Paragraph 59 states that where there has been a procedural error, it does not invalidate any step taken in the proceedings, unless the Tribunal so orders. The Tribunal effectively has a discretion in whether to invalidate proceedings.

In the case of the second claimant, the appeal had been abandoned. However, the claimant’s solicitor provided evidence collated over a 4 year period of repeated failures by the respondent to serve determinations to the claimants in a timely manner. In several cases, paragraph 23(5)(i)(a) had been breached by the respondent submitting applications for reconsideration before claimants were notified of the determination.

In the case of the first claimant, the respondent argued that the claimant had not raised the breach at the reconsideration hearing, and could not do so now. This argument was not accepted. The respondent also argued that the proceedings should not be invalidated as there was no prejudicial effect on the claimant as a result of the delay in providing the determination.

Jackson LJ in the Court of Appeal set out what factors the Tribunal needed to consider:

a.     The nature and extent of the Secretary of State's breach and the effect of that breach upon the claimant.

It was accepted that the breach was serious as the determination was not sent until 19 days after it should have been. The respondent has also not been able to provide an explanation for the repeated delays.

b.     Whether the claimant has suffered prejudice as a result of late receipt of the appeal decision.

 Mere absence of prejudice does not automatically give the Secretary of State a licence to delay serving the appeal decision, and the proceedings do not necessarily avoid invalidation by reason of the fact the claimant was not prejudiced.

c.     The Tribunal should take repugnance into account when deciding whether a) to allow reconsideration proceedings to go ahead or b) to declare those proceedings invalid

In weighing up these factors, the Tribunal decided to exercise their paragraph 59 discretion in remedying the procedural error. It was considered that the appropriate remedy for the respondent’s defective service of the determination is to treat the reconsideration application as defective, leaving the original determination standing.