Constantinou v Secretary of State for Work & Pensions

In an application for permission to appeal, the proposed appeal must raise a point of law and have a real prospect of success. Complaints that challenge factual findings, evidential assessments or the treatment of medical evidence do not satisfy that threshold unless they identify an error of law. A Social Security Commissioner may make further findings of fact and reach an appropriate decision where the reasoning is adequately and rationally supported by the evidence.

Mr Constantinou renewed an application for permission to appeal after Richards LJ refused permission. The proposed appeal concerned a superseding decision of the Social Security Commissioner following fresh consideration. The Commissioner had concluded that Mr Constantinou was capable of work and was not entitled to incapacity benefit from 9 May 2003.

The proposed grounds challenged the medical examination and report, the treatment of documentary evidence, the account of non-attendance at hearings, and an alleged accusation of fraud. Neither party attended the Court of Appeal. The central issue was whether the proposed grounds disclosed an arguable error of law with a real prospect of success.

Application refused. Lord Justice Auld determined the renewed application on the papers because the appellant did not attend, although he had been notified of the hearing.

1. An appeal to the Court of Appeal in this matter lies only on a point of law and permission requires a real prospect of success. The Court was not concerned with reopening factual findings merely because the appellant disagreed with them.
2. The Commissioner had made a comprehensive and well-reasoned decision. He was entitled, following fresh consideration under section 14 8a(ii) of the Social Security Act 1993, to make further findings of fact and to supersede the earlier operative decision in light of the evidence.
3. The Commissioner adequately and rationally reasoned his findings. He was entitled to reject the criticisms of the medical report and had properly taken into account the representations made on the appellant’s behalf.
4. The proposed grounds alleged hostility or inaccuracy by the doctor, failure to consider medical documents, an incorrect account of non-attendance, illness, and an alleged accusation of fraud. They amounted to challenges to factual findings and evidential assessment. They identified no error of law and disclosed no real prospect of success.

The renewed application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division) — Richards LJ had refused permission to appeal. Lord Justice Auld refused the renewed application.
• Social Security Commissioner — On fresh consideration, the Commissioner superseded the earlier decision and held that the appellant was not incapable of work and was not entitled to incapacity benefit from 9 May 2003.