Foss v Secretary of State for Work & Pensions

This is the adjourned hearing of a renewed application by Mrs Rosemary Foss for permission to bring a second appeal against the decision of the Social Security Tribunal dated 6 November 2006 dismissing her appeal against the refusal in November 2005 and February 2006 of three income support claims made by her.

Her claims for income support were dismissed on the ground that she was not in fact habitually resident in the UK at the relevant times. She was present at the tribunal hearing with her husband and gave evidence.

Under a decision dated 9 June 2008 Mrs Foss has been in receipt of income support in respect of later periods.

On 18 February 2010 the Upper Tribunal dismissed Mrs Foss’s appeal holding that Mrs Foss did not satisfy the habitual residence requirements under Regulation 21 (now Regulation 21AA) of the Income Support (General) Regulations 1987, as correctly applied to the facts of her case.

On 28 April 2010 the Upper Tribunal refused an application to set aside the decision of the Upper Tribunal. On 7 July 2010 Judge Pacey refused permission to appeal.

Mrs Foss’s application for permission for a second appeal was refused on the papers on 26 May 2011 on the ground that it did not satisfy the criteria for a second appeal under CPR Rule 52.13.

Her ancillary application for disclosure of evidence in a list of documents was also refused. The Department’s response was that much of the material sought by Mrs Foss has been disclosed and was in the bundles used in the Upper Tribunal.

On 11 August 2011 I adjourned Mrs Foss’s renewed application for permission to appeal for an inter partes hearing so that the court could be assisted by submissions on behalf of the Department as well as by Mrs Foss’s written skeleton argument dated 23 July 2010 and numerous related notes and documents and her oral submissions. Mrs Foss also has an application for an order for the disclosure or release of evidence from the Department of Work & Pensions. She relies on the Data Protection Act and the Freedom of Information Act alleging that the documents would have demonstrated from the outset that the Department’s submissions were erroneous. I refer to the judgment given on adjourning the hearing: [2011] EWCA Civ 1091.

On behalf of the Secretary of State Mr Edwards opposes the grant of permission on the ground that Mrs Foss’s proposed appeal does not raise an important point of principle or practice and that there is no other compelling reason in this case for the Court of Appeal to hear a second appeal.

Mrs Foss, who is a UK citizen, suffers from ill health and is unable to work. She has been married since 1978 to her husband, who lives in Germany. She spends time there and in Austria, as well as in England where her mother lives and with whom she says she has lived since June 2001.

Mrs Foss relies on provisions of EU law, the EU Charter of Fundamental Rights, and the European Convention on Human Rights for contending that in this case errors of fact and law had been committed, that the tribunals had acted unlawfully and there was procedural impropriety and breaches of natural justice on the part of the Department and the tribunals.

The difficulty with these applications is that the proposed appeal is a second appeal and that the criteria in the CPR for a second appeal are not satisfied.

Mrs Foss’s complaints are special to the findings of fact in her case and the application of the law to those facts. There is no important point of principle or practice raised by the appeal.

The allegations relied on for establishing a compelling reason for hearing the appeal and for disclosure of more documents are not supported by evidence or are contrary to the evidence.

The renewed application for permission to appeal is refused.