Court of Appeal grants permission to appeal in a welfare benefits case

Monday 22 April 2013

R (Nicholas) v Upper Tribunal (Administrative Appeals Chamber) & Anor [2013] EWCA Civ 376

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The proceedings concerned a decision to remove Ms N's entitlement to Incapacity Benefit after she scored insufficient points under the Personal Capability Assessment ('PCA') test. When Ms N's appeal came before a First-tier Tribunal ('FTT') it noticed that her award of Incapacity Benefit had been in place for some three years and the FTT Judge asked Ms N whether she had undergone any previous PCAs. When Ms N confirmed that she had passed at least two PCAs the FTT informed her that they did not have the relevant documents relating to the previous medicals, but they could adjourn if necessary. The hearing nevertheless went ahead and the FTT dismissed the appeal. Ms N applied for permission to appeal to the Upper Tribunal (Administrative Appeals Chamber) arguing that the omission of the previous PCA reports meant that she had not received a fair hearing of her incapacity appeal. Permission was refused by Upper Tribunal Judge Powell. The claimant applied to judicially review the refusal decision.

Subsequently the High Court granted Ms N permission to apply for judicial review under the Cart test, but in the final hearing of the judicial review Mr Justice Haddon-Cave concluded that this was a case that turned on its individual facts and that there was nothing unfair in the way the FTT had conducted the appeal and that its decision to give Ms N the option of adjourning was fair and reasonable "in all the circumstances": see R(Nicholas) v Upper Tribunal (Administrative Appeals Chamber) & Anor [2012] EWHC 2224 (Admin).

Ms N applied for permission to the Court of Appeal arguing that Haddon-Cave J's decision was wrong in law because: (i) the FTT was under a legal obligation to obtain the previous PCA reports in accordance with established incapacity case-law on the relevance of previous PCA reports; and (ii) that Haddon-Cave J had failed to give proper weight to the enabling role of FTTs exercising an inquisitorial function, especially where the appellant was unrepresented. Ms N also relied on ST v Secretary of State for Work and Pensions [2012] UKUT 469 (AAC), which held that the Secretary of State's failure to include the previous PCA reports in the appeal papers before the FTT could render the hearing unfair.

Permission was granted by Lord Justice Aikens at a hearing held on 1 March 2013.

Click here for the transcript of the permission decision R(Nicholas) v Upper Tribunal (Administrative Chamber) & Secretary of State for Work and Pensions [2013] EWCA Civ 376.

The appeal is listed to be heard by the Court of Appeal on 24 or 25 June 2013.

High Court decision available here.

Desmond Rutledge is a member of Garden Court Chambers Welfare Benefits Team.

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