Purglove, R (on the application of) v Social Security Commissioners & Anor

Judicial review of a refusal of permission to appeal in social-security proceedings is confined to exceptional cases. A tribunal’s mistake of fact or law, even an extreme one, is insufficient unless the judicial process itself has been frustrated or corrupted. The exceptional category may include a failure to perform an unequivocal duty to inquire or adjudicate, a substantial denial of a fair hearing, or a comparable fundamental defect. Where the tribunal has rationally assessed the evidence and reached conclusions that follow logically from it, the reviewing court will not reargue the merits.

The claimant challenged the Social Security Commissioners’ refusal of permission to appeal and refusal to set aside that refusal. The underlying dispute concerned his entitlement to incapacity benefit and recovery of overpaid benefit. The Commissioner had dealt only with the incapacity-benefit decision, identified by reference U/45/171/2002/01430, and had not determined an application concerning the separate recovery decision.

The central issues were whether the Commissioner’s refusal was unlawful and whether the Appeal Tribunal’s factual conclusions disclosed the exceptional defect required for judicial review where statutory appeal rights were unavailable.

1. The application was dismissed. The Commissioner had refused permission only in relation to the incapacity-benefit appeal, reference U/45/171/2002/01430. The separate recovery appeal, reference U/45/171/2002/00878, had not been determined by him and was outside the scope of the claim.
2. The court applied, at least on the assumption that it governed the case, the exceptional-case approach stated in R (Strickson) v Preston County Court & Others [2007] EWCA Civ 1132. Judicial review may be available where the judicial process has been frustrated or corrupted. That may include a failure altogether to inquire or adjudicate upon a matter which the tribunal was unequivocally required to address, a substantial denial of a fair hearing, or conduct amounting to a comparable fundamental defect. Mere error, including an extreme error of law or fact, does not suffice.
3. The Appeal Tribunal had considered oral and documentary evidence concerning the claimant’s health, work and earnings. Its questioning of witnesses, including requiring evidence on oath, disclosed no procedural unfairness. Its factual analysis was rational and its conclusions followed sensibly and logically from the evidence.
4. The Commissioner was therefore entitled to conclude that no error of law had been shown. The claimant could not convert the asserted inconsistency between the earlier recovery decision and the later incapacity decision into perversity or a fundamental failure of process. The application for judicial review was dismissed.

First-instance judicial review proceedings. The judgment records that permission was initially refused by Sullivan J on 8 March 2007 and granted after an oral hearing by Burton J on 24 July 2007. The claim was subsequently stayed by consent, the stay was discharged in February 2009, and the claim was dismissed by the Administrative Court.