Neutral Citation Number: [2009] EWHC 1096 (Admin)
Case No: CO/9034/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/05/2009 

Before :

THE HONOURABLE MR JUSTICE WYN WILLIAMS
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Between :

	THE QUEEN on the application of 
DAVID ROBERT PURGLOVE
	
Claimant	
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THE SOCIAL SECURITY COMMISSIONERS
	
Defendant	
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THE DEPARTMENT FOR WORK AND PENSIONS
	
Interested Party	
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 (Transcript of the Handed Down Judgment of
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The Claimant acted in person 
Mr Rory Dunlop (instructed by The Official Solicitor of the Department for Works and Pensions) for the Interested Party

Hearing dates: 6 May 2009
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Judgment
Mr Justice Wyn Williams: 
1.	In these proceedings the Claimant challenges the lawfulness of a decision of the Defendants made on 16 June 2005. By that decision the Defendants refused to set aside an earlier decision made on 16 May 2005 refusing the Claimant permission to appeal against a decision of an Appeal Tribunal made on 27th January 2005. I say a decision for reasons which will become obvious in due course.
2.	The relevant background is comparatively complicated and I take my recital of the background facts from a document prepared on behalf of the Claimant dated January 2005. This document was presented to the Appeal Tribunal in support of the Claimant’s stance and it was prepared by a Mrs Edwards who was an employee or volunteer engaged by the Citizens Advice Bureau.
3.	The Claimant was born on 24 August 1944. As a child he suffered from Perthes Disease – a deformity of the right hip. This condition has had the effect of restricting the Claimant’s mobility throughout his adult life. In the early 1990s the Claimant was awarded mobility allowance on account of that condition and throughout all relevant periods of time he continued to receive the disability living allowance higher rate mobility component. In practice the benefit was taken in the form of a motor car leased under the motability scheme.
4.	In around 1988 the Claimant began to suffer from severe joint swelling and pain. That condition has persisted.
5.	In February 1995 the Claimant collapsed with what appeared to be a heart attack and spent two weeks in hospital. His condition was diagnosed as severe angina and he became significantly incapacitated. In early 1997 the Claimant underwent an angioplasty and a stent was inserted. Apparently that had the effect of curing or substantially diminishing his angina but, nonetheless, from 1997 the Claimant still had persisting hip problems and inflammation of his joints.
6.	Apart from disability living allowance the Claimant claimed no social security benefits until 1995. Following his collapse he made a successful claim for incapacity benefit. He continued to claim such benefit from 1997 notwithstanding the successful treatment of his heart condition on account of his joint problems.
7.	In April 2002 the Claimant’s financial affairs were the subject of an investigation. Incapacity benefit was stopped. Apparently the Claimant was interviewed under caution by officers of or appointed by the Interested Party. Although no criminal proceedings were taken against the Claimant, on 10 June 2002 the Interested Party assessed the Claimant as being capable of work from 1 October 1995 and, further, concluded that the Claimant had not been entitled to incapacity benefit from 1 October 1995 which state of affairs was continuing.
8.	On 14 August 2002 the Interested Party revised its decision of 10 June 2002. It did so by making an assessment that the Claimant was capable of work from 1 October 1995 to the 31 May 2001. The Interested Party accepted that the Claimant was unfit to work thereafter. On 20 August 2002 the Interested Party assessed that the Claimant had been the subject of an overpayment of benefit of more than £18,000. It also determined that the sum paid to the Claimant was recoverable from him.
9.	The Claimant appealed against the Interested Party’s decisions as was his right. On 24 June 2003 an Appeal Tribunal heard the Claimant’s appeals against the decisions of 14 August 2002 and 20 August 2002. The Tribunal upheld, very substantially, the decision of 14 August 2002. It determined that the Claimant was not entitled to incapacity benefit from 1 October 1995 to 28 February 2001. It issued a notice to that effect under reference U/45/171/2002/01430. The Claimant’s appeal in respect of the amount of benefit repayable was much more successful. The Appeal Tribunal found that the Claimant was liable to repay benefit received in the period 1 October 1995 to 29 September 1996. The Tribunal issued that decision under reference U/45/171/2002/00878. As I understand it the appeals were heard together and the Claimant was legally represented.
10.	In summary the Appeal Tribunal found that the Claimant was liable to repay benefit for the limited period between 1 October 1995 and 29 September 1996 because in September 1996 and thereafter he had disclosed to the Interested Party the fact that he was engaged in business and earning money there from. I will deal with the Claimant’s contentions about his work and ability to work later in this judgment. 
11.	The Claimant appealed to the Defendants. The Defendants treated his appeal as being appeals against both decisions. That is clear from the written decision of the Defendants dated 3 September 2004. Paragraphs 1 to 3 of the decision of the Defendant dated 3 September 2004 read. 
“1. I find that the decisions of the Appeal Tribunal (“the Tribunal”) held on 24 June 2003, erred in point of law. Accordingly, under section 14(8) of the Social Security Act 1998, I set aside the decisions and remit them for redetermination by a differently constituted tribunal.
2. The Tribunal dealt with two appeals. One was in respect of the Claimant’s entitlement to incapacity benefit (under reference U/45/171/2002/01430) which I shall call “Case 1”. The other appeal was against the decision-maker’s decision that the incapacity benefit paid to the Claimant was recoverable which was dealt with by the Tribunal under reference U/45/171/2002/00878 and which I shall call “Case 2”. All references to page numbers, unless otherwise stated are references of the papers in Case 2.
3. The Claimant sought a full Statement of Reasons, and subsequently leave to appeal, only in respect of case 2 by a faxed letter of 14 July 2003. Nonetheless, the Statement of Reasons deals briefly in paragraph 4 with the Claimant’s capacity for work, and from the Chairman’s comments in granting leave to appeal (page 235), it is clear he had both appeals in mind. Having reconsidered the file, I propose to proceed on the basis that both decisions have been appealed, as this was also clearly in the mind of the claimant’s representative, and there is no distinction between the cases in consideration of the appeal.”
12.	On 27 January 2005 the Appeal Tribunal considered the two cases afresh. In respect of the appeal with the reference ending 01430 the Appeal Tribunal concluded that the Claimant had not been entitled to incapacity benefit between 1 October 1995 and 28 February 2001 i.e. it reached the same conclusion as the earlier Tribunal. In respect of the appeal having the reference ending 00878 the Appeal Tribunal concluded that the Claimant was liable to repay the benefits he had received between 1 October 1995 and 28 February 2001. It concluded that he had not disclosed his remunerative work until after 1 March 2001.
13.	On 3 February 2005 the Claimant wrote to the Appeal Tribunal requesting a statement of reasons for its decision. His letter gave as the relevant reference U/45/171/2002/01430. On 14 April 2005 the Appeal Tribunal provided detailed written reasons. It is clear that it confined itself to providing reasons why it had concluded that the Claimant was not entitled to incapacity benefit between 1 October 1995 and 28 February 2001. The reasons provided did not touch upon whether or not the Claimant was liable to repay the benefit he had received in that period.
14.	Following receipt of the reasons the Claimant applied to the Appeal Tribunal for permission to appeal. The Claimant sought permission from the Tribunal to appeal against its decision. I say its decision since the notice of appeal, which is in a standard form, made reference only to the appeal having the reference ending 01430. The Appeal Tribunal refused permission. As was his right, the Claimant sought permission to appeal from the Defendants. As I understand it the notice of appeal which had been submitted to the Appeal Tribunal was submitted to the Defendants. The Claimant also sent a covering letter. In the covering letter the reference ending 01430 was used but the letter speaks more generally about previous decisions of the Appeal Tribunal. On 16 May 2005 Commissioner Jacobs refused the Claimant’s application for permission to appeal. The salient parts of the Commissioner’s letter were:
“I can only grant leave on a point of law. In your case the Tribunal did not go wrong in law. 
1.	….
2.	…..
3.	…..
4.	…… 
5.	Your essential complaint is that the Tribunal analysed the evidence wrongly and came to the wrong conclusion on the facts. Those do not involve issues of law. The tribunal’s analysis was rational and informed by the expertise of the financially qualified panel member. Its conclusions of fact follow from its analysis of the evidence. It …… was entitled to come to the decisions that it did.”
15.	The Claimant applied to the Commissioner to set aside his decision. That application was rejected on 15 June 2005.
16.	On 16 June 2005 the Defendants wrote an important letter to the Claimant. It reads:- 
“The Commissioner has issued a determination, a copy of which is attached. 
Although the Commissioner has refused to set aside his refusal of leave, he has asked me to draw the following to your attention. Your application for leave that was considered and refused by the Chairman referred only to U/45/171/2002/01430, which dealt with the issue whether you were treated as capable of work as result of the fact that you were working. There was a related appeal U/45/171/2002/00878, which dealt with the resulting overpayment. Your OSSC1 form did not identify that decision as being the subject of your application. The Commissioner does not know whether or not that was intentional. 
If you wish to pursue an application for leave against the decision to recover that overpayment, you will need to apply for leave separately for the Chairman and to identify errors of law that relates specifically to the Tribunal’s recovery decision. As the Commissioner has not seen the Tribunal’s reasons on the recovery issue, he obviously does not know whether or not an application for leave will be successful.”
17.	On 13 July 2005 the Claimant apparently sent a judicial review claim form to the Defendants together with other documentation. He also sent the Defendant a letter dated 25 July 2005. Those documents are not before me. However the sending of that documentation provoked a further letter from the Defendants dated 1 August 2005. I quote the letter in full:- 
“I am writing in response to your letter of 13 July enclosing a judicial review claim form and attached documents, and your letter dated 25 July addressed to the Commissioner. The Commissioner has seen all these documents and has asked me to reply. 
It is not clear from the judicial review claim form you sent us whether you have yet filed it in the Administrative Court. I am writing to tell you that it is not valid as a claim until you have done so. If you have filed it you should reply with a date of filing and the Administrative Court reference number. If you have not, you should serve the Claim Form on the Commissioner at this address after you have filed it. The Commissioner will however take no part in the proceedings and the Administrative Court will be notified accordingly.
I appreciate that in your letter to the Commissioner of 25 July you objected to the late delivery of our letter of 16 June 2005. I am sorry but I do not know how that happened. However you may wish to consider the contents of that letter further in particular as it draws attention to the fact that you have not applied for leave to appeal to the Chairman against the overpayment appeal tribunal decision, reference number U/45/171/2002/00878. If you have not already done so you may find it helpful to seek advice from a Citizens Advice Bureau or similar organisation giving welfare rights advice or from a solicitor. The remedy of judicial review is only available when you have exhausted all statutory remedies.”
18.	There is no evidence contained within the papers which shows that the Claimant did apply, subsequently, for permission to appeal in respect of the tribunal decision which has the reference ending 00878. In his oral submissions to me in Court the Claimant asserted that he would have done so since he was desperate to avoid the consequences of all the tribunal decisions but, to repeat, there is simply no evidence that he did so. Rather on 1 November 2005 the Claimant filed these proceedings.
19.	It might be thought a matter of some concern that proceedings filed in November 2005 are being determined in May 2009. The obvious staging posts were as follows. On 30 November 2005 the Defendants wrote to the Administrative Court indicating that the Defendants did not intend to play any part in the proceedings. For some reason which is not readily explicable the Interested Party did not file an Acknowledgment of Service until 14 November 2006. On 8 March 2007 Sullivan J refused the Claimant permission to bring proceedings for judicial review. On 24 July 2007 at an oral hearing Burton J granted permission. I shall return to the judgment of Burton J later but I should record that the Learned Judge advised the Claimant to attempt to mediate his claim with the Interested Party and “to be as conciliatory as he can”. The case was listed for hearing on 24 October 2008. On that date the claim was stayed. That step was taken by consent since, at the very least, at that stage both the Claimant and the Interested Party were keen to explore the possibility of an agreement out of Court. No agreement was forthcoming. In February 2009 the stay was discharged and the case listed for hearing. On any view it must be a source of some regret that a claim of this type has remained unresolved since November 2005.
20.	It seems to me that the only decisions which are susceptible to judicial review are the decisions made by Commissioner Jacob when he refused permission to appeal in May 2005 and refused to set aside that decision in June 2005. I turn to deal, therefore, with the scope of the decisions he took.
21.	In my judgment it is clear that the Commissioner refused permission to appeal in respect of one of the two decisions made by the Appeal Tribunal on 27 January 2005. He refused permission in relation to the decision in respect of the Claimant’s appeal against the Interested Party’s decision that he was not entitled to incapacity benefit – the appeal having the reference number U/45/171/2002/01430. In my judgment no other interpretation is possible given the terms of his decision letter and given the subsequent letters of 16 June 2005 and 1 August 2005. It may be that the Claimant presumed that he was appealing against both the decisions made by the Appeal Tribunal on 27 January 2005. To repeat, however, it is crystal clear that Commissioner Jacob considered that he was dealing with an application to appeal against one of those decisions only.
22.	The time for seeking permission to appeal against the second decision (00878) has long since expired and there is no power to extend time. Accordingly I must confine my consideration to whether grounds properly exist upon which I should conclude that the decision to refuse permission to appeal in the case considered by the Commissioner was unlawful.
23.	Mr Dunlop, for the Interested Party, submits that the test I have to apply in deciding whether or not judicial review against a decision of the Defendants should be granted is that which is formulated in a trilogy of cases beginning with R(Sinclair Investments (Kensington)) v Lands Tribunal [2005] EWCA Civ 1305, R (Stephen Hook) v Social Security Commissioner [2007] EWHC 1705 (Admin) and R (Strickson) v Preston County Court & Others [2007] EWCA Civ 1132. The last of these cases is a decision of the Court of Appeal and Mr Dunlop relies, in particular, on the following passages from the judgment of Laws LJ. 
“31.	…….. The case (see Gregory) where a court or tribunal has acted in complete disregard of its duties is, with respect, only doubtfully an instance of pre-Anisminic jurisdictional error; and the case (see Sinclair) when an appeal tribunal declined to grant permission in order to decide a point of law where there is an imperative need for a decision in the public interest, could not, I think be so categorised. Each of these instances, however, exemplified a defect much more fundamental than an error of law in the particular case.
32.	How should such a defect be described in principle? I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (wrong on the law, or the facts, or both), and a case, where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre-Anisminic jurisdictional error, where the Court embarks upon an inquiry which it lacks all power to deal with, or fails altogether to inquire or adjudicate upon a matter which it was its unequivocal duty to address. It will include substantial denial of the right to a fair hearing and I may include cases where the lower court has indeed acted ‘in complete disregard of its duties’ (Gregory), and cases where the court has declined to go into a point of law in a particular area which, against a background of conflicting decisions of a lower tribunal, the public interest obviously requires to be decided (Sinclair). The Sinclair type of case is perhaps a sub-class of the Gregory case. Both, in any event, may be less hard-edged than the pure pre-Anisminic jurisdictional error case. The courts will have to be vigilant to see that only truly exceptional cases – where there has been indeed, as I have put it, been a frustration or corruption of the very judicial process – are allowed to proceed to a judicial review in cases where further appeal rights are barred by section 54 (4)” (emphasis added)
24.	In summary Mr Dunlop submits that the Claimant does not begin to establish that truly exceptional circumstances exists in this case which would allow for a judicial review of the decisions of Commissioner Jacob.
25.	Commissioner Jacob had to consider the written reasons provided by the Appeal Tribunal. The document in which the reasons are set out runs to 41 paragraphs over 5 pages. The document detailed the relevant history leading to the hearing in January 2005 and it records that oral evidence was received at the hearing from the Claimant and his friend Lois Angela Beckett. It is also clear from the reasons provided by the Tribunal that it considered documentary evidence relating to the Claimant’s health and the amount of money which he “earned” during the relevant years namely 1995 to 2001.
26.	The Tribunal was constituted by a Chairman and a member with considerable financial experience. Apparently the Interested Party was not represented. That led, perhaps, to the Chairman asking more questions than otherwise be the case. However it seems to me that no possible criticism can be made of a tribunal which seeks to arrive at factual conclusions by asking relevant questions even if some of the questions are phrased more antagonistically than was expected by the Claimant.
27.	In his submissions before me the Claimant appeared to take exception to the fact that Miss Beckett and he were asked to give evidence on oath. Apparently in previous appeal hearings that had not happened. I cannot possibly criticise the Tribunal for requiring evidence on oath if that is what occurred. At the heart of this appeal was an issue as to the Claimant’s fitness for work over a protracted period. The facts were all important. It was obviously desirable that any evidence given was attested to since, usually at least, evidence given on oath is afforded much greater weight than evidence which is not.
28.	I have read the statement of reasons issued by the Appeal Tribunal with considerable care. As Commissioner Jacob pointed out the Tribunal’s analysis of the facts appears to be entirely rational and, clearly it must have been informed by the expertise of the financially qualified panel member. I agree with the Commissioner that the conclusions of fact set out in the statement of reasons appear to follow sensibly and logically from the analysis of the evidence undertaken by the Tribunal.
29.	Having scrutinised the written reasons provided by the Appeal Tribunal with considerable care I find myself in complete agreement with Commissioner Jacob that no error of law can be attributed to the Appeal Tribunal when it reached its conclusion in January 2005 that the Claimant was not entitled to incapacity benefit between October 1995 and February 2001.
30.	Understandably the Claimant relies upon the fact that an earlier Appeal Tribunal ordered that the amount of benefit which he should repay should be restricted to a period beginning in October 1995 and ending in September 1996. As I understand it, it was this decision which led Burton J to grant permission. At the hearing before Burton J it was assumed that Commissioner Jacob had refused permission to appeal not just in respect of the “incapacity decision” but also in respect of the decision relating to the “recovery of overpaid benefit”. That was a misapprehension for the reasons I have explained above. Nonetheless, of course, the Claimant naturally wishes to assert that the decisions of successive Tribunals are irreconcilable and he submits that the decision reached on his incapacity appeal was, in the circumstances, perverse. I cannot accede to that submission. The plain fact is that two Appeal Tribunals have held that the Claimant was not entitled to incapacity benefit between October 1995 and February 2001. Commissioner Jacobs determined that there was no unlawfulness in the second of those two decisions.
31.	Upon the assumption that the Claimant has to satisfy the test set out in the judgment of Laws LJ in the extracts set out above he plainly cannot do so on the basis of the papers before me. However, I would go further. I can find no realistic basis upon which it can be said that Commissioner Jacob acted in any sense unlawfully when he refused permission to appeal in this case.
32.	Accordingly this application for judicial review must be dismissed.