Argenio v The Office of the Social Security & Anor

LORD JUSTICE SEDLEY: Mr Argenio suffered two accidents at work in September 1999 and May 2000. These have given rise to claims by him for disabled living allowance and industrial injury disablement benefit. The present application concerns his claim, or one of his two claims, for disabled living allowance, which was rejected by the Secretary of State and rejected again on appeal by an appeal tribunal on 13 May 2003. Mr Argenio today renews his application for permission to apply for judicial review of the refusal of the Social Security Commissioner, Mr Edward Jacobs, to allow him to appeal to the commissioner against this decision.

The reason given by the commissioner was as follows [page 113 bundle]:

“I can only grant leave on a point of law. In your case, the tribunal did not go wrong in law. You made many and varied complaints about the tribunal. I have concentrated on the outcome of the appeal (that you were not entitled to a disability living allowance) and on the evidence. You were your own worst enemy by refusing to co-operate with the examining medical practitioner and the tribunal. You claimed benefit and you had to prove that you were entitled to do it. Without your co-operation, the tribunal was hampered. On the evidence before it, the only evidence that would allow the tribunal to make an award was your own in the claim pack. That evidence did not have to be corroborated but the tribunal had to evaluate it in the context of the evidence as a whole. The evidence from the examining medical practitioner did not support what you said in your claim pack. Nor did your own oral evidence to the tribunal. Your general lack of co-operation also undermined your case – the tribunal was entitled to take account of the fact that you would not assist in allowing your case to be assessed. On the evidence before it, and with your approach to the proceedings, I cannot see what other decision the tribunal could have reached.

“For the record, I have read all the evidence in your case including the evidence that was not before the tribunal and could not have been taken into account by it. That includes the evidence in Italian which a colleague has translated for me. I find nothing in that which would have affected the outcome of the tribunal’s decision even if it had seen that evidence.”

When one looks at the grounds of appeal to the commissioner which are in the bundle of documents, one sees why he came to this conclusion. The grounds raise no point of law. They concern the fact findings, but there is no indefinite right of appeal against fact findings. However unwelcome they are, they are made by the Secretary of State and can be appealed in full to an appeal tribunal, but there for better or worse the right of appeal on facts ends. Only questions of law remain. In the light of the commissioner’s refusal to allow Mr Argenio to appeal, Mr Argenio, as he was entitled to do, sought to contest the commissioner’s refusal by judicial review.

The application came on the papers before Richards J. He refused application to apply giving the following key reasons:

“It is still for the claimant to show where reasons have in fact been given for the refusal of leave that those reasons were improper or insufficient. In the present case I am wholly unpersuaded of the existence of any arguable case that the commissioner’s reasons where either improper or insufficient. The commissioner plainly gave very careful consideration to the claimant’s case and gave proper reasons for his conclusion that the Appeal Tribunal did not go wrong in law. He did not confine himself to the reasons given by the tribunal (which in my view were legally adequate) but read the whole of the evidence of the case and concluded that the tribunal could not have reached any other decision than the one it did reach. The commissioner’s own decision is properly reasoned and does not disclose any legal error. It seems to me that many of the points raised in the claimant’s claim form and lengthy ‘witness statement for the hearing to be dealt on paper’, although presented as legal issues, amount in substance to a disagreement with the merits of the tribunal’s decision. Insofar as they are truly issues of law, in my view they do not make out a case of legal error on the part of the tribunal, or cast doubt on the lawfulness of the commissioner’s refusal of leave to appeal”.

Mr Argenio did not accept this written decision. He renewed his application in open court before Sullivan J on 27 June 2005. By this time the commissioner had been joined by Richards J as an interested party, should the matter be pursued further, and the commissioner appeared by counsel. Sullivan J was, as the transcript shows, prevented by the applicant’s repeated interruptions from delivering a reasoned judgment. He therefore confined himself to adopting the reasons of Richards LJ for refusal.

Mr Argenio’s grounds of appeal to this court are almost entirely concerned with what he contends was the lack of a fair hearing below. He contends that he did not have the co-operation or the consideration due to him, firstly as an Italian, for whom English is a second language; secondly, by reason of his dyslexia; and thirdly, as a man with physical handicaps, which include angina and diabetes. He contends in short that the court system has discriminated against him because of his disability.

Being aware of this, I took steps when papers first came before me in preparation for this hearing to make the process as easy as possible for Mr Argenio. It has been possible to arrange for the hearing to be conducted by video link from Birmingham, which is where Mr Argenio lives. I have allocated to him an extended period of time; extended by half, that is, from the 20 minutes usually given to all applicants, whether represented or not. It may be of interest to Mr Argenio to know that he has had as long as attorneys get in the Supreme Court of the United States when they are on their feet there. He has used his time by relying on his fresh written skeleton submissions, which I have read in full and which are concerned almost entirely with how Sullivan J conducted the hearing. He has also read me a further submission on what he believes to be the obstructive conduct of the Civil Appeals Office.

Having considered the material that there is, I am unable to accept that there was any unfairness or discourtesy in the way that the hearing was conducted by Sullivan J; nor am I able to accept that, reading the correspondence, there has been obstruction, much less concealment, of documents by the Civil Appeals Office. The court’s procedures, it seems to me, have simply been insisted on.

What is much more important, however, is that all the relevant documents are before me and Mr Argenio has had the opportunity of drawing my attention to all of those which are relevant to his claim. The real question, as I have explained to him, and I will treat it as properly before me even though it does not emerge from the documents, is whether there was in truth an issue of law on which the commissioner ought arguably to have given leave to appeal to him from the appeal tribunal. If this were the case, then of course Richards J and in his turn, Sullivan J, would have been obliged to give permission to apply for judicial review, and if it is the case, then I will do so now.

However, in spite of my reiterated invitation for him to do so, Mr Argenio has not addressed this issue and has not demonstrated any point of law which arguably the commissioner should have allowed to be canvassed before him. I am left to make up my own mind about it on the papers and, having read them with care, I fear that I have come to exactly the same conclusion as the commissioner and Richards J and Sullivan J, namely that there is no issue of law that emerges. What Mr Argenio is concerned about, and has been concerned about throughout, is the evaluation of his disability, made on such evidence as they had, by the appeal tribunal. From that, no question of law arises, however unwelcome it is to him. I come to this conclusion without regard to the issue of time. There would be a problem of time if there were otherwise an arguable case, but for the reasons that I have given there is not one.

I can perhaps add this, that there is in the bundle of documents a full orthopaedic and trauma report from a consultant surgeon Mr Ved Goswami, dated at the head 2 June 2005 and at the foot 14 February 2005. It may support a fresh claim (I have no idea) but it postdates the decisions that Mr Argenio wants to challenge and so cannot affect their validity. Without therefore having to decide whether the door is closed on any claim that is based on genuinely fresh evidence, I do close the door on this application for permission to seek judicial review of the commissioner’s refusal, because it was an entirely well-founded refusal in law. Mr Argenio, thank you very much for your helpful submissions and your assistance.

I should say this, finally: Sullivan J’s decision included an award of costs in the sum of £400 summarily assessed for the attendance of counsel for the interested party. Although Mr Argenio has raised this in his Notice of Appeal, he has not addressed separate argument to it. It is sufficient for me to say that this was an exercise of discretion by Sullivan J that he was entitled to make and no ground in law has been shown for seeking to disturb it.