Secretary of State for Work and Pensions v Cattrell (Rev 1)

The Court of Appeal held that a second appeal from the Upper Tribunal is confined to a question of law and requires an important point of principle or practice that is not already established, or another compelling reason. Permission cannot enlarge that jurisdiction. Challenges to evidence, factual findings, or the application of settled law to an individual case generally do not qualify.

For regulation 27(b), the tribunal must identify the disablement, assess the probability and gravity of the health risk in the context of possible work, and decide whether any work could be done without substantial risk. If it finds that no work is safe, it need not hypothesise a range of jobs. Evidence that a job centre found no safe work is relevant but not determinative.

The claimant suffered from a latex and rubber allergy. The First-tier Tribunal found that she had a specific disablement and that no work was reliably safe for her. It awarded incapacity benefit under regulation 27(b) of the Social Security (Incapacity for Work) General Regulations 1995.

The Upper Tribunal dismissed the Secretary of State’s appeal. It held that the findings were supported by the evidence and that regulation 27(b) applied, although it identified a contradiction concerning mental health. The Secretary of State brought a second appeal, challenging the substantial-risk approach, the evidential basis, the reasoning, the relevance of possible precautions, and compliance with Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42. The central issues were whether the grounds raised a question of law within the Court of Appeal’s second-appeal jurisdiction and whether the tribunals had erred in applying regulation 27(b).

Appeal dismissed unanimously. Sir Richard Buxton gave the leading judgment. Lord Justice Patten agreed, and Lord Justice Hughes added observations.

1. The Court of Appeal can hear an appeal from the Upper Tribunal only on a question of law. Under article 2A of the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008/2834), a second appeal also requires an important point of principle or practice, or another compelling reason. A point of policy or general importance cannot create jurisdiction. An important point of principle must be one that is not already established, as explained in Uphill v BRB Residuary) Ltd [2005] EWCA Civ 60.
2. The grounds were inadequately identified, partly unraised below, and unclear in their reformulated form. The Court could not properly replace a legal basis which the tribunals below had not been asked to consider. The complaint that the tribunal had failed to evaluate the evidence or give adequate reasons was, in substance, a challenge to factual findings and to the application of law to the individual case.
3. The caution against substituting the appellate court’s view for that of a specialist tribunal, stated in Cooke v Secretary of State for Social Security [2002] 3 All ER 279 and treated as of general importance in Napp Pharmaceuticals Holdings v Director General of Fair Trading [2002] EWCA Civ 796, applied. The assertion that there was no evidence supporting the risk of anaphylactic reaction was incorrect. The Upper Tribunal had considered the evidence and reached a view which could not be challenged as an error of law. The mental-health contradiction did not undermine the separate physical-health basis.
4. Under regulation 27(b), there must be a causal connection between the disablement and the risk arising from work. Ordinarily the tribunal identifies the range or types of work available to the claimant and considers the risks in that context. However, where it finds as a fact that no work would be safe, it is unnecessary to hypothesise particular employment. The Upper Tribunal had addressed the approach in Charlton and was entitled to rely on the finding that no suitable work was reliably safe.
5. Lord Justice Hughes confirmed that evidence from Jobcentre Plus that it could not find reliably safe work was admissible and could be considered. It was no more than evidence and did not replace the tribunal’s duty to make its own assessment. In each case the tribunal must consider the probability and gravity of the adverse occurrence and whether there was work which the claimant could otherwise do without substantial risk. The determination was fact-specific and was not a precedent for other allergy cases.

The formal order was: Appeal dismissed.

• Court of Appeal (Civil Division): [2011] EWCA Civ 572. Unanimously dismissed the Secretary of State’s second appeal.
• Upper Tribunal, Administrative Appeals Chamber: citation not stated in the judgment. Dismissed the Secretary of State’s appeal and upheld the First-tier Tribunal’s decision, while identifying a contradiction concerning mental health.
• First-tier Tribunal: citation not stated in the judgment. Found that the claimant had a specific disablement and that no reliably safe work was available, and applied regulation 27(b).