R (Tagoe-Thompson) v Central and North West London Mental Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Lord Justice Laws,LORD JUSTICE LAWS,LORD JUSTICE JONATHAN PARKER,Lord Justice Pill:,Lady Justice Arden |
| Judgment Date | 12 March 2003 |
| Neutral Citation | [2003] EWCA Civ 330,[2003] EWCA Civ 33 |
| Docket Number | A1/2002/1244,Case No: C3/2002/2746 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2003 |
[2003] EWCA Civ 33
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
Lord Justice Ward
Lord Justice Laws and
Lord Justice Jonathan Parker
A1/2002/1244
Mr Richard Clayton QC (instructed by Messrs Howells, Sheffield) appeared on behalf of the Appellant
Mr James Maurici (instructed by the Office of the Solicitor, Department of Work and Pensions, London WC2) appeared on behalf of the Respondent
This is an appeal (with permission granted by Mummery LJ on 13th August 2002) against the decision of Mr Social Security Commissioner Jacobs made on 17th January 2002, when he dismissed the appellant's appeal against the earlier decision of the Sheffield Social Security Appeal Tribunal given on 30th May 2001. The tribunal had dismissed the appellant's appeal from the decision of the Benefits Agency to the effect that he was not incapable of work from and including 2nd March 2001.
The issues before the Commissioner and before this court are concerned only with the refusal by the tribunal, when they heard the appeal to them on 30th May 2001, to accede to the appellant's application for an adjournment to enable him to obtain medical evidence to support his appeal.
I may set out the material facts quite shortly. The appellant became incapable of work on 25th February 2000. His general practitioner attributed the fact to depression. He was awarded incapacity benefit, which entitled him to national insurance credits. A standard questionnaire was sent to the GP in order to ascertain whether the appellant was required to attend for a medical examination or whether he was in a category exempting him from that requirement. The GP replied to the effect that the diagnosis of the appellant's condition was stress and anxiety and that no medication was prescribed. A doctor approved by the Secretary of State advised that the appellant was not in any exempt category. Accordingly, he was sent an incapacity for work questionnaire. His answers described an inability to sit comfortably for more than 10 minutes and stated that he suffered from depression and panic attacks. On 6th February 2001 he was examined by an "examining medical practitioner", who prepared a report. In light of that and of all the then available evidence, the decision-maker, on behalf of the Secretary of State, concluded that the appellant was capable of work on and from 2nd March 2001 and accordingly his entitlement to national insurance credits was revoked.
The appellant issued notice of appeal against that decision on 6th March 2001. This was of course the appeal that was to be heard by the tribunal on 30th May. Given the issues relating to the tribunal's refusal of an adjournment, it is important to notice the dates and the timescale. The appellant was represented by solicitors at least from 21st March 2001. The solicitor sought a medical report from the appellant's GP for the purposes of the appeal. On 6th April 2001 the GP agreed to provide a report. It seems from a statement provided by the solicitor to this court that this was the day after the GP had been approached by the solicitor. Time went by with no report being provided. At length, on 14th May 2001, thus only about a fortnight before the appeal's hearing date, the solicitor contacted the GP's premises and was apparently told that the GP was on holiday and also had access to "minimal secretarial support". Thereafter, no further steps were taken until 29th May, the day before the hearing. On that day the solicitor telephoned the GP's premises to be told that the report was still unavailable.
So the hearing was convened the next day, 30th May. The appellant's solicitor applied for an adjournment to provide time within which medical evidence might be obtained. The tribunal refused that application and proceeded to determine the substantive appeal adversely to the appellant.
Of the four grounds of appeal to this court, three concern the alleged or actual duty to give reasons for this refusal of an adjournment. The factual position in relation to those matters is as follows. The summary record of the tribunal's substantive decision of 30th May 2001, made on the same day under regulation 53(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the 1999 Regulations"), included this statement:
"The appellant did not provide a sufficient and satisfactory explanation as to the reason for not obtaining further medical evidence to support an adjournment."
Following the substantive decision of 30th May, the appellant exercised his right under regulation 53(4) to seek "a statement of the reasons for the tribunal's decision". That related to the substantive or, as it has been called, outcome decision. The reasons were in due course provided and are before us. They include no reference to the procedural decision to refuse an adjournment on 30th May.
There are two other pieces of material in the evidence which have something to say about the tribunal's refusal to adjourn the appeal. The first is the chairman's notes made on 30th May 2001. They include this following passage (in which, for entirely understandable reasons, the language is very truncated):
"Adjournment requested.
5.4.01. GP letter. 6.04.01 GP tel + willing to provide a report. 14.05.01 Report not ready—GP on holiday. 1 doctor—minimal secretarial support. Confirmed report n/a today [by claimant's representative telephoning on previous day]. ? point on text. Mental health problems. H Rights Act. Papers received—when? 21.3.01 client ? seen by Mr Chaddock [solicitors' benefit advisor].
Application refused."
The second further piece of material is contained in the penultimate paragraph of the decision of Mr Commissioner Jacobs dealing with the appeal from the tribunal's decision to him. The Commissioner said this at paragraph 19:
"In this case, the tribunal gave a reason for refusing to adjourn. It was set out at the end of the decision notice in the passage quoted in paragraph 5. It can be read as no more than a statement of conclusion rather than a reason. But that would be pedantic. In its context, it means that the claimant had not satisfied the burden of showing why the evidence had not been obtained earlier. His representative told the tribunal that the evidence had been requested nearly two months before the hearing and that for part of the time the GP had been on holiday. But there was no reason why the request could not have been followed up as the hearing approached. The tribunal's reasons were adequate to explain its refusal to adjourn. There is no error of law on this count."
As I have said, the only issues before the Commissioner on appeal to him concerned the refusal to adjourn. He held that that refusal was not marred by any error of law and dismissed the appeal.
The four grounds of appeal to this court are as follows:
1.The Commissioner erred in law in failing to hold that the tribunal's refusal to grant an adjournment was a "decision" within the meaning of the 1999 Regulations.
2.Alternatively, the Commissioner erred in law in failing to construe the 1999 Regulations under section 3 of the Human Rights Act 1998 so as to make it compatible with article 6.
3.Alternatively, the Commissioner erred in law in failing to hold that the reasons contained in the decision notice were inadequate.
4.The Commissioner erred in law in failing to hold that the refusal to grant an adjournment was perverse and wrong in principle.
The formulation of that last ground has been refined somewhat during the course of argument and I will come to it in due course.
Before dealing with the individual grounds, I should say something about how I regard the relation between them. If it is clear that the adjournment was in fact refused for good reason, but the expression of that good reason was insufficient and failed to fulfil applicable legal standards, that failure would not, in my judgment, of itself necessarily justify this court in allowing the appeal. The legal defect constituted by the tribunal's failure to express sufficient reasons would, or at least might, be remedied by this court declaring that the reasons given were in truth legally insufficient, even though the appeal were dismissed. Such an approach would be in line with the Strasbourg jurisprudence within which the Court of Human Rights has often said that its declaration of a particular position, without any further relief being granted, sufficiently vindicates whatever is the Convention right in question.
But that is merely by way of preliminary, and I turn to ground one. The argument here is that the refusal to adjourn was a "decision" within the meaning of the 1999 Regulations, so that, upon being requested to give reasons for their overall decision pursuant to regulation 53(4), the tribunal was bound to provide or include reasons for refusing the adjournment. As I have said, the reasons produced pursuant to the regulation 53(4) request were silent as to the decision not to adjourn the appeal.
On this point for my part I would accept the argument put forward on behalf of the Secretary of State in Mr Maurici's skeleton argument to the effect that if one looks at the whole legislative scheme there is a plain distinction between a decision (that is, a decision upon the actual question whether a claimant is entitled to a particular benefit or not) and what may conveniently be called a determination (that is, a determination of any...
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