England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 January 2009

Mr Antony Edwards Stuart QC :

Introduction

1. On 26 November 1998 the Claimant, Mr Hill, slipped on some ice during the course of his employment and twisted his back. He was a tanker driver and at the time he was stowing a discharge hose containing liquid nitrogen at his employer's premises. Unfortunately the hose came into contact with some water that should not have been there, which immediately froze and Mr Hill slipped on it.
2. Mr Hill brought a claim for personal injuries with the support of his union. Apparently liability was admitted and the claim was settled. After a period off work he continued to work for his employers until he took early retirement on medical grounds a few years later in early 2006.
3. In February 2006 Mr Hill made a claim for Industrial Injuries Disablement Benefit ("IIDB"). He had a medical examination on 29 March 2006, following which he was provisionally assessed as having a 30% disability until 29 March 2007, when the position would be reviewed.
4. Mr Hill was re-examined at home on 13 March 2007 by a Dr Kenwood, on behalf of the Defendant. She concluded that there was no continuing loss of ability as a result of the accident. As a result his IIDB was immediately stopped.
5. However, it is clear that in fact Mr Hill was very disabled as a result of the condition of his back at that time. A scan taken in June 2007 showed (multi-level spondylotic changes . . . in the cervical and lumbar spine. . . . a moderately severe degree of spinal canal narrowing at C4/5 level and also at L4/5 level". Consistently with this, Mr Walker, a consultant who had examined Mr Hill in 2001 in connection with his claim for personal injuries, described Mr Hill as having an underlying constitutional degenerative change within the lumbar spine.
6. Unfortunately, Mr Hill's difficulties with his back are just one of many medical conditions from which he currently suffers. Amongst others, they include diabetes, high blood pressure, Meniere's disease and bowel and bladder problems. In spite of all this, he was able to present his case cogently and fluently.
7. Unfortunately, the hearing, which was an application for permission to apply for judicial review, was conducted by a video link that was bedevilled with technical shortcomings. Sometimes Mr Hill's words were cut off; at other times the sound disappeared altogether. It was a shorthand writer's nightmare. However, we struggled on as best we could until it became clear that no further useful progress was likely to be made. In these unusual circumstances, and having given some indications to Mr Hill of some of the difficulties that his application faced, I suggested that I was minded to adjourn the hearing in order to allow Mr Hill to make some further and final submissions in writing in case he felt that there were any aspects of his case to which he felt he might not have done justice in the face of the communication problems. Mr Hill agreed to this. This judgment follows receipt of those further submissions, which I have taken into account, together with the many documents that Mr Hill has enclosed, both with these submissions and his earlier submissions.

The claim

8. Mr Hill appealed to the Industrial Injuries Disablement Benefit Appeal Tribunal ("the AT"). The appeal was listed for the 8 August 2007 and Mr Hill attended on that day. However, it seems that the hearing was abandoned when Mr Hill walked out in disgust at what he saw as some rather aggressive and hostile questioning from the AT about his accident. However, before doing so it appears that he told the AT that there were reports on his condition that had been prepared for the purposes of his personal injury claim and that he would obtain copies of these reports and submit them to the AT. I accept what Mr Hill says about this, although there is no reference to Mr Hill walking out of the hearing in the AT's subsequent Statement of Reasons, which followed an adjourned hearing on 2 October 2007 at which Mr Hill was unable to be present.
9. The AT reviewed the medical evidence submitted by Mr Hill but dismissed his appeal. In short, the AT concluded that, whilst the accident in November 1998 probably aggravated the existing condition of his back and accelerated the onset of symptoms by two years, those symptoms would have occurred in any event and before March 2006. The AT also took into account a letter dated 17 July 2007 from Mr Hill's GP which described Mr Hill as having "suffered more in the last few years" and expressing the view that the condition of his back deteriorated after the accident in 1998. The GP said that Mr Hill suffered from cervical spondylosis and that his spine was in a very poor condition.
10. Mr Hill was not satisfied with this, so he applied to the Social Security Commissioner for leave to appeal against the decision of the AT. The Commissioner, Mr Charles Turnbull, held an oral hearing at which he heard Mr Hill and a solicitor employed by the Defendant. The Commissioner had to decide whether the AT's decision was wrong in law. Unless it was, the appeal had to be dismissed. There was no right of appeal on the facts. In a succinct but careful determination, the Commissioner decided that it was not arguable that the AT's decision was wrong in law and refused the application.
11. Mr Hill now seeks permission to apply for judicial review of the decision by the Commissioner refusing his application for permission to appeal. His application was refused on paper by Forbes J on 15 October 2008 and Mr Hill has sought an oral reconsideration of that refusal, as he is entitled to do. The renewed application came on before me on 8 December 2008 in the circumstances that I have already described.
12. Mr Hill also takes a number of other and much broader points about the process of assessing his entitlement to IIDB. In particular, he claims that, in breach of Article 6:

i) There has been a failure to provide a hearing within a reasonable time.

ii) The absence of any entitlement to legal representation is a breach of the right to a fair trial.

iii) When the examining medical officer concludes that a claim is no longer justified, so that payment of the benefit is subsequently terminated, the beneficiary should be entitled to retain the benefit until there has been a fair and impartial hearing (or his/her appeal against any adverse determination is heard and decided).

13. In short, Mr Hill contends that the procedure adopted by the Secretary of State for dealing with IIDB is one sided and biased against the applicant.

The Claimant's arguments and merits

14. In spite of his complaints about the absence of legal assistance, Mr Hill has been able to cite various decisions of courts in Europe and the United States in support of his arguments. He relies on the decision of the ECHR in Salesi v Italy (1993) as authority for the proposition that Article 6 is engaged in the case social security and related state benefits. For the purpose of this judgment, I am prepared to accept that this applies to IIDB.
15. In relation to the complaint about the absence of a hearing within a reasonable time, Mr Hill cites no authority, apart from his reference to Salesi, which was in fact a case about delay. In Salesi, the court was concerned with a delay of some 6 years. In this case, the claim first came before the AT on 8 August 2007, less than 5 months after the decision to terminate the benefit, and was finally disposed of at the adjourned hearing on 2 October 2007. The oral hearing of the application for permission to appeal before the Commissioner took place on 30 April 2008. At that hearing Mr Hill appeared in person and the Secretary of State was represented by an employed solicitor.
16. It is quite apparent from this brief recital of the history of the proceedings to date that any allegation about the lack of a hearing within a reasonable time has no prospects of success whatsoever.
17. In relation to the complaint about lack of legal assistance, Mr Hill says that there is no equality of arms – the Secretary of State has access to the best legal advice and representation whereas he has none. Apart from the simple fact that I can see no evidence that Mr Hill has been unable to present a well researched case, it seems to me that in matters that involve only an investigation and inquiry into a person's medical condition there is less room for the presence or involvement of legal advisers. The claimant will almost invariably have the assistance, if he wants it, of his own GP or medical practitioner and, in this case, Mr Hill has had access not only to a report from his GP but also to reports prepared for his personal injury litigation. In the context of this appeal, I see no force in Mr Hill's argument about the lack of legal representation and, indeed, I regard it as unarguable.
18. In relation to the complaint that there should be a fair and impartial hearing before the benefit is stopped, Mr Hill relies on the decision of the US Supreme Court in Goldberg v Kelly (1970) 397 US 254. In that case the court held that the interest of an eligible recipient of public assistance, which provided him with essentials such as food, clothing and housing, coupled with the State's interest in not terminating benefits erroneously, outweighed the State's concern to prevent any increase in its fiscal and administrative burdens.
19. I would regard this as a serious argument if this case involved the payment of essential benefits or provision of essential services such as housing. However, in my judgment the payment of IIDB falls into a different category for two reasons. First, it is not a benefit that provides for basic subsistence, although I accept that its non receipt would be of great concern to the recipient. In my view, different considerations apply where the benefit involved is for a person's basic needs rather than being by way of compensation for a disability that is typically payable in addition to an existing income. Second, the assessment is primarily a medical process at which the person being assessed is necessarily present and able to explain his position, symptoms and injury. It is not, or is at least not likely to be, an exercise involving a detailed factual inquiry at which there is a danger of reaching a wrong conclusion if the applicant has no opportunity to put his case or to rebut the case against him. For these reasons I consider that Mr Hill's claim under this head is also unarguable.
20. However, I detect from his various submissions that Mr Hill's real and underlying complaint is that the medical practitioners who are employed to operate this scheme on behalf of the Secretary of State are in truth no more than hatchet men who are encouraged, implicitly if not expressly, to reject claims wherever they can. Whilst I suspect that this is a concern that he shares with others and which I suspect also, in the nature of things, may sometimes be the attitude of some individual medical practitioners, there has been no evidence before the AT, the Commissioner or this court which would begin to justify any such conclusion in this particular case. I am sure that Mr Hill's convictions about this are genuinely held, but that of itself is not sufficient.
21. Mr Hill's final argument is that the AT, and hence the Commissioner, wrongly relied on the opinions of the doctors whose reports Mr Hill had put before the Tribunal because they were "opinions" and therefore, submitted Mr Hill, not evidence, and further that they were opinions that had been formed some 6 or 7 years earlier. In addition, he submits that the AT was wrong to ignore material produced by him to show that his accident cannot be excluded as a cause of the Meniere's disease from which he suffers (this involves fluctuations in hearing, episodes of dizziness, tinnitus and a feeling of pressure in the ear).
22. In my judgment the AT was entirely justified in taking into account the contents of the medical reports that Mr Hill had himself provided in support of his claim, particularly the reports of Dr Walker, which had been written within two years of the accident. On the basis of these reports, together with the letter from the GP and the 2007 MR scan of Mr Hill's spine to which I have already referred, the AT concluded, as a matter of fact, that the effect of the accident was to accelerate the onset of the symptoms resulting from the (pre-existing and continuing) degenerative changes in his spine and that "an acceleration of two years, as suggested by Mr Walker, would be reasonable". On that basis the AT then concluded that "any symptoms suffered by the appellant more than two years after the accident would be as a result of his degenerative constitutional change and not as a result of the accident" (my emphasis).
23. I have, therefore, no hesitation in rejecting the criticisms of the AT's approach advanced by Mr Hill. First, because it was entirely appropriate for the AT to consider the medical reports put before them by Mr Hill and which had been obtained in support of his own personal injury claim and, second, because there was no evidence that amounted to more than a possibility that his Meniere's disease had been caused or contributed to by the accident.
24. However, in my view it is nevertheless arguable that this reasoning of the AT does disclose an error of law, albeit not one that has been put in so many words by Mr Hill (although I think it is reflected in the thrust of his submissions). This is because it does not follow that where an accident has accelerated – in this case, by two years – the onset of symptoms of a particular severity that would have occurred in any event at some time in the future as a result of continuing degenerative changes, that such acceleration must have caused symptoms of that severity to occur immediately following the accident (and in this case, therefore, to have ceased to have any causative effect prior to the period of the payment of IIDB).
25. The point may be illustrated by an example I gave during the hearing. Suppose that a man is told by his eye specialist that he will go blind in 10 years time as a result of degenerative changes in his eyes. Three years later a load of powder is blown into his eyes - let us suppose as a result of an accident at work. The same specialist then advises that the effect of the accident will be to accelerate the onset of blindness by two years. In other words, that he will go blind in 8 years after the original diagnosis, rather than in 10 years. I would have thought that, as a matter of law, the loss suffered as a result of the accident is not that he goes blind, because that was going to happen in any event, but that he goes blind two years earlier than he would otherwise have done. So, in the context of a claim for IIDB, the relevant period for the payment of benefits would be years 8 to 10.
26. In this case it appears that Mr Hill returned to work after the accident, albeit on reduced shifts, and finally retired on medical grounds in about early 2006. He claimed IIDB on 21 February 2006 and was given a provisional assessment of 30% following a medical examination on 29 March 2006. It is in my view arguable, on the basis of the finding of the AT that his symptoms were accelerated by two years, that he reached a level of 30% disability in March 2006 instead of reaching that level in March 2008, which (on one view of the AT's findings) is what would have happened but for the accident in November 1998. If this argument is correct, then Mr Hill would have been entitled to a further one year of IIDB to March 2008.
27. Accordingly, on the basis outlined above, it is in my view arguable that the AT, and hence the Commissioner also, erred in law as to the conclusion to be drawn from the AT's finding of fact that the onset of Mr Hill's symptoms (as found by the medical examiner in March 2006) was accelerated by two years as a result of the accident. This apart, the Commissioner's determination was careful, well reasoned, succinct but comprehensive and disclosed no other error of law.
28. On this ground alone permission to apply for judicial review of the Commissioner's determination dated 19 May 2008 is granted. There is no arguable case for permission on the Human Rights grounds advanced under Article 6.
29. Since Mr Hill was not represented and the Defendant and Interested Party did not appear, there is to be no order in respect of the costs of this application.