Nicholas, R (on the application of) v Secretary of State for Work and Pensions

The Cart threshold is exceptionally high. The second limb requires a legally compelling reason, not mere unfairness or serious consequences. A procedural complaint must ordinarily involve a wholly exceptional collapse of fair procedure.

Inquisitorial tribunals dealing with unrepresented litigants must act fairly and may need to identify material points or evidence whose significance the litigant may not understand. The duty remains fact-sensitive. A tribunal may fairly offer an adjournment and rely on the litigant’s informed choice where the available material gives no obvious reason to obtain further evidence.

The claimant sought judicial review of an Upper Tribunal judge’s refusal of permission to appeal from a First-tier Tribunal decision dismissing her appeal against withdrawal of Incapacity Benefit. She argued that the First-tier Tribunal had acted unfairly by failing to obtain earlier personal capability assessments, or by leaving the choice of adjournment to her while she was unrepresented.

The central issues were whether the First-tier Tribunal’s procedure was unfair and, if so, whether the case met the second limb of the test in Cart v Upper Tribunal [2011] UKSC 28.

1. Claim dismissed. Permission to appeal was refused and costs were awarded against the claimant.
2. The second limb of the Cart test, derived from section 13(6) of the Tribunal, Courts and Enforcement Act 2007, requires a very high threshold. There must be a legally compelling reason for a further appeal. Mere unfairness is insufficient; the procedural defect must amount to a wholly exceptional collapse of fair procedure.
3. The guidance in PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73 and JD (Congo) v Secretary of State for the Home Department [2012] EWCA (Civ) 327 confirmed that extreme consequences do not, without a strongly arguable error of law, constitute a free-standing compelling reason.
4. Tribunals in the Social Entitlement Chamber have inquisitorial responsibilities towards unrepresented litigants. As explained in AT v Secretary of State for Work and Pensions (ESA) [2010] UKUT 430 AAC, intervention may be required where a material point or evidence is apparent but its significance is not understood. The responsibility varies with the facts and jurisdiction.
5. The First-tier Tribunal had identified the absence of earlier assessments, raised the possibility of an adjournment and allowed the claimant to decide whether to proceed. The available evidence suggested gradual improvement rather than a fluctuating or erratic condition. There was therefore no obvious or compelling reason to obtain the earlier assessments or override the claimant’s choice.
6. The approach was fair and reasonable. Even if greater assistance could have been given, the case fell far short of the exceptional Cart threshold.

• First-tier Tribunal: On 28 May 2009, dismissed the claimant’s appeal against withdrawal of Incapacity Benefit.
• Upper Tribunal: On 10 September 2010, refused permission to appeal, finding no arguable error of law.
• High Court (Administrative Court): Permission for judicial review was granted, but the claim was dismissed. Permission to appeal was refused.