Argenio v The Office of the Social Security & Anor

On a renewed application for permission to seek judicial review of a Social Security Commissioner’s refusal to grant leave to appeal, the decisive question is whether there is an arguable issue of law. There is no continuing appeal on the facts: after factual issues have been considered by an appeal tribunal, only questions of law remain. A complaint that disability evidence was evaluated wrongly therefore does not, without more, establish an arguable legal error. Evidence postdating the decisions under challenge cannot affect their validity, although the court left open whether genuinely fresh evidence might support a new claim.

The claimant’s claim for disability living allowance, following workplace accidents, was rejected by the Secretary of State and an appeal tribunal on 13 May 2003. The Social Security Commissioner refused leave to appeal, finding no error of law. Richards J refused permission to apply for judicial review on the papers, and Sullivan J, on renewal, adopted those reasons. In the Court of Appeal, the claimant alleged an unfair hearing, discrimination related to language and disability, and procedural obstruction. The central issue was whether an arguable question of law required permission for judicial review.

Application refused. The Court of Appeal found no unfairness or discourtesy in the conduct of the hearing before Sullivan J. The court’s procedures had been properly insisted upon, and there was no evidence of obstruction or concealment by the Civil Appeals Office.

1. The decisive question was whether there was in truth an issue of law on which the Commissioner ought arguably to have granted leave to appeal from the appeal tribunal. If such an issue existed, permission to apply for judicial review would have been required.
2. The claimant had not identified any arguable point of law. His complaints concerned the appeal tribunal’s evaluation of the evidence and its findings about the extent of his disability. An appeal on facts ends with the appeal tribunal; only questions of law remain for further appeal.
3. The court considered the material itself and reached the same conclusion as the Commissioner and the courts below. The tribunal’s decision, however unwelcome to the claimant, disclosed no issue of law requiring further consideration.
4. A later orthopaedic and trauma report postdated the decisions under challenge and therefore could not affect their validity. The court expressly left open whether genuinely fresh evidence could support a fresh claim.
5. The £400 costs order made by Sullivan J was an exercise of discretion which he was entitled to make. No legal ground for disturbing it had been shown. The renewed application for permission to apply for judicial review was accordingly refused.

• Queen’s Bench Division (Administrative Court): Richards J refused permission to apply for judicial review on the papers.
• Queen’s Bench Division (Administrative Court): On renewal, Sullivan J adopted Richards J’s reasons and refused permission.
• Court of Appeal (Civil Division): The renewed application was refused, and the costs order was left undisturbed.