McKee v Secretary Of State For Work & Pensions

J U D G M E N T

Tuesday, 16th March 2004

1. LORD JUSTICE SEDLEY: There is no appearance in this application for permission to appeal. The applicant, Mr McKee, a disabled retired miner, who lives in County Durham, was given permission to be represented by a friend and adviser, Mr Boxall. It was expected that Mr Boxall would be speaking for him. The court was concerned that either or both of these men, neither of whom can have much money, would be required to make an expensive journey down to London in order to present today's application. Accordingly, last week, I believe it was on Thursday, on my directions the Civil Appeals Office telephoned Mr Boxall in order to offer him the opportunity of making his submissions to me, today or on some other convenient day, by video link from the courts in Newcastle. Mr Boxall declined that offer and said that he wished to appear in person.

2. However, on the same day he wrote a letter, which has just reached me, saying that neither he nor Mr McKee would be appearing in person. I find it, therefore, slightly baffling that he had declined the offer of a video link, but the result is that I do not have the benefit of oral submissions, either in person or at a distance.

3. A further point that should be mentioned, initially, is that there is a renewed application, in Mr Boxall's letter, for disclosure of the Commissioner's notes of evidence. I will explain in a moment how that arises.

4. From 1995 Mr McKee, a retired coal miner, was in receipt of a disability living allowance for life, at a rate which included the higher level mobility component. This was because there was medical evidence that he could walk no more than 30, or at most 50, yards without the onset of dyspnoea (breathlessness). Following a protracted procedure, which I will have to come back to, Mr Commissioner Mesher upheld the decision of an adjudication officer that, because of a change of circumstances, Mr McKee was no longer entitled to the mobility component.

5. Although the decision is unhappily expressed at two points as being that Mr McKee was no longer entitled to the disability living allowance, it is clear from the decision as a whole that the care component of it remained intact. Mr McKee's appeal technically succeeded in that the appropriate date of review was moved from June 1997 to January 1998, but since there was also a decision that overpayments were irrecoverable that did not matter. Essentially, however, the appeal was lost for the reason that I have indicated, and so Mr McKee has lost the mobility component of his DLA.

6. His first ground of appeal is that there was undue delay in deciding this case. There is some force in this. It was in April 1998 that an adjudication officer reviewed the 1995 award and disallowed the mobility element of it. This was upheld on a second-tier review in January 1999, followed a month later by a favourable decision on recoverability. It was not until July 2001 that an appeal tribunal upheld the decision while adjusting its effective date.

7. Then, in November 2002, the Commissioner set aside the appeal tribunal's decision on the ground that Mr McKee's representative had not been allowed to address the tribunal. There was not a remitted hearing. Instead the Commissioner went on to decide the appeal himself in January 2003.

8. The decision of the Commissioner was not promulgated until May 2003. This delay is fully and satisfactorily explained in paragraphs 4, 5 and 6 of the decision. But I am prepared to accept that 18 months between the second-tier decision and the appeal, and another 14 months between the appeal and the Commissioner's first decision, at least called for an explanation. Let me assume, however, that no good explanation exists and that there was, accordingly, a violation of Mr McKee's right under Article 6 of the European Convention on Human Rights to a fair trial of his civil rights within a reasonable time.

9. To allow an appeal against the Commissioner's decision on that ground would leave Mr McKee worse off than before in terms of time. He would be left with the adjudication officer's adverse decision and would have to proceed again to an appeal or commissioner hearing. In other words, while this might have been delay which the courts would have intervened to curtail while it was running, nothing useful could now be done on appeal to remedy it. It would certainly not follow that the appeal to the Commissioner should have succeeded simply because of the time it had taken to reach him.

10. A series of further points are taken in Mr McKee's grounds and skeleton argument. It is submitted that the Commissioner's decision is irrational, having regard to all the evidence and the circumstances. This, I am afraid, is unarguable. The Commissioner has picked his way with great care through the evidence. He has indeed decided not to place any reliance on the observation evidence and instead chosen to work entirely from the medical evidence. This makes irrelevant Mr McKee's extensive attack on the dependability and bona fide of the observers.

11. I will come back in a moment to a question about the legal significance of the medical evidence which, although not raised in the appellant's grounds, has troubled me.

12. I should also deal at this point with the disclosure of the Commissioner's notes of evidence. This does not occur as a matter of course, despite what Mr Boxall wishes to be done. The notes of evidence are only bespoken on appeal if it appears that there is a conflict of fact about what happened or was said before the Commissioner, which his or her notes of evidence will help to resolve. There is no such issue here.

13. Reverting then to Article 6, Mr McKee submits that the social security scheme violates the article by making the Secretary of State judge in his own cause. It does so, he says, by giving him the last word on appeals. Apart from the fact that this is legally incorrect, it is not something which has happened here. The operative decision is that of the Commissioner, an independent judicial officer.

14. Nor is there any substance in the complaint of inequality of arms. Mr McKee was allowed to be represented by a spokesman of his choice. The allegations of bias and of reliance on undisclosed evidence are unsupported by anything except the bare fact that the Commissioner found against Mr McKee.

15. There is also an argument presented as a human rights issue, but in fact a procedural one, that the interim decision of November 2002, by which the appeal tribunal's decision was set aside for unfairness, gave no indication that the Commissioner would be proceeding to question the initial award of June 1995. I cannot accept this. Setting aside the appeal tribunal's decision meant that the two adjudication officers' decisions against Mr McKee still stood. The Commissioner, therefore, had to hear the appeal against them and they were, precisely, decisions to review the 1995 award.

16. The Commissioner in the end accepted the medical evidence that Mr McKee had been able, by January 1998, to walk 100 yards or so before the onset of dyspnoea, and that this met the statutory test of a relevant change of circumstances since the 1995 decision.

17. That deals with all the points raised on Mr McKee's behalf, but I want to deal with one further point which has troubled me. Why is it that being able to walk 100 yards, rather than 50 yards, should in law make the difference between having a mobility component and having no mobility component in a person's disability living allowance? The Commissioner's decision assumes that it does without explaining it.

18. One would have thought that in practical terms the difference between the two was not perceptible, but section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 provides that entitlement to the mobility component is dependent on:

"... suffering from physical disablement such that he is either unable to walk or virtually unable to do so."

19. The case law on this provision, as one would expect, has had to evaluate and apply it in terms of measured distances. It has come down to treating distances of up to 25 yards or thereabouts as being a limit which betokens a virtual inability to walk, but distances beyond that as not doing so. 30 to 50 yards was therefore in a grey area, on the wrong side, but not too far on the wrong side, of the test established by the cases, but construed in Mr McKee's favour. 100 yards, however, was on any view too much to attract the allowance under section 73(1)(a). That is why, as I understand it, the adjudication system proceeded as it did to find a critical difference between the initial range and the range which, on the medical evidence alone, appeared since 1998 to have been within Mr McKee's ability.

20. The improvement was not fortuitous. He had been given medical advice that he was smoking too much and drinking too much. It was because he stopped both of those activities to a very large extent, in pursuance of his doctor's advice, that Mr McKee's physical performance appears to have improved. That at least is the upside of the story. The downside, I am afraid, was the loss of his mobility component, and about that no issue of law arises upon which the Commissioner can be said to have been in error.

21. Accordingly, there is no viable ground for appeal and I am duty bound to refuse permission to appeal.