Social Security
(Determination of Disablement Questions) (Jersey) Order 1974[1]
1 Interpretation
(1) In this
Order –
“Law” means the Social Security (Jersey) Law 1974;
“Registrar” means the Registrar appointed under Article 4
of the Social Security
(Determination of Claims and Questions) (Jersey) Order 1974;
“Tribunal” means the Social Security Medical Appeals
Tribunal.[3]
(2) [4]
2 Medical
boards[5]
A person shall not act as a member of a medical board, in respect of
any case referred to the board for determination, if –
(a) the person is or may be
directly affected by that case; or
(b) the person has taken
any part in such case as a medical assessor or as a medical practitioner who
has regularly attended the claimant or to whom any question has been referred
for examination and report or as an employer or as a witness.
3 [6]
4 Notice
of sitting and procedure of medical boards
(1) Reasonable notice of
the time and place at which a medical board will sit for the consideration of
any case shall be given to the claimant and if, after such notice has been
given, the claimant fails to appear at the sitting of the board, the board may
determine the questions referred to it in the absence of the claimant
where –
(a) due
to exceptional circumstances, there was good cause for the failure to attend; and
(b) to do
so would not be adverse to the claimant’s interests.[7]
(1A) In a case of long term incapacity
allowance –
(a) paragraph (1)
shall not be taken to apply so as to require the attendance of a claimant at
the sitting of a medical board, where, in the opinion of the determining
officer, such attendance would be precluded by the facts of the
claimant’s physical or mental condition; and
(b) where
the determining officer notifies the medical board of his or her opinion such
as described in sub-paragraph (a), the board may proceed to determine the
questions referred to it in the absence of the claimant.[8]
(1B) For the avoidance of doubt, in any
case where a medical board determines any question in the absence of a
claimant, notice in writing of the determination, and the reasons for it, shall
be given to the claimant in accordance with Article 5.[9]
(2) No person shall be
entitled to be present during the consideration of any question by a medical board
other than the claimant and any other person whom the medical board may, with
the consent of the claimant, allow to be present as being a person who, in its
opinion, is likely to assist it in the determination of that question.
5 Notice
of decision of medical board[10]
(1) A medical board shall in
each case record its decision in writing.
(2) The record of the
decision shall be signed by each member of the medical board.
(3) The record of the
decision shall include a statement of the medical board’s findings on all
questions of fact material to its decision.
(4) Written notice of the
decision of a medical board shall be given as soon as practicable to the
claimant.
(5) The notice of the
decision shall contain a summary of the medical board’s findings and –
(a) information
about the claimant’s right to apply, in accordance with Article 5A,
for redetermination of the decision by a second medical board, and such
information shall include a statement that, if the right is not exercised,
there is no further right of appeal; or
(b) following
a redetermination, information about the claimant’s right to appeal, in
accordance with Article 7, against the decision of a second medical board.[11]
(6) The record and notice
shall each be in a form approved by the Minister.
5A Redetermination
of decision of medical board[12]
(1) An application for
redetermination of a decision of a medical board in relation to long term
incapacity allowance shall be made by the applicant in writing within
21 days of receiving notice of the decision under Article 5(5).
(2) An application under
paragraph (1) shall set out the reasons for requiring the redetermination,
and, where the applicant is the Minister, notice in writing of the application shall
be sent to the claimant.
(3) Reasonable notice of
the time and place at which a medical board will sit (the “initial
sitting”) for the redetermination of any decision shall be given in
writing to the applicant and, where the applicant is the Minister, to the
claimant.
(4) In a case where the
applicant is the claimant, if, after such notice as described in paragraph (3)
has been given, the claimant fails to appear at –
(a) the
initial sitting; and
(b) any
alternative sitting of which, during a period of 4 weeks beginning with
the date of the initial sitting, further reasonable notice has been given,
the application is to be treated as having been withdrawn and the
claimant shall not be entitled to make any further application in respect of
the same decision.
6 Constitution
of Social Security Medical Appeal Tribunal[13]
(1) There shall be
constituted a Social Security Medical Appeal Tribunal, which shall comprise the
following categories of members –
(a) a
chairman and one or more deputy chairmen, being persons holding a qualification
in law; and
(b) a
panel of up to 8 members who are medical practitioners.
(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) on
ceasing to be qualified for membership in the category for which the member was
appointed; 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.[14]
(7) A member of the
Tribunal shall not be removed from office for any other reason.
(8) For the purposes of
hearing any appeal or reference to it under Article 34B or 34C of the
Law the Tribunal shall consist of one person from the category of members
mentioned in paragraph (1)(a) and two persons from the category of members
mentioned in paragraph (1)(b), 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;
(b) is a
doctor who has regularly attended the appellant or a member of the
appellant’s household; or
(c) has
any personal or pecuniary interest, whether direct or indirect, in the outcome.
7 Notice
of appeal[15]
(1) An appeal by a claimant
against a decision of a second medical board under Article 34B of the Law
shall be brought by giving notice of appeal in accordance with paragraph (4)
within 14 days of receiving notice of that decision under Article 5.[16]
(2) However, a notice of
appeal given more than 14 days after, but within 28 days of,
receiving notification of the decision of the second medical board, may be
allowed with the consent of the chairman or a deputy chairman of the Tribunal.
(3) A reference by the
Minister to the Tribunal under Article 34C of the Law shall be brought by
giving notice of the reference to the Registrar within 14 days of the Minister
receiving notification of the decision of the second medical board.[17]
(4) Every notice of appeal
or reference given under this Article 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.
8 Procedure of Tribunal[18]
(1) The parties to the
hearing 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 matter 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 hearing any matter under
this Article, the Tribunal may confirm, reverse or vary the decision of the
medical board 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 he or she may appeal to the Royal Court on a
point of law.[19]
(13) Subject to this Article, the
Tribunal may regulate its own procedure.
8A Appeals
and references to Royal Court[20]
(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, where the Tribunal has in the first instance refused leave
to appeal, only with leave of the Royal Court.
(3) If the Tribunal is
unable to reach a decision as to whether or not to grant leave to appeal, the
Tribunal shall refer the application in question 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.
(5) The Tribunal may extend
the period specified in paragraph (4) if the Tribunal is satisfied that,
in the circumstances of the case, it would be fair and just to do so.
(6) An application for
leave to appeal under paragraph (2)(b) must 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 of the Tribunal pending the determination of the appeal.
(8) No appeal lies from a
decision of the Tribunal refusing leave for the institution or continuance of,
or 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.
9 [21]
10 Miscellaneous
Provisions
(1) Where in connection
with the determination of any case referred under Article 34A(2) of the
Law, there is before a medical board medical advice or medical evidence
relating to the claimant which has not been disclosed to the claimant and, in
the opinion of the chairman of the medical board, the disclosure to the
claimant of that advice or evidence would be harmful to the claimant’s
health, such advice or evidence shall not be required to be disclosed to the
claimant, but the medical board shall not by reason of such non-disclosure be
precluded from taking it into account for the purpose of the said determination.[22]
(2) For the purpose of arriving
at its decision or discussing any question of procedure at any sitting or
hearing, a medical board shall, notwithstanding anything in this Order, order
all persons, not being members of, or the person acting as clerk to the board,
to withdraw from such sittings or hearing.[23]
(3) Any power given by this
Order to extend the period during which anything is required to be done under
this Order or to dispense with any of the requirements thereof may be exercised
in any case, notwithstanding that the period during which the thing is required
to be done has expired.
(4) The claimant and any
person admitted to the proceedings as being likely to assist a medical board
have the right to be heard at the proceedings of the board.[24]
(5) Any notice,
notification or other document sent under this Order is treated as duly sent to
a person if sent to that person’s usual or last known address including
any electronic address, but this paragraph does not limit the use of any other
means of giving notice.[25]
11 Citation
This Order may be cited as the Social Security (Determination of
Disablement Questions) (Jersey) Order 1974.