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

MR JUSTICE KEITH: These two claims for judicial review are brought by Ms Nadine Deuters. Claim CO/2490/2003 relates to her claims for Income Support and Incapacity Benefit. Permission to proceed with one ground of her claim, namely that relating to her claim for Incapacity Benefit, was granted by Wall J (as he then was). He refused her permission to proceed with that part of her claim which related to her claim for Income Support, and with the other grounds of that part of her claim which related to her claim for Incapacity Benefit.

Ms Deuters has not renewed her application for permission to proceed with those elements of her claim for which permission to proceed has been refused. I say that because she has not filed the appropriate form to be used when giving notice of the renewal of an application for permission to proceed with a claim for judicial review, as she did on claim CO/3412/2003, and her letter to the Administrative Court Office of 16th February 2004 does not appear to contain a renewed application for permission to proceed with those elements of her claim for which permission to proceed has been refused. But even if the letter of 16th February 2004 should be construed as including a renewed application for permission to proceed with those elements of her claim for which permission to proceed had been refused, it is apparent, for the reasons given in the Secretary of State's summary grounds for contesting the claim, that no error of law on the part of the Appeal Tribunal is apparent.

Claim CO/3412/2003 relates to Ms Deuters' claim for a Disability Living Allowance. Permission to proceed with that claim was refused by Wall J. When he did so, he said that if Ms Deuters renewed her application for permission to proceed with that claim, it should be listed for hearing with claim CO/2490/2003. Ms Deuters did indeed file a notice for the renewal of an application to proceed with her claim for judicial review in claim CO/3412/2003.

I deal first with the claim relating to Ms Deuters' claim for Incapacity Benefit and the one ground on which permission to proceed with that claim was given. Ms Deuters had been in receipt of Incapacity Benefit since 4th January 1998. On 18th November 1998 an Adjudication Officer decided that she was no longer incapable of working and therefore no longer entitled to Incapacity Benefit. She ceased to be paid Incapacity Benefit from that date. However, she successfully appealed against that decision, and on 14th October 1999 the amount of Incapacity Benefit to which she had been entitled since 18th November 1998 was calculated. She disagreed with the calculation of her Incapacity Benefit, and appealed to a Social Security Appeal Tribunal. On 2nd September 2002 the Appeal Tribunal dismissed her appeal, holding that her Incapacity Benefit had been correctly calculated.

However, another decision had been made on 14th October 1999 when Ms Deuters had had her Incapacity Benefit calculated. Although on that occasion the amount of Incapacity Benefit to which she was entitled was calculated, it was decided that Incapacity Benefit for the period from 18th November 1998 to 28th September 1999 was not payable to her. It was found to be subject to abatement under reg.8 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988. Ms Deuters sought to appeal against that decision. However, on 2nd September 2002 the Appeal Tribunal held that this decision was outside its jurisdiction.

Ms Deuters applied for leave to appeal to a Social Security Commissioner against that decision. Such an appeal lies only "on the ground that the decision of the tribunal was erroneous in point of law" (see section 14(1) of the Social Security Act 1998 ("the 1998 Act")). On 21st January 2003 a Social Security Commissioner refused her leave to appeal. The one ground on which permission to proceed with that part of her claim which related to her claim for Incapacity Benefit was granted relates to the Commissioner's refusal of leave to appeal from the decision of the Appeal Tribunal that it did not have jurisdiction to consider Ms Deuters' appeal from the decision that her Incapacity Benefit, for the period from 18th November 1998 to 28th September 1999, was subject to abatement.

On that issue, the Secretary of State for Work and Pensions, who is, of course, an interested party to this claim for judicial review, accepts that the Appeal Tribunal did have jurisdiction to consider Ms Deuters' appeal on the issue of abatement, and that the Appeal Tribunal therefore erred in law in dismissing her appeal for want of jurisdiction. The power to abate Incapacity Benefit derives from section 74(2) of the Social Security Administration Act 1992, and a right of appeal from the exercise of that power is provided for by section 12(4) of the 1998 Act. It follows that the Secretary of State concedes that the Commissioner erred in not granting Ms Deuters leave to appeal on that issue.

Technically, the correct course to take might be said to be to quash the Commissioner's refusal of leave on that issue, and to direct him to grant leave and to consider the appeal from the decision of the Appeal Tribunal in the light of this judgment. But since that appeal would have to be allowed, and since the issue of abatement would have to be remitted to the Appeal Tribunal, it makes sense for the court simply to quash the Commissioner's refusal of leave on the issue of abatement, and to order that the issue of abatement be remitted to the Appeal Tribunal for the issue to be considered on its merits. That is the order which I make in claim CO/2490/2003, subject to what Mr Andrew Henshaw for the Secretary of State has to say about the precise terms of the order.

I turn to claim CO/3412/2003 which relates to Ms Deuters' claim for a Disability Living Allowance ("DLA"). DLA is payable in the circumstances set out in sections 72 and 73 of the Social Security Contributions and Benefits Act 1992. In outline, section 72 relates to the care component of DLA, and applies where applicants are so severely physically and mentally disabled that they require frequent or constant attention from a third person. The precise requirements are set out in section 72(1)(a)-(c), and the rate at which the care component is payable depends on which of the requirements are satisfied. Section 73 relates to the mobility component of DLA, and applies where applicants are, amongst other things, unable or virtually unable to walk, or are able to walk but are so severely disabled as to need guidance or supervision from another person most of the time when walking out of doors.

Ms Deuters submitted two claims for DLA -- on 28th September 1997 and 25th November 1999 respectively. Both were refused by officers of the Benefits Agency, and appeals were lodged with the Appeal Tribunal. The appeals were eventually heard on 29th August 2002. Ms Deuters did not attend the hearing, but she had been given notice of it and she was represented by someone from the Citizens Advice Bureau. After considering the medical evidence, the Appeal Tribunal dismissed the appeals. Although there was evidence of reduced mobility, the Tribunal concluded that Ms Deuters was not "virtually unable to walk", nor did she need guidance or supervision of a kind as to satisfy the mobility component of DLA, or attention of a kind as to satisfy the care component of DLA.

Ms Deuters applied for leave to appeal to a Social Security Commissioner against the dismissal of her appeals to the Appeal Tribunal. On 31st March 2003 the Social Security Commissioner refused her leave to appeal. He took the view that such support for her case as there had been in the medical evidence was too general to be the foundation for findings which would justify an award of DLA. It is the Social Security Commissioner's refusal of leave to appeal which is the subject of her claim for judicial review.

I have decided that permission should not be given for this claim to proceed. First, the claim for judicial review was lodged out of time. A copy of the decision was sent to her under cover of a letter of 8th April 2003, and the judicial review claim form was not issued until 21st July 2003. No explanation for the delay has been advanced. Secondly, it is not arguable that there was an error of law on the part of the Appeal Tribunal. Certainly no arguable error of law appears from those parts of the grounds which are comprehensible. To the extent that it is alleged that the Appeal Tribunal failed to mention or to take proper account of various features of the medical evidence, it was not necessary for the Appeal Tribunal to record the medical evidence in the reasons it gave for its decision. It was sufficient for it to state why the appeals were being dismissed. The fact that the medical evidence was not set out in the reasons does not mean that the Appeal Tribunal failed to take proper account of it. To the extent that it is said that the Appeal Tribunal failed to take into account the report of Dr Weir, the problem was that Dr Weir's report had gone missing. That was why a further report had been commissioned from Dr Patten, and that had the advantage of being more up-to-date than Dr Weir's report had been.

Finally, the claimant alleges that a number of her rights protected by the European Convention on Human Rights have been infringed, but she has not said in what way. I have not discerned an arguable basis on which it could be said that her human rights have been interfered with. It follows that her renewed application for permission to proceed with claim CO/3412/2003 must be refused.

Mr Henshaw, your proposals for the terms of the order?

MR HENSHAW: May I hand up a draft text for case 2490 (Handed).

MR JUSTICE KEITH: Do you need (3)?

MR HENSHAW: No. I think in the light of your Lordship's decision I do not need (3).

MR JUSTICE KEITH: I am going to take out of one the words "judicial review claim form pages 63 to 64".

MR HENSHAW: Yes, my Lord.

MR JUSTICE KEITH: Yes, I will sign, initial and date this, and the order in 3412 is simply that the renewed application for permission to proceed with the claim is refused. Thank you very much. Can I assume there are no consequential applications for costs?

MR HENSHAW: No applications, my Lord

MR JUSTICE KEITH: Thank you very much, Mr Henshaw.