Wiles v Social Security Commissioner & Anor

Under the social security appellate regime preceding the Tribunals, Courts and Enforcement Act 2007, a refusal by a social security commissioner of permission to appeal was amenable to judicial review on conventional public law grounds. The reviewing court should nevertheless exercise appropriate caution because commissioners possessed specialist expertise.

Fresh medical evidence supports supersession for a relevant change of circumstances where it assesses the claimant’s current condition and establishes a material change. A later opinion on unchanged facts is insufficient. A detailed comparison with every earlier medical assessment is not invariably required, particularly where the condition can change and several years have elapsed.

The Secretary of State superseded the appellant’s transitional award of long-term incapacity benefit after a new medical assessment found that she no longer attained the required score. The Social Security Appeal Tribunal dismissed her appeal, although it awarded more points than the examining doctor. A social security commissioner refused permission for a further appeal.

Plender J refused permission to seek judicial review of the commissioner’s decision. The appellant appealed with permission from Moses LJ.

The Court of Appeal considered two questions: whether refusals of permission by social security commissioners under the pre-Tribunals, Courts and Enforcement Act 2007 regime were reviewable only in exceptional circumstances; and whether the later medical evidence established a relevant change of circumstances permitting supersession.

1. Appeal dismissed. Under the pre-Tribunals, Courts and Enforcement Act 2007 regime, judicial review lay against a social security commissioner’s refusal of permission to appeal on conventional public law grounds. The settled approach, most clearly articulated in Connolly [1986] 1 WLR 421, had been applied consistently for more than 25 years without evidence of abusive or excessive litigation. It should not be displaced shortly before the regime became of historical interest.

2. The exceptional-circumstances rules developed for county court and Lands Tribunal permission decisions did not determine the position for every statutory appellate scheme. The overarching inquiry was whether the scheme as a whole provided fair, adequate and proportionate protection against legal error. Social security commissioners exercised administrative tribunal functions and frequently decided questions affecting subsistence income, vulnerable people and others beyond the individual claimant. The reviewing court should nevertheless exercise the caution identified in Cooke [2001] EWCA Civ 734, recognising the commissioners’ specialist expertise.

3. A later medical opinion which merely differs from an earlier opinion on the same facts cannot establish a relevant change of circumstances. The decision-maker must determine whether the later report assesses the current condition and contains evidence of a material change. A comparison between all earlier and current reports may sometimes be necessary, but it is not an invariable legal prerequisite. To that extent, the approach in Chamberlain was expressed too broadly.

4. A new opinion given several years later will often suffice where the medical condition is capable of changing and the opinion reaches a different conclusion about capacity for work. Here, the doctor and tribunal relied on current history, observation and examination. Their findings were legally capable of establishing a relevant change under regulation 6(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

5. The decisions concerned the appellant’s current condition rather than a retrospective reassessment of her earlier condition. The commissioner was therefore justified in refusing permission to appeal, and Plender J correctly refused permission for judicial review.

Longmore LJ agreed. Sedley LJ also agreed, adding that fear of a flood of unmeritorious claims was not a proper basis for drawing jurisdictional boundaries.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld Plender J’s refusal of permission to seek judicial review of the social security commissioner’s decision.
2. Administrative Court: Plender J refused permission to apply for judicial review on 30 July 2008.
3. Social Security Commissioner: Mr Commissioner Jacobs refused permission to appeal from the Social Security Appeal Tribunal.
4. Social Security Appeal Tribunal: The tribunal dismissed the appeal against the Secretary of State’s supersession decision.
5. Secretary of State for Work and Pensions: The transitional award of long-term incapacity benefit was superseded and disallowed with effect from 14 March 2007.