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 A SOCIAL SECURITY COMMISSIONER

		Royal Courts of Justice Strand London WC2 Friday, 3rd May 2002

Friday, 3rd May 2002

1. LORD JUSTICE CLARKE: This matter has a long history. It now comes before the court as an application for permission to appeal from a decision dated 10th September 2001 made by Christine Fellner, who is a Social Security Commissioner, in which she gave permission to appeal out of time against a decision of the relevant tribunal dated 28th May 1999 but dismissed the appeal. She refused permission to appeal to this court on 21st January 2002.
2. The facts are set out in very detailed reasons given by the Commissioner. They include the following:

"4.The appeal concerns a decision of 20 3 98 that the appellant (who was born on 28 11 45) had failed without good cause to attend a medical examination by a doctor approved by the Secretary of State on his capacity for work, under regulations 8 and 9 of the Social Security (Incapacity for Work) (General) Regulations 1995. Failure to attend such an examination in the absence of good cause, will result in a person being found capable of work, and therefore no longer entitled to incapacity benefit (awarded where a claimant has an appropriate National Insurance contribution record) or to incapacity credits, with income support on the ground of incapacity under paragraph 7 of Schedule 1B to the Income Support (General) Regulations 1987, as amended. Regulation 8 (grounds for good cause being set out in regulation 9) is a provision which deems a person capable of work whether he is or not. Its purpose is no doubt to ensure that a detailed medical examination takes place before benefit is awarded, or an award continued, rather than placing entire and indefinite reliance on a claimant's own GP's medical certification ... .

5.The appellant had claimed incapacity benefit, it now transpires, in January 1997 ... .

6.The following year the appellant was called for a medical examination fixed for 19 3 98. It is normal practice for claimants to be called for medical examinations from time to time, though they must under regulation 8(3) be given 7 days notice. Mr Heath [who was for the respondent in the proceedings before the Commissioner] very properly drew attention to this requirement, though pointing out that it was for the appellant to prove any lack of due notice. The appellant made no attempt to take advantage of this provision, and indeed confirmed that he had received due notice. He told me that he had refused to attend the medical because he had not claimed `incapacity benefit'. He considered that the authorities had no right to summon him for an examination for a benefit he had not claimed, though it seems from what he has said since that he would not have objected to attending a medical examination as such. It was the name of the benefit that he objected to, and he says he so informed the authorities ... I have no reason to suppose that his proffered reason for failure to attend the medical examination was other than he has throughout stated - that he did not see why he should attend because he had not claimed incapacity benefit.

7.The matters to be taken into account in deciding whether a claimant had `good cause' for failure to attend a medical on the specified date include, under regulation 9, that he is outside Great Britain (which the appellant was not), his state of health at the relevant time, and the nature of any disability from which he suffers. These factors are not exhaustive, and it is therefore reasonable to suppose that the classic definition of good cause (`some fact which, having regard to all the claimant's circumstances would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did': R(S)2/63) still applies. ...

8.The Benefits Agency found that the proffered reason was not within the definition of good cause, and decided that the appellant was to be treated as capable of work from ans including 20 3 98. It reached its decision in late April 1998. Regulation 18(1)(c) of the Social Security (Adjudication) Regulation 1995 then in force required that a claimant be notified of a decision and at the same time be informed of his right to appeal to a social security appeal tribunal under s.22 of the Social Security Administration Act 1992; and it is clear from the transcript of the hearing before Turner J that both these things were done. But the appellant says he was dissatisfied with the responses he was receiving, and he therefore applied to Turner J for leave to apply for judicial review of the Benefits Agency decision. This application was rejected on the ground that the appellant had not exercised his statutory right to appeal to a tribunal. Turner J advised the appellant to follow the statutory appeal procedures, and if these failed, to claim incapacity benefit. He refused leave to appeal his own decision.

9.The appellant then did appeal, on 27 1 99 [i.e. to the relevant tribunal]. This was 7 months outside the then 3-month time limit for appealing to a tribunal, but it appears that the late appeal was accepted."

3. The Commissioner then described the appeal to the Tribunal, which came before a single member tribunal. The Commissioner continued:

"10.... The single member ... observed `The appellant had provided many documents, most of which were not relevant to the current appeal which concerned his failure to attend a medical examination on 19 3 98'. Her decision, later amplified by the production of a full statement, was to uphold the Benefits Agency decision, on the basis that none of the documents produced provided good cause for the appellant's failure to attend the medical on 19 3 98.

11.The appellant was sent the tribunal's short form decision, as emerged at the hearing before me, with a letter dated 1 6 99, and the full statement with a letter of 29 6 99. ... There can ... be no doubt that, on his own admission, he was given clear instructions as to the next step for him to take.

12.He has said that he sent a copy of the letter of 15 7 99 to this office, and thereby assumed that he had applied for leave to appeal. But I caused inquiries to be made and was assured that there was no record of an application for leave to appeal being received on that date. I can quite understand that a mere copy of that letter, even if received, would not have triggered any action, because it so clearly showed the appellant had been told that he had must first apply to a chairman for leave to appeal, yet also showed that he intended a wholly different course.

13.This was, as set out in paragraph 18 of the letter, a further application for judicial review. The appellant told me he took this course because he was annoyed at what had happened at the tribunal and considered it constituted a breach of Article 6 of the European Convention on Human Rights. He appeared on 13 4 00 before Newman J having, it appears, already had leave to apply rejected by Sullivan J on the papers. There was also involved in that hearing an entirely separate matter, the refusal of a crisis loan from the Social Fund. His application, which was apparently dated 29 12 99, for judicial review of the tribunal's decision, was rejected. Newman J told him he should pursue the statutory appeal procedure, and refused him leave to appeal to the Court of Appeal. Undaunted, the appellant made an application to the Court of Appeal, which was rejected by Forbes J on 21 7 00. The learned judge recited the appellant's contention that he had sent a copy of his letter of 15 7 99 to the Social Security Commissioners on 20 7 99 by recorded delivery, and was apparently prepared to accept this evidence for the purposes of his judgment. But as this finding was based entirely on what the appellant told him, and as my own inquiries have not shown that this office received anything which could properly be regarded as an application for leave to appeal, I am not bound by the finding.

14.The upshot was that on 3 8 00 the appellant finally lodged a properly constituted application for leave to appeal with this office."

4. The Commissioner then considered in some detail what she described as the application to this office. In short, despite the whole history of the matter, for various reasons the Commissioner gave the appellant permission to appeal. She accepted some of the grounds advanced and rejected others: see paragraphs 15-20 of her reasoned decision.
5. The Commissioner then considered the appeal itself. She said this under the heading "My conclusions on the appeal":

"21.The appellant's reason for refusing to attend the medical is clear: he reiterated it before me. It is that he did not see why he should, as he had not claimed `incapacity benefit'. But he was aware that he was getting a benefit based on inability, through ill-health, to be regularly available for work. Being called for a medical cannot have been entirely unexpected, even if the appellant was unaware of the regulations. In any case, it was not attending a medical as such that he objected to, but only attending one for `incapacity benefit'. I accept Mr Heath's submission that there was nothing in the appellant's state of health (stress) that would of itself have prevented him (in the words of regulation 9) attending a medical. Nor would the nature of any disability from which he suffered - there is no reason to assume that he suffered from a disability other than stress. The appellant himself conceded at the oral hearing that none of the specific examples of good cause in regulation 9 had applied to him. As was said in CIB/17027/96 in relation to regulation 9, failure to attend will be deliberate except where a claimant is unable to make a choice between attendance and non-attendance.

22.Nor does the wider definition of good cause help the appellant. I cannot find that his circumstances were such as would have caused a reasonable person of his age and experience to act as he did, if called up for a medical examination. The test of reasonableness is an objective one, and the burden is on the claimant. Any confusion between income support and incapacity benefit (and Mr Heath conceded there might be some from the wording of the claim form) does not prevent other people in the appellant's position from doing as the regulations provide and attending a medical. An untold number of people switch from benefit on the ground of unemployment to benefit on the ground of incapacity. The appellant made no case that he had received wrong or misleading advice from anyone he might have thought qualified to give such advice. He says that having objected to an examination when he originally claimed what clearly was `incapacity benefit', he assumed a similar objection would be successful this time. Being without the correspondence seen by Turner J, I cannot be sure whether the Benefits Agency explained that it would not. But the appellant was given a chance to explain his non-attendance before the disqualifying decision was made, yet provided nothing to satisfy regulation 9.

23.The appellant may be obstinate, and wedded to his own view of the fitness of things. But there was nothing in such evidence as there was of his medical condition, nor in his demeanour before me, that indicated he was other than capable of exercising the faculty of reason, even if he did not choose to do so. His appeal therefore fails."

6. The Commissioner then added:

"24.It is not within my jurisdiction to adjudicate upon his claims for aggravated and exemplary damages against the DSS (Department for Work and Pensions as it now is), which as most recently formulated amount to £10 m."

7. As I indicated earlier, the appellant, now the applicant, made an application to the Commissioner for leave to appeal. The Commissioner refused that application on 21st January 2002 in these terms:

"In the matter of an application by the claimant for leave to appeal on a question of law from the decision of the Commissioner dated the 10th day of September 2001.

Leave to appeal is refused. The ground of the application for leave is, it seems, that I failed to take into account the expense to which the claimant had been put in pursuing a legal action by the DSS refusal of relief or redress which it could have rectified in a few minutes and which refusal violated his ECHR and human rights. It will be clear from my decision that I have held the original decision of the DSS to have been correct and that the claimant's various applications to the superior courts were misconceived, as indeed those courts uniformly held them to be. In any event, the ground is asserted in connection with the claim for damages over which, as I say, I have no jurisdiction."

8. She added:

"The appropriate court is the Court of Appeal."

9. That last sentence is somewhat curious. It must, I think, simply mean that an application for permission to appeal from the decision of a Social Security Commissioner who has refused permission to appeal lies to this court. She cannot have meant that on such an appeal this court has jurisdiction to award damages against the respondent, because this court plainly has no jurisdiction on an appeal against a decision of a Social Security Commissioner to award damages.
10. I detect no error in the reasoning of the Commissioner which would provide the applicant with any prospects, let alone any real prospects, of success on appeal. It is suggested that the applicant's rights under Article 6 and Article 8 of the European Convention on Human Rights have somehow been infringed. There is no possibility whatever of this court reaching that conclusion. It is indeed plain from the very detailed reasoning of, and consideration given by, the Commissioner that he was given a very fair hearing before her. In short, there is no possible basis on which I could permit an appeal from her decision.
11. I would only add this. It appears that the applicant's principal purpose is, or at least seems to be, to recover damages and costs to which he says he is entitled. He originally claimed some £5 million, then in July 2001 he increased his claim to £10 million and he now claims £12 million.
12. The applicant, Mr Shine, has appeared before me this morning and has put his points very courteously, if I may say so. But I have to say that this court simply has no jurisdiction to consider those claims. He would have to pursue them before a court of first instance. However, I should say that the whole claim does appear to me to be fanciful and that it is really fanciful to suppose that he would ever be able to get such a claim on its feet. However that may be, this application must be refused.
13. I would just like to end by expressing the hope, which I expressed to Mr Shine before beginning this judgment, that it is surely time for him to decide that enough is enough, even though I can understand his frustrations over the many problems which he has faced over all these years.
Order: Application dismissed.