COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE PLENDER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE LONGMORE
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Mr James EADIE QC and Mr David BLUNDELL (instructed by Office of the Solicitors) for the Respondent
Hearing dates: 24th February 2010
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Lord Justice Dyson:
The legal framework
"(2) A decision under section 10 may be made on the Secretary of State's own initiative or on an application made for the purpose on the basis that the decision to be superseded—
a) is one in respect of which—
i) there has been a relevant change of circumstances…. since the decision was made;
(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Secretary of State has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work)(General) Regulations 1995 from a doctor referred to in paragraph (1) of that regulation".
In what circumstances should an application for judicial review in principle be entertained?
"(1) Should the commissioner in refusing leave have given reasons for his refusal? (2) What is the proper inference to be drawn from the omission of a commissioner to give reasons in refusing leave in cases such as this? (3) In the light of the answers to the first two issues, is this a proper case for the court to interfere with the ruling of Mr Commissioner Monroe?"
"In a case where a commissioner has refused leave to appeal without giving reasons and an applicant seeks to challenge such refusal by way of judicial review, the onus must, in my judgment, lie on the applicant to show either (a) that the reasons which in fact caused the commissioner to refuse leave were improper or insufficient, or (b) that there were no good grounds upon which such leave could have been refused in the proper exercise of the commissioner's discretion. He may well discharge this onus by showing that the decision sought to be challenged was on the face of it clearly erroneous in law or, alternatively, gave rise to a substantially arguable point of law. However, if it can be seen that there are still good grounds upon which the commissioner would have been entitled to refuse leave in the proper exercise of his discretion, the court should, in my opinion, assume that he acted on those grounds unless the applicant can point to convincing reasons leading to a contrary conclusion."
"I acknowledge the clear force of Mr Drabble's submission that the decision sought to be reviewed by Mr Cart was of a type accepted, for good reason, as fit for judicial review when taken by a Commissioner (Woodling, Connolly). But I consider that the advent of UT and FTT now commends a different outcome".
It will be seen from what I have said thus far that I agree with this summary of the pre-TCEA position.
"There are, in or judgment, special factors which fully justify the practice of entertaining applications for permission to claim judicial review of refusals of leave to appeal by the [Immigration Appeal Tribunal]. In asylum cases, and most cases are asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture. The number of applications for asylum is enormous, the pressure on the tribunal immense and the consequences of error considerable. The most anxious scrutiny of individual cases is called for and review by a High Court judge is a reasonable, if not essential, ingredient in that scrutiny."
"This scheme we consider provides the litigant with fair, adequate and proportionate protection against the risk that the judge of the lower court may have acted without jurisdiction or fallen into error. The substantive issue will have been considered by a judge of a court at two levels. On what basis can it be argued that the decision of the judge of the appeal court should be open to further judicial review? The answer, as a matter of jurisprudential theory, is that the judge in question has limited statutory jurisdiction and that it must be open to the High Court to review whether that jurisdiction has been exceeded. But the possibility that a circuit judge may exceed his jurisdiction, in the narrow pre Anisminic sense, where that jurisdiction is the statutory power to determine an application for permission to appeal from the decision of a district judge, is patently unlikely. In such circumstances an application for judicial review is likely to be founded on the assertion by the litigant that the circuit judge was wrong to conclude that the attack on the decision of the district judge was without merit. The attack is likely to be misconceived, as exemplified by the cases before us. We do not consider that judges of the Administrative Court should be required to devote time to considering applications for permission to claim judicial review on grounds such as these. They should dismiss them summarily in the exercise of their discretion. The ground for so doing is that Parliament has put in place an adequate system for the reviewing the merits of decisions made by district judges and it is not appropriate that there should be further review of these by the High Court. This, we believe, reflects the intention of Parliament when enacting s.54 (4) of the 1999 Act. While Parliament did not legislate to remove the jurisdiction of the High Court judicially to review decisions of County Court judges to grant or refuse permission to appeal, we do not believe that Parliament can have anticipated the spate of applications for judicial review that s.54 (4) appears to have spawned.
"The possibility remains that there may be very rare cases where a litigant challenges the jurisdiction of a circuit judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing. If such grounds are made out we consider that a proper case for judicial review will have been established."
"40. In the end, the question which needs to be determined in this case is whether the statutory scheme contained in the 1949 and 1985 Acts, and the regulations made thereunder, for appealing decisions of the LVT on service charge issues can be said to amount to what this court variously described in paragraph  of Sivasubramaniam (echoed in the passage I have quoted from paragraph  in R(G) –v- IAT) as "an adequate system for reviewing the merits" of the first instance decision, and "fair, adequate and proportionate protection against the risk that [the first instance tribunal] acted without jurisdiction or fell into error". If the statutory scheme satisfies that test, as in the case of the scheme for appealing district judges' decisions, judicial review of a refusal of permission to appeal will only be granted in the "exceptional circumstances" as identified in paragraph  of Sivasubramaniam and explained in Gregory. If the statutory scheme does not satisfy the test, as in relation to the scheme for appealing special immigration adjudicators' decisions where the IAT refuses permission to appeal, then the "exceptional circumstances" hurdle will not apply, although it seems to me that one might still have to consider whether it is appropriate to have any, and, if so, what, fetter on the court's ability to grant judicial review.
41. The reasoning in Sivasubramaniam and R(G) –v- IAT indicates, to my mind, that the resolution of the question at issue must be resolved by reference to (a) the generic nature of the issues involved (in this case, residential service charge disputes), (b) the effect of the statutory procedures concerned, particularly those relating to appeals (in this case, section 31A of the 1985 Act, section 3 of the 1949 Act, rules 5C and 5D of the 1996 Rules, and paras 2.1 and 5.6 of the April 2001 practice direction), (c) the nature and constitution of the tribunals involved in those procedures, and (d), in so far as it can be ascertained, the legislative intention (which in this case is also to be gleaned from the aforementioned statutes and regulations). These factors must be assessed (a) against fundamental policy considerations, namely the desirability of finality, with the minimising of delay and cost, and the desirability of achieving the legally correct answer, and (b) against the practicalities, such as the burdens on the Administrative Court and, in this case, the pressures on the Lands Tribunal."
"The intention of the legislature does indeed appear clear. As Mr Karas points out, appeals to the High Court from the LVT are specifically precluded by para 2 of schedule 22 to the 1980 Act (now section 175(9) of the 2002 Act). This is a clear indication that the legislature intended the High Court to be kept out of the procedure. Further, as pointed out by Laws LJ during argument, the very fact that there is no right of appeal to the court under section 3(4) of the 1949 Act against a decision of the Lands Tribunal to refuse permission to appeal, suggests that there should not, save in exceptional circumstances, be a right to seek a judicial review of a refusal of permission to appeal. After all, there is not much difference between appealing a refusal on a point of law, and seeking to have it judicially reviewed on the basis that it was wrong in law."
"45. The nature of the dispute in question, relating as it does to service charges claimed under the terms of residential tenancies, is significant in two respects. First, while disputes relating to residential service charges are of importance to the parties involved, they normally involve questions of detail and often will raise points which turn very much on the particular factual details of the case. Secondly, the disputes will only very rarely involve significant sums of money from the point of view of each tenant. Even from the perspective of the landlord, or of the tenants as a whole, the amount which ultimately turns on a point of law will often be small, especially when compared with the costs of the hearing before the LVT. All the more so if one takes into account the costs of any appeal"
"The 'fundamental human rights' involved in most asylum cases, which clearly carried a lot of weight with the Court of Appeal in Sivasubramaniam as a reason for justifying a right to judicial review of an IAT's refusal of permission to appeal, do not arise here. As Sullivan J said in paragraph  of his judgment, while 'property rights are important', they cannot be 'equated with the fundamental human rights that are in issue in asylum cases'. Nor does the Lands Tribunal suffer from the 'immense pressure' which is placed on the IAT, although, as the judge said, it does have a substantial workload"
"56. I turn to Mr Letman's main point. I do not accept that the mere fact that a decision of the Lands Tribunal refusing permission to appeal was obviously wrong in law would be sufficient to justify its being judicially reviewed. Such a basis for judicial review would fly in the face of the conclusion and reasoning in Sivasubramaniam and in Gregory, which appear to me to be applicable in this case for the reasons given above. Before permission to seek judicial review could be granted, it would not be enough to show that the refusal of permission to appeal was plainly wrong in law. It would also have to be established that the error was sufficiently grave to justify the case being treated as exceptional.
57. I think it is appropriate to say, that there could, in my view, be cases, which would be wholly exceptional, where it would be right to consider an application for judicial review of such a decision on the basis of what could be said to be an error of law. A possible example would be if the Lands Tribunal, despite being aware of the position, refused, without any good reason, permission to appeal on a difficult point of law of general application, which had been before a number of different LVTs which had taken different views on it, and which cried out for a definitive answer in the public interest. In that connection, it seems to me that one could say that it was not so much the point of law itself which justified judicial review, but more the failure of a public tribunal to perform its duty to the public, as well as what one might call its duty to the parties in that particular case."
"But the ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right."
Should judicial review have been granted in this case?
"Based on the history, observation and examination, in my opinion, the above descriptors apply. This is because she has simple mechanical back pain with no evidence of sciatica.
Summary of Functional Ability
Despite complaining of Back Pain, based on the history, examination and informal observations, the customer has for the majority of the time, only mild (not functionally relevant) restriction of sitting, rising and bending or kneeling. Although the history statements, examination findings and informal observations are not all consistent, having carefully weighed all the evidence, I believe that the descriptors I have chosen represent the customer's true level of function.
The level of disability claimed would only occur in very severe acute disc prolapse with severe sciatica and she does not have this."
I have superseded the decision, dated 25.10 1993, which awarded incapacity benefit from and including 11.08.1992. The decision awarding [invalidity benefit] IVB is superseded on the grounds that there has been a relevant change of circumstances since the decision was made, namely that (sic) the change in legalisation repealing IVB.
This is because the Secretary of State has received medical evidence following an examination on 21.02.2007 by an approved doctor, since that decision was given.
The test of incapacity for work in respect of Jane Wiles is the personal capability assessment and she has been assessed and had not attained the required number of points, the total points were 3.
As a result Jane Wiles is not entitled to incapacity benefit from and including 14.03.2007.
"In this case there has been a relevant change of circumstances on 14 03 07 which was that Miss Wiles does not reach the threshold of incapacity required for the personal incapacity assessment. She is therefore capable of work from and including 14 03 07. the decision maker decided that Miss Wiles was entitled to incapacity benefit from and including 25 10 93 and this decision had been superseded from 14 03 07".
He concluded that there was no evidence in the appeal to support the award of further points and the that the threshold of incapacity had not been reached.
"Although, as we have stated, we did not find the appellant to be a reliable witness, based on our own evaluation of the evidence we make the following findings. We find that she told the EMO that she usually sat to watch TV for about 2 hours before having to move. However, on the basis of that and the medical evidence, we accept that she cannot sit comfortably for more than 2 hours without having to move (Descriptor 3e: 3 points). Although we found her evidence in terms of her ability to rise from sitting and to bend and/or kneel not to be credible, nevertheless, given the medical evidence from her GP, we are prepared to accept, on the balance of probabilities, that sometimes she cannot rise from sitting to standing without holding on (Descriptor 5c: 3 points); and that sometimes she cannot either bend or kneel or bend and kneel as if to pick up a piece of paper from the floor and straighten up again (Descriptor 6c: 3 points). We also confirm the EMO's finding that she cannot stand for more than 30 minutes before needing to move around (Descriptor 4f: 3 points). However, for the reasons we have given above, we find that, in terms of the available descriptors, she has no walking problem and no problem in walking up and down stairs. "
"I have considered the argument put by your representative and accept that it is correct. However, that does not mean that you must be given leave to appeal. Leave is only appropriate if the mistake affected the outcome of the appeal. I do not consider that it did. The fact that you were found to be capable of work under the personal capability assessment was a change of circumstances. That by itself was a ground for supersession independent of regulation 6 (2) (g) of the Social Security (Incapacity for Work) (General) Regulations 1995. Accordingly, the tribunal's mistake did not affect the outcome.
I have considered whether the tribunal made any other mistake in law, but have concluded that it did not. The tribunal analysed the evidence rationally. It made all the necessary finings of fact material to its decision. Its analysis of the evidence supported each of those findings. On those findings of fact, the tribunal was entitled to make the decision that it did. There is nothing to suggest that the tribunal misunderstood or misapplied the law. The full statement of the tribunal's decision contains a clear and detailed explanation of why the tribunal made the decision that it did. There was no breach of the principles of natural justice."
Was there a relevant change of circumstances within the meaning of regulation 6(2)(a) of the 1999 Regulations in this case?
"It is essential to recognise that a later different view of the circumstances or condition which prevailed at the time of an earlier decision does not found jurisdiction to review. Different markings on the "all work" test and different overall assessments whether an applicant has satisfied the "all work" test do not necessarily establish that there has been such a change of relevant circumstances or any ignorance of, or a mistake as to, a material fact on the part of the decision-maker when he made the previous decision. The difference may be consistent with a change of material circumstances or such ignorance or mistake, but it may equally be consistent with a difference in the viewpoint and subjective judgment of the medical advisers who conducted the tests. It is for this reason essential to distinguish the two distinct, albeit related, exercises to be undertaken by an adjudicating officer and tribunal, namely to determine first whether there is a change of material circumstances or whether the previous decision was given in ignorance of, or was based on a mistake as to, some material fact, (the positive finding of which is a precondition to exercise of the jurisdiction to review) and secondly whether (assuming that jurisdiction exists) the "all work" test is or is not satisfied."
"To establish the existence of the change of circumstances as a jurisdictional basis for a review, it is not ordinarily satisfactory to rely merely on different test results at the different points of time. As Mr Commissioner Mesher says in the passage which I have quoted, the question of change of circumstances requires a separate exercise directed to analysing the claimant's condition at the two points of time (which includes examining the medical officer's reports and other available evidence as to the claimant's condition at the date of the earlier decision) and identifying the relevant differences. Regulation 23 requires the decision to state the fact that the issue of change of circumstances has been addressed, the conclusion reached and the reasons for reaching, and the findings of fact relied on to reach, that conclusion."
Lord Justice Longmore:
Lord Justice Sedley :
"In a matter of jurisdiction it cannot be right to draw lines on a purely defensive basis and determine that the court has no jurisdiction over one matter which it ought properly to entertain for fear that acceptance of jurisdiction may set a precedent which will make it difficult to decline jurisdiction over other matters which it ought not to entertain. Historically the development of the law in accordance with coherent and consistent principles has all too often been impeded, in diverse areas of the law besides that of judicial review, by the court's fear that unless an arbitrary boundary is drawn it will be inundated by a flood of unmeritorious claims. If there are other circumstances beyond those arising from a governor's disciplinary award where the jurisdiction of the court may be invoked to remedy some injustice alleged to have been suffered by a prisoner consequent upon an abuse of power by those who administer the prison system, I am content to leave those claims for decision as they arise with every confidence in the court's ability to protect itself from abuse by declining jurisdiction where no proper basis to establish jurisdiction is shown or by the exercise of discretion to refuse a discretionary remedy for claims within jurisdiction but without substance."
History has proved him right.
"[I]t is no objection to say that it will occasion multiplicity of actions: for if men will multiply injuries, actions must be multiplied too …"