COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY
AND CHILD SUPPORT COMMISSIONERS
Wednesday, 25th April 2001
B e f o r e :
LADY JUSTICE HALE
MR. JUSTICE BUTTERFIELD
|- v -|
|SECRETARY OF STATE FOR SOCIAL SECURITY|
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR. D. FORSDICK (instructed by the Solicitor to the Department of Social Security) appeared on behalf of the Respondent.
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"There are conflicts in Ms Cooke's own evidence over the years. For example in a renewal claim submitted in August 1996 Ms Cooke stated that she gets severe discomfort as soon as she starts walking. In contrast in the Disability Living Allowance questionnaire completed by her on 23rd April 1998 she states that she cannot walk far, she is in pain all the time and could walk perhaps 50-60 yards in 10 minutes before the onset of severe discomfort."
They conclude that:
"Because of the inconsistencies in the distances stated by Ms Cooke between 1996 and 1999 the tribunal is satisfied, on the balance of probabilities, that she can walk at least 50 yards before the onset of severe discomfort brought on by pain in her back and left knee. We reached this conclusion because it is based on the evidence of the Examining Medical Practitioner [Dr Spielmann] and Dr. Jones.Their findings in this respect are in the opinion of the tribunal entirely consistent. Furthermore, taking account of Dr. Spielmann's findings, we consider, on the balance of probabilities, that at the date of the Adjudication Officer's review decision she should have been able to walk a further 50 yards before having to halt again because of the onset of severe discomfort."
That being so they concluded that she did not then qualify for the higher rate of mobility component. They went on to consider whether she qualified for the lower rate and found that she did not.
"We believe that Ms Cooke both in the questionnaire and in her evidence to the tribunal, was overstating her care needs. We do not doubt for one moment that she suffers pain because of her condition and noted that Dr Jones states that she is at the severe end of the pain spectrum. Nonetheless, taking account of Dr Speilmann's clinical findings, which the tribunal accept, we do not consider that her grip with either hand is as impaired as is suggested by Ms Cooke. Nor, for the same reason, do we consider that Ms Cooke is having the amount of difficulty getting up and downstairs most of the time as she maintains and as is stated by Dr Jones in his letter."
They earlier found that because of her physical disabilities as at 15th September 1998:
"Miss Cooke reasonably required assistance from another person in connection with her bodily functions of bathing (getting into and out of the bath - once per day) and washing parts of her body difficult to reach (once or twice a day). She also reasonably required assistance with dressing (one/two times a day because of problems with buttons)."
They did not, however, find that she needed assistance with her toilet needs:
"In the 1996 renewal claim pack Ms Cooke stated that she needed help getting to and using the toilet 2 or 3 times per night taking 10-15 minutes each time. On the basis of that statement she was found to have night care needs at the time of renewal of her care award of 1996. In contrast in the 1998 Disability Living Allowance questionnaire Ms Cooke made no reference to needing assistance in using the toilet but stated that she needed assistance getting to the toilet on one or two occasions per night, taking about 10 minutes each time. In view of this difference between the 1996 claimed night needs and the 1998 claimed night needs we prefer, on the balance of probabilities, to accept the findings of Dr Spielmann to the effect that Ms Cooke does not require assistance getting out of the bed by day or by night and getting to the toilet at night. In these circumstances and in the absence of any other stated night care needs we are satisfied that Ms Cooke does not require from another person prolonged or repeated attention in connection with her bodily functions at night."
Therefore she did not qualify for the higher rate care component.
"In our opinion there was sufficient evidence (including in particular the Examining Medical Practitioner's report) before the adjudication officer on 24 7 1998 to suggest that there had been a relevant change of circumstances since the decision dated 9 10 1996. The relevant change of circumstances was that as at 24 July 1998 the evidence available to the adjudication officer suggested that Ms Cooke's mobility needs were not sufficient to justify an award of the higher rate mobility component and that her care needs were only sufficient to justify an award of the lowest rate care component from the same date."
The Deputy Social Security Commissioner upheld the tribunal's decision. The relevant part, for this purpose, of her decision explained that the medical report provided "evidence that the circumstances were not as they had previously been accepted to be."
"(a) the adjudication officer is satisfied that the decision was given in ignorance of, or was based on a mistake as to, some material fact; or
(b) there has been any relevant change of circumstances since the decision was given."
It is common ground between the parties in this case that it is well established in social security law that the threshold to establish the jurisdiction to review is low. However, it is also common ground that it is not enough to show, either a mistake within the meaning of paragraph (a), or a change in circumstances within the meaning of paragraph (b), that a later doctor forms a different opinion from the one formed earlier. There still has to be shown either that there has been a change or that there has been a mistake.
"Where the operative decision that a claimant is incapable of work was given following an actual all work test assessment, the mere existence of a subsequent report from an examining medical officer or of a subsequent unfavourable all work test assessment does not itself amount to a relevant change of circumstances or indicate that the operative decision was given under a mistake as to a material fact. That would be to confuse the outcome of a review with the establishment of grounds for carrying out a review."
Mr. Commissioner Mesher was there preferring the submissions on behalf of the claimant. He went on to say:
"I accept that as a matter of practice an appeal tribunal may start, ... by asking whether it has been shown to its satisfaction that the all work test is not satisfied at the date of the adjudication officer's assessment. However, in considering whether that has been shown, the appeal tribunal must consider and give proper weight to the evidence on which the previous decision was based."
He then goes on to give examples of differences that there might be and concludes:
"Then the principle. . . comes into play that the expression of a new medical opinion is not itself a relevant change of circumstances, but may be evidence of an actual change of circumstances or a mistake of fact."
That much is common ground.
"The Deputy Commissioner referred to a medical report which provides evidence that circumstances are not as they had previously been accepted to be which is not the same as a report which merely offered a different opinion on the basis of the circumstances."
There was therefore in my view no error of law in this case. In my judgment, therefore, this appeal must fail.
" Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that -
(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court of Appeal to hear it."
That criterion is clearly intended to be a somewhat different test from the usual criterion for the grant of permission to appeal, which is whether the appeal would have a real prospect of success, or there is some other compelling reason for the Court of Appeal to entertain it. Now is not the time to debate the precise differences between those two tests. It is clear from the words of the section that it does not apply to the appeal in this case. But many of the reasons underlying that provision apply with equal force in these circumstances, and indeed some might think them stronger.
Order: Application for permission to appeal allowed; appeal dismissed; detailed assessment of the appellant's costs; legal aid assessment.