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

Where an Appeal Tribunal wrongly concludes that it lacks jurisdiction to determine an appeal concerning the abatement of Incapacity Benefit, the error is one of law. The statutory right of appeal applies to the exercise of the abatement power. The appropriate remedy may be to quash the refusal of leave to appeal and remit the abatement issue to the Appeal Tribunal for determination on its merits.

A renewed application for judicial review may be refused where it is lodged out of time and discloses no arguable error of law or arguable interference with Convention rights.

The claimant brought two judicial review claims concerning Incapacity Benefit, Income Support and Disability Living Allowance. Permission had been granted on one issue concerning Incapacity Benefit, namely whether the Appeal Tribunal had jurisdiction to consider an appeal against abatement. Permission had been refused on the remaining Incapacity Benefit and Income Support matters.

The claimant also renewed an application for permission concerning Disability Living Allowance. The court considered the statutory appeal jurisdiction, the alleged errors concerning the medical evidence, delay, and the inadequately particularised human rights allegations.

1. Incapacity Benefit. The Secretary of State accepted that the Appeal Tribunal had jurisdiction to consider the claimant’s appeal concerning the abatement of Incapacity Benefit. The power to abate derived from section 74(2) of the Social Security Administration Act 1992, and section 12(4) of the Social Security Act 1998 provided a right of appeal against its exercise.
2. The Appeal Tribunal therefore erred in law by dismissing the appeal for want of jurisdiction. The Commissioner also erred in refusing leave to appeal on that issue. The court quashed the Commissioner’s refusal of leave and remitted the abatement issue to the Appeal Tribunal for consideration on its merits.
3. Disability Living Allowance. The renewed application for permission was refused. The claim for judicial review had been lodged out of time, with no explanation for the delay.
4. No arguable error of law was disclosed. The Appeal Tribunal was not required to set out all the medical evidence in its reasons, provided it explained why the appeals were dismissed. The absence of a reference to particular evidence did not establish that the evidence had not been considered. The report said to have been omitted had gone missing, and a more recent report had been commissioned.
5. The claimant’s Convention rights allegations were not explained and disclosed no arguable basis for judicial review. The renewed application concerning Disability Living Allowance was refused. There were no consequential applications for costs.

The judgment itself records that Wall J refused permission on several elements of the claims and directed that the renewed Disability Living Allowance application be listed with the Incapacity Benefit claim. This court granted relief on the abatement issue and refused the renewed application concerning Disability Living Allowance.