Secretary of State for Work & Pensions v Hughes (A Minor)

On an appeal from a specialist social-security jurisdiction, the Court of Appeal should be slow to entertain a challenge which was not properly advanced before the Commissioner. A contention about the application of statutory language to particular facts does not become a suitable appellate point merely by being described as a question of law.

Where a party had notice of the issue and a proper opportunity to make submissions below, the court may decline to undertake a merits review. Particular weight should be given to the considered view of the specialist appellate body, which is better placed to apply the legislation within the wider social-security scheme.

D, a partially sighted child, claimed disability living allowance. The Benefits Agency rejected the claim. The Social Security Appeal Tribunal awarded the lower-rate mobility component but refused the care component.

On D's appeal, the Social Security Commissioner held that specified assistance at school could amount to attention connected with the bodily function of seeing. He awarded the middle-rate care component for two years. The Secretary of State appealed, principally contending that the school measures could not amount to statutory attention.

The central issue before the Court of Appeal was whether it should determine that challenge when the Secretary of State had not properly advanced the relevant merits arguments before the Commissioner.

1. Appeal dismissed. The court declined to embark upon the merits of the Secretary of State's challenge to the Commissioner's award.
2. The permission granted by the Commissioner was directed to whether the identified school measures were capable of amounting to attention connected with seeing. It did not justify a wider challenge to frequency, extent, comparative needs, or the duration of the qualifying conditions. Those matters had not been the subject of real submissions before the Commissioner, despite the Secretary of State having warning of the Commissioner's provisional view and an opportunity to respond.
3. The proposed point raised no general issue of statutory principle. The relevant provisions had already been considered in the House of Lords, and the parties did not materially disagree about their meaning. In substance, the complaint concerned the Commissioner's application of the provisions to the evidence. Although a contention that something is incapable of falling within a statutory definition can raise a question of law, the Court of Appeal would ordinarily expect the specialist Commissioner first to have given a considered view on it.
4. The court followed the cautious approach stated in Cooke v Secretary of State [2001] EWCA Civ 734. Social-security appeals arise within a specialised, independent two-tier appellate structure. The ordinary courts should therefore take a modest approach and attach substantial value to the Commissioner's expertise in applying complex legislation.
5. The possibility that the Commissioner's decision might otherwise be cited in future cases did not warrant deciding an inadequately argued appeal. A suitable future case could be properly tested before a Commissioner. In any event, the court considered that this decision would not be an important precedent because of the limited assistance given to the Commissioner.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 16, dismissed the Secretary of State's appeal and left the Commissioner's decision undisturbed.
• Social Security Commissioner: Allowed D's appeal against the refusal of the care component, set aside the tribunal's decision on that issue, and awarded the middle-rate care component for two years.
• Social Security Appeal Tribunal: Allowed the appeal only to the extent of awarding the lower-rate mobility component; it refused the care component.
• Benefits Agency decision-maker: Refused the claim for both components of disability living allowance.