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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson (AP), Re Application For Judicial Review [2001] ScotCS 274 (28 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/274.html Cite as: 2002 SCLR 305, [2001] ScotCS 274

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[1] The petitioner in this application for judicial review of a determination of a Social Security Appeal Tribunal is averred to suffer from agoraphobia and certain other medical conditions. In 1994 she was awarded incapacity benefit and subsequently, in connection with her continuing entitlement to incapacity benefit, she was asked to complete Incapacity for Work Forms (IB50) which she did on 16 June 1995 and again on 12 May 1997. Following the completion and submission of the latter of those two forms, she was invited to attend for medical examination at Corunna House, the premises of the Benefits Agency Medical Service in Glasgow. However, because she suffered from agoraphobia and was unable to leave her home in Glasgow to travel to Corunna House, her medical examination took place at her home on 29 July 1997. Following that medical examination, on considering the report of the examining medical practitioner, the Adjudication Officer considered that the petitioner did not attain a sufficiently high number of points to satisfy the "all-work test" for the purposes of incapacity benefit and he issued a decision to that effect on 13 August 1997.

[2] Being dissatisfied with the decision of the Adjudication Officer that she did not satisfy the all work test, the petitioner, by a manuscript letter dated 20 August 1997, appealed to the Social Security Appeal Tribunal ("SSAT"). It appears that on or about 1 September 1997 the petitioner indicated that she was content that her appeal be dealt with by what is described in certain of the SSAT documents in process as a "paper hearing". However, the Adjudication Officer evidently regarded the appeal as one for which an oral hearing would be appropriate and at his request an oral hearing was in due course arranged for 10 July 1998. The petitioner was notified of that oral hearing by letter of 18 June 1998. It is averred by the petitioner that having received that notification, she wrote to the Independent Tribunal Service pointing out that her state of health prevented her from attending. It is further averred that the petitioner was not afforded a domiciliary visit and I was informed by counsel that it is the practice of the SSAT where an applicant is unable to attend an oral hearing on health grounds to visit the applicant at home if that is desired. It is, however, not accepted by the respondent, the Secretary of State for Work and Pensions, that a letter in those terms was ever received by the SSAT.

[3] At all events, on 10 July 1998 there took place an oral hearing on the petitioner's appeal at which the petitioner was not present nor represented. At that hearing the SSAT refused the petitioner's appeal and upheld the Adjudication Officer's decision. The summary of the grounds of that refusal are set out by the SSAT in No. 7/19 of Process as follows:

[4] Following the refusal of her appeal, the petitioner sought help from an Advice Centre which on 21 August 1998 wrote to the Independent Tribunal Service asking that the SSAT's determination of 10 July 1998 be set aside. The letter (No. 7/20 of Process) stated that:

This application to have the determination of 10 July 1998 set aside was, in due course, considered and refused by a single member SSAT on 5 October 1998 and it is that refusal of the application to set aside the earlier substantive decision on the petitioner's appeal which is the subject of challenge by way of judicial review in this petition. The reasons given by the single member SSAT for refusing the set aside application are contained in No. 7/23 of Process:

[5] Although the decision under challenge was evidently taken on 5 October 1998 it appears that its terms were not notified to the petitioner until 17 November 1998. On receipt of the decision the Advice Centre wrote in response on 30 November 1998 pointing out inter alia that the determination proceeded on a material error of fact in the respect that contrary to what was said in the reasons, the petitioner had not attended at the Benefits Agency Medical Service examination on 29 July 1997 but had been examined at her home for the reason, as disclosed in the certificate from her general practitioner with the tribunal papers, that she was not fit to leave her home to the extent of making the journey to Corunna House. In its letter the Advice Centre went on to ask that the decision of 5 October 1998 be set aside. A response refusing that request was sent over a year later, namely on 15 December 1999. Although the petition also seeks to challenge that refusal of 15 December 1999 Mr Sutherland, who appeared for the petitioner, indicated that it was accepted that there was no procedure for setting aside a decision not to set aside and he departed from that branch of the present application.

[6] It may be added that the delay of over a year in responding to the Advice Centre's letter of 30 November 1997 was explained by counsel as resulting from the fact that the file held by the tribunal service relating to the petitioner's case had been lost. To the extent that there was now a file of papers relating to the petitioner's case, that file was said by counsel to have been "reconstituted from other sources".

[7] It is now accepted by the respondent Secretary of State that in its determination on 5 October 1998, refusing the application to set aside the earlier substantive decision, the SSAT proceeded on a material error of fact. It is also accepted that the true state of matters, namely that the petitioner's medical condition prevented her from attending for medical examination and that the medical examination had taken place at her home, was evident from the papers before the SSAT. The respondent further contends that, apart from being erroneous in that material respect, the SSAT determination is erroneous in that it failed to address the proper question. In the answers to the petition it is averred by the respondent that the SSAT "erred in law and exceeded or stepped outwith their jurisdiction".

[8] The respondent's contention that the SSAT failed to address a necessary question stems from the terms of Regulation 10(1) and (1A) of the Social Security (Adjudication) Regulations 1995 as amended by the Social Security (Adjudication) and Child Support Amendment (No. 2) Regulations 1996. Those provisions are in the following terms:

[9] Mr Bartos, who appeared for the respondent, submitted that the application to set aside the SSAT decision of 10 July 1998 required to be treated as an application under Regulation 10(1)(b) in which event Regulation 10(1A) came into play and the SSAT ought then to have considered whether the petitioner had given notice of a wish for an oral hearing. If, as he submitted was indeed the case, such notice had not been given, the SSAT then required to consider whether the interests of justice manifestly required the decision to be set aside. The SSAT in its decision of 5 October 1998 had not addressed those issues.

[10] Although counsel for the respondent thus accepted that the SSAT decision in issue was vitiated on the ground of material error of fact advanced by the petitioner and while he submitted that it was also vitiated on the additional ground contended for by him, counsel for the respondent yet opposed reduction of the decision. The ground for his opposition to reduction of the decision was that, in his submission, the result achieved in the determination of 5 October 1998 was the correct result and the only result which the SSAT could properly reach. Accordingly, no useful purpose would be served by returning the matter to the SSAT for reconsideration.

[11] In support of the proposition that the Court might decline to grant decree of reduction of a decision reached in a manner which was flawed in circumstances in which no useful purpose would be served by reducing the decision and remitting it to the decision-taker for fresh consideration, counsel referred to Glasgow District Council v The Secretary of State for Scotland 1980 S.C. 150; Andrew v City of Glasgow District Council 1996 S.L.T. 814 and Dillon v Secretary of State for the Home Department 1997 S.L.T. 843. Counsel for the respondent went on to submit that the power to set aside which was conferred by Regulation 10 was essentially designed to deal with procedural irregularities. In that connection he referred to Ward Petitioner, partially reported in  1995 S.C.L.R. 1134. It was not a substitute means of appealing the merits of the decision. However, said counsel, it was not enough simply that there be some procedural irregularity or error. There had to be a risk of manifest injustice. In the circumstances of the present case, that meant the identification of some actual prejudice suffered by the pursuer through her not being present at the oral hearing. There was no indication in the papers of what might usefully have been said by or on behalf of the petitioner at the oral hearing or what might be said were the decision ultimately to be set aside. No new medical evidence had been produced by the petitioner. Accordingly, the petitioner not having requested an oral hearing, the submission of counsel for the respondent was that the SSAT could not hold otherwise than that the manifest interests of justice test of Regulation 10(1A) had not been satisfied.

[12] For his part, counsel for the petitioner submitted that since it was accepted that the basis of the SSAT's determination of 5 October 1998 was flawed, the appropriate course was to grant decree of reduction thereby enabling the SSAT to take a fresh decision. Counsel for the petitioner accepted that in certain circumstances it would be appropriate for the Court to decline to give effect to a challenge to the validity of a decision which was flawed or vitiated in its reasoning but which reached the only result at which the decision-taker could have arrived if properly instructed in the law. However, he submitted that in effect such would only be the case where the factual issues were beyond dispute and no question of the exercise of a discretion arose.

[13] In my opinion, counsel for the petitioner is broadly correct in that last submission. On my understanding of them, both the case of Glasgow District Council v Secretary of State and Anderson v City of Glasgow District Council are cases involving the proper interpretation of statutory provisions, which involved no exercise of discretion, against undisputed facts. The case of Dillon involved, as Mr Bartos observed, the review of a discretion but ,as counsel for the petitioner pointed out, it is evident from the terms of the report (843F) that parties were agreed that there were no grounds upon which the decision-taker in that case could, in the proper exercise of his discretion, have reached a different result. I would add that, in my view, when exercising its supervisory jurisdiction, this Court must, of course, be alert to the need to avoid substituting its own view of the true merits of the issues before the decision-taker in cases other than those presenting pure issues of statutory construction against an undisputed factual background or where, exceptionally, as in Dillon, parties are agreed as to the ultimate outcome of the matter before the decision-taker.

[14] It appears to me that in the present case much of Mr Bartos' argument proceeded on the factual assumption that the petitioner had not in fact written in response to the notification of the oral hearing indicating her inability to attend by reason of the medical condition from which she suffers. As I understood it, the basis upon which he contended that what was averred by the petitioner in the petition and represented to the tribunal by the Advice Centre was not true, was the apparent absence of the letter from the petitioner's file with the Tribunal Service. Since the present papers available are "reconstituted" and not necessarily complete, the inference that no such letter was written proceeds upon the decision-taker's view that no such letter was in the file. However, since the same decision-taker appears to have misread other documents in the file and to have overlooked the general medical practitioner's certificate relating to the petitioner's inability to venture far from home, it appears to me that the question whether the petitioner sent such a letter remains a potentially disputable issue of fact.

[15] The contention of counsel for the respondent that the only applicable test was that of Regulation 10(1)(b) read with Regulation 10(1A) proceeded largely on the assumption that the petitioner had not in fact written the letter which she claimed to have written. Counsel for the respondent conceded however that even if an appellant had initially indicated a willingness to have a "paper hearing", it would be open to an appellant subsequently to request an oral hearing or to conjoin with the adjudication officer in wishing to take part in an oral hearing. The terms of the letter which it is said by the petitioner was directed to the tribunal may therefore be of some relevance. The letter requesting that the decision of 10 July 1998 be set aside referred to the petitioner having written such a letter. However, it did not identify any specific head under Regulation 10(1) and it seems to me that counsel for the respondent may be going too far and too fast in his assertion that the only possible ground invoked for setting aside the substantive decision of the SSAT is sub-head (b) of Regulation 10(1). As counsel for the petitioner suggested, it may be arguable that the letter which the petitioner says she wrote, carried an implied request for an oral hearing, thereby eliding Regulation 10(1A). Further, if it be the case that the letter was written and despatched but was not received by the tribunal, that might open up issues under head (a) of Regulation 10(1A). Moreover, as counsel for the petitioner pointed out, notwithstanding the terms of Regulation 10(1), there is the ultimate provision in Regulation 10(1)(c) of the simple, but fundamental, test of "interests of justice". The letter requesting a set aside referred to other matters than the mere fact that the petitioner had not been present at the hearing. It is also to be observed that the present case is not one in which both parties had been agreed that there should be but a "paper hearing" but one in which the Adjudication Officer had requested an oral hearing. I would add that counsel were unable significantly to assist me in the resolution of the apparent conundrum of how a set-aside considered appropriate in the interests of justice but involving the absence of a party at an oral hearing should yet be declined on the basis that those interests should be overridden as not being sufficiently "manifest", thereby denying justice.

[16] A further component in the submission of counsel for the respondent that reduction of the decision should be refused on the ground that the correct result had been achieved was his contention that the petitioner had not shown that she had suffered any prejudice by reason of her not being present at the oral hearing. In that regard it is to be observed, as was pointed out by counsel for the petitioner, that one of the grounds given by the SSAT for its decision of 10 July 1998 was "... in the absence of the appellant ... the tribunal did not consider they had grounds to interfere with the Adjudication Officer's decision". The reference to the absence of the appellant as a factor in their consideration in refusing the appeal suggests that the SSAT were of the view that her presence might have produced a different result or, at any event, that her presence might have contributed to the basis of their decision. Counsel for the petitioner submitted that, had the petitioner been present, she would have had the opportunity of persuading the SSAT that the extent of her disability was such that she should have been awarded additional points which might, or might not, have enabled her to receive incapacity benefit. In order to demonstrate procedural prejudice it was not necessary to demonstrate that had the petitioner been present and able to address the SSAT deciding her appeal she would necessarily have succeeded before it. The prejudice was in the lack of opportunity to persuade. In my view, counsel for the petitioner is correct in that submission.

[17] I would also record that as part of his submission that the petitioner had suffered no prejudice by not being present at the oral hearing on 10 July 1998, counsel for the respondent embarked on an examination of the terms of the IB50 questionnaires and the terms of the report of the examining medical practitioner with a view to demonstrating that the pursuers claim was unsound on its merits. I have to say that this appears to me to be an invitation to this Court to embark on an enquiry which is peculiarly within the province of the SSAT.

[18] In these circumstances, it having been acknowledged that the decision of the SSAT of 5 October 1998 refusing the set aside application is vitiated by mistake of material fact, I am not persuaded that it is appropriate for this Court to refuse decree of reduction on the ground that this Court can be satisfied that on a re-consideration the tribunal must inevitably reach the same result. In so holding, it will be appreciated that I do not say that the actual result arrived at by the SSAT in its determination of 5 October 1998 was wrong. The matter is for its re-consideration at large. I shall accordingly grant decree of reduction of the determination of 5 October 1998.

[19] Before parting with the case, I have to observe that the lapse of time between the notification of the decision under challenge and its review in the Court of Session is far from satisfactory and it is appropriate that I should record the information given to me in response to my request for an explanation of the delay. Plainly, as has already been indicated, a delay of over a year ensued following the Advice Centre's request for reconsideration of the matter in terms of its letter of 30 November 1998 pointing out the material error of fact which is now acknowledged. That delay is explained by the loss of the petitioner's file by the appropriate authorities, who delayed giving any response until December 1999. That permanent misplacing of the petitioner's file apparently had ongoing consequences. On receipt of the notification that the SSAT was not prepared to entertain the decision for review in December 1999, the Advice Centre made arrangements for the petitioner to receive legal advice. Solicitors met with the petitioner in early February 2000 and on 10 February 2000, applied to the Scottish Legal Aid Board for funding to investigate the matter. I was told that that funding for investigation was authorised on 26 February 2000. The problem confronted by the solicitors was the lack of papers and documents. They made requests of the petitioner and also of the Benefits Agency but the chase for further papers and documents continued. On 8 June 2000, legal aid forms were, in due course, completed. But further papers were sought from the appeals service. The process of obtaining the necessary documentation for the proper submission of an application for full legal aid continued until the Autumn of 2000. An application for legal aid for the raising of these proceedings was submitted on 29 November 2000. It was eventually granted on 22 March 2001. Legal aid having been granted and counsel instructed, counsel then required further information which was in due course provided, enabling the present petition to be raised in early July 2001.

[20] While all of these delays are profoundly regrettable, I would simply comment that, on the information provided to me, none of them appear attributable to the personal fault of the petitioner.