Farrington, R (on the application of) v Secretary of State for Work and Pensions

J U D G M E N T

Friday, 2 April 2004

1. LORD JUSTICE LATHAM: The applicant has now been battling with the social security system for some time. The history of his applications for the relevant disability allowances is lengthy to a significant extent. It is set out in the decision of Mr Commissioner Angus of the 19 August 2003.

2. As far as the applications to this court are concerned the history can be picked up in February 2001 when the Commissioner then allowed appeals by the applicant setting aside decisions of a Tribunal and remitting the applications to the Tribunal to be reconsidered. Those applications related to disability living allowance, and to claims dating back to 1996.

3. The decision of the Tribunal was in relation to one of his appeals that he should be awarded a care component at the lowest rate from 7 April 1998 to 6 April 2003. He had been claiming for a higher rate and claimed that the period should be open-ended. He was also appealing against a decision of the Secretary of State, in effect to supersede an earlier decision. He had a further appeal in relation to earlier matters. As far as the first of those two appeals is concerned the Tribunal dismissed it. As far as the second was concerned it is clear that there was a discussion - I use the word for the moment neutrally - between the applicant and the Tribunal during the course of the hearing, as a result of which the applicant purportedly withdrew that appeal. He subsequently sought permission to appeal against both decisions in relation to disability living allowance and the dismissal of the appeal against the supersession. He also sought to appeal against his withdrawal of the earlier appeal. He was given permission on 16 October 2001 to appeal against both decisions but was refused permission to appeal against the withdrawal of his appeal.

4. He subsequently, but unhappily out of time, sought to challenge by judicial review the refusal of the permission to appeal of 16 October 2001. That application for judicial review was refused on paper by Goldring J and refused after an oral hearing on 1 July 2002 by Jackson J on the basis, first, that the applicant still had a right of appeal, and second, that the application had been made out of time. One of the applications before me today is an application for permission to appeal against that refusal to grant leave for judicial review.

5. As far as the two appeals as to which he had leave to appeal are concerned they proceeded to a hearing in August 2003, which resulted in the decision to which I have already referred of Mr Commissioner Angus on 19 August 2003. In that decision the Commissioner determined first, that there was no discernible error of law in relation to the award of disability living allowance; and second, the Tribunal had been wrong in law in dismissing the appeal against the supersession because what in fact happened was that by allowing the appeal in February 2001 the Commissioner had effectively quashed the original decision which had been superseded, and accordingly the supersession was itself no longer of any effect. In other words there was nothing against which Mr Farrington could appeal and his appeal had accordingly lapsed. The Commissioner relied upon the decision of this court in Wood v Secretary of State for Work and Pensions[2003] EWCA Civ 53.

6. Against that decision the applicant seeks permission to appeal on the grounds that both those decisions by the Commissioner disclosed errors of law. He has provided the court with a substantial and extremely helpful set of arguments in relation to each of the matters about which he makes complaint, and has set them out, if I may respectfully say so, with clarity and in a way which has enabled me to understand the underlying complaint which he has.

7. Dealing if I can first with the application for judicial review. That, essentially, is a complaint that he did not withdraw or abandon the appeal or, insofar as he purported to do so, he did so under unconscionable pressure by the Tribunal. The Tribunal, he submits, effectively put him in an impossible position. They pointed out to him that on the material they had they considered that he was, at the very least, at serious risk of having the decision altered not in his favour but to his detriment. He submits that that pressure was applied before the Tribunal had had an opportunity to look at all the material and before he had had an opportunity to present any argument upon all the material to the Tribunal.

8. There are, I fear, two separate reasons why that complaint is one which cannot be dealt with by an application for judicial review. The first is that, as Jackson J identified, his application for judicial review was made out of time, and harsh though it may appear to people in Mr Farrington's position, the fact is that the courts have consistently held that the time limits for judicial review are time limits which should be adhered to unless there are special circumstances which justify departure from them. I am afraid I do not consider that any such special circumstances as has in the past permitted applications to proceed out of time apply to the present case. Equally, the application for permission to appeal is substantially out of time.

9. However, the second reason for refusing the application for judicial review is that there would have been, in my view, no prospect of success even if it had been made in time. There are within that reason two sub-reasons. First, I am by no means satisfied that the decision by Mr Farrington to abandon or withdrew his appeal was one which could properly be classified as a decision under the sort of duress which would justify the court going behind what would appear to have been his clear indication. Second, looking at the material such as I have, it seems to me that the warning that was given to Mr Farrington was a perfectly proper warning in the circumstances of the case and I do not consider that this court would have been likely to hold that the Tribunal was wrong to have fired the warning shot. It follows that in relation to the application for judicial review there is no prospect of this court being prepared to entertain an appeal.

10. Turning, then, to the decision of the Commissioner in relation to supersession, I am satisfied that the Commissioner was right that the effect of the decision in February 2001 was to take away the substratum of the supersession, in other words the original decision which was superseded went and the supersession itself as a result went, leaving nothing for Mr Farrington to appeal against. That is the rationale of the Commissioner's decision and it seems to me that he was correct. The second part of his decision, what is, in effect, the substantive part of his decision that there was no discernible error of law in the way the Tribunal approached disability living allowance, that again seems to me to be one which cannot be challenged here. I have looked with care at the arguments of Mr Farrington, but I do not consider that the Tribunal misapplied the regulations when it came to the decision that it did in relation to the care component. It was entitled to come to the decision on the basis of its conclusions in relation to the regulations because of the material before it, and accordingly there was no error of law which the Commissioner could use to disturb the finding of the Tribunal.

11. In those circumstances, although I understand the fact that Mr Farrington feels that he has been hard done by by the system, I am afraid that this court would not be able to help him and there is, accordingly, no basis upon which I could say that there was a sufficient prospect of success to justify granting permission to appeal. The consequence would, in my judgment, inevitably have been that the appeal would have been dismissed. It would not have therefore advantaged Mr Farrington if I had acceded to his plea essentially that the case should be looked at again. The one thing that he has to remember is that this court would not look at the case again; it would simply look at the issue of law that was raised. It cannot and could not interfere with the decisions of fact made by the tribunals below, which is the way the statutory structure works; and we have to accept the restriction, as do litigants, on the jurisdiction of this court in that regard.

(Applications dismissed; no order for costs).