Nicholas, R (on the application of) v Upper Tribunal (Administrative Appeals Chamber) & Anor

This is another Taylor v Lawrence application pursuant to CPR 52.17. It is an application to re-open a refusal by Aikens LJ to grant permission to appeal on a particular ground, when he had given permission to appeal on other grounds.

In 2003 Mrs Janet Nicholas suffered an accident in the course of her work as a teacher. In September of that year she was working in class in the playground with various bikes, balls and children. As she bent down one child pushed her on the back of her neck and knocked her over. She managed to get back on the bench and sat down, but felt physically sick and was in a great deal of pain in her lower back. The accident caused problems with her neck and shoulder particularly, and she became incapable of work from 9^th April 2004.

The cause of her incapacity was certified by her doctor as pain from her arm, neck problems and depression. She was paid a period of social security benefit, and was then paid contributions-based Incapacity Benefit from 30^th June 2005. She was required to undertake two Personal Capacity Assessments (“PCAs”) between 2005 and 2007, which confirmed her entitlement to Incapacity Benefit.

On 7^th August 2008, however, she attended a further PCA, but failed to pass the assessment to remain on Incapacity Benefit, having been examined by the registered medical adviser on that occasion, Dr Alaparti, who awarded her no points for physical impairment and only three points for mental impairment. Accordingly, she did not reach the relevant threshold of 15 points required to allow the continuance of the payment of Incapacity Benefit. That decision was notified to her on 29^th August 2008.

On 26^th November 2008, Mrs Nicholas appealed to the First-tier Tribunal. The hearing of her appeal before the First-tier Tribunal took place on 28^th May 2009. The claimant was unrepresented on that occasion, as is common. The Secretary of State was also not represented at that hearing. The tribunal had before them both Dr Alaparti’s assessment and the decision of 21^st August 2008 that Mrs Nicholas was no longer entitled to Incapacity Benefit.

The members of the tribunal did not have before them either of the two previous PCAs or a copy of her then current industrial disablement benefit award. The record of proceedings shows that the Chairman had said that they could adjourn to find and read those documents if Mrs Nicholas requested them to do so. But she made no such request and the hearing proceeded.

In its decision on 28^th May 2009 the First-tier Tribunal dismissed the appeal and confirmed the decision to withdraw the claimant’s Incapacity Benefit on 29^th August 2008. It concluded that Mrs Nicholas did not satisfy the Personal Capability Assessment. The Tribunal, unlike Dr Alaparti, awarded six points for physical impairment because of Mrs Nicholas’s problems with lifting with her right hand, in addition to the three points already awarded for the mental health impairment. The threshold of 15 points was therefore still not reached. The Upper Tribunal Judge refused permission to appeal this decision after the First-tier Tribunal itself had also refused permission to appeal.

Mrs Nicholas then applied for judicial review of the Upper Tribunal’s refusal of permission to appeal. The application came before Foskett J, on 13^th March 2012, when he granted permission to apply for judicial review of the decision of the Upper Tribunal Judge, dated 19^th September 2010 making the following observations:-

“This application has taken a very long time to get before a judge which is regrettable. Applying CART is not always easy and my view has fluctuated whilst reading the papers. However, I am troubled that an unrepresented party was effectively presented with the decision whether to seek an adjournment of the First-tier Tribunal’s hearing when she either did not or may not have appreciated the importance of doing so. It is at least arguable that the First-tier Tribunal’s decision could not have been made without the earlier material available to it that could not have been made available had there been an adjournment. In those circumstances, it seems to me that it is arguable that there was a compelling reason to review the decision to refuse permission to appeal. It is on that basis that I granted permission to apply for judicial review.”

CART is a reference to R (Cart) v Upper Tribunal [2001] UKSC 28; [2012] 1 AC 665 which decided that a second appeal test applied to judicial review applications of an Upper Tribunal’s refusal of permission to appeal from a decision of the First-tier Tribunal, in other words that before permission was granted there had to be an important point of principle or practice or other compelling reason to proceed to an appeal.

The judicial review application came before Haddon-Cave J on 26^th July 2012 who decided:-

“In these circumstances, the Tribunal are, in my judgment, not to be admonished for not having second guessed her decision, or indeed overridden it, or to have told her how important the early PCAs might have been. Only Mrs Nicholas knew how many there were and what they said, and it may well have been, as far as the Tribunal was concerned, that she preferred to argue her case on the fresh material. There was in conclusion, in my judgment, nothing unfair at all about their approach leaving the question of an adjournment to the claimant. Even if it can be said, however, that there was any unfairness by the First-tier Tribunal, or that the First-tier Tribunal should have advised or cautioned her in some way as to the previous PCAs, this case, in my judgment, does not come close to satisfying the test in Cart, namely a wholesale “collapse” of fairness. A balance has to be struck as to what an inquisitorial Tribunal should, and should not, do in order to guide an unrepresented claimant.”

Mrs Nicholas sought permission to appeal to this court and on the papers on 5^th December 2012 Richards LJ said:-

“Haddon-Cave J reached a careful, reasoned decision as to why there was no unfairness in the procedure adopted by the FTT (and as to why, therefore, he agreed with the UT Judge’s refusal of permission to appeal to the UT from the determination of the FTT); and in reaching that decision he took due account of the inquisitorial function of the FTT in proceedings of this kind. An appeal against his decision on the issue of fairness has no real prospect of success.

That being so, nothing turns on his alternative view that, if there was any unfairness in the FTT’s procedure, the case nevertheless did not satisfy the Cart test. If anything had turned on that alternative view, I would have been minded to grant permission to appeal on the basis that it is strongly arguable that the Cart test applies at the permission stage, not at the substantive stage, of a judicial review application of this kind.”

On the very same day as Richards LJ refused permission, the Upper Tribunal issued a decision in ST v Secretary of State for Work and Pensions (ESA) [2012] UKUT 469 (AAC) which decided that hearing a case of Employment and Support Allowance without the benefit of previous medical reports could be (and was in that case) a breach of a claimant’s right to a fair trial. Mrs Nicholas then renewed her application for permission to appeal to this court partly on the basis of STv SSWP but also on the basis that, once permission to apply for judicial review had been granted on Cart principles, the requirement of Cart had been spent (as had been decided in R (HS) v The Upper Tribunal [2012] EWHC 3126 (Admin) by Charles J and indeed apparently conceded by this Secretary of State for the Home Department in that case) so that Haddon-Cave J should not have used Cart as a reason for refusing judicial review at the substantive hearing. On 1^st March 2013 Aikens LJ gave permission to appeal for the grounds relying on the first of the above bases but not the second because he regarded that basis as unnecessary to the judge’s decision and therefore obiter.

It is a bit of a mystery why he regarded this ground of the judge’s decision as being obiter when it was a second ground of decision and would need to be displaced by an appellant just as much as the first ground if the appellant was to succeed but it seems that counsel was content to proceed on the assumption that the Cart point was only a “fall back argument”.

Permission was thus given to argue the first point about the absence of the earlier PCA assessment (with an estimate of ½ day) but refused on the second (Cart) point. When the Secretary of State’s skeleton was received, it appeared to wish to argue the Cart point. Paragraphs 25-36 of the skeleton took the trouble to say not merely that Haddon-Cave J was correct but that it was an “initial issue of importance” to be determined on the appeal. It thus might have appeared not only that the Secretary of State for Work and Pensions was not prepared to make the same concession as that made by Secretary of State for the Home Department in R (HS) v UT but positively wanted this court to decide that that concession was wrong.

These intricacies only began to emerge when the Treasury Solicitor, 5 days before the hearing, notified the Court of Appeal Office that the parties were concerned that half a day would not be enough for the hearing. I therefore asked the parties to explain how the Cart point was an issue at all since Aikens LJ had expressly refused permission to argue it. Junior counsel for Mrs Nicholas acknowledged the difficulty of succeeding on the appeal as a whole even if the appeal succeeded on the first point on the PCA assessments; he said he would apply to revoke Aikens LJ’s refusal of permission on the Cart point. I expressed some doubt whether the court had any jurisdiction to revoke such refusal without consent.

It is in these circumstances that when the appeal was called on, Mr Stephen Knafler QC appeared (for the first time) for Mrs Nicholas and said that he wished to make a Taylor v Lawrence application pursuant to CPR 52.17(1) to re-open the refusal of permission on the Cart point and to abridge the time for making such application. Mr James Eadie QC for the Secretary of State consented to the abridgment of time but opposed the application.

A final determination of any appeal will not be re-opened unless in the words of CRP 52.17(1):-

“(a)

it is necessary to do so to avoid real injustice;

(b)

the circumstances are exceptional and make it appropriate to re-open the appeal; and

(c)

there is no alternative effective remedy.”

The exceptional nature of the jurisdiction has often been emphasised. As it was put in Re Uddin [2005] 1 WLR 2398 (para 18):-

“… the Taylor v Lawrence jurisdiction can in our judgment only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at first appeal, has been critically undermined. We think this language appropriate because the jurisdiction is by no means solely concerned with the case where the earlier process has or may have produced a wrong result … but rather at least primarily with special circumstances where the process itself has been corrupted … it is the corruption of justice that as a matter of policy is most likely to validate an exceptional recourse; a recourse which relegates the high importance of finality in litigation to second place.”

Mr Knafler submitted that mistakes made by Mrs Nicholas’s lawyers and the court should not be allowed to stand in the way of an appeal for which permission had been granted. If Aikens LJ had appreciated that the appeal could not succeed in reversing the decision on Mrs Nicholas’s incapacity benefit he would have inevitably granted permission to appeal on the Cart point. It was entirely justifiable that the Cart point was not pressed before Aikens LJ when another Secretary of State had already conceded the point in HS and the Secretary of State for Work and Pension could reasonably be expected to concede it again.

Mr Eadie emphasised the exceptional nature of the Taylor v Lawrence jurisdiction. He pointed out that the logic of Mr Knafler’s reliance on Cart was that once a judge had decided to permit an application for judicial review on the ground of a compelling reason such as (in this case) the asserted “wholly exceptional collapse of fair procedure”, there would be little or no rational argument left to a defendant on the judicial review hearing itself. If, moreover, permission was refused on the papers but renewed and granted at an oral hearing, that would be an ex parte hearing often without any oral participation by the Secretary of State. That was a situation that could not possibly be right. He submitted further that Mrs Nicholas had had the benefit of a tribunal hearing which both a judge after a full hearing and one Lord Justice on the papers had considered fair. Moreover, the difficulties that this particular case had thrown up in relation to the Cart point has been resolved by the enactment of CPR 52.7A and would not recur again.

One cannot get away from the fact that this application is based on lawyers’ mistakes and that the Taylor v Lawrence jurisdiction (only invented by this court in 2002 to cater for glaring injustice) is not intended to cater for such mistakes, however reasonable and understandable they may be. Law is a complicated business and mistakes will inevitably be made. Usually they will not matter because mistakes by lawyers can often be corrected or minimised by judges and mistakes by judges will be corrected by this court and this court can be corrected by the Supreme Court but once a decision becomes final, at whatever level, it must be accepted as final in the absence of exceptional circumstances. Mistakes are, regrettably, not exceptional at all.

As Lady Hale said in paragraph 56 of Cart itself:-

“… no system of decision-making is perfect or infallible. There is always the possibility that a judge at any level will get it wrong. Clearly there should always be the possibility that another judge can look at the case and check for error. That second judge should always be someone with more experience or expertise than the judge who first heard the case. But it is not obvious that there should be a right to any particular number of further checks after that. The adoption of the second-tier appeal criteria would lead to a further check, outside the tribunal system, but not one which could be expected to succeed in the great majority of cases.”

In this case the Upper Tribunal did check and found no error. The adoption, however, of the second-tier appeal criteria as enjoined by Cart led to a further check which, as Lady Hale says, could not be expected to succeed in the majority of cases but did succeed in the sense of getting through a narrow gateway but then ultimately failed. Now Mr Knafler seeks to say that the narrow gateway should be re-opened because of exceptional circumstances demonstrating that “the integrity of the earlier litigation process has been critically undermined” as required for the Taylor v Lawrence jurisdiction under CPR 52.17.

For my part I cannot see any such critical undermining of the legal process. Indeed it could be said that the legal process is comparatively indulgent to litigants who Parliament may have expected to have no further right of appeal once an appeal had been dismissed by the First-tier- Tribunal and both the First-tier Tribunal and the Upper Tribunal had refused permission for a further appeal. Still less has there been the corruption of justice envisaged by Re Uddin.

These were the reasons which led me to the conclusion that the court should not exercise the jurisdiction confirmed by CPR 52.17. Since the court was in agreement, we announced our conclusion at the end of the hearing with reasons to be given later. After we announced our decision, Mr Knafler realistically accepted that the appeal could no longer proceed and we dismissed the appeal.

I agree.

I agree also.