Cooke v Secretary Of State For Social Security

A later medical opinion which differs from an earlier assessment does not, by itself, establish a material mistake or relevant change of circumstances for statutory review. It may provide evidence of such a mistake or change. The reviewing tribunal must determine the jurisdictional ground separately from current entitlement and give proper weight to the evidence underlying the earlier decision.

A tribunal may infer an actual change from materially different accounts of functional ability and supporting clinical evidence. That factual finding cannot be challenged on a point-of-law appeal absent legal error.

Although section 55(1) of the Access to Justice Act 1999 does not apply to appeals from Social Security Commissioners, the Court of Appeal should apply the ordinary real-prospect-of-success criterion robustly, recognising the expertise of the specialist two-tier appellate structure.

The claimant received disability living allowance comprising the higher-rate mobility component and highest-rate care component for life. Following a visiting officer's observations and a medical examination, an adjudication officer reviewed the award on the ground of a relevant change of circumstances. The resulting decision awarded only the lowest-rate care component.

The Wigan Disability Appeal Tribunal upheld that decision after comparing the claimant's accounts in 1996 and 1998 and considering the later clinical evidence. Deputy Social Security Commissioner Hereward dismissed her appeal, and Social Security Commissioner Rowland refused permission to appeal to the Court of Appeal.

The claimant contended that a later medical opinion could not itself establish a statutory ground for review and that the tribunal had failed to separate the jurisdictional question from its assessment of current entitlement. The court also considered the appropriate permission threshold for appeals from the specialist Social Security Commissioners.

1. Disposition. Lady Justice Hale delivered the leading judgment. Lord Justice Clarke and Mr Justice Butterfield agreed. Permission to appeal was granted, but the appeal was dismissed unanimously.

2. Under section 30(2) of the Social Security Administration Act 1992, the threshold for review is low, but the statutory ground must still be established. A later doctor's different opinion does not itself constitute either a mistake as to a material fact under section 30(2)(a) or a relevant change of circumstances under section 30(2)(b). It may nevertheless provide evidence of an actual mistake or change. The court applied the principle endorsed in R v Social Security Commissioner, ex parte Chamberlain, The Times, 1st August 2000.

3. The tribunal must keep the ground for undertaking a review distinct from the review's eventual outcome. In deciding whether the ground exists, it must consider and give proper weight to the evidence on which the earlier decision rested. Although the tribunal did not state the two stages formally, its reasons showed that it compared the claimant's 1996 account with her 1998 account and the later clinical findings.

4. This case differed materially from Chamberlain, where two assessments expressed different opinions about the same facts without evidence of either mistake or change. Here, the claimant's descriptions of her walking ability and night-time care needs had materially altered. The tribunal found that she could walk 50 metres, rest and walk a further 50 metres, and that she required no assistance at night. Because it was neither invited nor prepared to find that her 1996 account had been mistaken or untruthful, it was entitled to infer an actual change. That was a factual finding which could not be challenged on this point-of-law appeal.

5. Section 55(1) of the Access to Justice Act 1999 did not govern this appeal because its language concerned prior appeals to the county court or High Court. Nevertheless, the ordinary courts should recognise the specialised expertise and independent two-tier appellate structure of the social security system. When assessing whether a proposed appeal has a real prospect of success, the Court of Appeal should adopt a robust approach and a suitably modest view of the likelihood that a Social Security Commissioner has erred. The court confined that guidance to the social security structure.

1. Court of Appeal (Civil Division): In Cooke v Secretary Of State For Social Security [2001] EWCA Civ 734, granted permission to appeal but unanimously dismissed the appeal. It upheld the Deputy Social Security Commissioner's conclusion that the tribunal had made no error of law.
2. Social Security Commissioner: Commissioner Rowland refused permission to appeal to the Court of Appeal on 31 August 2000.
3. Deputy Social Security Commissioner: Deputy Commissioner Hereward dismissed the claimant's appeal from the Disability Appeal Tribunal on 26 May 2000.
4. Wigan Disability Appeal Tribunal: Upheld the adjudication officer's review decision on 12 April 1999.
5. Adjudication officer: Reviewed the lifetime award on the ground of a relevant change of circumstances and ultimately awarded the lowest-rate care component but no mobility component.