Jeremy Patrick Michael Gosselin v Minister for Social Security and Attorney General

JurisdictionJersey
CourtCourt of Appeal
JudgeJonathan Crow,Sir Richard Collas,Bailiff of Guernsey.,Robert Logan Martin,Collas,Crow,Martin, JJ.A.,Bailiff
Judgment Date23 May 2017
Neutral Citation[2017] JCA 74
Date23 May 2017

[2017] JCA 074

Court of Appeal

Before:

Jonathan Crow, Q.C., President;

Sir Richard Collas, Bailiff of Guernsey., and

Robert Logan Martin, Q.C.

Between
Jeremy Patrick Michael Gosselin
Appellant
and
Minister for Social Security
First Respondent

and

Attorney General
Second Respondent

The Appellant appeared on his own behalf.

Advocate S. M. Roberts for the Respondent.

Authorities

Gosselin v Minister for Social Security and Her Majesty's Attorney-General [2016] JRC 204.

Income Support (Jersey) Law 2007.

Income Support (Jersey) Regulations 2007.

Income Support (General Provisions) (Jersey) Order 2008.

2007 Regulations and the Income Support (Miscellaneous Provisions) Regulations 2013.

European Convention for the Protection of Human Rights and Fundamental Freedoms.

Human Rights (Jersey) Law 2000.

Social Security (Jersey) Law 1974.

Social Security (Determination of Claims and Questions) (Jersey) Order 1974.

Court of Appeal (Jersey) Law 1961.

Interpretation (Jersey) Law 1954.

In the Matter of the Désastre of Blue Horizon Holidays Ltd [1997] JLR 124.

Re Claremont Petroleum v. Cummings [1992] FCA 446.

Appeal against decision of the Royal Court.

THE PRESIDENT:

This is the judgment of the court.

INTRODUCTION
1

Jeremy Patrick Michael Gosselin (“the Appellant”) has brought an appeal against the decision of the Royal Court (Bailhache, Bailiff, sitting alone) recorded in the judgment Gosselin v Minister for Social Security and Her Majesty's Attorney-General [2016] JRC 204 in which the Bailiff dismissed four appeals by the Appellant on questions of law from decisions of the Social Security Tribunal (“the Tribunal”). This judgment is in respect of a preliminary issue raised by the Respondents as to whether the Court of Appeal has jurisdiction to hear an appeal from a decision of the Royal Court on an appeal on a question of law from the Tribunal.

The Factual Background
2

The factual background to the appeals is set out in detail in paragraphs 63 to 82 of the Bailiff's judgment which we will not repeat. The position may be summarised as follows:

  • (a) In early 2014 the Appellant was in receipt of weekly means-tested income support benefit from the Social Security Department (“the Department”) pursuant to the Income Support (Jersey) Law 2007 (“the 2007 Law”).

  • (b) On the 29th January 2014 a warning notice was issued to the Appellant by the Department under the Income Support (Jersey) Regulations 2007 (“the 2007 Regulations”) because of his failure to meet the ‘actively seeking work’ requirement by failing to attend an appointment at the Department.

  • (c) A further appointment at the Department was arranged for the 7th February 2014, but the Appellant again failed to attend. As a result the Department issued a first breach notice to him on the 10th February 2014, meaning that the adult component of his income support was removed for 14 days, and the formal warning period would run for 365 days from the 10th February 2014.

  • (d) A further appointment at the Department was arranged for the 17th February 2014, but the Appellant again failed to attend. As a result the Department issued a second breach notice to him on the 19th February 2014, meaning that the adult component of his income support was removed for a further 28 days, and that the formal warning period would run for 365 days from the 19th February 2014.

  • (e) A further appointment at the Department was arranged for the 24th February 2014, but the Appellant again failed to attend. As a result the Department issued a third breach notice to him on the 14th March 2014, meaning that his entire income support claim was closed, and that the formal warning period would run for 365 days from the 14th March 2014.

  • (f) The Appellant asked for the Department's decision to issue the warning notice to be re-determined pursuant to Article 13 of the Income Support (General Provisions) (Jersey) Order 2008 (“the 2008 Order”). On the 7th February 2014 the second determining officer upheld the warning notice. The Appellant appealed that decision to the Tribunal, which dismissed his appeal on the 28th May 2014 (with written reasons given on the 3rd July).

  • (g) The Appellant similarly asked for the second breach notice to be re-determined, which it was — the decision of the second determining officer being to uphold the decision. The Appellant then appealed that determination to the Tribunal, which dismissed his appeal on the 29th September 2014 (with written reasons given on the 3rd November).

  • (h) The Appellant also asked for the decision to issue the third breach notice to be re-determined, which it was. Again, the second determining officer upheld the decision. The Appellant then appealed that decision to the Tribunal, which dismissed his appeal on the 13th May 2015 (with written reasons given on the 9th June).

  • (i) Finally, the Appellant also appealed against a re-determination in respect of a subsequent breach notice served on him by the Department on the 5th November 2014. The Tribunal dismissed that appeal on the 7th August 2015 (with written reasons given on the 6th December).

Proceedings in the Royal Court
3

The Appellant sought to challenge the four decisions of the Tribunal dismissing his appeals against the decisions of the Department in a Representation to the Royal Court dated the 4th November 2015. The Representation came before the Master to determine the appropriate procedural route, in particular whether it was to proceed by way of judicial review or otherwise. He ordered that the Representation stand as an appeal on a question of law in respect of two of the four Tribunal decisions listed in paragraphs 2(f) to (i) above, and as an application for leave to appeal in respect of the other two.

4

In his Representation to the Royal Court, the Appellant made a number of assertions including that: (i) he had been treated unfairly and unlawfully under the procedures followed by officers of the Department and in the conduct of the appeals before the Tribunal; (ii) the States had acted ultra vires by adopting the 2007 Regulations and the Income Support ( Miscellaneous Provisions) Regulations 2013 (“the 2013 Regulations”); and (iii) the 2007 and 2013 Regulations breached his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR” or “the Convention”).

5

The two appeals and two applications for leave to appeal came before the Bailiff who gave a detailed and careful judgment dated the 8th November 2016. He granted leave to appeal in respect of the two Tribunal decisions where leave was required and he dismissed all four appeals. In particular:

  • (a) he refused the prayer in the Representation that the primary legislation breaches the Convention, he declined to make a declaration of incompatibility and he refused to strike down any Regulations as breaching the Human Rights (Jersey) Law 2000;

  • (b) he declined to strike down any Regulations as being ultra vires; and

  • (c) he did not find in favour of the Appellant on any point of law which would have resulted in any of the Tribunal decisions being reversed.

Proceedings in the Court of Appeal
6

The Appellant's Notice of Appeal dated the 6th December 2016 contained three grounds of appeal.

  • (a) The first alleged that the Bailiff had erred in law by not granting an effective remedy to the Appellant for the financial loss he suffered consequent upon the procedural irregularities on the part of the Department, including in particular having denied him an opportunity to apply for income support benefit during a period of time when the Department interpreted the Regulations as prohibiting him from applying for benefit which, the Bailiff had ruled, was incorrect.

  • (b) The second ground of appeal alleged that the Bailiff had erred in law by concluding that the States had not acted ultra vires when it enacted the 2007 and the 2013 Regulations.

  • (c) The third ground of appeal contended that the Bailiff had been wrong in law to conclude that there had been no unlawful interference with his rights under the Convention.

7

In a Respondents' Notice dated the 19th December 2016, the Respondents claimed that the Bailiff's decision should be affirmed or varied on three alternate or additional grounds:

  • (a) First, that an appeal to the Tribunal may only be on a point of law and the Appellant had not identified any point of law on which the Tribunal erred in assessing the reasonableness of his excuses for not attending mandatory meetings at the Department.

  • (b) Secondly, that there were additional powers that were not cited by the Bailiff which gave the States vires to enact the relevant Regulations.

  • (c) The third point in the Respondents' Notice was that the Appellant's Representation was an abuse of process because the challenge to the vires of the secondary legislation should have been pursued by way of judicial review and not on appeal. In their written contentions, however, the Respondents declared that they would not pursue that argument. They conceded that it would fall to be decided on a case-by-case basis whether it is appropriate to allow a litigant to challenge the vires of secondary legislation when exercising a right of appeal on a point of law from a decision of a tribunal which has applied that secondary legislation.

8

The Appellant lodged his contentions in support of the Appeal dated the 27th January 2017. The Respondents' Contentions in respect of the issues raised in the Notice of Appeal and in the Respondents' Notice were dated the 28th April. Supplementary Contentions were subsequently lodged by the Respondents dated the 15th May 2017 raising a preliminary issue as to whether the Court of Appeal has jurisdiction to hear the appeal. That is the issue to which we will now turn.

Jurisdiction
9

We should start by recording the fact that the Respondents' argument on jurisdiction was raised...

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    ...[2014] (1) JLR 426. In the Matter of the Désastre of Blue Horizon Holidays [1997] JLR 124. Gosselin v. Minister of Social Security [2017] JCA 074. R v. Okedare [2014] EWCA Crim 1173, [2014] 1 WLR 4088. Wilson v. First County Trust (No. 2) [2004] 1 AC 816. R v. Harvey (Jack) [2017] AC 105.......

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