Secretary of State for Work and Pensions v Cattrell (Rev 1) [2011] EWCA Civ 572

Case No C3/2010/0798 + (A) + (B)

[2011] EWCA Civ 572

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(SIR CRISPIN AGNEW OF LOCHNAW QC)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday, 29th March 2011

Before

LORD JUSTICE HUGHES

LORD JUSTICE PATTEN

SIR RICHARD BUXTON

Between

THE Secretary of State for Work and PensionsAppellant

Coralina CattrellRespondent

(DAR Transcript of

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Mr Jason Coppel (instructed by The Solicitor to the Department of Work and Pensions) appeared for Appellant.

Mr Mathew Gullick and Miss Caroline Stone, acting pro bono, appeared for Respondent.

Judgment

Sir Richard Buxton:

[1]This is an appeal from the Administrative Appeals Tribunal Chamber of the Upper Tribunal brought before this court with the permission of that tribunal. It arises in the context of regulation 27(b) of the Social Security (Incapacity for Work) General Regulations 1995 which concerns the award of incapacity benefit.

[2]The history of this matter has been unsatisfactory and it has come before this court in an unsatisfactory form which has made it difficult to deal with the substantive issues, if indeed there are any in the case. That is partly because before the case reached this court neither side appears to have had the benefit of legal representation. In this court the Secretary of State has appeared, as it were, in the flesh rather than by paper, represented by Mr Jason Coppel. In the tribunals below Ms Cattrell represented herself. Before us she and the court had the great benefit of representation pro bono by Mr Mathew Gullick and Miss Caroline Stone, whom we would thank for volunteering for that task and would also thank the Bar Pro Bono Unit through whose good offices that legal representation was, made available to Ms Cattrell.

[3]Because of the state in which the case reached this court and the state in which it still is, it is necessary to mention some general considerations that apply to this category of appeal in this court. First, appeal to this court from the tribunal lies only on a question of law, and indeed that is also the case in respect of appeals from lower to the upper tribunals. Secondly, by the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008/2834) no appeal can be brought to this court unless permission is given for a "second appeal"; that is to say, that the proposed appeal would raise some important point of principle or practice or there is some other compelling reason to hear the appeal.

[4]As I have already said, permission was granted by the Upper Tribunal in this case, applying that rubric. The circumstances in which this occurred and the implications for the appeal are something to which I shall have to return.

[5]Thirdly, this court will always have in mind the caution that it must exercise before substituting its own view for that of a specialist tribunal, such as the Upper Tribunal is. That was made clear in a well-known judgment by Hale LJ, as she then was, in Cooke v Secretary of State for Social Security

[2002] 3 All ER 279

at [15], a statement that was held by Brooke LJ in Napp Pharmaceuticals Holdings v Director General of Fair Trading

[2002] EWCA Civ 796

[2002] 4 All ER 376

at [62] to be of general importance. Further, that general principle, has been cited and applied many times in the cognate jurisdiction of appeals on immigration matters.

[6]To set the background, it will be convenient to set out here the terms of regulation 27, including 27(b). That reads as follows:

"A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor approved by the Secretary of State — (a) he suffers from a previously undiagnosed potentially life-threatening condition; or (b) he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work"

There then follows two further subsections with which we need not be concerned.

[7]How that provision works in practice and how it fits into the general structure of incapacity benefit law has been set out in some detail by Moses LJ in his judgment in this court in Charlton v Secretary of State for Work and Pensions

[2009] EWCA Civ 42

, an account on which I cannot possibly improve. Putting it however very shortly, the basic structure is that a person who is seeking incapacity benefit is assessed according to the regulations by a medical assessor – not, as I understand it, necessarily a qualified doctor -- the objective of that assessment being to decide whether there is work that the person is capable of doing in the sense of not being prevented by his medical condition from actually physically doing the work. That is what is described as the "all work test". Regulation 27 provides for a residual case where the claimant is capable of working under the previous test but, subject to the conditions set out in the regulation, doing that work would create a substantial risk to health, either his own health or the health of others; in this case we are concerned with the health of Ms Cattrell herself.

[8]In the case of Ms Cattrell it is agreed that she does suffer from a specific disease or bodily disablement -- that is, from a latex and rubber allergy; but the examining medical assessor found that that condition did not render her incapable of work. He also found and recorded that no issue arose under regulation 27(b). Ms Cattrell appealed to the lower tribunal which found, first of all, that she did indeed suffer from a specific disablement, as is agreed; and, secondly, that there was no work available to her in which she would be safe from the effects of that allergy. They expressed themselves in these terms in paragraphs 5 and 6 of their determination:

"We accepted Ms Cattrell as an honest witness. She told us that advice from the Jobcentre had been to switch from Jobseekers Allowance to Incapacity Benefit as the Centre could see no prospect of her getting work that would be reliably safe for her. If such work be found then Ms Cattrell was (and still would be) willing to do it but the Centre took the view that in practice there was none. It has to be remembered that rubber and latex products are prevalent and that potentially an allergic attack could have the most serious of consequences. 6. Looked at in a practical way the tribunal considered that regulation 27(b) applied. There would be a substantial risk to Ms Cattrell's physical health if found capable of work. She would then have actively to seek work without being able to obtain assurances of the absence of rubber/latex at (or in reaching) prospective places of employment. Her anxiety already high (she had obtained assurances of safety at the medical centre and the tribunal suite) would increase to the serious detriment of her mental health."

And paragraph 7:

"The fact that Ms Cattrell has today not suffered seriously from her allergy is on account of the measures which, reasonably in our view, she has taken for her safety."

[9]The Secretary of State appealed that decision to the Upper Tribunal. Such an appeal lies only on a matter of law. Mr Coppel helpfully summarised in paragraph 22 of his skeleton argument the grounds of appeal put forward by the Secretary of State, apparently with the permission of the lower tribunal. The first ground complained of the lower tribunal's findings on mental health and said that those had been contradictory in that they differed from the medical examiner's conclusion as to Ms Cattrell's mental capacity for doing work. That complaint was accepted by the Upper Tribunal and it does not now form part of the Secretary of State's complaint in this court, though I will state just for the record that if the matter had proceeded Miss Cattrell would have wished by a respondent's notice to challenge that point.

[10]The second ground was simply this, and I quote Mr Coppel's helpful summary:

"The Secretary of State complained that the respondent lived a relatively normal life which was inconsistent with the lower tribunal's finding that going to work would put her in serious danger."

[11]I find it impossible to read that ground as anything other than a complaint that there was evidence before the lower tribunal that it did not take account of, that is to say a complaint about its findings of fact. I will come back to that aspect in due course.

[12]The matter proceeded on that agenda to the Upper Tribunal. By the time the case was heard this court had decided the case of Charlton to which I have already referred. The Secretary of State said, and in written submissions before this court emphasised, that one of his main concerns in the present case was that Charlton had not been properly taken note of, indeed as I understand it had been departed from by the Upper Tribunal. Quite apart from the Charlton point, the Upper Tribunal had of course also to consider the complaint arising from the finding of the lower tribunal and in doing so in fact went a good deal wider, to the benefit of the Secretary of State, than there was substance for in the grounds of appeal to it.

[13]Since it is going to be necessary to refer back to this from time to time I will set out the nub of the Upper Tribunal's decision which is to be found in paragraph 6 to 8 thereof:

"6. Although Charlton was not decided until after the tribunal's decision, I considered that they have in effect applied the correct test. While in the normal course a tribunal is required to identify 'range or types of work' that a claim [that should be claimant] can undertake, in the present case the tribunal has accepted the claimant's evidence that the Job Centre 'could see no prospect of her getting work that would be reliably safe for her' and that in practice there was no suitable work. This is not a case of assessing whether a particular form of work might be a substantial risk, but is a case where it is environment at the place of work and getting to that place that is the risk factor. The tribunal has found 'that rubber and latex products are prevalent and that potentially an allergic attack could have the most serious of consequence. This finding is adequately supported by the material produced by the claimant on latex allergies, which include extensive lists of latex products in all area of life and work. The tribunal has effectively found that there are no places of work, including getting to that work that is safe for the claimant. 7. The tribunal has then gone on to assess the health risks of a claimant and held that there was a substantial risk to the claimant's physical health if found capable of work. I consider that is supported by the material on latex allergies, which refers to the risk of an anaphylactic reaction that can come on quickly, even in persons who have only had minor reactions in the past. The tribunal has also found that the claimant 'has to date not suffered seriously from her allergy …[because]… of the measures which, reasonably in our view, she takes for her safety', which is a finding that accepts that in the work environment she may not be able to take those precautions. I therefore consider that the tribunal was entitled to apply Regulation 27(b). 8. In so far as the Secretary of State refers to the tribunal's findings being contradictory by referring to the claimant's high anxiety and then that 'there was no question of mental' health descriptors, I agree that there is contradiction. However, this is not fatal to the decision, because the decision on physical health cannot be impugned for the reasons given above."

I need not read any further in that paragraph; it deals with a point that will not now arise in this court.

[14]Accordingly, the appeal was dismissed, the Upper Tribunal having upheld the conclusion of the lower tribunal. There was then an application to the Upper Tribunal for permission to appeal to this court. This is a matter of some importance because, as I shall explain, we have had difficulty in discerning what the extent of that permission was, and therefore what the extent of this court's jurisdiction is, in addressing the appeal at all.

[15]Although they are fairly long I can only do justice to the Secretary of State's case by setting out verbatim the grounds that he put to the Upper Tribunal and what he briefly said about them. That is to be found in paragraph 5 of his submission to the Upper Tribunal, which reads as follows:

"The Secretary of State submits that the Deputy Judge erred in law in the following respects: (1) In CIB/3519/2002, Judge Rowland held that 'a risk may be 'substantial' within reg. 27(b) if the harm would be serious, even though it was unlikely to occur and, conversely, may not be 'substantial' if the harm be insignificant, even though the likelihood of some such harm is great.’ It would appear that this is the approach which was applied by the FTT and the Deputy Judge, since in the claimant's case anaphylactic shock, although potentially serious, was very unlikely to occur. That approach was erroneous: on the ordinary use of language, and having regard to the exceptional nature of reg. 27(b), there cannot be 'a substantial risk' of harm if the harm in question is unlikely to occur (and certainly it is very unlikely to occur). (2) The Deputy Judge failed to recognise that the FTT had no evidence before it to support the proposition that the claimant herself was at significant risk of an anaphylactic reaction. An anaphylactic reaction was a theoretical possibility but the claimant had never suffered any reaction and had never been prescribed and did not carry an adrenaline syringe for self-administration in an emergency. If the claimant herself did not consider an anaphylactic reaction to be a serious possibility in her day to day life, it should not have been accepted that she was unable to go to work because of that possibility. (3) The Deputy Judge should have held that the reasons of the FTT were wholly inadequate to support the findings which it made. In particular, the FTT failed to explain why it was that the claimant was able to take sensible precautions in her day to day life, and so live relatively normally, but was unable to take such precautions in the work places and on the way to work. Given in particular the duty of employers under the Disability Discrimination Act to make reasonable adjustments to accommodate the medical needs of their employees, there was a pressing need for the FTT to explain why it believed that the claimant was exposed to substantial risks in the work places which she was unaffected by in her day to day life. (4) The FTT's decision appears to have been based on hearsay evidence from the claimant that she had been told by a member of staff at Jobcentre Plus that there was no prospect of her getting work which would be reliably safe for her. The FTT appears to have accepted, without analysis, that that alleged statement was sufficient to found entitlement to benefit under Regulation 27(b). The Deputy Judge relied on that finding of the FTT. The FTT should have investigated for itself the issue of whether there was work which the claimant could safely do and given appropriate reasons for its finding that there was no such work. The FTT thereby failed to comply with the approach stipulated by the Court of Appeal in Charlton, a decision which was issued after that of the FTT. The Deputy Judge erred in law in upholding the FTT's approach in this regard. (5) The finding of the deputy judge to the claimant 'may not be able to take those precautions' was insufficient to give to entitlement under reg. 27(b). The issue was whether, on the balance of probabilities, she would be able to take precautions such as to avoid a substantial risk to her physical health (including, if necessary, the precaution of carrying an adrenaline syringe)."

I interpose to say that those are also the grounds, in the same terms exactly, that are relied on before this court. The application to the Upper Tribunal went on in paragraph 6:

"Given the significant implications of the Deputy Judge's decision of entitlement to incapacity benefit of the many thousands of people suffering from allergies the Secretary of State submits that this case raises an important issue of principle or practice within Article 2A of the appeals from the Upper Tribunal to the Court of Appeal Order 2008 and that an appeal would have a real prospect of success."

That was considered on paper by

the judge of the Upper Tribunal, who simply wrote as follows:

"The Upper Tribunal has considered whether the proposed appeal would raise some important point of principle or practice Permission to appeal is granted."

[16]The first matter that was of concern to this court is that it did not appear that these grounds, or indeed any of them, had been taken before the Upper Tribunal, as I think it is clear from a comparison with what the Secretary of State put before the Upper Tribunal and what is now sought to be put to us.

[17]That I think is not in itself a reason for not considering the appeal but it is, to put it at its lowest, a reason for regret that point was not emphasised and made clear to the judge who granted permission for this appeal, and it causes great difficulty in dealing with the matter that is now put before us. When we raised this with Mr Coppel he said that the explanation was that it had not been apparent from the decision of the lower tribunal that questions of the proper test for substantial risk or issues of the handling of the evidence by the lower tribunal, were going to be in issue before the Upper Tribunal. It was only when the Upper Tribunal explained how it had analysed the decision of the lower tribunal that it became apparent for the first time that complaints could be made in respect of the matters set out in the grounds of appeal. I would be less than frank if I did not say that I find that submission difficult. Although Mr Coppel said that he did not complain on that basis in respect of the lower tribunal but only of the Upper Tribunal, that is not what was said in ground 1 upon which permission was granted and in ground 1 before this court. Secondly, as I pointed out when analysing the history of this case, it was in fact a concession to the Secretary of State that the Upper Tribunal went at all into the analytical justification of the findings of the lower tribunal;. It was not asked to do so in the grounds put to it by the Secretary of State; the only ground, as we have seen, was a complaint about a failure to advert to one part of the evidence.

[18]So in those circumstances I am afraid that I simply do not see how it can be right to say that the Secretary of State was taken by surprise. It was a necessary premise of the decision of the lower tribunal that it had come to a proper view on substantiality and on such evidence as there was before it.

[19]That is the first overlying difficulty in this appeal. The second is this. I have already set out the terms in which the application for permission was made, terms which, it must be assumed, were acted on and accepted by the Upper Tribunal in granting permission. When the appeal opened we asked Mr Coppel in the context of those submissions to the Upper Tribunal what was the point of principle that was asserted in that application, because, as will be seen from the verbatim account that I have given, when the Secretary of State came to submit that the case raised an important point of principle or practice he said that that was because the deputy judge's decision was significant for entitlement to incapacity benefit of many thousands of people suffering from allergies. The difficulty is that that is not a point of law. It may be a point of policy, convenience or whatever, but it is clearly not a point of law and therefore cannot be entertained by this court; and the Upper Tribunal in granting permission cannot alter the jurisdiction of this court by granting permission on a matter that is not a point of law and therefore falls outside this court's jurisdiction.

[20]Some discussion then ensued between counsel and the court in an attempt to see what there was in this case that we could address. We concentrated in the first instance on ground 1 because that seemed at first sight to be a ground that did involve a complaint on a point of law and might involve a point of general principle. When I first read ground 1, indeed when I read it for the third or fourth time, it seemed to me that the Secretary of State wished through that ground to challenge the decision of Mr Commissioner Rowland made as long ago as 2002. Indeed, in his skeleton argument Mr Coppel appeared to say that Mr Commissioner Rowland was wrong in holding that a risk might be substantial if the harm is serious, even though it was unlikely to occur, because a risk could not be substantial unless there was a substantial likelihood of its occurring. However, Mr Coppel assured us that that was not what he sought to do. The ground did not challenge Mr Commissioner Rowland's analysis as such; it simply invited this court to say that a very small risk could not be a substantial risk in any event. That is to say that we should, as it were, nuance the Rowland analysis by that addition. How much further, if at all, the ground went was not, to me at least, clear.

[21]In an attempt to elucidate the Secretary of State's case, the court divided the first ground into two limbs. The first, ground 1(a), is the complaint, whatever it was, about the judgment of Mr Commissioner Rowland. The second limb -- or as we called it, ground 1(b) – was said by Mr Coppel to be intended to complain that the tribunal in this case had not adequately evaluated the risk, whatever the basis was upon which that risk had to be assessed, that complaint being supported by a number of the complaints in the other grounds, including grounds 2, 3 and 5. The problems about this reformulation, as I think it was, of the basis of the case are as follows. First of all, as I have said, none of this was taken in the court below. We do not have the benefit of the judge in the court below's view on it. I find it impossible to say that he was wrong in what he said when he was never asked not to say it. Secondly, it seems to me extremely doubtful whether the grant of permission extends to the case as now put, as opposed to the case that is said to be put in ground 1 which, on its face, appears to argue something different. Thirdly, so far as the two limbs of the new ground 1 are concerned, under ground 1(a) the question of the very small risk it is not clear to me that that was the basis upon which the tribunal below proceeded. As this issue was not raised in the court below the ground as drafted in ground 1 is reduced to saying that “it would appear” that the approach complained of (whatever it was) was that of the lower and indeed of the Upper Tribunal.

[22]Unless we can be certain of what point of law it was upon which the tribunals below proceeded, and unless we can be clearer than we are as to what we are asked to replace or supplement that basis with, I do not think that this court can reasonably interfere with the decisions in the courts below. So far as ground 1(b) is concerned, that the tribunal did not evaluate the risk properly, that could be described as a point of law as opposed simply to being a complaint about the way in which this tribunal conducted its affairs. It is not, however, a ground for a second appeal because it is not a new point but a point that, if it is a good one, is very straightforward and indeed part of the general fabric of the law. A second appeal cannot be brought in respect of an important point of principle unless the point is one that is not yet established. That was made quite clear by the high authority of Dyson LJ, as he then was, in Uphill v BRB Residuary) Ltd

[2005] EWCA Civ 60

[2005] 1 WLR 2070

at [18]. I am not therefore prepared to accept that in the envelope of the grant of permission to this court the judge in the Upper Tribunal who granted that permission made the mistake that he would have made if it had been clear to him that the complaint just discussed was part of the ground that he was being asked to approve.

[23]Finally under this head I already referred to the judgment of Hale LJ in Cooke and other associated cases. It is not necessary to go into those observations in detail. When we asked Mr Coppel about them he said, if I may respectfully say so, rightly, that we were not here concerned with a question of technical social security law and therefore the assumption that the lower tribunal knew the law did not necessarily run. With that I would agree. But the complaint as it is now formulated is not about the way in which the lower tribunal applied the law but about the way in which it conducted its business as a specialist fact-finding tribunal in an area in which it is very expert. That does seem to me to be something that falls clearly within the Cooke framework. This court should be extremely slow in assuming, as it asked to assume in this case, that the lower tribunal and the upper tribunal simply failed properly to assess the case before it.

[24]I would therefore reject the appeal on ground 1 both in its original and its revised form.

[25]So far as the other grounds are concerned, I come back at the end to ground 4 which deals with Charlton. Under ground 2 -- and I will be forgiven for not setting this out again, it has already been read out -- it is simply not right to say that the lower tribunal had no evidence before it to support the proposition that the claimant herself was at significant risk of an anaphylactic reaction. There was a lot of evidence before the court; I have not read it because it is not the function of this court to read evidence, but it was clearly there. It was referred to in terms by the judge in the Upper Tribunal who said that he was persuaded by it. He may have been right, he may have been wrong; a different judge might take a different view; but one simply cannot dress up this sort of objection to the judge's factual findings by saying, incorrectly, that there was no evidence to support those findings.

[26]Thirdly, on ground 3, we are told that the deputy judge should have held that the reasons of the lower tribunal were wholly inadequate to support the findings which it made. It is hardly fair to the deputy judge to complain that he did not make a finding that he was never asked to make. However, leaving that point aside, this is a complaint purportedly about the tribunal's reasoning; but it is at its base is simply a complaint about the findings of fact; it does not arise in this court; and in my view also ground 5 adds nothing to the other complaints about the reasoning.

[27]I come back to ground 4, the Charlton case. In paragraph 3 of his skeleton argument the Secretary of State said that the reason for bringing this appeal was:

"To reinstate the importance of the test in Charlton which the Secretary of State argued was not followed by the Upper Tribunal."

The actual dispute in Charlton was within a very narrow compass. Fairly obviously, before regulation 27 can bite there has to be shown a causal connection between the claimant's work and the risk of injury that it is claimed will follow from the claimant doing that work. The Commissioner in that case held that no link had been demonstrated. The claimant in that case had never worked, but the Commissioner held that he could if required to do so undertake some very basic manual work. That, the Commissioner found, would not cause a substantial risk to his health. The claimant appealed on the basis that the Commissioner should have been more specific as to the nature of the work involved. The Court of Appeal said that the Commissioner had done enough; his reasoning had been sufficient, and it was in that context that the Court of Appeal quoted with approval the approach of Deputy Commissioner Paines QC in an earlier case set out in paragraph 39 of the judgment of Moses LJ, in which the Commissioner said that regulation 27(b) requires one to start by identifying the disease or disablement. The next stage is to consider the nature of any health risks posed by that disease or disablement in the context of the places that that claimant might find himself in, with a view to asking whether any such risk is substantial.

[28]The Secretary of State says in our case that the tribunal did not ask any question about what work the claimant might undertake, but, on the basis of the finding that no work was safe for the claimant, passed straight to the conclusion that if she worked she would be at risk. But far from ignoring the approach required by Charlton, the Upper Tribunal in fact addressed this point in a passage I have already read:

" While in the normal course a tribunal is required to identify 'range or types of work' that a claim [that should be claimant] can undertake, in the present case the tribunal has accepted the claimant's evidence that the Job Centre 'could see no prospect of her getting work that would be reliably safe for her' and that in practice there was no suitable work."

[29]What he said therefore was, I respect Charlton but I do not need -- indeed it would be supererogatory -- to go through the formula that Commissioner Paines set out, because we know (there is a finding of fact) that there is no work at all safe for this lady, so it would be beating the air to hypothesise some work and then ask myself whether she would be reasonably safe in doing that work.

[30]The Secretary of State's real complaint under this ground is not, I think, that Charlton was not respected but that the lower tribunal was wrong in relying on the evidence that it did in finding that no work was safe for the claimant to do. The lower tribunal's approach might be criticised, other tribunals might have gone into it a lot more fully, or alternatively might not have accepted as sufficient the evidence -- truthful evidence as they found -- that was given to them by the claimant, but I cannot say that the lower tribunal was simply not entitled to reach the conclusion that it did, much less that it made an error of law in reaching that conclusion, and even less that there is some important point of principle involved in what the lower tribunal did or did not find. This matter of course could have been debated in the upper tribunal if the Secretary of State had made this complaint in his application to that court; he did not do so. It is therefore not possible in my view for this court to take the matter further.

[31]I am therefore not persuaded by any of the grounds before this court. I have had to go into the matter in some detail in order to try to reconstruct as a coherent hearing in this court a case that, as I said at the beginning, has come to this court in unsatisfactory form. It is necessary for me to say something more generally about the question of permission to appeal in these cases. I have already set out how this matter was dealt with both in the submissions to the Commissioner and in his order.

[32]When applying for permission to appeal to this court it is really very important that applicants should identify the points of law or general points of principle that they rely on in specific terms and state why they think that they justify the attention of this court. That was not done in this case; the whole of the grounds were simply put before the Deputy Judge and he was then asked, as it were, to certify them as important. Applicants should also bear in mind very closely the decision of Dyson LJ in Uphill to which I have already referred, which will, if applied, be found to disqualify a very large proportion of grounds that are thought to be ones of principle in the relevant sense.

[33]I am bound to say that if those matters had been more fully considered when the application for permission was made I do not think that this case would have reached this court and it would have been right if it had not reached this court. However, it has come here; I have respected the grant of permission, but I would myself dismiss the appeal.

Lord Justice Patten:

[34]I agree.

Lord Justice Hughes:

[35]I also agree. I add only a few observations of my own. Firstly, the underlying issue between the Secretary of State and this claimant is not whether she is entitled to any benefit, but to which benefit and on what conditions. If she is within regulation 27(b) and thus entitled to incapacity benefit then there is no need for her to look for work at all. If she is not then, at least under the regime which was in place at the material time, she is obliged to look for work and to take suitable employment if it is reasonable to expect her to, but, so long as none is found, she will receive a different form of benefit.

[36]Secondly, it is clear to me beyond argument that the first tier tribunal found as a fact that there was no work which did not carry a substantial risk to the claimant's physical health. If that is the fact then the question of examining the range of possible employment as is ordinarily necessary under Charlton v the Secretary of State for Work and Pensions does not arise.

[37]Thirdly, for myself at least, I can see why the Secretary of State wished to say that there were grounds for contending that that last conclusion was simply wrong on the facts. I can see why he wished to say that on the facts the tribunal ought to have found that once you take into account such ordinary precautions as might reasonably be expected, including carrying the epi-pen, against the limited possibility of severe anaphylactic shock, and once you take into account screening out occupations with obvious exposure to rubber and latex, the risk to health should be found not to be substantial. That however is a question of fact in each case. It was not a question of law on appeal to the Upper Tribunal and it is not a question of law here.

[38]Fourthly, insofar as the Secretary of State contends that the first tier tribunal was not entitled either to receive or at all to rely on the fact that the job centre could not find the claimant work without unacceptable risk, I have no doubt that that is wrong. The tribunal was entitled to pay attention to that matter of history. It was of course no more than evidence. It was certainly not determinative, nor was the Secretary of State bound by the findings. That history could not relieve the tribunal of the duty of making its own assessment of the risk.

[39]Fifthly, like my Lord, Sir Richard Buxton, I was for a time minded to think that there might be substance in the complaint that the first tier tribunal had erred in law because it never really addressed the question of the level of risk to the claimant's health, never evaluated whether it was substantial nor said why it was. But the difficulty in making a second appeal out of that is that it was not the argument ever put before the Upper Tribunal, and this court has not the faintest idea what that court would have made of it in its area of specialised jurisdiction. Moreover, in any event, my Lord has pointed out that that is not a complaint about a fundamental error of law of general application; it is a complaint about the application of the law to this individual case and accordingly it is wholly unsuitable for a second appeal. Since this is a second appeal I do not think that it is possible to say that any important point of principle or practice arises. The most that can be suggested here is that this tribunal did not apply the ordinary principles of law correctly in this case. That may or may not be so, but it is not a basis for this court to intervene by way of second appeal.

[40]Sixthly, I do not doubt that there may well be other allergy sufferers, whether of this allergy or others, whose cases may in the future have to be considered; perhaps for all I know there are many of them. This decision of this first tier tribunal is a decision on its own facts; it is in no sense a precedent for any other case of allergy, whether of this kind or any other.

[41]In all cases which come before it the tribunal must identify the risk; that is to say it must look at the probability of the suggested adverse occurrence and the gravity of that occurrence if it should occur, and it must say whether there is no underlying work which the claimant otherwise could do which would not carry a substantial risk to her health. If the Secretary of State wishes to contend in a particular case there are clearly some jobs that the claimant can do, whether available in large numbers or in small numbers, it is of course open to him to attend either in person or in writing and to say so.

[42]Seventhly, I respectfully agree specifically with what my Lord has said about applications to bring second appeals to this court.

[43]In all those circumstances this appeal must be dismissed.

Order

Appeal dismissed