R ANAYET BEGUM v Social Security Commissioners
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCOTT BAKER |
| Judgment Date | 01 February 2002 |
| Neutral Citation | [2002] EWHC 401 (Admin) |
| Docket Number | CO/4582/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 February 2002 |
[2002] EWHC 401 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
Mr Justice Scott Baker
CO/4582/2000
MISS S ROBERTSON (instructed by HADENS SOLICITORS, DARLASTON, WEST MIDLANDS WS10 8EA) appeared on behalf of the Claimant.
MR J MAURICI (instructed by THE TREASURY SOLICITOR, LONDON) appeared on behalf of the Interested Party.
THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED.
This is a challenge to a decision of Special Security Commissioner Levenson who refused the claimant permission to appeal against the decision of the Social Security Disability Appeal Tribunal; such appeals lie on questions of law.
The claimant is 60 and lives in owner-occupied accommodation and receives Income Support. She speaks no English and her husband's knowledge of English is little better. Her daughter, who does not live with her, completed her Disability Living Allowance claim forms. She suffers from deep vein thrombosis in her legs, hypertension and arthritis. She has an irregular heartbeat and to an extent is incontinent. She needs the help of others.
In 1993 she unsuccessfully claimed Disability Living Allowance; in 1996 she claimed again. On appeal to the Disability Appeal Tribunal she was awarded the higher rate mobility component and the lower rate care component. That ran until 30th November 1997 and, thereafter, she was not entitled. In June 1998 she made a fresh claim saying that her circumstances had deteriorated.
On 12th August 1998 she was examined by Dr Bartley. His report is at pages 78–95 in the bundle of documents. On 9th September 1998 an adjudication officer disallowed her claim. She sought a review and submitted a review claim pack. She was examined again by Dr Rutherford on 8th January 1999. Then on 27th January 1999 a different adjudication officer gave a decision on the review application and found no entitlement to disability living allowance.
She appealed to the Birmingham Disability Appeal Tribunal who, on 10th February 2000, rejected her appeal and upheld the adjudication officer. She was assisted by a lay representative from the Birmingham Tribunal Unit and her daughter interpreted for her. The Birmingham Tribunal Unit applied on her behalf for leave to appeal to a Social Security Commissioner.
The grounds of appeal, which appear at page 174 of the bundle, are as follows:
"1. The Tribunal has failed to adequately explain why the appellant is not virtually unable to walk.
The Tribunal appears to have accepted the evidence of the 2nd EMP, who visited on 8/1/99, that she could only walk 50 metres before the onset of severe discomfort. That distance would arguably bring the appellant within the scope of the Regulations, particularly as the EMP has gone on to describe her speed as slow, and her gait as being with 'short careful steps'.
2. The Tribunal has erred by dismissing the evidence of the appellant's GP as subjective contrary to case law, which was brought to the attention of the Tribunal, and which has held that it is wrong to assume that the evidence of the GP is less likely to be objective and disinterested than that of an EMP. Although in this case the GP has not specifically examined his patient before writing the report, he had clearly based it on his own previous observations of the appellant walking within his surgery."
It will be apparent that the grounds of appeal, that I have just read, first of all related to the mobility aspect of her claim and, secondly, related to the Tribunal's rejection of the GP's evidence.
The Commissioner refused permission saying:
"The grounds of appeal raise questions of fact which are for the Tribunal to determine."
By section 71 of the Social Security Contributions and Benefits Act 1992 there are two components to Disability Living Allowance: a care component and a mobility component. There is no issue about the mobility component now in this case. It is agreed that there were no grounds for challenging the Commissioner's decision refusing permission to appeal on that aspect.
On the care component, however, the claimant says that the Tribunal's decision was flawed and that there was a demonstrable error of law. It is conceded that the grounds of appeal to the Commissioner did not raise any error and that the Commissioner was correct, on the basis of the grounds advanced to him, to refuse permission.
Entitlement to the care component is set out in section 72 of the Act at page 185 of the bundle. It provides, so far as material, that:
"A person shall be entitled to the care component of a disability living allowance for any period throughout which—
(a) he is so severely disabled physically or mentally that—
(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or
(ii) he cannot prepare a cooked main meal for himself if he has the ingredients; or
(b) he is so severely disabled physically or mentally that by day, he requires from another person—
(i) frequent attention throughout the day in connection with his bodily functions; or
(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others;
(c) he is so severely disabled physically or mentally that, at night—
(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or
(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him."
Then subsection (2) goes on to deal with the duration of the disability.
The first issue before me is what is the proper approach for the court to apply when judicial review is sought where the the Commissioner failed to grant leave to appeal but the real grounds were not identified in the grounds of appeal to him. It is common ground that both the Commissioner and the Tribunal have an inquisitorial jurisdiction ( R v Deputy Industry Injuries Commissioner ex parte Moore [1965] 1 QB 456 and R v Medical Appeal Tribunal ex party Hubble [1958] 2 QB 228). It is also common ground that the Commissioner may give leave on the basis of grounds not raised in the grounds of appeal. As far as I am aware that matter has never been disputed, albeit there is no decision of the Court of Appeal or High Court affirming that it is so.
In the end, these two matters are simply background matters and there has been little, if any, dispute between the parties as to the test that I should apply in the present case.
In her application for permission to apply for judicial review, the claimant raises alleged errors of law not included in her grounds of appeal to the Commissioner. The standard test for judicial review of a Commissioner's refusal of leave to appeal is set out in R v Secretary of State for Social Services ex parte Connolly [1986] 1 All ER 998 at 1007 paragraph h. Slade LJ there said:
"In a case where a commissioner has refused leave to appeal without giving reasons and an applicant seeks to challenge such refusal by way of judicial review, the onus must, in my judgment, lie on the applicant to show either (a) that the reasons which in fact caused the commissioner to refuse leave were improper or insufficient or (b) that there were no good grounds on which such leave could have been refused in the proper exercise of the commissioner's discretion. He may well discharge this onus by showing that the decision sought to be challenged was on the face of it clearly erroneous in law or, alternatively, gave rise to a substantially arguable point of law. However, if it can be seen that there are still good grounds on which the commissioner would have been entitled to refuse leave in the proper exercise of his discretion, the court should, in my opinion, assume that he acted on those grounds unless the applicant can point to convincing reasons leading to a contrary conclusion."
That passage must now be considered in the light of the judgment of the Court of Appeal in R v Secretary of State for the Home Department ex parte Robinson 1998 QB 929. At page 943e Lord Woolf, then Master of the Rolls, giving the judgment of the court said:
"We turn now to consider the third point which arises on this appeal. We have observed that the special adjudicator did not expressly consider whether it was reasonable to expect the claimant to settle in Colombo. He merely asked himself whether the claimant would have a well-founded fear of persecution if he was returned there. However, he did consider the question whether the claimant had "special characteristics" so that he may have been assuming that Colombo was a safe haven in accordance with previous decisions. No question relating to reasonableness, as opposed to safety, was raised in the grounds of appeal to the tribunal. Under these circumstances was the tribunal itself obliged to consider whether the special adjudicator had dealt correctly with questions relating to reasonableness when it considered whether to grant leave to appeal?"
Then at 945e he continued:
"It follows from what we have said that it...
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