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Cite as: 2000 SCLR 663, [2000] ScotCS 86

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OUTER HOUSE, COURT OF SESSION

OPINION OF LORD CARLOWAY

in the Petition of

SODAGAR CHOWDRY (A.P.)

Petitioner;

for

Judicial Review of a Decision of a Social Security Commissioner

________________

Petitioner: Sutherland; Erskine MacAskill for Naftalin Duncan & Co., Glasgow

Respondent: Liddle; R. Henderson, Office for Solicitor for Advocate General

28 March 2000

1. LEGISLATIVE BACKGROUND
(a) Substantive

[1] This case concerns "supplementary benefit", a form of social security replaced over a decade ago. The Supplementary Benefits Act 1976 (c. 71) provided that:

1(1).....every person.....whose resources are insufficient to meet his requirements shall be entitled to benefit as follows....

(b) a supplementary allowance

(3) The requirements of any person to be taken into account.....do not include any medical.....requirements; and regulations may provide that the requirements which by virtue of this subsection are not included in a person's requirements include.....prescribed requirements."

"Schedule 1

1 (1) The amount of any supplementary benefit to which a person is entitled shall.....be the amount by which his resources fall short of his requirements....

2 (1) .....requirements shall be of three categories, namely normal requirements, additional requirements and housing requirements; and the items to which each category relates and.....the weekly amounts for those categories shall be such as may be prescribed."

[2] The Supplementary Benefits (Requirements) Regulations 1983 (SI 1983 No. 1399) provided that:

"11 (1) The items to which the category of additional requirements relates are those for which provision is made in Schedule 4.

(2) .....the weekly amount of the additional requirements of a claimant.....shall be determined -

(b) in accordance with regulation 13 and Part II of Schedule 4.

13 (1) .....the weekly amount specified in column (2) of any paragraph in Part II of Schedule 4 shall be applicable to the claimant.....

(2) No more than one amount and, if there is a choice, the higher or highest amount shall be applicable under paragraph 14 of Schedule 4 in respect of any one person.

Schedule 4

Part II

Items and cases applicable (1)	Weekly Amount (2)
14 Person who needs a special diet because he -
(a) .....	(a) [£3.80]
(b) is.....suffering from an illness.....and the diet involves extra cost.....	(b) [£1.65]
(e) suffers from a condition.....for which he has to follow a diet which involves extra cost substantially in excess of the amount specified in sub-paragraph (a) in column (2)	(e) the weekly cost of the diet..... "

[3] An important feature of the Regulations, so far as the petitioner's position was concerned, was the possibility of obtaining the actual weekly cost of a diet under paragraph 14(e) which might be much greater than the fixed lower amount prescribed under 14 (b). Paragraphs 18 and 19 dealt with Laundry and special Wear and Tear on clothing.

(b) Procedural

[4] The 1976 Act also provided that:

"2(1) The question whether any person is entitled to supplementary benefit and the amount of any benefit and any other question relating to supplementary benefit which arises under this Act.....shall be determined by an adjudication officer.....a social security appeal tribunal.....or a Social Security Commissioner in accordance with regulations....."

[5] The Social Security Act 1975 (c.14) provided that:

"104 (1) Any decision.....of an adjudication officer, a social security appeal tribunal or a Commissioner may be reviewed at any time by an adjudication officer.....if (a) the officer.....is satisfied that the decision was given in ignorance of, or was based on a mistake as to, some material fact; or

(b) there has been any relevant change of circumstances since the decision was given.....

(1A) Any decision of an adjudication officer may.....be reviewed, upon the ground that it was erroneous in point of law, by an adjudication officer.....

(4) A decision given on a review under this section, and a refusal to review a decision thereunder shall be subject to appeal in like manner as an original decision....."

[6] This section was re-enacted in substantially the same terms in section 25 of the consolidating Social Security Administration Act 1992 (c.5). The appeals were first to a social security appeal tribunal and then, with leave of the tribunal or the Commissioner, to a Social Security Commissioner (see the 1992 Act sections 22 and 23 and the provisions from which they derived). In terms of regulation 2 of the Tribunals and Inquiries (Social Security Commissioners) Order 1980 (1980 SI 1637) section 12(1) of the Tribunals and Inquiries Act 1971, which required certain bodies to state reasons for their decisions, was expressly stated not apply to a Commissioner's decision on leave to appeal (see also the amendments in 1991 SI 2742).

(c) Backdating of Decisions on Review

[7] The Social Security (Adjudication) Regulations 1986 (SI 1986 No 2218) provided that:

"64A (1) In the case of a review.....the decision given shall have effect from the date from which the decision being reviewed had effect or from such earlier date as the authority giving the decision being reviewed could have awarded benefit had that authority taken account of the evidence.....or not overlooked or misconstrued some provision or determination.....

(2) This paragraph applies to a review under [section 104.....of the 1975 Act] (review for error of fact) of any decision.....where the reviewing authority, that is to say the adjudication officer.....is satisfied that -

(a) the evidence upon which it is relying to revise the decision under review is specific evidence which the authority which was then determining the claim or question had before it at the time of making the decision under review and which was directly relevant to the determination of that claim or question but which that authority failed to take into account;.....

69(1).....a determination on a claim....shall not be revised on review under section 104 of the 1975 Act so as to make [benefit] payable or to increase the amount of [benefit] payable in respect of -

(a) any period which falls more than 12 months before the date on which the review was requested, or where no request is made, the date of review;

72 (1) .....nothing in this section shall operate so as to limit the amount of benefit or additional benefit that may be awarded on a review of a decision if the adjudicating authority making the review is satisfied either -

(a) that the decision under review was erroneous by reason only of a mistake made, or something done or omitted to be done by an officer of the [Department of Social Security].....or by an adjudicating authority or the clerk or other officer of such an authority, and that the claimant and anyone acting for him neither caused nor materially contributed to that mistake, act or omission;

(b) that where the grounds for review are that the decision was given in ignorance of or was based on a mistake as to a material fact, those grounds are established by evidence which was not before the adjudicating authority which gave the decision; that the claimant and anyone acting for him could not reasonably have produced that evidence to the authority at or before the time the decision was given, and that it has been produced as soon as reasonably practicable."

2. FACTS

[8] The Petitioner claimed supplementary benefit in terms of a claim form dated 11 April 1985 (6/15 p32). In relation to "special needs", he ticked four out of six possible boxes: extra heating, special diet, laundry and pregnancy. The space for the provision of greater detail about the matters ticked was left blank. A note on a form dated 29 November 1995 completed by a member of staff of the Department of Health and Social Security and entitled "Report on Claim" (6/15 p.36) states:

"Client and family seen.....on review visit.....Current claim. Only income in Child Benefit.....All in good health."

[9] The special needs section (i.e. additional requirements), which was designed to deal with any dietary problems was completed with a reference only to an additional heating allowance. The review section bore the remark "Non-problem case". It seems therefore that for some reason the "special diet" was not pursued at all at that stage.

[10] Almost exactly two years later there was a review of the position following a request for additional requirements payments. This time the "Report on Claim" form dated 24 November 1987 noted under "Health":

"Client suffers from.....psoriasis. His left leg, head, ears, bottom of back and groin are affected the most by the psoriasis".

[11] Under the special needs section there was a reference to various applications for additional requirements being made but that the petitioner thought that some of the applications, completed by a welfare rights officer, contained information which was not correct. In a continuation sheet the following was noted:

"DIET - Client has been advised to follow a high protein diet to help his psoriasis. Lower rate diet addition therefore considered appropriate."

[12] There followed also detailed consideration of other additional requirements and the possibility of backdating. On 11 January 1988 that backdating was carried out in relation to higher rate heating, diet, baths and laundry addition. The backdating was made to 18 September 1986, which was said to be one year before the date of the claim.

[13] On 18 April 1991 the petitioner requested a general review of his entitlement to benefit including additional requirements. This was one of many such requests from claimants at that time. The application for review was contained on what is called a Social Work Department stencil (6/15 p.28) The petitioner ticked the box for the lower prescribed sum for a diet but seems to have intended to tick the box below for the higher sum since he entered the words "difficult to estimate" in the lower section after the request to specify the cost. He asked for a backdating of the additional heating and laundry awards to January 1984. The section asking for justification of the backdating in terms if the legislation was not completed in that manner but did state that the petitioner required additional clothing and a special diet to control the psoriasis. The file records that the decision here was:

"From information given on stencil I can find no grounds to review under section 104" (6/15 p49)

[14] An appeal seems to have been marked against that decision. However, when that appeal was pending, a long note was entered onto the file by an appeals officer who considered that there had been mistakes made in the past dating back to the November 1985 visit after which the apparently erroneous entry about the petitioner being in good health was made. The writer did not consider that the requests for additional requirements noted in the special needs section had been investigated. Because of this perceived error he thought there ought to be backdating to 15 April 1984 (6/15 pp 49-50). On 21 August 1991 it was also noted that the appeal had been superseded by what became, on 2 October 1991, (6/15 p52-53) a revised decision to backdate.

[15] The petitioner appealed against the revised decision and his grounds were noted on 15 November 1991 as being that he:

"felt that he should have been paid an allowance for wear and tear and an increased allowance for diet and laundry allowance." (6/15 p56)

[16] The member of staff at the Department advised him that further medical evidence might be needed as regards the increased diet allowance. A further note was made at this time by that member of staff which appears to criticise the decision of the 1987 Adjudication Officer who is described as having established the need for a Wear and Tear allowance but having failed to give him one because it had not been quantified by the petitioner. This criticism also observed that there was no note on the file of the petitioner being told of this need to be more precise with the claim. Also the existence of doctors' letters was identified and these did refer to the need for a special diet. At this point the petitioner quantified the amount as £10 extra per week from 1985. This seems to be the first real attempt at quantification by anyone of any kind (6/15 p57) relative to a paragraph 14(e) amount. However, the petitioner was again told that there might have to be further evidence on the extent to which the special diet was appropriate to the condition.

[17] Within a few days, the petitioner advised the Department that he would withdraw his appeal if he obtained the Wear and Tear element. He then stated simply that he wished to withdraw the appeal and signed a note which reads as follows:

"I have received a full explanation of how my supplementary benefit additional requirements have been calculated including those for heating, laundry, diet and baths. I wish to withdraw my appeal lodged on 16/10/91" (6/15 p44).

[18] On 3 December 1991 a decision to revise the petitioner's benefit in respect of the additional requirement for Wear and Tear was taken and backdated to 18September 1986 (one year before the claim) (6/15 p60-61). The Adjudication Officer's Decision was formally as follows:

"The Adjudication Officer has reviewed the claimant's Supplementary Benefit entitlement so as to make arrears of additional requirements for laundry addition payable. The Adjudication Officer can find no grounds to review any other aspect of the Claimant's Supplementary Benefit claim." (6/15 p17)

The petitioner appealed against that decision on the grounds that:

"additional requirements should have been in payment throughout my claim in respect of wear and tear and special diet" (6/15 p62)

The appeal came before a Social Security Appeal Tribunal on 10 March 1993 (SSAT 1) which decided:

"To uphold the Adjudication Officer's decision in respect of baths for the appellant's daughter, wear and tear for the appellant himself and diet for the appellant himself. To allow the appeal and to award a laundry addition for the appellant backdated to 15.4.84 to be based upon three visits to the launderette per week."(6/15 p8).

At the hearing, the whole question of a full cost diet was raised and a detailed written submission was presented by the petitioner's representative (6/15 p9). In rejecting the petitioner's appeal on the diet point, the Tribunal found in fact that:

"(5) The appellant has been awarded a lower rate diet addition backdated to 15.4.84. This was on the basis that his psoriasis demanded a special diet. This was supported by medical certificates from October 1987 and September 1990. The appellant's representative argued that the appropriate rate of diet would be the whole cost of the diet. The tribunal noted that the appellant at no time gave details of the cost of the diet to the Department. He certainly did not do so in November 1987 when the matter was first raised with the Department."(6/15 p9)

So far as the reasons for the refusal of the diet application were concerned, the Tribunal stated:

"The tribunal consider in respect of diet that the appellant's case also necessarily fails because of the effect of Regulation 72. In the view of the tribunal, the alleged extra cost of diet in the submission made by [the petitioner's advisor] is so great that the appellant would have been bound to disclose it to the Department. In the view of the tribunal, it is necessary for a successful case under this head for the appellant to disclose at least some idea of the cost of the diet. It is obvious from the submissions that the appellant never did so and thus his claim necessarily fails under the terms of the said Regulation 72. This renders it unnecessary for the tribunal to consider in detail whether or not there are grounds of review and revisal in respect of diet." (6/15 p10)

[19] The petitioner applied for leave to appeal against the Tribunal's decision to the Social Security Commissioner. The ground on the question of diet was:

"If the claimant notifies an Adjudication Officer of a need to follow a special diet it then falls to the Adjudication Officer to ascertain under which section of paragraph 14 an award should be made. A claimant adequately discharges [his] responsibility through disclosure of the need." (6/2)

The Commissioner (J.G. Mitchell QC) refused the application on 14 July 1993 (6/6). A further application for leave to appeal was made on 28 July 1993 based on a then recent decision of a Deputy Commissioner (CIS/714/91) (the Mesher Decision) to the effect, the ground stated, that a decision on entitlement to benefit ought to be made under section 104 in advance of any consideration of the applicability of regulation 72 (6/7). The Commissioner adhered to his earlier decision to refuse leave and declined to give reasons for his decision under reference to the 1980 Order (6/8).

[20] By letter dated 6 October 1993 the petitioner requested a review of the original 1987 decision awarding only the prescribed lower rate in respect of the diet under what was by then section 25 of the 1992 Act (6/9). On 6 December 1993 the Adjudicating Officer concluded:

"you have not submitted any new evidence and as a result there are no grounds on which I can review the decision of the appeal tribunal."(7/5)

[21] By letter dated 23 February 1994, the petitioner appealed against that decision on the basis that a decision on his section 104 point had not been made (7/6). The Adjudicating Officer maintained that the last operative decision had been the Tribunal decision of 10 March 1993 and no new material had been produced since then (7/7). A hearing by a differently constituted Social Security Appeal Tribunal took place on 14 October 1994 (SSAT 2). It decided to uphold the decision of the adjudication officer. It stated as its reasons that:

"The tribunal did not accept the argument put forward by the appellant's representative that the last operative decision on the question of diet was the decision of the adjudication officer taken on 24 November 1987 awarding a lower rate diet addition. The tribunal hearing of 10.3.93 manifestly considered the question of diet as along with the other elements in the appeal they were considering that day. They made a decision on a question of diet under Regulation 72 and refused the appeal in respect of diet.....The present tribunal considered that the only course open then to the appellant was to appeal to the Commissioner against that decision of 10.3.93 as it was undoubtedly, in their opinion, the last operative decision dealing with the question of diet."(6/10)

[22] The appellant sought leave to appeal against that decision to the Social Security Commissioner (6/11) on the grounds that:

"The Adjudicating Officer mistakenly identified the last operative decision as being that of a tribunal given on 10-3-93. In the decision in 10-03-93 it is expressly recorded that no decision was being made under s104 in respect of diet. Therefore the last operative decision was that of 24-11-87. The tribunal also identified the last operative decision as that of 10-03-93 and so also erred in law."

On 10 January 1995 the Social Security Commissioner (W.M. Walker QC) refused leave (6/14).

[23] The petitioner raised a petition seeking to review the decisions of the Tribunals dated 10March and 14 October 1994 but not the decisions of the Commissioners to refuse leave to appeal. This approach was regarded as incompetent and the petition was dismissed by the Lord Ordinary on 18 November 1997 (see 1999 SLT 697). During the course of the debate in that case, counsel for the petitioner had acknowledged the difficulties in challenging a refusal of leave to appeal decision (689 L). He seemed also to acknowledge that the issue before the first and second Tribunals was the same, namely whether there had been an entitlement to benefit at a particular time. The importance of entitlement as distinct from payment was because of the impact of the Income Support (Transitional) Regulations 1987 which, in broad terms, maintained Income Support at Supplementary Benefit levels where the claimant had received the latter. The petitioner had not had the appropriate full benefit of the transitional provisions because he had not been awarded the higher rate of benefit for the diet. The practical effect was a loss of about £20 per week even after Income Support replaced Supplementary Benefit.

[24] The present petition was raised on 4 March 1999. Since it came before me at a hearing on 9 March 2000, I was being asked in a judicial review process to reduce a decision to refuse leave to appeal taken over five years ago on 10 January 1995 which in turn refused an additional higher rate diet allowance for the years 1984 to 1988.

3. REASONABLENESS

The petitioners only plea-in-law is :

"The decision of the Social Security Commissioner being unreasonable, it should be reduced."

(a) the petitioner's submissions

[25] Counsel for the petitioner submitted that he had established a prima facie case of error in law on the part of SSAT 2. This error was in treating the SSAT 1 decision as "operative" rather than as a refusal to deal with the question at all. SSAT 2 had thus erred in deciding that the question before it was res judicata.

[26] Because of the replacement of Supplementary Benefit by Income Support, in order to obtain any actual payment of Supplementary Benefit, the petitioner had to circumvent the terms of regulation 69 which limited the effect of any backdating of payment of, as distinct from entitlement to, benefit upon review under section 104 of the 1975 Act to a maximum of a year before the date when a review was requested. That could be done only if regulation 72 could be invoked to show that the fault was entirely with the Department and not in any way with the petitioner. SSAT 1 had decided that section 72 could not be invoked since some blame had to attach to the petitioner in all the circumstances. Therefore, counsel submitted, the Tribunal had refused to consider entitlement to benefit under section 104. Between the first and second Tribunals there had been the Mesher Decision. The method adopted by SSAT 1 was, except in an exceptional case, contrary to the reasoning of the Mesher Decision which said that logically the entitlement issue should first be considered before proceeding to look at the limitation provisions in the Regulations (see paragraph 19 of that Decision). Since SSAT 1's decision amounted to a refusal to conduct a review, it had to be regarded as not being a decision at all which could supersede the earlier decision which actually made the diet award on 24 November 1987. If that were so then the petitioner remained free to ask for and obtain another review of that award irrespective of the SSAT 1 decision. Counsel referred to the English Court of Appeal case of the Chief Adjudication Officer v Eggleton, unreported, 17 March 1995.

[27] Both SSAT 1 and the adjudicator, whose decision had been appealed to it, had, counsel submitted, simply failed to make any decision on the 14(e) claim. He referred to R(SB)3/88 where a Tribunal of Commissioners criticised the absence of proper findings in fact where a claimant had made a 14(e) claim. He also referred to what he described as an accumulation of errors on the part of the Adjudicating Officers to investigate the claim in the sense of taking steps to quantify it.

[28] Counsel also argued that the decision of the first Tribunal on the section 72 point was also wrong because it misunderstood the role and duties of an Adjudicating Officer. Once a matter such as a special diet was raised with an Adjudicating Officer then it was for him to investigate it. This was under reference to some of the Mesher Decision dicta at paragraphs 19 to 22. In this case it was apparent from the files that the issue of diet had been raised at the outset yet, counsel submitted, no investigation had been made. The petitioner, he maintained, had done all he could to bring the matter to the attention of the Department.

[29] Counsel did not argue that despite the subordinate legislation the Commissioner was still obliged to give reasons in the circumstances or even that he ought to have done so. However, under reference to R v Secretary of State for Social Services, ex parte Connolly [1986] 1 All ER 998 he did maintain that he had made out a prima facie case of error in law which was indicative of the fact that leave to appeal should have been granted. Founding on the dicta of Slade LJ at 1007 he submitted that in a case where no reasons had been given, once a petitioner for judicial review had demonstrated the existence of a "substantially arguable" point of law he had discharged whatever onus was on him to show that prima facie the Commissioner had erred in law in failing to grant leave. The decision was thus unreasonable according to the test in Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223. If that were so then it was for the respondent to demonstrate otherwise by, for example, ascertaining and stating the reasons. Slade LJ in Connolly (supra) had gone too far in stating that if the respondent could produce a possible sound rational basis for the decision then an assumption should be made in favour of the Commissioner that such a basis was in fact the reason for his decision and, as such, a good one. In this case the respondent's pleadings did not set out any good grounds in any event. In short, the petitioner's ultimate contention was that if a petitioner had a substantial point of law to argue then a Commissioner's decision to refuse leave must be reduced if he fails to give his reasons since the prima facie unreasonableness would not be displaced. That is what had occurred here and therefore the Court should sustain his plea-in-law.

[30] So far as the purpose of the subordinate legislation exempting Commissioners from giving reasons for the refusal to grant leave to appeal, counsel submitted that this was simply to reduce the burden upon the Commissioners who did, nevertheless, from time to time give reasons in such situations.

(b) the respondent's submissions

[31] Counsel for the respondent (technically The Chief Adjudication Officer) emphasised that the decision under challenge was not that of the Social Security Appeal Tribunals or the Adjudication Officers but that of the Social Security Commissioner to refuse leave to appeal from SSAT 2's decision. He maintained that the purpose of the subordinate legislation exempting Social Security Commissioners from the need to give reasons for such refusals was to narrow the scope for a challenge to them. The case of Connelly (supra),which had been followed by Lord Philip in Turner, Petitioner, unreported, 26 October 1999, placed a heavy onus on a petitioner to show that a decision was unreasonable. If a respondent could point to a potentially good reason then that was effectively an end to any argument based upon unreasonableness. He pointed out that the structure of the legislation was that all reviews were carried out by adjudication officers (or Tribunals on references from them which did not arise here). Once the review had taken place or been refused, there was the right to appeal to a Social Security Appeal Tribunal and then, with leave, to a Commissioner. Once that process had been completed, at whatever stage it had finished, the question at issue on review had been determined. It was not possible to appeal from one Appeal Tribunal to another but that is what the petitioner had attempted here. SSAT 1 had before it several matters including the issue raised again before SSAT 2. It had allowed certain parts of the appeal but had refused to alter the element for the special diet. However, the question of the diet had been before SSAT 1 and was part of its decision. After that decision the remedy was to seek leave to appeal but that had been refused thus exhausting the appeal structure so far as that matter was concerned. No judicial review was taken so the decision stood until some change in circumstances permitted a review under section 25 of the 1992 Act. Eggleton (supra) was dealing with a subsequent review and not an appeal and was distinguishable. What the petitioner had sought to do was have SSAT 2 review SSAT 1's decision. That was not competent. In terms of section 25, no change of circumstances had taken place nor were there any new allegations of factual mistake. There had been no error in law nor a change in the law since normally the Courts on an appeal do not change the law but affirm what the law is and has always been. In that connection I was referred to Decision R(I) 2/94) appended to which was the English Court of Appeal case dated 8 July 1993 of The Chief Adjudication Officer v McKiernon (Dillon LJ at pp 13-14; Staughton LJ at p 16). In these circumstances it was, submitted counsel, a clear case of there being no tenable grounds for appeal and hence the refusal of leave was almost inevitable.

(c) Decision

[32] The sole decision which is the subject of review in the petition is that of the Social Security Commissioner refusing leave to appeal against the decision of SSAT 2. In order to succeed, the petitioner requires to demonstrate that the Commissioner acted unreasonably in refusing leave. I take that to mean broadly that it must be shown that the Commissioner reached a decision which no reasonable Commissioner properly instructed on the facts and law could have reached. I am unable to hold that this has been shown in this case. Rather, the Social Security Commissioner, in refusing leave has reached a decision which appears prima facie a reasonable one.

[33] The critical decision for the purposes of the petitioner's argument on what might, at this stage, loosely be called the res judicata point is that of the Adjudication Officer dated 3 December 1991 since that is the one which was appealed to SSAT 1. The question arises as to whether that decision was a review or a refusal to review. In my opinion it was a review. The Adjudication Officer expressly stated that he had reviewed the petitioner's entitlement to benefit so as to make payment of certain arrears. He did therefore carry out a review exercise and made a decision which revised the petitioner's benefit. Although he refers to being unable to "find grounds to review any other aspect" of the petitioner's claim, it seems clear that what he did was not to refuse to review these aspects in the sense of declining to entertain the argument on the merits at all. Rather he did look at the merits and reached a decision on these merits. His decision on the facts was that there were no grounds for review in the sense of there being no facts justifying an upward revision. This type of situation is quite different from that in Eggleton (supra) where it was held in the particular circumstances that there had been a refusal to entertain the merits of a review because the applications were late (see Pill LJ at p 10 B-E and Stuart-Smith at p 14 C-E). Accordingly I hold that there was a decision on the merits which amounted to a review on 3 December 1991.

[34] Furthermore, when the appeal against that review came before SSAT 1 on 10March 1993 there was a further decision on the merits because, not only did the Tribunal uphold the Adjudication Officer's decision on several aspects such as baths, Wear and Tear and diet (i.e. granting certain parts of the application but refusing others), it also made a decision to award and backdate a new laundry addition. The Tribinal's conclusions also amounted to a decision on the merits of all the aspects of the petitioner's benefit raised before the Tribunal by the petitioner and constituted a review of them. These aspects included diet especially given the detailed written submissions made at that time. The fact that SSAT 1 decided the diet point by applying regulation 72 did not, in my view, stop the decision of SSAT 1 from being a review of the merits of the petitioner's benefit in general and on diet in particular.

[35] The only methods of altering the decision of SSAT 1 were to obtain leave to appeal further to a Commissioner or for the petitioner to bring himself within the terms of section 25 of the 1992 Act (s.104 of the 1975 Act). He asked for leave to appeal on the ground initially of the duty of investigation upon an adjudication officer and subsequently upon the basis of the Mesher's Decision. He was refused leave on each of these points and these refusals were not subject to judicial review. The Commissioner's decisions on these two points, so far as leave to appeal was concerned, were thus and remain final ones not subject to challenge. The decision of SSAT 1 became final leaving only the statutory review process as an option.

[36] It was the next request for a review on 6 October 1993 that started the process which eventually became subject to the present judicial review. In order to secure a statutory review, the petitioner had to bring himself within the confines of the statute by demonstrating, in broad terms: (a) mistake in fact; (b) change of circumstances; or (c) error in law. The Adjudication Officer held simply that no new material had been submitted which would bring the petitioner within these confines. SSAT 2 agreed and made it clear that it regarded SSAT 1 as having already made a decision on the merits of the diet issue and nothing new had emerged since then. For the reasons given above, that decision was, in my opinion, correct. It is true that the Mesher decision had not been before SSAT 1 because he had not then expressed them but even if Deputy Commissioner Mesher's views were correct: (a) they do not amount to material which would constitute a mistake in fact by SSAT 1; (b) under reference to McKiernon (supra) they do not amount to a change in the law which could constitute a change of circumstances; and (c) they do not point to an error in law by SSAT 1. As counsel for the respondent observed, the Mesher decision had not even excluded the possibility of using section 72 before considering section 104. It had simply said that it should not normally be done unless it could be seen that no practical advantage to the claimant would follow given its terms.

[37] The Mesher decision had been put forward in respect of the request for leave to appeal against SSAT 1 as had the duty of investigation point. The grounds advanced to appeal SSAT 2 related to the failure of SSAT 2 to view the SSAT 1 decision as a refusal to review. For the reasons given above, these grounds, upon which the Commissioner refused leave on 10 January 1995 and which were maintained by the petitioner before me, did not disclose a substantial point of law to be argued. I therefore hold that the petitioner has not established any prima facie case of unreasonableness on the part of the Commissioner and the prayer of the petition as set out in Statement of Fact 3 falls to be refused.

[38] Even if a substantial point of law to be argued had been identified, I am not persuaded that that of itself would, even in the absence of a range of possible legitimate reasons, result in reduction of the Commission's decision. Where Parliament has expressly exempted a decision maker from giving reasons and he has not given reasons, it must be very difficult fort a Court then to determine that a decision made by him was "unreasonable". In Connolly (supra) Slade LJ said (p 1007) said:

"What then is the proper inference to be drawn from the omission of a commissioner to give reasons in refusing leave in a case such as this ?.....the judge [at first instance] considered that the only proper inference to be drawn in the present case was that the commissioner considered that no substantial point of law was involved which would or could result in a different decision from that which was reached by the board. If the commissioner had had other reasons, the judge thought he would have expressed them. Counsel for Mr. Connolly submitted that the proper inference is that the commissioner refused leave in the belief that there was no arguable or alternatively no substantial point of law. On that footing, he submitted, the commissioner was plainly wrong in refusing leave, because there plainly was an arguable point of law.

I do not think that either of these inferences is necessarily the correct one to be drawn in a case where a commissioner refuses leave without giving reasons. If an applicant presents to him an arguable, even substantially arguable, point of law, it may still, in some circumstances, be open to the commissioner to refuse leave in the proper exercise of his discretion, for example if he is satisfied that the point of law will have no effect on the final outcome of the case.

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 on 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 on 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."

[39] I have difficulty in being able to draw any "inference" from the mere fact that a commissioner has, as he is entitled to do, not given reasons for his decision. I do, however, agree with Slade LJ that a commissioner may have other legitimate reasons for refusing leave other than the absence of a substantial or arguable point of law. It is for a petitioner seeking a judicial review upon the grounds of "unreasonableness" to demonstrate that "unreasonableness". He must be able to show that there were no legitimate reasons upon which leave could have been refused. I agree with Lord Philip's formulation in Turner (supra) on this point where he says:

".....it is for the petitioner to show that the Commissioner had acted on improper or insufficient reasons or that there were no good grounds on which he could have refused [leave to] appeal."

[40] Impropriety and insufficiency do no arise in this case. If a respondent can point to any legitimate reasons, the petitioner will fail since he will have failed to demonstrate that there were no legitimate grounds for a Commissioner to refuse leave. The respondent has so failed in this case. I am not convinced that the exercise which is being performed is one involving a judicial assumption that the good reasons speculated upon by a respondent were those actually adopted by the commissioner. That might be regarded as a somewhat artificial approach. Rather, the existence of these reasons results in the failure of the petitioner to demonstrate "unreasonableness" (i.e. that no reasonable commissioner could have reached the decision in fact reached). Where Parliament has given Commissioners an exemption in relation to reasons, I would be surprised if that exemption could be circumvented by a judicial review process which compelled him to disclose the actual reasons. However, speculating or making assumptions, as distinct from concluding that the petitioner has simply failed to demonstrate unreasonableness, may not be the correct approach

5. MORA

(a) the petitioner's submissions

[41] On the question of delay, counsel for the petitioner accepted that had this petition been contemplated in England then a three months statutory limit may have applied whereas here, where the social security legislative regime was identical in both substance and the procedure at the material time, the petition had been served on 4 March 1999 and there had thus been a time lapse of over four years. I was referred to Clyde and Edwards: Judicial Review at paragraphs 13.20-24 where the authors deal with delay and acquiescence and to the cases of Hanlon v The Traffic Commissioner 1988 SLT 802 and Conway v The Secretary of State for Scotland 1996 SLT 689. Counsel maintained under reference to these authorities that delay was not of itself enough and there had to be conduct on the part of the petitioner indicating that he had abandoned a particular position and that the respondent had relied on that and generally in some way been prejudiced (Lord Prosser in Hanlon (supra) at 805 A-I; Lord Johnston in Conway (supra) at 690 B-C. There was no such prejudice in this case. It was accepted that the petitioner did require a special diet and the only issue was the cost of that diet. That was no more difficult to determine now than it had been in 1995. The only plea taken in the case was one of mora, taciturnity and acquiescence. If a different plea were to be argued such as one based purely upon delay not being conducive to the interests of justice then that ought to have been tabled separately such as had been done in Noble, Petitioner, unreported, Lord Eassie, 18 January 2000 (p 2).

(b) Respondent's Submissions

[42] Counsel for the respondent founded upon the fact that the original petition for judicial review had been one seeking reduction of the two Tribunal decisions. At the hearing on the petition, counsel for the petitioner had expressly stated that, because of the perceived legal difficulties involved, a decision not to go down that route had been made. The respondent or rather the Department had been led to believe that there was to be no challenge on the refusal to grant leave. The medical evidence in the two reports mentioned was no longer available and it would be difficult at this stage to visit the question of whether an Adjudicating Officer had made a mistake in 1987 or 1991. The petitioner had been called upon to state whether he had made any representations to the Tribunal regarding his £10 estimate in respect of the purported extra spending on diet but he had declined to answer that call. In general there had been prejudice caused by the passage of time. It had become more difficult to present a proper response to the petitioner's claims.

(c) Decision

[43] There has been substantial delay in this case no doubt caused by the initial unsuccessful judicial review process and the problems of obtaining legal aid before embarking on the current petition. However, it seems clear that mere delay is not sufficient to found a plea of mora, taciturnity and acquiescence which plea is, in my view, the only relevant one in this type of situation.

[44] In Hanlon (supra) Lord Prosser, with whom I agree, stated (p 805):

"On behalf of the petitioners it was emphasised that delay in itself will not suffice to produce bar. It was moreover contended that there would only be such bar where there was conduct on the part of the party indicating that he had truly abandoned an objection open to him in law.....and that his conduct had been relied upon and produced a material change of circumstances.....

While I do not think these propositions can really be disputed.....It is clear that the requisite conduct for bar can consist in the negative conduct of standing by in silence, and that silence can indeed constitute an implied intimation that one is offering no opposition to the course of events.....The length of any delay before implications of acquiescence arise will be almost infinitely variable depending on circumstances....."

In Conway (supra) Lord Johnston said :

"Suffice it to say that I recognise that the plea of mora and taciturnity may well be a relevant and competent one in the concept of judicial review whether looked at with regard to personal bar or acquiescence, but it cannot be determined at the bar on simple legal argument. The essential ingredient of the plea is prejudice."

I certainly agree that some form of prejudice is required in the sense that the respondent has in some way altered his position as a result of the petitioner's inactivity. I also agree that it is for the respondent advancing the plea to demonstrate that prejudice. I am less sure that evidence is required in every case especially if the facts founded upon as constituting the prejudice are either admitted or self evident on the pleadings.

[45] In Noble, Petitioner (supra), Lord Eassie, with whom I also agree, put the matter succinctly when he stated (page 8):

".....while it is of course the case that judicial review proceedings ought to be brought promptly, it must be borne in mind that decisions or actions susceptible of review by the Court in the exercise of its supervisory jurisdiction may be taken in a wide variety of fields and contexts. The effect of allowing an administrative decision to be re-opened or reversed after the passage of time may be very varied. To borrow the phraseology employed by Lord Goff of Chieveley in [R v Dairy Produce Quota Tribunal for England and Wales ex parte Carswell [1990] 2 AC 738] ".....applications for judicial review may occur in many different situations, and the need for finality may be greater in one context than in another" (749). Thus delay which is material in one context may not be so in another. Where the decision which is under attack is one which affects a number of third parties or where the attack is directed towards the validity of a scheme as a whole swift action may be required (Hanlon (supra)). Delay may also mean that the decision is spent and the petition thus academic as, for example, was the case in Marco's Leisure Ltd. v West Lothian District Licensing Board 1994 SLT 129. Or later decisions may have been taken on the basis that the decision which it is sought to impugn is valid and delay in such circumstances may also be fatal (cf. Atherton v Strathclyde Regional Council [(1995 SLT 557).

[46] In this case, I have little difficulty in holding that there has been delay of the type which can reasonably be regarded as both unnecessary and unreasonable. I have little difficulty also in holding that during and for about a year after the period of the first judicial review process, the Department was induced into thinking that the petitioner would not be challenging the refusal to grant leave. After all, that issue was not raised in that petition and the respondent's counsel in argument at the hearing intimated that one reason for deliberately not going down that route was that it was a difficult one to pursue in law. However, when it comes to searching to see how that prejudiced the respondent or the Department in the sense of causing or permitting them to change their position in some way, I have been unable to discover any material upon which a plea of mora, taciturnity and acquiescence might succeed.

[47] It is incumbent upon a respondent to aver in his answers the elements of prejudice upon which he founds to support his plea. All that is averred in this case is that delay in challenging an award of benefit and requiring to process stale claims is prejudicial to the social security system. I can understand that as a generality but, in order to sustain the relevant plea, I would have to be satisfied that this particular claim would cause a problem to the respondent or the Department. I am not satisfied that such a problem has been averred or demonstrated in the submissions to me.

[48] The factual issues which might require to be explored are: (a) whether the petitioner followed a special diet the cost of which substantially exceeded the paragraph 14(a) amount; (b) the cost of that diet in the relevant period (1984-1988); and (c) the steps taken by the petitioner to draw his diet to the attention of the Department. No doubt the passage of time has not improved the prospects of establishing these matters but I do not think that the difference between the date when this petition was raised (March 1999) and when it should reasonably have been raised (early 1995) is such as to cause material prejudice to the respondent or the Department or that anything occurred during that period which resulted in a change of position.

[49] In all these circumstances, I will repel the petitioner's plea-in-law, repel the respondent's first plea-in-law; sustain the respondent's fourth plea-in-law and refuse the prayer to reduce the Commissioner's decision of 10 January 1995.