R (Wiles) v Social Security Commissioners and Another

JurisdictionEngland & Wales
JudgeLord Justice Dyson,Lord Justice Longmore,Lord Justice Sedley
Judgment Date16 March 2010
Neutral Citation[2010] EWCA Civ 258
Date16 March 2010
Docket NumberCase No: C1/2008/1970
CourtCourt of Appeal (Civil Division)

[2010] EWCA Civ 258




Mr Justice Plender

Before: Lord Justice Sedley

Lord Justice Dyson


Lord Justice Longmore

Case No: C1/2008/1970


Social Security Commissioner & Anr

Mr Richard DRABBLE QC and Tim BULEY (instructed by Emma Baldwin (of the Free Representation Unit) for the Appellant

Mr James EADIE QC and Mr David BLUNDELL (instructed by Office of the Solicitors) for the Respondent

Hearing dates: 24 th February 2010

Lord Justice Dyson

Lord Justice Dyson:



By a decision dated 14 March 2007, the Secretary of State for Work and Pensions (“the Secretary of State”) superseded the decision of 23 October 1993 (“the 1993 Decision”) and disallowed the claim by Ms Wiles to a transitional award of long-term incapacity benefit with effect from 14 March 2007. Her appeal against this decision was dismissed by the Social Security Appeal Tribunal (“the SSAT”) on 16 July 2007. On 12 November 2007, Mr Commissioner Jacobs refused her permission to appeal to him against the decision of the SSAT. On 21 February 2008, she issued the current proceedings seeking judicial review of the commissioner's decision. On 30 July 2008, Plender J refused permission to apply for judicial review. She appeals to this court against the decision of Plender J with the permission of Moses LJ.


It is not in dispute that judicial review lies in principle in respect of a decision by a social security commissioner to refuse permission to appeal from a decision of the SSAT. The issues that arise in this appeal are (i) in what circumstances should an application for judicial review be entertained; and (ii) in the light of the answer to (i), should the claimant be granted judicial review of the commissioner's decision in the present case?

The legal framework


Incapacity benefit replaced invalidity benefit with effect from 13 April 1995. By regulation 17(1) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 (the “Transitional Regulations”), where a person is entitled to invalidity benefit immediately before the appointed day (13 April 1995), that award “shall have effect” thereafter as if it were an award of long-term incapacity benefit. A person's entitlement to such award is subject to his being incapable of work: see regulation 17(2). Incapacity for work was initially assessed by the “All Work Test”. Since 3 April 2000, it has been assessed by the Personal Capacity Assessment (“PCA”). The PCA is an assessment of a claimant by reference to a number of descriptors of physical functions (such as sitting, standing and so on). Each descriptor is scored. So far as is material for present purposes, a total score of not less than 15 points qualifies for long-term incapacity benefit.


Section 10(1) of the Social Security Act 1998 (the “1998 Act”) provides that any decision of the Secretary of State under section 8 (which makes general provision for initial decisions by the Secretary of State) may be “superseded”. Section 10(3) provides that regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under section 10. Regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the “1999 Regulations”) prescribes the cases and circumstances in which a decision may be superseded under section 10 of the 1998 Act. So far as material, regulation 6 provided:

“(2) A decision under section 10 may be made on the Secretary of State's own initiative or on an application made for the purpose on the basis that the decision to be superseded—

a) is one in respect of which—

i) there has been a relevant change of circumstances…. since the decision was made;


(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Secretary of State has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work)(General) Regulations 1995 from a doctor referred to in paragraph (1) of that regulation”.


It is common ground that an “incapacity benefit decision” (as defined in regulation 7A of the 1999 Regulations) does not include awards of long-term incapacity benefit made pursuant to the Transitional Regulations: see Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495 at [39]. In fact, the definition of “incapacity benefit decision” in regulation 7A has been amended with effect from 24 September 2007 so as to include a transitional award of long-term incapacity benefit. But that amendment is not material to the present case. Accordingly, regulation 6(2)(g) of the 1999 Regulations was not available to the Secretary of State as a ground of supersession in the present case, since the decision was made on 14 March 2007.


Section 12(2) of the 1998 Act provided that in the case of a decision under section 10, the claimant shall have the right to appeal to the SSAT. Section 14(1) provided that an appeal to a commissioner from any decision of the SSAT can be made on the ground that the decision was erroneous in point of law. Section 14(10) provided that no appeal lies under section 14 without the leave, among others, of a commissioner. Section 15 provides that an appeal on a question of law shall lie (for present purposes) to the Court of Appeal.

In what circumstances should an application for judicial review in principle be entertained?


It is important to emphasise at the outset that we are concerned with the regime that was in place before the enactment of the Tribunals, Courts and Enforcement Act 2007 (“TCEA”). The TCEA introduced a fundamentally different regime. In R (on the application of Cart) v The Upper Tribunal and The Special Immigration Appeals Commission [2009] EWHC 3052, the Divisional Court (Laws LJ and Owen J) was concerned with judicial review challenges to decisions of the Upper Tribunal and the Special Immigration Appeals Commission. The court had to decide whether there is jurisdiction to grant judicial review of such decisions and, if so, in what circumstances it should be exercised.


Laws LJ considered some of the pre-TCEA authorities and acknowledged that they showed that there had been jurisdiction to grant judicial review of decisions made by tribunals in the pre-TCEA era. At [93] of his judgment, however, he said that the advent of the Upper Tribunal and the First Tier Tribunal “now commends a different outcome”. He went on to hold at [99] that under the new regime there is jurisdiction to grant judicial review (i) where the tribunal acts outside its jurisdiction in the narrow pre-Anisminic sense: see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; and (ii) where there has been such procedural unfairness that “the judicial process itself has been frustrated or corrupted”.


The Divisional Court's decision as to the scope of the judicial review jurisdiction in relation to decisions made by tribunals made under the new regime has no direct relevance to the present case. But the decision, if it is right, is important for present purposes for two reasons. First, it decides that the change of regime has brought in its train a change in the court's approach to the scope of its judicial review jurisdiction. Secondly, in the present case we are being asked to determine the location of those boundaries in relation to a regime which will soon be of historical interest only.


The following is no more than the barest outline of the submissions of Mr Drabble QC and Mr Eadie QC. Mr Drabble submits that there is a long line of authority which shows that judicial review lies against the decision of a social security commissioner to refuse permission to appeal generally to correct errors of law on conventional public law grounds. He says that judicial review is in principle available not only in cases of jurisdictional error of law in the pre-Anisminic sense and procedural unfairness so extreme as to come within Laws LJ's category of frustration or corruption of the process itself. He submits that any material error of law is enough.


Mr Eadie contends for a far narrower test. As I have said, he accepts that there is no jurisdictional bar to judicial review of a decision by a social security commissioner to refuse permission to appeal. But he submits that judicial review should only be granted in “exceptional circumstances”. His primary position is that exceptional circumstances should be confined to the two categories identified by Laws LJ in Cart as applying in relation to the TCEA regime. His alternative position is that exceptional circumstances are those two categories as extended by Neuberger LJ in R (on the application of Sinclair Gardens Investments (Kensington) Ltd) v Lands Tribunal [2005] EWCA Civ 1305, [2006] 3 All ER at [57] to include the case where there is a difficult point of law of general application on which different views have been expressed by different tribunals.


Before I come to the submissions in more detail, I need to refer to some of the authorities on which counsel rely. I start with the authorities relied on by Mr Drabble as showing that it has long been established law that judicial review lies against a decision by a social security commissioner to refuse permission to appeal where there is any material error of law in the decision which it is sought to appeal.


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