Foss v Secretary of State for Work & Pensions

Permission for a second appeal requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear it. Complaints confined to case-specific factual findings and the application of law to those facts do not ordinarily satisfy the first limb. A compelling reason must have an evidential foundation. Allegations unsupported by evidence, or contradicted by the evidence, do not suffice. Associated disclosure may be refused where much of the material has already been disclosed and the allegations lack evidential support.

Mrs Foss sought renewed permission for a second appeal from an Upper Tribunal decision dated 18 February 2010. The Upper Tribunal had upheld the dismissal of her appeal concerning three income support claims and the habitual-residence requirement under Regulation 21, then Regulation 21AA, of the Income Support (General) Regulations 1987. The Upper Tribunal refused to set aside its decision and later refused permission to appeal. The Court of Appeal considered whether the criteria under the Civil Procedure Rules 1998, rule 52.13, were met and whether further disclosure should be ordered. The relevant Upper Tribunal proceedings were CIS/1857/2007 and CIS/1858/2007.

The renewed application for permission to bring a second appeal was refused. The ancillary application for disclosure or release of evidence was also refused.

1. Second-appeal threshold. Under rule 52.13 of the Civil Procedure Rules 1998, a second appeal requires an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear it. The court held that those criteria were not satisfied.
2. Nature of the proposed grounds. Mrs Foss’s complaints concerned the factual findings made in her case and the application of the law to those facts. They therefore raised no important point of principle or practice. Allegations of factual or legal error, procedural impropriety, breaches of natural justice, or unlawfulness did not alter that conclusion where they remained specific to the case.
3. Compelling reason and disclosure. The allegations relied upon to establish a compelling reason, and to justify further disclosure, were unsupported by evidence or contrary to the evidence. In addition, much of the material sought had already been disclosed and was contained in the Upper Tribunal bundles.
4. Order. Permission for the second appeal was refused, together with the application for further disclosure.

• Court of Appeal (Civil Division) — Renewed application for permission for a second appeal refused. Ancillary disclosure application also refused.
• Upper Tribunal, Administrative Appeals Chamber — On 18 February 2010, appeal dismissed. Application to set aside refused on 28 April 2010; permission to appeal refused on 7 July 2010.
• Social Security Tribunal — On 6 November 2006, appeal dismissed against the refusal of three income support claims.