McDoom v Secretary of State for Social Security

An application for permission to appeal from a social-security decision is not a re-hearing of the facts. The appellate court considers whether the tribunal or Commissioner made an error of law. Evidence of serious illness or disability does not, without more, establish entitlement to a higher-rate dietary benefit. The claimant must sufficiently establish the particular dietary need required for that payment. Where the relevant tribunal has carefully assessed the available evidence and its finding is reasonably open to it, the Court of Appeal will not intervene merely because further material is suggested or an alternative factual conclusion is possible.

The claimant sought permission to appeal from Commissioner Rowland’s decision of 3 May 2001. The Commissioner had refused an appeal from a Social Security Appeals Tribunal decision made on 19 May 1999. The issue was whether the claimant was entitled to higher-rate benefit payments for a special diet from 1974, rather than from 23 April 1981, the date from which payment had been awarded.

The claimant relied on evidence of longstanding optic neuritis, serious visual impairment and material which he said established an earlier dietary need. The Commissioner considered that the tribunal had not found a dietary requirement before 23 April 1981. The central issue before the Court of Appeal was whether that conclusion disclosed an error of law warranting permission to appeal.

1. Permission refused. Lord Justice Buxton held that the Court of Appeal was not conducting a re-hearing of the facts. Its role was to determine whether the Commissioner or tribunal had erred in law.

2. The Commissioner had permitted an appeal only because the tribunal might not have properly considered whether a dietary requirement existed between September 1980 and April 1981. He then found that the tribunal had made no finding of a dietary requirement before 23 April 1981. That conclusion was open on the material available.

3. The claimant’s medical evidence established serious illness and disability, but did not specifically establish the earlier dietary need required for the higher-rate payment. The question was not whether the claimant had been seriously ill, but whether the particular qualifying dietary requirement had been sufficiently proved.

4. The Court would not intervene merely because the claimant identified further material or invited a different assessment of historic evidence. Nothing demonstrated that the careful analysis of the tribunal and Commissioner was legally flawed or that the factual finding was unreasonable.

5. The application to pursue the appeal further was therefore refused.

• Court of Appeal (Civil Division): On 24 January 2002, Lord Justice Buxton refused permission to appeal.
• Social Security Commissioner: On 3 May 2001, Commissioner Rowland refused the claimant’s appeal from the tribunal decision. He had considered the possible absence of a finding concerning a dietary requirement before 23 April 1981.
• Social Security Appeals Tribunal: On 19 May 1999, the tribunal determined that the claimant had not established the relevant dietary requirement before 23 April 1981.
• Earlier tribunal decision: In 1993, a tribunal accepted the claimant’s disabilities but was not satisfied that a special diet was required until a later date, while backdating payment to 23 April 1981.