Scottish Court of Session Decisions

In this petition, the petitioner seeks Judicial Review of a decision of the Social Security Commissioner, Mr D. J. May, Q.C., dated 22 November 1995, refusing the petitioner's application for leave to appeal against a decision of a Disability Appeal Tribunal dated 8 September 1995.

The background circumstances are as follows. On about 31 October 1991, the petitioner lodged a claim for Disability Living Allowance ("DLA") with the Benefits Agency. The basis of his claim was that he needed someone to help him with getting around, that walking caused him severe pain, that he got very tired and out of breath after walking a short distance, that he had problems with balance and suffered from dizziness, loss of balance and nausea when he stood up. It was also said that the petitioner was likely to fall, trip or stumble when walking outdoors, and that he was likely to get into danger and could cause danger to others. He required someone with him to make sure he was safe. He also needed help going up and down stairs and was in pain when walking, standing or sitting. He was unable to stand while he was cooking without pain and nausea and he had previously collapsed in his kitchen while cooking. He suffered from experiences akin to blackouts on a frequent basis, and on such occasions experienced a total loss of power, which left him helpless and requiring assistance to get up. He was unable to use any walking aids as they put pressure on his neck, aggravating a neck condition which he sustained following an accident at work in 1982. These problems had existed for over 2 years as at the date of the application. On 2 December 1992 the petitioner was awarded Attendance Allowance at the lower rate from 24 June 1991 to 5 April 1992 and DLA at the middle rate care component from 6 April 1992 to 23 June 1997. He was found not entitled to mobility allowance or to the mobility component of DLA. The petitioner sought a review of this award, but the award was confirmed on 26 May 1993. He then appealed to a Disability Tribunal against that decision on 8 June 1993. On 25 March 1994 a Disability Appeal Tribunal (DAT 1) held a hearing and issued a determination confirming the petitioner's entitlement to Attendance Allowance and DLA for the periods already set out. The appeal in respect of the claim for mobility allowance, and the mobility component of DLA was adjourned. On 8 June 1994 a second Disability Appeal Tribunal (DAT 2) adjourned the appeal again in order that the Department of Social Security could produce papers relating to a claim for mobility allowance lodged in 1991. On 29 August 1994 a third Disability Appeal Tribunal (DAT 3) adjourned the hearing because the petitioner was unwilling to proceed on the ground that he had not received written notification of the decision of a medical board refusing mobility allowance in 1991. On 27 September 1994, after a hearing, a further Disability Appeal Tribunal (DAT 4) refused the remainder of the petitioner's appeal. The petitioner sought leave to appeal against the decision of DAT 4. Leave to appeal was refused by the tribunal on 22 February 1995, but leave to appeal was granted by a Social Security Commissioner on 23 June 1995. A further Disability Appeal Tribunal (DAT 5) held a hearing on 8 September 1995, and in a decision of that date, decided that the petitioner did not satisfy the medical criteria for an award of mobility allowance in respect of a claim lodged in 1991 and that he was not entitled to the mobility component of DLA in respect of his claim lodged on 31 October 1992. The appeal was accordingly refused. That decision was notified to the petitioner on about 19 September 1995. He sought leave to appeal against that decision, but the tribunal refused leave on 24 October 1995. The Social Security Commissioner, Mr May, thereafter refused leave to appeal on 22 December 1995. It is that decision of the Social Security Commissioner that the petitioner now seeks to have reviewed.

The matter came before me after the first hearing had been continued to allow the petitioner to amend his pleadings in response to answers lodged on behalf of the respondent. I was addressed first by Mr Liddle for the respondent who submitted that the onus was on the claimant to show that the commissioner could not, under any circumstances, have concluded that leave to appeal should not be granted. Reference was made to R v Secretary of State for Social Services, ex parte Connolly [1986] 1 W.L.R. 421.

Counsel argued that DAT 5 were perfectly entitled to conclude that the episodes of falling and collapsing upon which the petitioner based his claim were not genuine. There was no objective medical evidence to support such episodes. In any event even if the factual basis of the petitioner's claim was accepted, the condition from which he claimed to be suffering did not fall within the criteria required for an award of the mobility component of DLA. Even on the petitioner's own evidence, he was neither unable to walk nor virtually unable to walk.

On behalf of the petitioner, Mr Sutherland accepted that the onus was on the petitioner to show that there were no good grounds upon which leave to appeal could have been refused in the proper exercise of the Commissioner's discretion. If the Commissioner had material which he considered allowed him to find the claimant not entitled to the allowance, that would be a good reason for him to refuse leave to appeal. Counsel also accepted that DAT 5 were not bound by the findings of previous DATs and were entitled to take a different view of the evidence from those tribunals. The only argument advanced on behalf of the petitioner was that the Commissioner's decision to refuse leave to appeal was fundamentally flawed because of the occurrence of what the petitioner contended was a breach of natural justice. That breach of natural justice was said to consist of the failure of DAT 5 to intimate to the petitioner that they did not accept his evidence that he had been subject to episodes of falling and collapsing and further that they considered that those episodes were contrived by him. This failure, it was argued, amounted to a breach of natural justice because, until the hearing before DAT 5, the petitioner's evidence as to the episodes of falling and collapsing had been accepted by previous tribunals, as evidenced by the award of the care component of DLA. The papers before the Commissioner contained material which indicated that the petitioner could satisfy the tribunal that he would have been entitled to this benefit. The tribunal did not adequately deal with this material, having disabled themselves from doing so by deciding that the falling episodes were contrived.

The case of Connolly makes it clear that it is for the petitioner to show either that the Commissioner had acted on improper or insufficient reasons or that there was no good grounds on which he could have refused the appeal. At page 432G, Slade L.J. said:

I do not accept that the failure of DAT 5 to intimate their conclusion amounted to a breach of natural justice. The petitioner was aware that the hearing before DAT 5 constituted a re-hearing of the claim for the mobility component, and his counsel accepted that DAT 5 were not bound by the findings of previous DATs, but were entitled to take a different view of the evidence. No authority was cited to me which vouched the proposition that, in such a situation, a court or a tribunal was bound to reveal to an applicant or claimant that they proposed to come to a conclusion on the evidence which differed from that of previous tribunals. The cases of Barrs v British Wool Marketing Board 1957 SC 72 and R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456, cited on behalf of the petitioner, fall well short of vouching such a proposition. Any tribunal starts out from the position that it is not restricted to accepting or rejecting the respective contentions of the claimant on the one hand, and the officer or minister on the other. It is at liberty to form its own view, even although that may not coincide with the contentions of either. That position must also obtain when the proceedings before the tribunal constitute a re-hearing of an appeal which has previously been heard and dealt with.

To require a tribunal to intimate to a claimant their intention to make a finding in fact contrary to that of previous tribunals would give rise to considerable practical difficulties. For one thing, the tribunal might not reach their conclusion until after the conclusion of the hearing and after discussion among the members. Are they then to issue provisional findings, and is the disposal of the appeal to be delayed and another hearing fixed in order to give the claimant yet another opportunity of persuading the tribunal of the validity of his case? No example was given to me of any court or tribunal adopting such a course of action, either as a matter of course or in an exceptional case. In this case it cannot be said that the tribunal reached a different conclusion from previous tribunals since the petitioner had throughout been refused mobility allowance and the mobility component.

In these circumstances I reject the only argument advanced on behalf of the petitioner. It follows that the petitioner has failed to discharge the onus upon him and the petition falls to be refused.