England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
(Social Security Commissioner Jacobs)

		Royal Courts of Justice Strand London WC2 Monday, 25th March 2002

Monday, 25th March 2002

1. LORD JUSTICE BUXTON: This is an application by Mr Michael Brocking who seeks to appeal a decision of Mr Commissioner Jacobs dated 14th January 2002. This matter has had a long and to some extent unfortunate history, which I will attempt shortly to summarise: though it is, I have to say, clearly well in the mind of Mr Brocking, who has taken an informed interest in these matters throughout.
2. Mr Brocking had the misfortune to suffer an injury as long ago as June 1991, and took voluntary redundancy on medical grounds. He was in receipt of income support until October 1995, when he took up a position with the London Borough of Lambeth where he remained employed until July 1996, since which date he has unfortunately been unemployed. In January 1997 he was advised by the Employment Service that he should claim incapacity benefit instead of, or in addition to, job seeker's allowance. In January 1998 he was informed by the Benefits Agency that he could not back-date his claim in respect of disability to 1991, and an adjudication officer rejected a claim in respect of the period 1st January 1991 to 3rd July 1996, which was the period for which Mr Brocking claimed.
3. Various proceedings followed. Mr Brocking continued to be unsuccessful and he appealed, as was his right, to the Social Security Appeal Tribunal. The first hearing before that body accepted that there was no evidence before the adjudication officer that Mr Brocking was incapable of work.
4. However, there was a rehearing in April 1999 where Mr Brocking's appeal was allowed. It was found that he had not been capable of working and was entitled to disability premium from 3rd June 1991 to 9th October 1995. That was on the basis principally of a statement signed by a Dr Saraway.
5. The adjudication officer then appealed that decision to the Social Security Commissioner. He was granted permission to do so by the Chairman of the SSAT on 31st July 1999. The grounds of that appeal were that the Tribunal, somewhat obscurely, stated that the Tribunal did not establish the grounds for review, that it had not dealt with the question of restriction of capability on review, and that it had not considered the qualifying period for disability premium. It is clear and accepted that that last reference incorrectly referred to a part of the legislation which deals with persons who are blind, which fortunately Mr Brocking is not. His disability is otherwise.
6. Submissions were invited as to the adjudication history. It was apparently originally the posture of the Secretary of State that the decision of the adjudication officer could not be supported. The matter came before Mr Commissioner Jacobs on 28th June 2001, proceedings in which Mr Brocking was represented by counsel and presumably also by solicitors.
7. Before me he makes two complaints about the procedure up to then. First of all, he says that the Secretary of State should not have been permitted to appeal at all, because (without going into the details) his application had been out of time. Secondly, he says that leave should not have been granted because the grounds upon which leave was sought, which I have briefly summarised, were misconceived and ineptly stated in law. Therefore no leave should have been granted, and Mr Commissioner Jacobs should not have heard the case at all on 28th June 2001. It should have been dismissed or struck out.
8. It appears that no such application was made to Mr Commissioner Jacobs. I have to say that, whether it was right or wrong that that happened, it is too late now for complaint to be made about the first two matters of which Mr Brocking would wish to make complaint; and certainly it is too late now to appeal any decision of Mr Commissioner Jacobs taken on 28th June 2001 on the basis of the matters complained of.
9. What the Commissioner decided on that day was that the decision which was appealed to him had indeed been erroneous in law. He decided that, rather than send this lengthy story back to yet another Tribunal, he would make the decision himself at a further hearing, effectively exercising the powers of the Social Security Appeal Tribunal. He gave directions on 29th June, requiring the Secretary of State to provide what was described as a fresh submission, on the basis that the claimant was appealing against two decisions - first of all, the decision made by the adjudication officer refusing to review the earlier decision that the claimant was not incapable of work for the period 1st January 1991 to 3rd July 1996; and, secondly, the decision made by the adjudication officer deciding not to review the decision to award income support to the claimant. Mr Commissioner Jacobs directed that the submissions deal with capacity to work, entitlement and disability premium and the payability of the award. He also invited submissions on the other issues raised by the claimant. At that stage therefore, although the background was of review of earlier decisions, it was the case that Mr Commissioner Jacobs was, as I have said, sitting effectively as tribunal, and it was for Mr Brocking to establish that he had been incapable of work for the period in issue, in particular 1991 to 1996. That, as I have endeavoured to explain to Mr Brocking, is precisely because the decision quashing the Tribunal's original decision had already been taken on 28th June 2001 in the proceedings in which he was represented, and it was then for the Commissioner to take the decision once again.
10. An unfortunate aspect of the proceedings before the Commissioner from which this appeal is brought is that the Secretary of State, having originally taken the view that the evidence had been adequate to establish Mr Brocking's disability, then produced a further and detailed skeleton argument which was promoted by counsel, complaining that the evidence relied on by Mr Brocking did not in fact comply with the requirements in particular of the Medical Evidence Regulations 1976, Regulation 2 and Schedule 1. That skeleton was not sent to Mr Brocking, as it should have been, and was only put before him on the day of the hearing. That was unsatisfactory. Mr Brocking has reason to be dissatisfied. But Mr Commissioner Jacobs did deal with that matter, he was not asked by Mr Brocking for an adjournment, and the Commissioner, at the hearing, satisfied himself, as he said, that Mr Brocking had been fully able to deal with the matters that the Commissioner himself dealt with.
11. So far as the decision was concerned, the Commissioner accepted the criticism made by the Secretary of State of the adequacy of the medical reports. I asked Mr Brocking today to say what he complained of in the Commissioner's decision in that respect. He said that the Commissioner had not given weight to Regulation 2(1)(d) of the Regulations. That permits the admission, in certain circumstances, of evidence that does not meet the requirement of Schedule 1. I am far from clear that it was incumbent on the Commissioner to do that, since it has to be established that it would be "unreasonable" to require the person concerned to provide a compliant statement, and Mr Brocking has said nothing to me that would suggest that it would have been unreasonable in his case to make that requirement. But be that as it may, Mr Commissioner Jacobs, in paragraphs 20 and 21 of his adjudication, quite clearly did take into account, though he was not persuaded by them for other reasons, the certificates that Mr Brocking had proffered. Therefore Mr Brocking did not lose anything by whatever view Mr Commissioner Jacobs did or did not take of the requirement of Regulation 2(1)(d).
12. So far as Mr Commissioner Jacobs' general decision is concerned, it was a matter for the Commissioner on the facts as they were before him to determine the factual question in respect of which, as I say, Mr Brocking bore the burden of persuasion as to the capability of Mr Brocking to work during the period in question. There is no prospect of this court reversing or departing from the judgment that the Commissioner came to. He made it clear that he had given Mr Brocking full weight at the Tribunal, and had satisfied himself as to Mr Brocking's ability to conduct the case and to deal with the matters with which the Commissioner was concerned.
13. Mr Brocking before me this morning says that the Commissioner did not deal with any of the original grounds of appeal. As I have sought to explain to him, that was because he had dealt with the grounds of appeal and granted permission on the basis of them in the first hearing in June of last year. The hearing in January of this year was, as a consequence of that hearing, not addressing the grounds of appeal at all, but was addressing the basic factual question of Mr Brocking's ability to work. There was therefore no cause for the Commissioner to reopen the matters he had already decided in June.
14. I agree that it is perhaps unfortunate that we have no record, or appear to have no record, of the Commissioner's grounds for his decision in June, but that, in the events that have occurred, is irrelevant; because we are now concerned with the actual decision the Commissioner made in January 2002, and I fear that there is no ground for challenging that decision.
15. I am grateful to Mr Brocking for the way he has put the case, but I cannot give permission to appeal.
Order: Application refused.