any such application, the determining officer shall proceed to deal
with or refer any question arising thereon in accordance with the provisions of
this Order.
(4) Any
decision given on a review under this Article, and any refusal to review a
decision under this Article, shall be subject to redetermination or appeal in
like manner as an original decision, and the provisions of this Order shall,
subject to the necessary modifications, apply in relation to any decision given
on such a review as they apply to the original decision of a question.[23]
16 Review of
decisions of the Royal Court
If, in any case in which
a decision has been given by the Royal Court with respect to a matter which has
formed the subject of an appeal to the Court under Article 14, it appears
to the Minister that the decision might properly be reconsidered in view of
further information which has been brought to the Minister’s notice since
the date on which the decision was given as to the circumstances existing at
the time by reference to which it was given, the Minister may cause the
decision to be referred to the Royal Court for reconsideration, and the Court may
revise the decision.
17 Review of
decision involving payment or increase of benefit
(1) Where,
on review, a decision is revised so as to make benefit payable or to increase
the rate of benefit, the decision given on the review shall have effect as
follows –
(a) in
the case of parental allowance, as from the date of application for the review;
(b) in
the case of short term incapacity allowance, as from the date 10 days
before the application for the review;
(ba) in the case
of long term incapacity allowance where a review is carried out on either of
the grounds stated in Article 34D(2) of the Law, the medical board
carrying out the review may direct that its decision has effect from the date
beginning on which the aggravation is determined, by the medical board carrying
out the review, to have occurred;
(bb) in a case
where a medical board does not so direct as described in sub-paragraph (ba)
or in any other case of long-term incapacity allowance, as from the date 10
days before the application for the review; or
(c) in
the case of survivor’s benefit or an incapacity pension or old age
pension, as from the date 3 months before the date of the application for the
review:
Provided that, subject to
the provisions of paragraph (2), if in any case the claimant
proves –
(i) that on a date
earlier than the date on which the application for the review was made, the
claimant was (apart from satisfying the condition of making a claim therefor)
entitled to benefit, and
(ii) that
throughout the period between the earlier date and the date on which the
application for review was made, there was good cause for delay in making the
application,
the claimant shall not be
disqualified by virtue of the foregoing provisions of this paragraph for
receiving any benefit to which the claimant would have been entitled in respect
of the said period.[24]
(2) Notwithstanding
anything contained in this Article, the following provisions shall have
effect –
(a) the
proviso to paragraph (1) shall apply in any case subject to the condition
that no sum on account of benefit shall be paid to any person in respect of any
part of the period referred to in that proviso earlier than 6 months before the
date on which the application for the review was made;
(b) the
decision on review shall not in any event have effect for any period before the
date on which the original decision took effect or would have taken effect if
an award had been made;
(c) where
the decision on review is based on a relevant change of circumstances which
occurred after the date on which the original decision took effect or would
have taken effect, the decision on review shall not have effect for any period
preceding the date declared by the determining officer, the medical board or,
as the case may be, the Tribunal to be the date on which that change of
circumstances occurred.[25]
(3) For
the purposes of this Article, where a decision is reviewed at the instance of
the determining officer under Article 15(1), the date on which it was first
decided by the determining officer that the decision should be reviewed shall
be deemed to be the date of the application for the review.
PART 4
PROVISIONS RELATING TO BENEFIT FOLLOWING DECISIONS ON REVIEW OR
APPEAL
18 Adjustment of
benefit
(1) Where,
by a decision on review or appeal, a person entitled to benefit is awarded some
other benefit in lieu thereof, the decision on the review or appeal shall
direct that any payments already made on account of the benefit originally
awarded in respect of any period covered by the decision on review or appeal
shall be treated as having been made on account of the benefit awarded by that
decision.
(2) Where,
by virtue of an award, an increase of benefit has been paid for any period to
one person in respect of another as being the wife or husband, or an adult
dependant, of the first-mentioned person, and by reason of a subsequent
decision either –
(a) the said
other person is himself or herself entitled to benefit for that period; or
(b) a third
person is entitled to benefit for that period in respect of the said other person
in priority to the first-mentioned person,
then, notwithstanding that
under any Order relating to overlapping benefits made under Article 28 of
the Law such increase of benefit is not payable, the subsequent decision shall
direct that it shall be treated as having been properly paid for that period
and that any arrears of benefit for that period payable by reason of the
subsequent decision shall be reduced to the extent to which the increase of
benefit is so directed to be treated as having been properly paid.
18A Classification
changes[26]
Where a classification
change is made –
(a) any
adjustment resulting from that change has effect from –
(i) the
first day of the month in which there first occurred the circumstances giving
rise to the change, or
(ii) if
in any case the determining officer is satisfied there is good cause to set a
later date for the adjustment to have effect, that later date; and
(b) Articles 17
to 19 of the Social
Security (Contributions) (Jersey) Order 1975 apply in relation
to any contributions paid following the day on which the change has effect, where
such contributions were, within the meaning of those Articles, paid in error or
in excess.
19 Revision etc. of
decisions involving non-payment or reduction of benefit
(1) Where,
on review or appeal, a decision is revised or is reversed or varied so as to
make benefit not payable or to reduce benefit, the decision given on the review
or appeal shall require repayment to the Social Security Fund of any benefit
paid in pursuance of the original decision to the extent to which
it –
(a) would
not have been payable if the decision on the review or appeal had been given in
the first instance; and
(b) is
not directed to be treated as paid on account of the benefit awarded by the
decision on review or appeal:
Provided that, subject as
aforesaid, repayment shall not be required in any case where the person
concerned is shown to the satisfaction of the determining officer or the
Tribunal, as the case may be, to have acted in good faith in all respects as to
the obtaining and receipt of the benefit.[27]
(2) In
this Article “Tribunal”
includes the Social Security Medical Appeals Tribunal.[28]
PART 5
GENERAL
20 Interpretation
(1) In
this Order, unless the context otherwise requires –
“applicant”
means a person who has made an application under the Law for the determination
of any such question as is mentioned in Article 1;
“claimant”
means a person who has claimed benefit under the Law;
“classification
change” has the meaning given by Article 1(3);
“determining officer”
means an officer appointed by the Minister in pursuance of Article 33 of
the Law;
“Law” means
the Social
Security (Jersey) Law 1974;
“question”
includes a claim under the Law, but excludes any such question as is referred
to in Article 33(2) of the Law;
“Registrar”
shall be construed in accordance with Article 4;
“Royal Court”
means the Inferior Number of the Royal Court;
“Tribunal” has
the same meaning as in Article 33(9) of the Law.[29]
(2) Any
notice or other document required or authorized to be given to any person under
the provisions of this Order shall be deemed to have been given or sent if it
was sent by post to that person at the person’s ordinary or last known address.
21 Citation
This Order may be cited
as the Social Security (Determination of Claims and Questions) (Jersey)
Order 1974.