Notes, records, cases to review

• As key legal cases are found, some of which are not easy to find on the National Archives or BAILII (if there at all), I'm going to post the below and copy the full text below to help me search for key items on via this page.  Not all of us have the benefit of Westlaw or Lexis, so I find this system to be a crude work around.  I take no responsibility for the accuracy of any text posted in below and ask all reading this page to return to primary sources, preferably via a gov.uk or professional source.

 

Cases reviewed

• R v Social Security Commissioner, ex parte Chamberlain (CO/1988/1999, Lightman J, unreported 7 July 2000) https://www.bailii.org/ew/cases/EWHC/Admin/2000/364.rtf

 

To read

•  (R (Wiles) v Social Security Commissioner and another [2010] EWCA Civ 258) https://adminappeals.reports.tribunals.gov.uk/Documents/Decisions/2010_AACR_30ws.pdf
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Mr Justice Lightman:

 

INTRODUCTION

1.         This is an application made by Mr Sidney Chamberlain (“the Applicant”) pursuant to permission granted by Ognall J on the 8th July 1999 for an order quashing a decision dated the 18th February 1999 (“the Decision”) of the Social Security Commissioner (“the Commissioner”).  The Decision refused leave to the Applicant to appeal against the decision of the Social Security Appeal Tribunal (“the Tribunal”) upholding the decision of the adjudication officer dated the 14th October 1997 (the 1997 Decision”) that the Applicant was not entitled to Incapacity Benefit.  Section 25 of the Social Security Contributions and Benefits Act 1992 (“the Act”) only allows a review of a previous decision whether a claimant is entitled to Incapacity Benefit if one (or more) of certain specified grounds for a review is established.  One such ground is that since the previous decision there has been a relevant change of circumstances.  This application raises the question what must be done to establish the existence of such change of circumstances.

 

LEGAL FRAMEWORK

2.         A person is entitled to long term Incapacity Benefit for each day after he ceases to be entitled to short term Incapacity Benefit on which he is incapable of work and not over pensionable age: Sections 30A and 30C of the 1992 Act.  Whether a person is incapable of work must be determined in accordance with Part XII A of the  Act: Section 171A of the  Act.  In a case (such as the present) where the “own occupation” test under Section 171B is not applicable, the “all work” test under Section 171C must be satisfied.  Regulation 24 of the Social Security (Incapacity for Work) General Regulations (as amended) 1995 (“the Regulations”), lays down the “all work” test as a test of the extent of a person’s incapacity, by reason of some specific disease or bodily or mental disablement, to perform the activities prescribed in the Schedule.  Part I of the Schedule lists fourteen activities for measuring physical disabilities and Part  II lists four for mental disabilities.  For each activity there are a number of “descriptors”, each of which attract a certain number of points, with a greater number of points being awarded the greater the disability described.  Under Regulation 25 a person satisfies the “all work” test if he obtains 15 points under Part I, 10 points under Part II or 15 points under a combination of the two.  In any case where a person (such as the Applicant) had been determined to be incapable of work under the regulations which applied before the introduction of Incapacity Benefit on the 13th April 1995, he was not required to satisfy the “all work” test, but was to be treated as satisfying the “all work” test so as to qualify for transitional Incapacity Benefit until he was actually assessed under the “all work” test, so long as he provided the requisite medical evidence: Regulations 17(2), 29 and 31(1) and (2) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995.

 

3.         A claim for benefit (including Incapacity Benefit and its predecessors) is treated as made for an indefinite period and any award of benefit on that claim must be made for an indefinite period: Section 5(1)(c), (d) and (e) of the Social Security (Claims and Payments) Regulations 1987.  Where the requirements for entitlement to the relevant benefit are no longer satisfied, the award of benefit must be reviewed: Regulation 17(4) of the Social Security (Claims and Payments) Regulations 1987.  But a review may only be carried out on one of the five grounds listed in Section 25(1) (a) to (e) of the 1992 Act.  The relevant provisions of the section read as follows:

 

“(1) ... any decision ... may be reviewed at any time by an adjudication officer or, on a reference by an adjudicating officer, by a social security appeal tribunal if-

 

(a)        the officer or tribunal is satisfied that the decision was given in ignorance of, or was based on a mistake as to, some material fact; or

 

(b)       there has been any relevant change of circumstances since the decision was given; or

 

(c)        it is anticipated that a relevant change of circumstances will so occur; or

...”

 

Where an adjudicating officer has decided a claim for benefit, the claimant has a right of appeal to the Tribunal: Section 22(1) of the 1992 Act.  An appeal lies from any decision of the Tribunal to the Commissioner with leave either of the Tribunal or of the Commissioner on the ground that the decision of the Tribunal was erroneous in point of law.  The decision of the Commissioner to refuse leave is subject to the supervisory jurisdiction of the High Court exercised in judicial review proceedings.

 

FACTS

4,         The Applicant became incapable of work on the 12th September 1988.  The cause as certified by his general practitioner was hypertension.  Initially he received Sickness Benefit and from the 27th March 1989 Invalidity Benefit, and in 1995 the Applicant was treated as satisfying the “all work” test and accordingly qualifying for transitional Invalidity Benefit.  In April 1995 Invalidity Benefit was replaced by Incapacity Benefit.  On  the 18th September 1996 the Applicant was assessed under the “all work” test and he satisfied the test and accordingly qualified for continued benefit (“the 1996 Decision”).  On the 19th March 1997 the Benefits Agency issued a questionnaire to the Applicant’s general practitioner and on the 25th March 1997 the general practitioner returned the questionnaire to the Benefits Agency Medical Service (“BAMS”).  BAMS regarded the answers to the questionnaire as insufficient and required the Applicant to undergo once again the “all work” test.  On the 18th September 1997 the Applicant was examined by a BAMS medical adviser at the Applicant’s home, and the adviser concluded that the Applicant should be given less than the required points to qualify for Incapacity Benefit.  As a result on the 14th October 1997 the Adjudicating Officer decided to disallow Incapacity Benefit from and including the 13th October 1997.

 

5.         The Applicant thereupon appealed to the Tribunal.  On the 22nd January 1998 the Tribunal dismissed the appeal on the ground that it accepted the evidence of the BAMS medical adviser resulting from his examination of the Applicant on the 18th September 1997 in preference to the evidence of the Applicant’s general practitioner Dr Rabbs.  The Statement of Material Facts and Reasons for the Tribunal’s Decision reads as follows:

 

“Findings of Fact

1.         Mr Chamberlain lost his job in 1988 due to frequent rows at work.

2.         He suffers from hypertension, anxiety and a heel problem.

3.         He saw Dr Rabbs originally prior to 1979.  He subsequently saw Dr             Pillay from then to August 1997.

4.         He continues to visit Dr Rabbs frequently at his surgery.

5.         He is on medication for first line hypertension.

6.         He is on no medication for angina.  No tests conducted to confirm             angina condition.

7.         Takes painkillers at night for ankle.

8.         No referral for any treatment for his anxiety which his G.P. refers to as             severe, chronic phobic anxiety.  The medical assessor advised that in a             severe condition as described by his G.P. this would follow.

9.         His G.P. suggests that his sitting problems are due to anxiety and not a             physical condition.

10.       He attributes his bending and kneeling problems to his overweight and             his communication problems with his stammer.

11.       He emphasises that mental stress was a factor of making him stop             work.  Evidence today was that he lost his job due to frequent rows at             work.

12.       He concludes that he is “not employable” not incapable of all work.

 

Reasons for Decision:-

 

The Tribunal preferred the evidence of the B.A.M.S. Medical Officer to that of Dr Rabbs which appears to be inconsistent with the information provided by Mr Chamberlain re his daily living.  They also felt that the lack of any referral for his “severe chronic phobic anxiety” was contra-indicative.  They accepted that he had problems with bending and kneeling and frequently feels scared or panicky.”

 

 

The Applicant applied to the Tribunal for leave to appeal from the Tribunal and, when this was refused, from the Commissioner.  On the 18th February 1999 by the Decision the Commissioner refused leave.  The Commissioner was statutorily entitled not to give any reasons and he did not give any.  On the 18th May 1999 application was made for permission to commence these proceedings for judicial review of the Decision and permission was given on the 8th July 1999.

 

GROUNDS OF CHALLENGE

6.         The hurdles confronting the Applicant on an application in judicial review proceedings to challenge a decision of a Commissioner refusing permission to appeal are formidable.  They are stated by Slade LJ giving the only judgment in the Court of Appeal (with which both other judges agreed) in R v. Secretary of State for Social Services ex parte Connolly [1986] 1 WLR 421 at 432:

 

“If an applicant presents to [the commissioner] an arguable, even substantially arguable, point of law, it may still in some circumstances be open to the commissioner to refuse leave in the proper exercise of his discretion, for example, if he is satisfied that the point of law will have no effect on the final outcome of the case.  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 upon 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 upon 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.”

 

The Applicant submits that he can overcome these hurdles.

 

7.         The challenge to the Decision is based on two legal foundations.  The first is the statutory condition for exercise of the jurisdiction of the adjudicating officer in 1997  to review the 1996 Decision that there should have been established a relevant change in circumstances between the dates of the 1996 and the 1997 Decisions.  The second is the statutory duty of the Tribunal to give reasons for its decision.

 

8.         Section 25 of the Act provides that decisions of an adjudication officer and of the Tribunal enjoy a degree of finality and that an adjudication officer and a Tribunal can only review a previous decision if one of the statutory grounds stipulated are satisfied.  The relevant grounds are either that the adjudicating officer or Tribunal is satisfied that the previous decision was given in ignorance of, or was based on a mistake as to, some material fact or that there has been a relevant change of circumstances since the previous decision.

 

9.         It is essential to recognise that a later different view of the circumstances or condition which prevailed at the time of an earlier decision does not found jurisdiction to review.  Different markings on the “all work” test and different overall assessments whether an applicant has satisfied the “all work” test do not necessarily establish that there has been such change of relevant circumstances or any ignorance of, or a mistake as to, a material fact on the part of the decision-maker when he made the previous decision.  The difference may be consistent with a change of material circumstances or such ignorance or mistake, but it may equally be consistent with a difference in the viewpoint and subjective judgment of the medical advisers who conducted the tests.  It is for this reason essential to distinguish the two distinct, albeit related, exercises to be undertaken by an adjudicating officer and Tribunal, namely to determine first whether there is a change of material circumstances or whether the previous decision was given in ignorance of, or was based on a mistake as to, some material fact, (the positive finding of which is a precondition to exercise of the jurisdiction to review) and secondly whether (assuming that jurisdiction exists) the “all work” test is or is not satisfied.

 

10.       Valuable guidance on this question is furnished by the decision of Mr Commissioner Mesher in his decision (reference number CIB 3899/97) dated the 4th November 1998:

 

“... [counsel] submitted, applying the existing principles on review, the mere award by the adjudication officer of less than 15 points, when on a previous all work test assessment 15 points or more had been awarded, did not amount to a relevant change of circumstances.  The adjudication officer had to consider the earlier assessment, with its specific award of points, and ask whether there was sufficient evidence since that assessment to show that there had been a change in the condition of the claimant represented by those points or that the previous assessment was based on mistake or ignorance as to the claimant’s condition.  Mr Stagg submitted that that entailed, first, that the adjudication officer should look at all the evidence, especially the relevant examining medical officers’ reports, relating to the two assessments, to ask if there was sufficient evidence of a change in or mistake as to the claimant’s actual condition.  It also entailed that if the adjudication officer’s decision was challenged on appeal, the appeal tribunal had to be provided with all that evidence in order to make its own judgment on those questions.

 

            12.       On this point I prefer {counsel’s} submissions.  It follows…that, where there has been an adjudication officer’s decision that, on an assessment under the all work test, the claimant is incapable of work, that decision has a continuing effect.  Thus, a subsequent decision that the claimant is not incapable of work can only take effect on a review of the earlier decision…Where the operative decision that a claimant is incapable of work was given following and actual all work test assessment, the mere existence of a subsequent report from an examining medical officer or of a subsequent unfavourable all work test assessment does not in itself amount to a relevant change of circumstances or indicate that the operative decision was given under a mistake as to a material fact.  That would be to confuse the outcome of a review with the establishment of grounds for carrying out a review.”

 

11.       It is common ground that the Tribunal is under a duty to give reasons for its decision.  Regulation 23 of the of the Social Security (Adjudication) Regulations 1995 (“Regulation 23”) requires the Tribunal to state the reasons for the Tribunal’s decision and its findings of fact material thereto.  The minimum requirement must be to state the issues which the Tribunal addressed, the conclusions which it reached on those issues and the findings of fact which it relied on to reach those conclusions.

 

12.       The critical issue on this application is whether the Tribunal addressed and decided the issue of “change of circumstances” and accordingly whether it had jurisdiction to review the 1996 Decision.  The 1997 Decision gives no indication that it did.  There is no reference to any such question being considered or to any findings of fact necessary for this purpose.  The reference to the evidence of the doctors is to evidence as to whether the Applicant’s medical condition was such that he passed the “all work” test.  Regulation 23 precludes the 1997 Decision being upheld, whether by the Commissioner or the Court, on the basis of the presumption of regularity: it cannot be presumed that the Tribunal implicitly decided that question adversely to the applicant.  For if the Tribunal did decide the issue of change of circumstances adversely to the Applicant, the 1997 Decision is on its face bad in law because Regulation 23 has not been complied with.  If on the other hand the Tribunal did not decide this question, then the 1997 Decision is bad in law for that very reason. I prefer in the present case to presume that the Tribunal complied with Regulation 23 and, since the statement of reasons make no reference to a decision on this issue of change of circumstances, that the Tribunal made no such decision.

 

13.       The Commissioner could only properly have refused leave to appeal, if he  properly directed himself in law.  I can see no grounds upon which he could lawfully have upheld the 1997 Decision.  The Commissioner could not properly have been satisfied that the point of law raised would have no effect on the final outcome of the case.  If the Tribunal did address the issue of change of circumstances, the Decision does not set out the relevant findings of facts, and the Commissioner was not entitled to speculate what those facts are.  If the Tribunal did not address the issue of change of circumstances, once again the Commissioner cannot properly speculate what will be the evidence or the findings of fact (let alone the outcome) if the issue is addressed in the future.  Nor can it blithely be held (as was argued on behalf of the Commissioner) that, if there was no change of circumstances, there must have been ignorance of or a mistake as to a relevant fact in 1996.  As I have pointed out, a change of circumstances and ignorance or a mistake by the previous decision-maker are not the only alternative explanations for different test results in 1996 and 1997.  An alternative explanation to be explored is a difference of professional opinion as to the same condition at the two different dates.

 

14.       To establish the existence of the change of circumstances as a jurisdictional basis for a review, it is not ordinarily satisfactory or sufficient to rely merely on different test results at the different points of time.  As Mr Commissioner Mesher says in the passage which I have quoted, the question of change of circumstances requires a separate exercise directed to analysing the claimants’ condition at the two points of time (which includes examining the medical officer’s reports and other available evidence as to the claimant’s condition at the date of the earlier decision) and identifying the relevant differences.  Regulation 23 requires the decision to state the fact that the issue of change of circumstances has been addressed, the conclusion reached and the reasons for reaching, and the findings of fact relied on to reach, that conclusion.

 

15.       For these reasons, I order that the Decision shall be quashed and the application for leave be remitted to the Commissioner to determine in accordance with the guidance provided in this judgment.  I may add (as is apparent from this judgment) that on the material before me the Commissioner in my view is bound to give leave.  Nonetheless I think that it is preferable to remit the question to him rather than to grant an order of mandamus requiring the Commissioner to grant leave.

*****

 

 MR JUSTICE LIGHTMAN: For the reasons set out, I shall quash this decision of the Commissioner.

 

MR NICOL: My Lord, I am grateful.  I am asking for my costs.  I do not believe my learned friend is opposing my application.

 

MR JUSTICE LIGHTMAN: I do not think he could.

 

MR NICOL: I believe he does have one application.

 

MR JUSTICE LIGHTMAN: Decision quashed.  Order respondent to pay costs.

 

MR KOLINSKY: My Lord, as the Applicant is legally aided, the appropriate order would be for detailed assessment, if not agreed.

 

MR JUSTICE LIGHTMAN: Legal aid assessment.

 

 

MR KOLINSKY: Detailed assessment.

 

MR JUSTICE LIGHTMAN: You do not need legal aid, it is just detailed assessment?

 

MR NICOL: Yes.

MR KOLINSKY: My Lord, there is only one small point which is, the reality of these proceedings is that they have been defended by the Secretary of State rather than by the Commissioners.  My Lord, I would invite you to make a costs order against the Secretary of State rather than the Commissioners.  In effect, it is a cosmetic point because there is obviously indemnity lying behind it.

 

MR JUSTICE LIGHTMAN: I have no problem with that, the Commissioner has done his best.  You are happy with that? The Secretary of State is solvent.

 

MR NICOL: We have no problem with that.

 MR JUSTICE LIGHTMAN: There are no other problems?  Thank you for your help.