Secretary of State for Work and Pensions v Brocking

In an application for permission to appeal from a Social Security Commissioner, issues decided at an earlier hearing cannot ordinarily be reopened at a later hearing, particularly where no challenge was made at the earlier stage. Where a Commissioner determines the underlying entitlement issue afresh after quashing a tribunal decision, the claimant bears the burden of establishing the relevant facts. Late disclosure of a respondent’s skeleton argument may be unsatisfactory, but it does not necessarily invalidate the hearing where no adjournment is sought and the decision-maker is satisfied that the claimant can address the issues. Under the Medical Evidence Regulations 1976, regulation 2(1)(d) permits non-compliant evidence only where requiring compliant evidence would be unreasonable.

Mr Michael Brocking sought permission to appeal from the decision of Social Security Commissioner Jacobs dated 14 January 2002. His claim concerned incapacity for work, income support and disability premium for periods between 1991 and 1996. Following a rehearing, the Social Security Appeal Tribunal had allowed his appeal, but the Commissioner later held that the tribunal’s decision was erroneous in law and directed that he would determine the underlying issue himself. The Commissioner subsequently rejected the medical evidence and found against the claim.

Before the Court of Appeal, Mr Brocking challenged the earlier grant of permission and the timeliness and legal adequacy of the Secretary of State’s appeal. He also challenged the late disclosure of the Secretary of State’s skeleton argument, the treatment of the medical evidence, and the Commissioner’s factual conclusion. The central issue was whether there was any proper basis for permitting an appeal.

1. Application refused. Lord Justice Buxton declined permission to appeal. There was no ground on which the Court could reverse or depart from the Commissioner’s decision.
2. Complaints about the Secretary of State’s earlier appeal being out of time, and about the grounds on which permission had been granted, were raised too late. No such application had been made to the Commissioner. The decision taken at the June 2001 hearing had already disposed of those matters, in proceedings in which Mr Brocking had been represented.
3. After quashing the tribunal’s decision, the Commissioner was entitled to determine the underlying factual question himself, effectively exercising the powers of the Social Security Appeal Tribunal. The issue at the later hearing was whether Mr Brocking had been incapable of work during the relevant period. The burden of persuasion rested on him.
4. The Secretary of State’s late production of a detailed skeleton argument was unsatisfactory. It did not, however, justify appellate intervention. Mr Brocking did not seek an adjournment, and the Commissioner was satisfied that he had been able to deal fully with the issues addressed at the hearing.
5. The Medical Evidence Regulations 1976 were relevant because the medical reports did not comply with the requirements of regulation 2 and Schedule 1. Regulation 2(1)(d) permitted non-compliant evidence in circumstances where it would be unreasonable to require a compliant statement. Mr Brocking had not shown that such circumstances existed. In any event, the Commissioner had considered the certificates relied on, although he was not persuaded by them.
6. The Commissioner’s assessment of Mr Brocking’s capacity for work was a factual determination for him. The Court of Appeal would not reopen that assessment in the absence of an arguable error of law or other proper appellate ground. The formal order was: application refused.

• Court of Appeal (Civil Division): refused Mr Brocking’s application for permission to appeal from the Commissioner’s decision, [2002] EWCA Civ 493.
• Social Security Commissioner: on 14 January 2002, determined the underlying incapacity and benefit issues after the earlier tribunal decision had been quashed.
• Social Security Appeal Tribunal: on rehearing in April 1999, allowed the appeal and found entitlement to disability premium. The Commissioner granted permission to appeal and, on 28 June 2001, held that the tribunal’s decision was erroneous in law.