ALWYN COOKE v SECRETARY OF STATE FOR SOCIAL SECURITY [2001] EWCA Civ 734

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY
AND CHILD SUPPORT COMMISSIONERS
[2001] EWCA Civ 734Case No A1/00/3249Venue Royal Courts of Justice, Strand, London WC2, Wednesday, 25th April 2001
Between
ALWYN COOKEAppellantSECRETARY OF STATE FOR SOCIAL SECURITY
Before
Lord Justice ClarkeLady Justice Hale MrMR. R. THACKER (instructed by Messrs Stephensons, Leigh) appeared on behalf of the Appellant.MR. D. FORSDICK (instructed by the Solicitor to the Department of Social Security) appeared on behalf of the Respondent.Date 25 April 2001

LADY JUSTICE HALE:

This

[1]is a claimant's appeal against the decision of Deputy Social Security Commissioner Hereward dated 26th May 2000. She dismissed the claimant's appeal from the decision of the Wigan Disability Appeal Tribunal made on 12th April 1999. Permission to appeal to this court was refused by Social Security Commissioner Rowland on 31st August 2000. On 4th December 2000 I adjourned the application for an oral hearing with both parties to attend, and the appeal to follow if permission was granted. Among my reasons for doing so was that the question arises as to whether an application such as this, from a second and highly expert judicial tier of appeal, should be regarded as akin to a second tier appeal from the High Court or a county court and thus, although not technically within section 55(1) of the Access to Justice Act 1999, subject to a similar threshold test. We have today granted permission to appeal, in part to enable us to express a view on that question.[2]The history of the case is this. The claimant suffers from low back pain. She had a laminectomy twice in 1986. She also suffers from arthritis and fibromyalgia. She had a total right knee replacement in 1992 and she suffers from depression and a skin condition. She first claimed disability living allowance in February 1993. This was disallowed. On appeal, however, the higher rate mobility component was awarded until February 1995. This was later renewed until 9th February 1997. The highest rate care component was awarded on review until that same date. On 22nd August 1996 she applied for the renewal of both awards. She filled in a claim pack and a report was later obtained from her general practitioner. No other assessment was made at that time. On 9th October 1996 both awards were extended for life with effect from 9th February 1997.[3]However, she was visited by a visiting officer on 23rd April 1998. The visiting officer filled in the questionnaire on her behalf. The officer found a discrepancy between what had previously been on record and what was observed during the visit. As a result the claimant was examined by Dr. Spielmann. His report is dated 1st July 1998. This records her own account of her relevant symptoms, his own clinical findings and his opinion. His main conclusion was that "the clinical findings do not support the extent of the disability claimed." He did, however, state that there had been no change in the circumstances over the last 12 months, that is since 1st July 1997.[4]Hence the Secretary of State made an application to an adjudication officer for a review or correction of the earlier decision. This application was based on a relevant change of circumstances within the meaning of section 30(2)(b) of the Social Security Administration Act 1992 because of "a reduction in mobility and care needs as shown in recent medical evidence". The adjudication officer's decision on 24th July 1998 was that there had been a relevant change of circumstances since the last decision. Her mobility and care needs had been reduced. Initially disability living allowance was withdrawn altogether as from 1st July 1998, but the claimant applied for a review within three months as provided for under section 30(1) of the 1992 Act and the adjudication officer decided that she was entitled to care component at the lowest rate, but not to any mobility component.[5]She appealed to the Disability Appeal Tribunal. She produced evidence from her general practitioner and from her consultant rheumatologist, Dr. Jones. The tribunal upheld the adjudication officer's decision. On the mobility component they found that:
"There are conflicts in Ms Cooke's own evidence over the years. For example in a renewal claim submitted in August 1996 Ms Cooke stated that she gets severe discomfort as soon as she starts walking. In contrast in the Disability Living Allowance questionnaire completed by her on 23rd April 1998 she states that she cannot walk far, she is in pain all the time and could walk perhaps 50-60 yards in 10 minutes before the onset of severe discomfort."
They conclude that:
"Because of the inconsistencies in the distances stated by Ms Cooke between 1996 and 1999 the tribunal is satisfied, on the balance of probabilities, that she can walk at least 50 yards before the onset of severe discomfort brought on by pain in her back and left knee. We reached this conclusion because it is based on the evidence of the Examining Medical Practitioner [Dr Spielmann] and Dr. Jones.Their findings in this respect are in the opinion of the tribunal entirely consistent. Furthermore, taking account of Dr. Spielmann's findings, we consider, on the balance of probabilities, that at the date of the Adjudication Officer's review decision she should have been able to walk a further 50 yards before having to halt again because of the onset of severe discomfort."
That being so they concluded that she did not then qualify for the higher rate of mobility component. They went on to consider whether she qualified for the lower rate and found that she did not.[6]As far as the care component was concerned, they stated:
"We believe that Ms Cooke both in the questionnaire and in her evidence to the tribunal, was overstating her care needs. We do not doubt for one moment that she suffers pain because of her condition and noted that Dr Jones states that she is at the severe end of the pain spectrum. Nonetheless, taking account of Dr Speilmann's clinical findings, which the tribunal accept, we do not consider that her grip with either hand is as impaired as is suggested by Ms Cooke. Nor, for the same reason, do we consider that Ms Cooke is having the amount of difficulty getting up and downstairs most of the time as she maintains and as is stated by Dr Jones in his letter."
They earlier found that because of her physical disabilities as at 15th September 1998:
"Miss Cooke reasonably required assistance from another person in connection with her bodily functions of bathing (getting into and out of the bath - once per day) and washing parts of her body difficult to reach (once or twice a day). She also reasonably required assistance with dressing (one/two times a day because of problems with buttons)."
They did not, however, find that she needed assistance with her toilet needs:
"In the 1996 renewal claim pack Ms Cooke stated that she needed help getting to and using the toilet 2 or 3 times per night taking 10-15 minutes each time. On the basis of that statement she was found to have night care needs at the time of renewal of her care award of 1996. In contrast in the 1998 Disability Living Allowance questionnaire Ms Cooke made no reference to needing assistance in using the toilet but stated that she needed assistance getting to the toilet on one or two occasions per night, taking about 10 minutes each time. In view of this difference between the 1996 claimed night needs and the 1998 claimed night needs we prefer, on the balance of probabilities, to accept the findings of Dr Spielmann to the effect that Ms Cooke does not require assistance getting out of the bed by day or by night and getting to the toilet at night. In these circumstances and in the absence of any other stated night care needs we are satisfied that Ms Cooke does not require from another person prolonged or repeated attention in connection with her bodily functions at night."
Therefore she did not qualify for the higher rate care component.[7]Their conclusion was this:
"In our opinion there was sufficient evidence (including in particular the Examining Medical Practitioner's report) before the adjudication officer on 24 7 1998 to suggest that there had been a relevant change of circumstances since the decision dated 9 10 1996. The relevant change of circumstances was that as at 24 July 1998 the evidence available to the adjudication officer suggested that Ms Cooke's mobility needs were not sufficient to justify an award of the higher rate mobility component and that her care needs were only sufficient to justify an award of the lowest rate care component from the same date."
The Deputy Social Security Commissioner upheld the tribunal's decision. The relevant part, for this purpose, of her decision explained that the medical report provided "evidence that the circumstances were not as they had previously been accepted to be."[8]The main argument on this appeal, both before the Social Security Commissioner and here, is a simple one. It is not enough to show that the Disability Appeal Tribunal would come to a different conclusion from the earlier adjudication officer. The adjudication officer only has jurisdiction to review a case after three months under section 30(2) of the 1992 Act in defined circumstances.

(a) and (b) of that subsection:

"(a) the adjudication 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."
It is common ground between the parties in this case that it is well established in social security law that the threshold to establish the jurisdiction to review is low. However, it is also common ground that it is not enough to show, either a mistake within the meaning of paragraph (a), or a change in circumstances within the meaning of paragraph (b), that a later doctor forms a different opinion from the one formed earlier. There still has to be shown either that there has been a change or that there has been a mistake.[9]This was established in the decision of Lightman J in the case of R v Social Security Commissioner, ex parte Chamberlain The Times, 1st August 2000, approving the approach of Social Security Commissioner Mesher in case numbered CIB 3899/97. The Commissioner refers to "the well established principle that the existence of a medical opinion which differs from some previous opinion does not in itself constitute a relevant change of circumstances." He goes on to state:
"Where the operative decision that a claimant is incapable of work was given following an actual all work test assessment, the mere existence of a subsequent report from an examining medical officer or of a subsequent unfavourable all work test assessment does not itself amount to a relevant change of circumstances or indicate that the operative decision was given under a mistake as to a material fact. That would be to confuse the outcome of a review with the establishment of grounds for carrying out a review."
Mr. Commissioner Mesher was there preferring the submissions on behalf of the claimant. He went on to say:
"I accept that as a matter of practice an appeal tribunal may start, ... by asking whether it has been shown to its satisfaction that the all work test is not satisfied at the date of the adjudication officer's assessment. However, in considering whether that has been shown, the appeal tribunal must consider and give proper weight to the evidence on which the previous decision was based."
He then goes on to give examples of differences that there might be and concludes:
"Then the principle. . . comes into play that the expression of a new medical opinion is not itself a relevant change of circumstances, but may be evidence of an actual change of circumstances or a mistake of fact."
That much is common ground.[10]In the Chamberlain case there was nothing to suggest either a mistake or a change. There were simply two different assessments on the same set of facts. In this case, however, there was evidence, from the discrepancies in the claimant's own statements and the later doctor's report, to suggest either a mistake or a change. The Secretary of State might have applied to the adjudication officer for a review on two alternative bases. He did not do so. As the Deputy Social Security Commissioner pointed out, it was charitable to the claimant to assume that there had been a change rather than a mistake because then no question of repayment or pursuing the issue of whether there had been a deliberate inaccuracy in 1996 arose. The tribunal therefore approached this as a change of circumstances case.[11]Mr Thacker on behalf of the appellant criticizes the Tribunal for not following the two stage process through properly. It did not first ask whether there were grounds for review and then ask whether the claimant was now entitled. It did not expressly compare the circumstances as they existed in 1996 with those as they existed in 1998. He points out that they did not disagree with Dr Spielmann's report that her condition had been unchanged since 1st July 1997, that is, a year before his examination. That, he points out, does not leave long for a change to have taken place since October 1996 when the adjudication officer made his earlier decision.[12]However, it is clear from the extracts which I have quoted that the tribunal did compare what the claimant herself had said about her condition in 1996 with what they found the facts to be in 1998 on the basis of what she had said to the visiting officer and to Dr Spielmann and Dr Spielmann's own opinion. There were two crucial points. Firstly, on the mobility component the claimant must be virtually unable to walk. It is an accepted benchmark of that ability to be able to walk for 50 metres. In 1996 she had said that she experienced severe discomfort as soon as she started walking. In 1998 she had said that on good days she could walk to the end of the road. The tribunal found that she could walk for 50 metres and then a further 50 metres after a rest. Secondly, for the higher rate care component the claimant must need prolonged or repeated attention at night. In 1996 she had said that she needed help getting to and using the lavatory. In 1998 she had given somewhat confusing answers to Dr. Spielmann but the first had been:
"I can get to the toilet and can use it by myself."
The tribunal found that she did not need help day or night. The tribunal were not invited, and were not prepared uninvited, to hold that she had been mistaken or untruthful in what she had said in 1996. That being so, on the basis of those differences they were bound to conclude that there had been a change. That was a finding of fact which could not be challenged on appeal.[13]There was also no error of law. This was different from the well established principles endorsed in the Chamberlain case. As Social Security Commission Rowland said when he was refusing permission to appeal to this court:
"The Deputy Commissioner referred to a medical report which provides evidence that circumstances are not as they had previously been accepted to be which is not the same as a report which merely offered a different opinion on the basis of the circumstances."
There was therefore in my view no error of law in this case. In my judgment, therefore, this appeal must fail.[14]However, that leaves the question of the criterion for the grant of permission to appeal in such cases. Section 55(1) of the Access to

Justice Act 1999 provides as follows:

" Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that - (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the Court of Appeal to hear it."
That criterion is clearly intended to be a somewhat different test from the usual criterion for the grant of permission to appeal, which is whether the appeal would have a real prospect of success, or there is some other compelling reason for the Court of Appeal to entertain it. Now is not the time to debate the precise differences between those two tests. It is clear from the words of the section that it does not apply to the appeal in this case. But many of the reasons underlying that provision apply with equal force in these circumstances, and indeed some might think them stronger.[15]Firstly, this is a highly specialized area of law which many lawyers - indeed, I would suspect most lawyers - rarely encounter in practice. Secondly, there is an independent two-tier appellate structure. (Indeed, under the system as it was when this case was decided the adjudication officer himself had a degree of independence from the Secretary of State.) After the initial decision there is a fresh hearing before a specialist tribunal which is chaired by a lawyer and has an appropriate balance of experience and expertise amongst its members. After that there is an appeal on a point of law to a highly expert and specialized legally qualified body, the Social Security Commissioners. Thirdly, it is essential that that tribunal structure is sufficiently expert to be able to take an independent and robust view, particularly in cases where the government agency has gone wrong. It must be in a position to see through what the relevant sponsoring department is saying when it is arguing the case.[16]It is also important that such appeal structures have a link to the ordinary court system, to maintain both their independence of government and the sponsoring department and their fidelity to the relevant general principles of law. But the ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right. The Commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in a purposive construction of the legislation in question. They will also know the realities of tribunal life. All of this should be taken into account by an appellate court when considering whether an appeal will have a real prospect of success.[17]In my view the Court of Appeal should take an appropriately modest view, especially when it has heard only one side of the argument, of how likely it is that the Commissioner will have got it wrong. Obviously, however, that will differ according to the nature of the problem presented and the arguments in issue. In my view this case is a good example. The principle which was advanced on paper in support of the appeal is common ground between the parties. On examination of all the relevant material, which is now before us and was not before, it becomes plain that the tribunal and the Commissioner did not err in law. One reason for that was the sensible and considerate approach of the Secretary of State and the adjudication officer in advancing the case for review. It would not be in the overall interests of this claimant or any other for this court to take a line which encouraged the Secretary of State to argue the alternative ground for review when there was no need to do so. Hence, I agree with Mr. Forsdick for the Secretary of State that, although section 55 does not apply, a robust attitude to the prospect of success criterion ought to be adopted in these cases.[18]The point is also relevant for other similar appeal structures, such as those of the Employment Tribunals and Employment Appeal Tribunal, those of the Adjudicators and Immigration Appeal Tribunals, those of the Leasehold Valuation Tribunals and the Lands Tribunal. However, there are significant differences between this system and those which may affect matters. Some of these are private law tribunal systems, rather than government and citizen or applicant systems, and there may be other considerations which we have not had the opportunity of looking at in this case. I would therefore confine my views on this last point to this particular tribunal structure, while expecting that similar arguments may be appropriate if they arise elsewhere.[19]For all those reasons I would dismiss the appeal.[20]MR. JUSTICE BUTTERFIELD: I agree.

LORD JUSTICE CLARKE: I also agree.

Order

Application for permission to appeal allowed; appeal dismissed; detailed assessment of the appellant's costs; legal aid assessment.

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