Law Centre Client Wins DLA Appeal in Landmark Case Before Upper Tribunal
20th May 2011
In April this year, one of our clients from Paisley (CF), a retired whisky bond assembly line worker, won her case for Disability Living Allowance before the Upper Tribunal in one of the first examples in Scotland, if not the first, of the government appealing against the First Tier Tribunal’s decision to award the benefit.
Although her claim was for low rate care component only, ‘the cooking component’, therefore, in the grand scheme, relatively modest in week-by-week terms, nonetheless this small sum was of significant practical value to her, and could amount to a five-figure sum over the course of her remaining life. Moreover, the case raised important legal issues, and presented local advice agencies with a prime opportunity for a joint partnership approach, which they seized upon and carried through with great success.
Success of Joint Partnership Approach
In all, our client was able to avail herself of the help of three agencies, being Advice Works, Renfrewshire Law Centre and an Advocate from the Faculty of Advocates in the person of Joe Bryce, who has a longstanding association with law centres in general and Renfrewshire Law Centre in particular.
Having engaged in hard physical work most of her working life as well as raising a family, she had sustained the rigours of her travails, becoming affected by arthritis in her hands as well as by other ailments. However, in 2009 the DWP rejected her claim for DLA. Accordingly, her first point of contact was Advice Works, a local welfare advice agency based in Paisley and operated by Renfrewshire Council. There she received initial advice and representation from Valerie Hay, welfare rights officer, who took the case before the First Tier Tribunal in mid-2010, where Mrs Hay represented the client successfully, persuading the FTT to overrule the DWP’s decision to withdraw low rate care DLA.
However, the Government appealed the FTT’s decision to the Upper Tribunal whereupon Advice Works referred the case to Renfrewshire Law Centre. There her solicitor enrolled a Response to Appeal and applied for sanction for Counsel thus was able to instruct Mr Bryce on ABWOR. The case proceeded before Judge Gamble of the Upper Tribunal on 14 April 2011, and the judgment was issued a few days later, again confirming successful representation for the client, whereby the UT upheld the FTT’s decision for reasons outlined below.
This case’s success at all stages in its lengthy journey through the judicial process is thanks in no small measure to the joint partnership approach adopted by Advice Works, Renfrewshire Law Centre and the Faculty, utilising their established referral protocol and seamless working relationships in order to deliver for the client a complete package of representation made up of precisely the correct degree of expertise fit for each different level of the process.
The joint partnership approach of Advice Works, Renfrewshire Law Centre and the Faculty of Advocates is a model developed at Renfrewshire Law Centre, exemplifying the possibilities for lawyers and other advisors to work together. In these financially difficult times, this kind of pooling of resources may lead the way in sustaining access to justice in the field of social welfare law.
Case Critique
CF’s case is of some interest while social welfare law practitioners lie awake at night awaiting the outcome of Eba in the Supreme Court. Eba of course is an attempted judicial review of a refusal of permission by the Upper Tribunal of permission to appeal to the Upper Tribunal from a refusal of the First-tier Tribunal to uphold an appeal against refusal of Disability Living Allowance.
Before November 2008, when the work of the Social Security Commissioner was transferred into the Social Entitlement Chamber of the Upper Tribunal, judicial review of Commissioners’ decisions refusing leave to appeal was rare, but it did happen; see for example Donnelly v. Advocate General for Scotland 2007 SCLR 746. Judicial review was, in effect, a long-stop to prevent injustice.
In the Outer House in Eba, however (2010 S.L.T. 547) Lord Glennie held that the re-organisation of the tribunal structure effected by the Tribunals, Courts and Enforcement Act 2007 placed the Upper Tribunal at the apex of that structure. A number of factors, particularly the nature of the tribunal in question, the available appeal mechanisms, legislative intention, the desirability of finality and of achieving the correct result, and the generic nature of the issues involved, led to the conclusion that in most cases judicial review was not justified except in exceptional circumstances. The Inner House (2010 S.L.T. 1047) took a more robust line on the right of the citizen to control the actings of statutory bodies by having recourse to the Court of Session.
In the parallel English litigation, Cart 2011 Q.B. 120, the Court of Appeal held that the tribunal system was designed to be so far as possible a self-sufficient structure, dealing internally with errors of law made at first instance and resorting to higher appellate authority only where a legal issue of difficulty or of principle required it.
Underlying the judicial impetus to exclude judicial review of the Upper Tribunal is the analysis of Sir Andrew Leggatt in his seminal March 2001 report, ‘Tribunals for Users, One System, One Service’. At para. 6.30, the Report gives finality as one of the primary objectives of tribunal reform:-
“6.30 Our recommendations will — subject to limited exceptions — create a comprehensive and systematic right of appeal from first-tier tribunals to the appellate Division, and from there to the Court of Appeal. Any point of law will in future be open to challenge within the Tribunals System, before expert members, operating the distinctive enabling approach common to all tribunals. The senior members of the appellate Division will be judges, often judges of the High Court. It would be significantly to users’ benefit to use that appeal system, rather than have recourse to the more complicated procedures and more limited remedies of judicial review. We think that this latter possibility should be excluded. Slightly different arguments apply to the appellate Division and first-tier tribunals.”
Social Welfare law practitioners are sometimes accused by government of multiplying litigation needlessly by appealing first instance decisions. What is not appreciated by the public, or even by legal practitioners outside the social welfare field, is that as often as not it is the government department concerned that refuses to accept a first instance decision, and marks the onward appeal. Surely, then, what is sauce for the goose has to be sauce for the gander; surely the executive’s own rhetoric dictates adoption of a self-denying ordnance where it loses an administrative appeal at first instance?
These issues arose in CF’s case. The F-t T had found the claimant entitled to lowest rate care component DLA in respect that she satisfied the “cooking test” set out in section 72.-(1)(a)(ii) of Social Security Contributions and Benefits Act 1992 which is that “he cannot prepare a cooked main meal for himself if he has the ingredients”.
In Moyna v Secretary of State for Work and Pensions [2003] 4 All E.R. 162, the Lords had found that ‘the cooking test’ is “one of overall impression to be reached by tribunals by a general approach rather than by fixed rules”, “an exercise in judgment rather than an arithmetical calculation of frequency.” As Mesher points out, however, at para. 1.234, “But this does leave us in some difficulty, for if the tribunal had found initially that Mrs. Moyna was not capable of cooking then, it would seem, that that too would have been a decision that was properly made and could not be reviewed as an error of law....”
In CF, the First-tier had assessed the claimant as “a particularly credible and reliable witness”. They observed for themselves that her hands were swollen, which had not been mentioned by the Examining Medical Practitioner on whose report the respondent had based his decision. The GP’s report produced for the claimant explained she had osteoarthritis in her hands as a result of many years’ employment as a packer. The First-tier had not pursued in detail with the claimant the variability of her condition, because she had broken down while giving evidence because of a very recent bereavement. That omission to pursue the variability of the claimant’s condition was the basis of the Secretary of State’s subsequent successful application to the Tribunal for permission to appeal to the Upper Tribunal.
In its determination rejecting the Secretary of State’s appeal, the UT held that the omission of the First-tier to formulate its findings expressly in terms of Moyna mattered not if its decision could be read as consistent with the criteria enunciated therein, which it could. The Upper Tribunal should respect the specialist expertise of the tribunal in deciding whether or not it had erred in law; City of Edinburgh Council v K 2009 SC 625 at 633-4.
The moral of the story for practitioners is this. While it may be the case that the final outcome of Cart / Eba will require deference to the specialist expertise of administrative tribunals, such that their decisions will not be liable to be overturned whether upon appeal or upon review except in cases of true irrationality, that principle cuts both ways. What is sauce for the goose, is sauce for the gander.