England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Friday 21st June 2002

1. LORD JUSTICE PILL: This is an application by Mr Maurice Logan-Salton for an extension of time and permission to appeal against the decision of a Social Security Commissioner dated 11th October 2001. The Commissioner has refused permission without giving reasons. The basis for the claim which the applicant had made was for the mobility component of the disability living allowance. The claim was initially refused, but was for a limited period granted by a tribunal. The application for disability living allowance came before a tribunal sitting at Newcastle upon Tyne on 21st June 2000. What happened at the hearing is set out by the tribunal in their record of proceedings. By way of summary of the applicant's case:

"I have been represented by CAB, having given instructions to CAB in about April 2000. I heard 10 minutes ago (at about 3.00 pm) that my representative had been taken ill and would not be able to appear. He has however prepared a written submission and I am content to proceed it on the basis of that submission. I accept that my walking ability had increased to a point where I would not satisfy the criteria for the mobility component by 4 June 1999 when examined by Dr Stevenson.

I only seek to argue entitlement to the mobility component of DLA from 29 September 1995 to 4 June 1999 as a maximum period."

2. Having considered such evidence as was before them, the tribunal concluded:

" ..... at June 1999 he would no longer satisfy the criteria for the award of the mobility component of DLA. We find as a fact that that is the position.

The tribunal considered the medical record summary produced by the appellant. From that summary it is apparent that lung capacity had increased by September 1997. It is clear that between September 1997 and June 1999 there was no deterioration and the condition having been identified it appears that it was then controlled by appropriate drugs and the condition was possibly reversed in the sense that an increase in lung capacity was achieved.

We therefore consider and find as a fact that the walking ability found by the doctor in June 1999 existed at September 1997 and for this reason we allow the appeal so that the mobility component of DLA is in payment from 29th September 1995 to 28th September 1997."

3. Thus the applicant succeeded for a part of the period but failed for the period of about 80 weeks between September 1997 and June 1999.
4. In relation to the medical findings the applicant says that originally there was a mis-diagnosis. There is also a further ingredient in his condition which he says was not fully considered. I will refer to that in a moment. It does not directly relate to the application for permission to appeal. The basis of the application is that the tribunal did not have before them a medical report of Dr Garnett dated 9th September 1998. That is a report obtained at the initiative of the Department, not of the applicant. It was a routine report as isi from time to time obtained when a person is in receipt of benefits. It is in pro forma with detailed written comments by Dr Garnett, and is made on the standard departmental form headed Incapacity for Work Medical Report Form. It is not necessary to consider the report in detail. There are features in it which support the applicant's case that he was, as of that date, still entitled to the allowance. Of course I am not considering the merits of the report at this stage or importance that might be given to it. The report was not before the tribunal.
5. The applicant confirms that he did tell the tribunal that he was ready to proceed. I hope he will not mind if I make the comment that undoubtedly he is an intelligent man but with a somewhat diffident manner. He has addressed me orally this morning on his own behalf. He has told me that he would not have regarded it as good manners to take the adjournment offered to him. He seemed to be the only person there. Members of the tribunal had obviously gone to some trouble to be present. He thought that in those circumstances he should proceed.
6. He submits that there should be a re-hearing before a tribunal because the application could not properly be considered without the tribunal having the report of Dr Garnett before it. This point, along with other points, was taken by way of appeal to the Commissioner.
7. I state the ground of appeal set out in the decision (paragraph 4):

"the tribunal did not have before it all the available evidence, which the claimant did not have with him at the hearing, as he had expected his representative to present his case, and had been notified very shortly before the hearing that the representative had been taken ill."

8. I add that there is no reason whatever to doubt the accuracy of the applicant's account of what happened at the hearing, including the fact that he was let down by the representative he expected to be present at very short notice. The Commissioner dealt with the point at paragraph 6:

"As the Secretary of State's representative correctly submits, there was no error on the part of the tribunal in failing to take into account evidence which was not before it. There is no evidence that the tribunal were aware of the reports by an examining doctor for incapacity benefit claim by the claimant carried out on 9 September 1998, and in his letter of notice of appeal of 3 July 2000, the claimant enclosed three copies of that report for the benefit of the tribunal at that stage. The tribunal did not err in law by failing to call for this additional evidence. As submitted by the Secretary of State's representative, it is well established law that there is no deemed transfer of information between officers dealing with separate benefits within the benefit system as a whole."

9. I should mention one further aspect of the medical issue which would arise upon a re-hearing. There is a report by way of a letter from Dr Paul Corris dated 11th May 1998 which introduces a different feature into any analysis of the applicant's medical condition; that apparently was before the tribunal. But the applicant makes the point that it would likely have been given more weight had it been accompanied by the report of Dr Garnett, so that the weight of evidence a fresh tribunal would consider is substantial compared with what it had before it when the decision was taken.
10. I have to bear in mind the importance of the principle of finality justice is important, that matters should be dealt with when the opportunity is given and it is not routinely that a party can fail to put in evidence before a tribunal and seek to put it in at a later stage. I do find it surprising that the applicant did not at least draw attention to the existence of the report, but, as I have said, he was concerned, and one appreciates the public spiritedness in which he was, that the case should be resolved on that day. He may not have understood the significance of the report. Certainly he was expecting the representative to be present and to produce the report to the tribunal. I have regard to that principle. I also have regard to the fact that this is not a dispute between members of the public; this is a claim for a benefit out of public funds to which the applicant would be entitled if he meets the appropriate criteria.
11. I have set out the facts in some detail, and a good deal more detail than I would normally do when granting permission. I have done so because I have had the advantage of oral submissions from the applicant.
12. Notwithstanding the failure to produce the report at the time, I have come to the conclusion that it is arguable that there should be a fresh hearing before a tribunal at which the tribunal has an opportunity to consider the additional medical evidence. The amount involved is not insubstantial. The applicant is unable to tell me the weekly rate but the period involved is a substantial one, and this is not a case where permission should be refused on the basis that the amount involved is less than significant. I have put to the applicant the risk he faces in costs if his application is unsuccessful, and he wishes to proceed with it.
13. In my judgment the applicant has an arguable case that there should be directed a re-hearing of his case with the advantage of the further medical evidence in the particular circumstances of this case. I am supported in that view by the fact that the Secretary of State in his submissions to the Commissioner took a point, and did add a recommendation at paragraph 5.2 that if the Commissioner should set aside the decision of the tribunal - though that was at the Secretary of State's behest -

"I would respectfully submit that the report dated 9.09.98 by an Incapacity Benefit Examining Doctor should be taken into account by the new tribunal."

14. Plainly the Secretary of State has taken the view that the report is a relevant one.
15. In my judgment the applicant has an arguable case and permission is granted. I grant the extension of time having heard the applicant's account as to why delay occurred.
Order: Application allowed