Constantinou v Secretary of State for Work & Pensions [2007] EWCA Civ 300

Case No C3/2006/0905[2007] EWCA Civ 300
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 14 March 2007
Before
LORD JUSTICE AULD
Between
CONSTANTINOUAppellantSECRETARY OF STATE FOR WORK AND PENSIONSRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
for THE APPELLANT DID NOT APPEAR AND WAS NOT REPRESENTED. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]Mr Constantinou, the applicant, does not appear today. He has been notified in the appropriate manner of the date of the hearing and its purpose. The Court has received a letter from his wife of 16 February 2007 from Pathos, Cyprus, indicating that she and her husband are there in Pathos and are either not able or not willing or not in a financial position to return to this country in the foreseeable future. In her letter she gives much detail as to her husband’s poor state of health which makes it difficult for him to return. In the circumstance, Mr Constantinou not having attended to pursue this application, it seems to me the proper course is for me to deal with it having read the papers carefully and to give a formal ruling on it. I shall do so quite shortly.[2]This is a renewed application by Mr Constantinou after refusal by Richards LJ for permission to appeal a superseding decision of a Social Security Commissioner, Mr Christopher Whybrow QC, of 8 June 2005 on a fresh consideration following his setting aside of an earlier decision pursuant to Section 14 8a(ii) of the Social Security Act 1993. By that decision the Commissioner held that Mr Constantinou was capable of work and that, with effect from 9 May 2003, he was not and is not entitled to incapacity benefit. The issue before the Commissioner was primarily one arising out of criticisms by Mr Constantinou and/or his wife of the medical evidence going to the question of his capacity to work, criticisms that the Commissioner rejected in paragraph 31 of his determination in the following terms:
“As to the criticisms of the claimant’s wife of the doctor’s report, I reject them on the balance of probabilities. The report appears to me to be thorough and soundly reasoned and records details of the claimant’s own account of his functional abilities in a way which bears the ring of truth. By contrast the criticisms made by the claimant’s wife are emotionally expressed and, in my judgment, are unbalanced. The complaints are not corroborated by other recent evidence, and I bear in mind that the claimant and his wife chose not to attend the hearing [their previous hearing] even though they knew that it had been adjourned for oral evidence from the claimant to assist the tribunal in dealing with the criticisms of the medical evidence. Further in one respect at least I am persuaded that the criticism is much exaggerated in that it is said that the examination took only 15 to 20 minutes.”
The Commissioner went on in paragraph 32 to give his determination in these terms:
“On my findings and those of the tribunal, I conclude that the claimant does not satisfy the PCA and that the new medical report provided grounds for superseding the operative decision awarding incapacity benefit … My decision is that the earlier operative decision is superseded by a decision that the claimant is not incapable of work, and is not entitled to incapacity benefit from 9 May 2003.”
[3]The Commissioner so found after a comprehensive and well-reasoned decision both as to the procedural history of the matter and the fresh evidence before him.[4]Mr Constantinou’s proposed grounds of appeal may be summarised as follows: 1) that the ATOS doctor was hostile and unsympathetic to him in the course of his medical examination. 2) that the doctor’s report was inaccurate and failed to take into account documentary evidence relating to his medical history, notwithstanding that the documentation had been sent to him by registered post. 3) that the tribunal were wrong to say that the applicant had “resolutely refused to attend” hearings; the applicant did not attend on medical advice recommending that he should not do so, and his wife also was ill. 4) that the applicant maintained that he had been accused of fraudulently claiming benefit which was, he said, akin to slander; and 5) finally, that the decisions were wrong.[5]An appeal to the Court of Appeal relies only on a point of law on this matter and, even then, only if there is a real prospect of success. As Richards LJ said in refusing permission, the proposed grounds do not begin to identify any error of law in the Commissioner’s decision. There is none to be seen. He was entitled to exercise his power to make further findings of fact and to give the decision that he considered appropriate in the light of those further findings, findings that he adequately and rationally reasoned on the evidence before him. He also made plain that he took into account, and did so properly, all the representations made on Mr Constantinou’s behalf. The proposed grounds that I have summarised consist of no more than challenges to factual findings by the Commissioner, and, as I have said, indicate no error of law on his part.[6]Accordingly I refuse this application.

Order

Application refused.

Cited in 2 later judgments