Shine v Department Of Works & Pensions

Where social-security regulations provide that failure to attend a required medical examination results in a claimant being treated as capable of work unless there is good cause, the claimant bears the burden of establishing that cause. The inquiry is objective. The question is whether, having regard to all the claimant’s circumstances, a reasonable person of the claimant’s age and experience would probably have acted in the same way. The specific matters identified in the regulations are not exhaustive. A claimant’s objection to the benefit’s description, or confusion between benefits, will not ordinarily constitute good cause. The Court of Appeal has no jurisdiction on an appeal from a Social Security Commissioner to award damages; such claims must be brought before a court of first instance.

The applicant had failed to attend a medical examination required in connection with incapacity-related social-security benefits. The Benefits Agency treated him as capable of work under the Social Security (Incapacity for Work) (General) Regulations 1995. A tribunal upheld that decision.

A Social Security Commissioner granted permission to appeal out of time but dismissed the appeal on the merits. She later refused permission to appeal to the Court of Appeal. The applicant sought permission from the Court of Appeal, alleging errors of law, breaches of Articles 6 and 8 of the European Convention on Human Rights, and seeking substantial damages and costs.

1. Application dismissed. The Commissioner’s decision disclosed no error of law and there were no real prospects of success on an appeal.
2. Under regulations 8 and 9 of the Social Security (Incapacity for Work) (General) Regulations 1995, failure without good cause to attend a properly notified medical examination permits the claimant to be treated as capable of work, whether or not the claimant is in fact capable of work. The matters specified in regulation 9, including health and disability, are not exhaustive.
3. The applicable good-cause inquiry is objective. The claimant must show that, having regard to all the circumstances, the conduct would probably have been that of a reasonable person of the claimant’s age and experience. The applicant’s objection to attending an examination because he believed he had not claimed incapacity benefit did not satisfy that test. Nor did any alleged confusion between income support and incapacity benefit.
4. The applicant had received a fair hearing before the Commissioner. There was no proper basis for concluding that Articles 6 or 8 had been infringed.
5. The Court of Appeal had no jurisdiction, on an appeal from a Social Security Commissioner, to award the damages claimed. Any such claim would have to be pursued before a court of first instance. The application was therefore dismissed.

• Court of Appeal (Civil Division): application for permission to appeal dismissed.
• Social Security Commissioner: permission to appeal out of time granted, but the appeal dismissed on 10 September 2001; permission to appeal to the Court of Appeal refused on 21 January 2002.
• Social-security tribunal: decision upholding the Benefits Agency’s determination that the applicant had failed without good cause to attend the medical examination.