CM v The Secretary of State for Work And Pensions

Permission to appeal may be granted where a proposed challenge raises an important question of principle and presents an argument of sufficient force, even though the lower tribunal’s decision appears sensible and well considered. New evidence unavailable below may materially strengthen the proposed appeal and justify directions for its admission before the appeal hearing.

This was a renewed application for permission to appeal from the Upper Tribunal (Administrative Appeals Chamber), case no CDLA/937/2012. The dispute concerned the cessation of disability living allowance for a child after more than 84 days in hospital. The applicant argued that the regulatory rule was incompatible with Articles 8 and 14 read with Article 8. The Upper Tribunal had upheld the rule’s lawfulness. The central issue was whether permission should be granted and whether new statistical evidence, unavailable before the Upper Tribunal, should be admitted.

1. Permission granted. The Upper Tribunal’s decision was regarded as sensible and well considered, but the proposed appeal raised an important question of principle concerning the compatibility of the 84-day hospital rule with Articles 8 and 14 read with Article 8.
2. The applicant’s argument had sufficient force to warrant permission. The court noted the contention that families continued to care for their severely disabled child and incur expenses while the child was in hospital, including possible additional travel costs. The court did not determine the substantive compatibility issue.
3. New statistical evidence, unavailable before the Upper Tribunal, significantly strengthened the applicant’s case. The applicant was directed to issue an application for admission of that evidence. The application was to be heard immediately before the appeal and by the same constitution.

• Court of Appeal (Civil Division) — On a renewed application, permission to appeal was granted. Directions were made for an application concerning new statistical evidence.
• Upper Tribunal (Administrative Appeals Chamber) — In case no CDLA/937/2012, the tribunal held that the disability living allowance regulation was lawful.