McKee v Secretary Of State For Work & Pensions

A possible breach of the reasonable-time guarantee under Article 6 does not justify allowing an appeal where appellate intervention can no longer provide a useful remedy. A challenge to a commissioner’s decision must identify an error of law or irrationality; disagreement with evidence that the commissioner did not rely upon is immaterial. Disclosure of a commissioner’s notes is justified only where they may resolve a material factual conflict about what occurred or was said. Entitlement to the mobility component of disability living allowance depends on being unable or virtually unable to walk. A capacity to walk about 100 yards was materially beyond the threshold applied in the case law.

The claimant, a disabled retired miner, had received disability living allowance including the higher mobility component from 1995. Following a review based on alleged improved walking ability, an adjudication officer removed the mobility component. The appeal tribunal upheld that decision, subject to an adjustment of the effective date. The Commissioner later set aside the tribunal’s decision because the claimant’s representative had not been heard, but then determined the appeal personally and upheld the removal of the mobility component.

The claimant sought permission to appeal on grounds including delay, alleged breaches of Article 6, irrationality, disclosure, procedural unfairness and the interpretation of the statutory mobility test.

1. Permission to appeal refused. There was no viable ground of appeal. The claimant was not represented at the hearing, despite being offered a video-link facility.
2. The delay in the proceedings might, on the court’s assumption, have violated Article 6’s reasonable-time requirement. However, allowing the appeal would not provide a useful remedy. It would leave the claimant with the original adverse decision and require the matter to begin again.
3. The irrationality challenge was unarguable. The Commissioner had carefully examined the evidence, rejected the observation evidence and relied on the medical evidence. The claimant’s attack on the reliability and good faith of the observers was therefore irrelevant.
4. Disclosure of the Commissioner’s notes of evidence was not automatic. Notes should be obtained on appeal where there is a conflict of fact about what happened or was said before the Commissioner and the notes may assist in resolving it. No such issue arose.
5. The complaint that the Secretary of State was judge in his own cause was legally incorrect. The operative decision was that of an independent judicial Commissioner. There was no substance in the complaint of inequality of arms because the claimant had been permitted to use a representative of his choice.
6. Setting aside the appeal tribunal’s decision left the adjudication officers’ decisions standing. The Commissioner was therefore entitled to hear the appeal against decisions reviewing the original 1995 award.
7. Section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 required physical disablement making a person unable or virtually unable to walk. The case law had treated distances of about 25 yards or less as capable of satisfying that test, while greater distances generally did not. Medical evidence that the claimant could walk about 100 yards by January 1998 therefore supported the finding of a relevant change of circumstances and removal of the mobility component.

• Court of Appeal (Civil Division): in [2004] EWCA Civ 334, refused permission to appeal.
• Doncaster County Court: Commissioner Mesher upheld the decision removing the mobility component, while altering the effective date of review.
• Appeal tribunal and adjudication officers: the adjudication decision was upheld on appeal, subject to the adjustment later made by the Commissioner.