I've been directed by Com.May to address him on the application of the principle of res judicata within the social security jurisdiction. Apart from some oblique references to r.j. in McKiernon(R(I)2/94),I have been unable to unearth any discussion of samewithin the case law.
The instant case concerns an overpayment. The tribunal upheld the claimant's appeal whereupon the SofS requested a statement of reasons. However, rather than seeking to identify an error in law and apply for leave to appeal, the D-M simply began again and issued what was essentially the same decision as the one overturned by thefirst tribunal. On appeal this time, however, the new tribunal upheld the decision.
My grounds for appeal included,inter alia, that the decision of tribunal1 was res judicata as the SofS did not exercise his right of appeal.
I would greatly welcome any social security case law which addresses the res judicata principle.

Give me a Ring on 01249 443054 As far to complicated to type ask for Neil concerning Res Judicata best mon,tues,thurs,fri a.m.

Via am 'exact phrase' word search in rightsnet briefcase, came up with three commissioner decisions in which the issue of res judicata is raised - CH/704/2005, CI/3463/2003 and CIS/2540/2004.


All the summaries include a link to the full decisions themselves available on the commissioners website @ www.osscsc.gov.uk.

A search on google using res judicata social security commissioners brings up lots of references. R(S)1/83, CSG 2/96, CA 2034/04, CDLA 1214/98 and a lot more. Using res judicata alone brought up a ton of references to general principles and caselaw.

Sorry R(S)1/83 Tribunal of Commissioners

CIS/2540/2004 is my case which I am happy to discuss as previously posted

I have an appeal before District Chairman tommorrow (Weds 10th Jan) where this is one of the issues and he directed that written submissions be made on this point. The respondent LA in this appeal has so far distinguished itself by its pedestrian and miniscule grasp of the technicalities.

Feel free to ring me on 01473 251100 if you'd like a discussion after my hearing.

Neil

Could you post your sub' on rightsnet or give an outline of your arguments as it would be useful to be aware of all the necessary points that need covering instead of each of us having to re-invent the wheel on a case by case basis. I'm not being lazy, honest!

Regards
Paul

Will do so in due course if I have client's consent. Interestingly I had independently formed a view about RJ which reflects the theme in the CDs cited earlier. It all comes down to the finality of decisions in S 17 SSA and which decision is being decided/appealed.

It can be a double-edged sword...

there is I think an old decision of Commissioner May which I will search for.

From memory the issue will turn on whether the decision of the first tribunal was no valid decision or nullity in which case they can start
again but if burden of proof not discharged then they can't.

Oh, quicker than I thought.

The decision is CSG 2/96.

To summarise

First tribunal decides burden of proof not discharged but at one point uses the word nullity.

Second tribunal following new decision on overpayment decide that
the matter is not "res judicata" as first tribunal used word "nullity"

Commissioner May decides that the second tribunal were wrong on the basis that the use of the word nullity by the first tribunal was
"obiter" and what they had decided was that the burden of proof was not discharged and therefore the matter was res judicata.

You will need to see the actual decision as the facts are complex.

Post a fax number and I will send a copy

CSG 2/96 is available online in the 'commissioners decisions on rightsnet' area of toolkit -

http://www.rightsnet.org.uk/pdfs/CSG296.doc

Our Social Security Law CD produces 116 hits on RJ in Commissioners' Decisions but some of thiose will be multiple within a single decision (e.g. 1/95 NI)

What was the actual words of the tribunal decision on (i)The Decision Notice & (ii) The Statement of reasons. If you fax me both on 0191 2330295 i may be able to advise.

Be a little wary of any cases before the coming into force of the SSA 1998- Sec 17 of the SSA is in effect a statutory provision in Social Security law on res judicata. The extent to which this means that the normal common law rules do not exist or are modified by it may be an issue (I'm not saying it is - just something to think about).

Martin.

There is a discussion about some of these issues in pp161-163 of the current (19th) edition of Findlay which may assist.


DISCLAIMER: This post is intended as a general contribution to the subject-matter under discussion. It is not intended to be relied upon as legal advice. Any person with a similar or identical problem should seek advice from a welfare rights adviser or a lawyer specialising in welfare rights law.