Roberts, R (On the Application Of) v Department for Work And Pensions

J U D G M E N T

Monday, 27th October 2003

1. MR JUSTICE STANLEY BURNTON: I have before me a renewed application by Teresa Marie Roberts for judicial review of a decision made by Mr Jacobs, a social security commissioner on 25th March 2003. The application to him for leave to appeal itself concerned an Appeal Tribunal hearing which had been decided adversely to Miss Roberts on 26th June 2002, that being the third date after two previous abortive hearings of her appeals, which related to her claim for Industrial Injuries Disablement Benefit.

2. The issue before the Tribunal had been, effectively, whether there were any, and if so what, continuing consequences for the health and disablement of Miss Roberts, following from an industrial injury which she had suffered some considerable time ago.

3. Neither Miss Roberts nor her representative appeared at the hearing of 26th June. The Tribunal decided to continue to hear and to determine her appeal in her absence. It decided against her adversely. She then applied to the Tribunal with a request that it set aside its decision. It would appear from the record of the Tribunal's decision that that was a late application. Be that as it may, on 6th August 2002 the Tribunal declined to set aside its decision to reopen the matter. In consequence Miss Roberts applied to the commissioner for leave to appeal which she required and he declined it. She now seeks judicial review of his decision.

4. It is important that Miss Roberts understands the limits of the jurisdiction of the court and of my powers today. I can interfere with Mr Jacobs' decision only if it appears to me that he made a legal error, based himself on a misunderstanding of the facts, or made a decision which was so unreasonable as to be perverse. It is not for me to make a different decision simply because had I been him I should have made a different decision, that is to say, one in her favour. That is not the way the court is required to examine questions of judicial review in cases such as the present.

5. It follows that I have to examine what issues were before Mr Jacobs and whether he correctly apprised himself of the facts and applied a correct test. Provided he did correctly apprehend the issues and approach them lawfully and sensibly, I cannot interfere.

6. It is obvious that a person whose rights are in question in any litigation, or matters akin to litigation, such as an application for and argument about disablement benefit, is entitled to a hearing, and that a decision made in his or her absence, where he or she has no lawful notice of the hearing, is one which normally the court would want to see set aside.

7. One, therefore, has to address first of all what happened in June 2002 which resulted in Miss Roberts not attending the hearing. It appears from the decision made by the Tribunal on that date, and its record of its decision of 6th August 2002, and indeed from certain other documents, that what happened was this: the Tribunal or the Tribunal Service did give notice of the hearing to Miss Roberts, or sought to do so at the address she had provided to the Tribunal. Unfortunately, by the time the matter came up for hearing she had moved. She therefore did not receive that notification and the Tribunal proceeded with the matter in her absence.

8. As the Tribunal pointed out, it is for a party to a matter before the Tribunal to make sure that the Tribunal is apprised of his or her address, since otherwise there is no way in which notice of a hearing can be given to him or her. Unfortunately here Miss Roberts did not receive notice, but that was not due, on the facts as found, to any default on the part of the Tribunal itself.

9. When the Tribunal proceeded with the hearing on 26th June, it examined all the medical evidence before it and gave a clear, reasoned decision. When the matter came before the Tribunal again, on the application to set aside, the Tribunal took the view that there was no jurisdiction to set aside, but also considered that there was no new material that had been put before it. It had, in its original decision, taken the view that a medical examination of the claimant, at the date of that hearing, would not have assisted since so long had elapsed between the accident and the date of the hearing.

10. The matter then went before Mr Jacobs. Mr Jacobs stated this:

"The issue for the tribunal was causation. Were your [that is the claimant's] recurrent cysts caused by your accident in 1978? That is not an issue to which your evidence was likely to be of much help to the tribunal. It turned on the nature of cyst formation and on medical probability. The tribunal undertook a thorough and careful consideration of the evidence relevant to that issue. Its statement of the reasons for the tribunal's decision clearly explains how and why it came to its decision. So, even if there has been some procedural deficiency on the tribunal's part, which I do not accept, I would anyway refuse leave to appeal, as there would be nothing to be gained by a rehearing."

11. Effectively, therefore, he said that all the relevant material, that is to say, the material relevant to the appeals before the Tribunal, was examined by it, and therefore the claimant had lost nothing by her failure to appear. It would have made no difference.

12. There really were two issues before the commissioner when he made his decision. One was the question of the fault, if it were fault, of anyone for the fact that the hearing occurred in Miss Roberts' absence. He put that aside. As I have already stated there is no reason to be critical of the Tribunal for a failure to let the claimant know of the hearing. This is a regrettable case where she moved and omitted to inform the Tribunal of her new address.

13. On the crucial issue, namely whether her attendance would have made a difference, the commissioner came to a view which was clearly a view which was open to him on the material before him. He had the two issues before him. Namely, the reason for the claimant's absence, and the materiality of the material she might be able to put before the Tribunal if the matter were reopened and there were an appeal. The decision he came to was a reasonable one. He applied no incorrect test, and it is therefore one I am unable to interfere with.

14. For those reasons, although my sympathies are very much with Miss Roberts, this is not a case in which the court can interfere and permission will be refused.

15. MR KOLINSKY: My Lord, I am instructed not to make any application for costs.

16. MR JUSTICE STANLEY BURNTON: Thank you very much.