Farrington, R (on the application of) v Secretary of State for Work and Pensions

Judicial review applications must be brought within the prescribed time unless special circumstances justify an extension. A tribunal’s warning that an appeal may produce a less favourable result does not, without more, amount to duress justifying withdrawal being set aside. Where the decision forming the basis of a supersession is set aside, the supersession falls away and leaves no live appeal. The Court of Appeal is confined to errors of law and cannot reopen factual findings made by a tribunal.

The applicant challenged decisions concerning disability living allowance and a supersession decision. A Commissioner had previously set aside an underlying decision, after which the applicant’s appeal against the supersession was treated as having lapsed. The Commissioner also found no error of law in the tribunal’s disability living allowance decision.

The applicant sought permission to appeal against the Commissioner’s decision and against the refusal of judicial review concerning an earlier purported withdrawal of an appeal. The central issues were whether the judicial review claim was out of time, whether the withdrawal resulted from improper pressure, whether the supersession remained operative, and whether the tribunal had erred in law.

1. Disposition. Both applications were dismissed. There was no order for costs.
2. Judicial review. The challenge to the refusal of permission to appeal was substantially out of time. Time limits for judicial review must generally be observed unless special circumstances justify departure from them. No such circumstances existed. The application for permission to appeal was itself substantially out of time.
3. There was also no realistic prospect of success on the merits. The court was not satisfied that the applicant’s decision to abandon or withdraw his appeal was made under duress of a kind that justified going behind his clear indication. The tribunal had given a proper warning, based on the material then before it, that the decision could be altered to the applicant’s detriment. That warning did not make the withdrawal legally ineffective.
4. Supersession. The Commissioner was correct to conclude that the earlier decision had removed the substratum of the supersession. Once the original decision had been set aside, the supersession itself ceased to have effect, leaving nothing against which the applicant could appeal. The Commissioner relied on, and the court accepted the approach in, Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53.
5. Disability living allowance. The tribunal had not misapplied the applicable regulations when deciding the care component. It was entitled to reach its conclusion on the material before it. No error of law was disclosed that could justify appellate intervention.
6. The Court of Appeal could consider only issues of law. It could not revisit factual decisions made by the tribunals below, consistently with the statutory structure governing social security appeals. There was therefore no sufficient prospect of success to justify granting permission.

1. High Court (Administrative Court). Goldring J refused the judicial review application on paper. Jackson J refused it after an oral hearing on 1 July 2002, relying on the applicant’s existing right of appeal and the lateness of the application.
2. Social Security Commissioners. Commissioner Angus, on 19 August 2003, found no discernible error of law in the disability living allowance decision. He held that the supersession appeal had lapsed because the underlying decision had been set aside, relying on Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53.
3. Court of Appeal (Civil Division). The applications for permission to appeal were dismissed. There was no order for costs.