Carpenter v. Secretary of State for Work and Pensions [2003] UKSSCSC CIB_3427_2001 (15 January 2003)
R(IB) 6/03
(Carpenter v. Secretary of State for Work and Pensions [2003] EWCA Civ 33)
CA (Ward, Laws and Jonathan Parker LJJ) CIB/3427/2001
15.1.03
Practice – extent of duty to give reasons for refusal to grant adjournment
The claimant became incapable of work in February 2000. He was awarded incapacity benefit and national insurance credits. In February 2001 the claimant was examined by an EMP and, subsequently, the Secretary of State decided that he was capable of work on and from 2 March 2001. The claimant appealed on 6 March 2001 and in that connection was represented by solicitors from at least 21 March 2001. On 6 April 2001 the solicitor sought a medical report from the claimant's GP, who, the following day, agreed to provide it. The tribunal hearing was set for 30 May 2001, and on 14 May the solicitor inquired by telephone as to the report, learning that it was not yet ready. No other steps were taken until the 29 May 2001, on which date the telephone inquiry to the GP's office was renewed. The report was not ready. At the hearing the next day the solicitor applied for an adjournment to provide time to obtain a medical report. The tribunal refused that application and also dismissed the substantive appeal. Thereafter the claimant obtained a statement of reasons which made no reference to the refusal to adjourn, although this was briefly referred to in the decision notice issued on the day of the hearing. The claimant appealed to the Commissioner in relation to the lack of reasons given for the refusal to adjourn. The Commissioner dismissed the appeal. The claimant appealed to the Court of Appeal.
Held, dismissing the appeal, that:
- (per Laws LJ) there is, in the whole legislative scheme of the 1998 Act, a plain distinction between a decision on entitlement to benefit, and what may conveniently called a determination (that is determination of any matter along the way leading to a decision, including a determination of a procedural issue such as an application for an adjournment): the right to a statement of reasons under regulation 53(4) of the Social Security (Decision Making and Appeals) Regulations 1999 applies only to a decision thus understood and not to a determination (paragraph 14);
- Article 6 of the European Convention on Human Rights does not have an impact on regulation 53(4) as in relation to the duty to give reasons the common law may, in any event, impose such a duty in relation to the grant or refusal of an adjournment if it was held that fairness demanded it (paragraph 22);
- furthermore, it is clear that in the ordinary way , and as a matter of practical good sense, any obligation to give reasons for an ancillary or procedural act, such as the refusal of an adjournment, will be relatively summary in nature (paragraph 25);
- additionally, it is impossible to conclude that the jurisprudence of the Strasbourg court, in a context such as the present, would require a higher standard for the giving of reasons than that which the Commissioner had set out in his decision (paragraph 26);
- in relation to the brief reference to the refusal to adjourn given by the tribunal in the decision notice, such reference was addressed to a tutored audience and, moreover, it was for the appellant to establish solid grounds to grant the adjournment - accordingly the Commissioner had not erred in law in failing to hold the reasons in the decision notice inadequate (paragraph 29);
- it was plain that the refusal of the adjournment was not perverse (paragraph 31).
Ward and Jonathan Parker LJJ agreed with Laws LJ.
DECISION OF THE COURT OF APPEAL
Mr. Richard Clayton QC (instructed by Messrs. Howells, Sheffield) for the Appellant.
Mr. James Maurici (instructed by the Office of the Solicitor, Department for Work and Pensions, London WC2) for the Respondent.
Judgment
LORD JUSTICE WARD:
I will ask Lord Justice Laws to give the first judgment.
LORD JUSTICE LAWS:
- This is an appeal (with permission granted by Mummery LJ on 13 August 2002) against the decision of Mr. Social Security Commissioner Jacobs made on 17 January 2002, when he dismissed the appellant's appeal against the earlier decision of the Sheffield Social Security Appeal Tribunal given on 30 May 2001. The tribunal had dismissed the appellant's appeal from the decision of the Benefits Agency to the effect that he was not incapable of work from and including 2 March 2001.
- The issues before the Commissioner and before this court are concerned only with the refusal by the tribunal, when they heard the appeal to them on 30 May 2001, to accede to the appellant's application for an adjournment to enable him to obtain medical evidence to support his appeal.
- I may set out the material facts quite shortly. The appellant became incapable of work on 25 February 2000. His general practitioner attributed the fact to depression. He was awarded incapacity benefit, which entitled him to national insurance credits. A standard questionnaire was sent to the GP in order to ascertain whether the appellant was required to attend for a medical examination or whether he was in a category exempting him from that requirement. The GP replied to the effect that the diagnosis of the appellant's condition was stress and anxiety and that no medication was prescribed. A doctor approved by the Secretary of State advised that the appellant was not in any exempt category. Accordingly, he was sent an incapacity for work questionnaire. His answers described an inability to sit comfortably for more than 10 minutes and stated that he suffered from depression and panic attacks. On 6 February 2001 he was examined by an "examining medical practitioner", who prepared a report. In light of that and of all the then available evidence, the decision-maker, on behalf of the Secretary of State, concluded that the appellant was capable of work on and from 2 March 2001 and accordingly his entitlement to national insurance credits was revoked.
- The appellant issued notice of appeal against that decision on 6 March 2001. This was of course the appeal that was to be heard by the tribunal on 30 May. Given the issues relating to the tribunal's refusal of an adjournment, it is important to notice the dates and the timescale. The appellant was represented by solicitors at least from 21 March 2001. The solicitor sought a medical report from the appellant's GP for the purposes of the appeal. On 6 April 2001 the GP agreed to provide a report. It seems from a statement provided by the solicitor to this court that this was the day after the GP had been approached by the solicitor. Time went by with no report being provided. At length, on 14 May 2001, thus only about a fortnight before the appeal's hearing date, the solicitor contacted the GP's premises and was apparently told that the GP was on holiday and also had access to "minimal secretarial support". Thereafter, no further steps were taken until 29 May, the day before the hearing. On that day the solicitor telephoned the GP's premises to be told that the report was still unavailable.
- So the hearing was convened the next day, 30 May. The appellant's solicitor applied for an adjournment to provide time within which medical evidence might be obtained. The tribunal refused that application and proceeded to determine the substantive appeal adversely to the appellant.
- Of the four grounds of appeal to this court, three concern the alleged or actual duty to give reasons for this refusal of an adjournment. The factual position in relation to those matters is as follows. The summary record of the tribunal's substantive decision of 30 May 2001, made on the same day under regulation 53(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the 1999 Regulations"), included this statement:
"The appellant did not provide a sufficient and satisfactory explanation as to the reason for not obtaining further medical evidence to support an adjournment."
- Following the substantive decision of 30 May, the appellant exercised his right under regulation 53(4) to seek "a statement of the reasons for the tribunal's decision". That related to the substantive or, as it has been called, outcome decision. The reasons were in due course provided and are before us. They include no reference to the procedural decision to refuse an adjournment on 30 May.
- There are two other pieces of material in the evidence which have something to say about the tribunal's refusal to adjourn the appeal. The first is the chairman's notes made on 30 May 2001. They include this following passage (in which, for entirely understandable reasons, the language is very truncated):
"Adjournment requested.
5.4.01. GP letter. 6.04.01 GP tel + willing to provide a report. 14.05.01 Report not ready- GP on holiday. 1 doctor- minimal secretarial support. Confirmed report n/a today [by claimant's representative telephoning on previous day]. ? point on text. Mental health problems. H Rights Act. Papers received- when? 21.3.01 client ? seen by Mr Chaddock [solicitors' benefit advisor].
Application refused."
- The second further piece of material is contained in the penultimate paragraph of the decision of Mr. Commissioner Jacobs dealing with the appeal from the tribunal's decision to him. The Commissioner said this at paragraph 19:
"In this case, the tribunal gave a reason for refusing to adjourn. It was set out at the end of the decision notice in the passage quoted in paragraph 5. It can be read as no more than a statement of conclusion rather than a reason. But that would be pedantic. In its context, it means that the claimant had not satisfied the burden of showing why the evidence had not been obtained earlier. His representative told the tribunal that the evidence had been requested nearly two months before the hearing and that for part of the time the GP had been on holiday. But there was no reason why the request could not have been followed up as the hearing approached. The tribunal's reasons were adequate to explain its refusal to adjourn. There is no error of law on this count."
- As I have said, the only issues before the Commissioner on appeal to him concerned the refusal to adjourn. He held that that refusal was not marred by any error of law and dismissed the appeal.
- The four grounds of appeal to this court are as follows:
1. The Commissioner erred in law in failing to hold that the tribunal's refusal to grant an adjournment was a "decision" within the meaning of the 1999 Regulations.
2. Alternatively, the Commissioner erred in law in failing to construe the 1999 Regulations under section 3 of the Human Rights Act 1998 so as to make it compatible with article 6.
3. Alternatively, the Commissioner erred in law in failing to hold that the reasons contained in the decision notice were inadequate.
4. The Commissioner erred in law in failing to hold that the refusal to grant an adjournment was perverse and wrong in principle.
The formulation of that last ground has been refined somewhat during the course of argument and I will come to it in due course.
- Before dealing with the individual grounds, I should say something about how I regard the relation between them. If it is clear that the adjournment was in fact refused for good reason, but the expression of that good reason was insufficient and failed to fulfil applicable legal standards, that failure would not, in my judgment, of itself necessarily justify this court in allowing the appeal. The legal defect constituted by the tribunal's failure to express sufficient reasons would, or at least might, be remedied by this court declaring that the reasons given were in truth legally insufficient, even though the appeal were dismissed. Such an approach would be in line with the Strasbourg jurisprudence within which the Court of Human Rights has often said that its declaration of a particular position, without any further relief being granted, sufficiently vindicates whatever is the Convention right in question.
- But that is merely by way of preliminary, and I turn to ground one. The argument here is that the refusal to adjourn was a "decision" within the meaning of the 1999 Regulations, so that, upon being requested to give reasons for their overall decision pursuant to regulation 53(4), the tribunal was bound to provide or include reasons for refusing the adjournment. As I have said, the reasons produced pursuant to the regulation 53(4) request were silent as to the decision not to adjourn the appeal.
- On this point for my part I would accept the argument put forward on behalf of the Secretary of State in Mr. Maurici's skeleton argument to the effect that if one looks at the whole legislative scheme there is a plain distinction between a decision (that is, a decision upon the actual question whether a claimant is entitled to a particular benefit or not) and what may conveniently be called a determination (that is, a determination of any matter along the way leading to a decision, including a determination of a procedural issue such as an application for an adjournment). The right to claim reasons under regulation 53(4) in my view applies only to a decision thus understood and not to a determination.
- While it is entirely true that the word "decision" is not defined in the Regulations, the sense to be accorded to it is in my judgment essentially to be found in the relevant main legislation, not least in section 8(1) of the Social Security Act 1998, which provides as follows:
"Subject to the provisions of this Chapter, it shall be for the Secretary of State––
(a) to decide any claim for a relevant benefit;
(b) to decide any claim for a social fund payment mentioned in section 138(1)(b) of the Contributions and Benefits Act;
(c) subject to subsection (5) below, to make any decision that falls to be made under or by virtue of a relevant enactment; and
(d) subject to and in accordance with regulations, to decide any issue arising as to, or in connection with, entitlement to statutory sick pay or statutory maternity pay."
- Section 12 of the Act of 1998 provides for a right of appeal to an appeal tribunal against any decision of the Secretary of State under section 8. In my judgment the class of decisions which might be made under section 8 includes only what have been called outcome decisions (that is, decisions upon the actual question whether an applicant is entitled to this or that benefit) and this is in contrast to the many determinations which will fall to be made along the way to such a decision and which will inform it or indeed may determine it. Thus findings of fact on particular issues of procedural determinations, such as the refusal to adjourn in this case, are not themselves decisions within the Act or Regulations but may obviously have a very considerable impact on such decisions.
- This view, I think, is supported by the terms of section 17 of the 1998 Act, which provides as follows:
"(1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.
(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of––
(a) further such decisions;
(b) decisions made under the Child Support Act; and
(c) decisions made under the Vaccine Damage Payments Act."
That section goes the length of acknowledging some distinction at least between the term "decision" for the purposes of the statute and the term "determination".
- The force of this view of the legislation is to my mind further demonstrated, and powerfully so, by the text of regulation 53 itself:
"(1) Every decision of an appeal tribunal shall be recorded in summary by the chairman, or in the case of an appeal tribunal which has only one member, by that member.
(2) The decision notice specified in paragraph (1) shall be in such written form as shall have been approved by the President and shall be signed by the chairman, or in the case of an appeal tribunal which has only one member, by that member.
(3) As soon as may be practicable after an appeal or referral has been decided by an appeal tribunal, a copy of the decision notice prepared in accordance with paragraph (1) and (2) shall be sent or given to every party to the proceedings who shall also be informed of -
(a) his right under paragraph (4); and
(b) except in the case of an appeal under the Vaccine Damage Payments Act, the conditions governing appeals to a Commissioner.
(4) A party to the proceedings may apply in writing to the chairman, or in the case of a tribunal with only one member, to that member, for a copy of a statement of the reasons for the tribunal's decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54.
(5) If the decision is not unanimous, the decision notice specified in paragraph (1) shall record that one of the members dissented and the statement of reasons referred to in paragraph (4) shall include the reasons given by the dissenting member for dissenting."
- Bearing in mind the terms of this text, it seems to me to be clear that the meaning of "decision" in regulation 53 is no wider than that which is apparent in section 8 of the main statute. The terms of regulation 53 contain detailed provisions whose application is clearly apt to a final outcome decision but which would, to say the least, be cumbersome if they applied to every possible interlocutory decision that might be made in the course of a case. This has been the view of successive Commissioners who have had to deal with the question, including Mr. Commissioner Jacobs in the present case, though I do not suggest that they have used the language in which I have just described regulation 53. Mr. Commissioner Jacobs was following the reasoning of Mr. Commissioner Goodman in case CS/1939/95. With respect, it is unnecessary to set out those materials. It is, as I say, obvious to my mind that the distinct provisions in the Regulations for the treatment of decisions properly so called do not apply to every procedural determination or finding of fact which a tribunal will make along the way towards a decision.
- Accordingly, in my judgment the refusal to adjourn here did not attract rights under regulation 53(4) and the appellant's first ground of appeal is bad.
- Ground 2 is, in my judgment, no better. This was the point relating to Article 6 of the European Convention on Human Rights. The argument was that Article 6 required reasons to be given for a decision, such as the refusal to adjourn here. Such a requirement is a condition of a fair trial of the appellant's civil rights and obligations within article 6; and Mr. Clayton originally submitted that regulation 53(4) had to be read as embracing decisions to adjourn if it was to be compatible with article 6. Thus, as originally formulated, this second ground was really an alternative means by which to persuade the court that regulation 53(4) applied to adjournment decisions.
- For my part I cannot see that article 6 has any impact on regulation 53(4) at all. Regulation 53(4) is there to establish the mechanics by which written reasons might be obtained. As to the duty to give reasons itself, it is surely beyond contest that the common law may impose such a duty in relation to a grant or refusal of adjournment if it were held that fairness demanded it, not least in light of our Convention obligations.
- Although he concluded (correctly, in my view) that the refusal to adjourn was not a decision within the meaning of regulation 53, Mr. Commissioner Jacobs was clear that that did not mean that there exists some kind of absolution against the giving of reasons for a refusal of adjournment. On the contrary, this is what he said in the following paragraphs of his decision:
"15 ... Carrarini shows that a refusal to adjourn can, depending on the reasons given for it, make a decision erroneous in law. If there is no duty to give reasons, the refusal to adjourn is not open to scrutiny. In those circumstances, the courts have held that a tribunal is required to give reasons in order to protect the reviewing jurisdiction: see the judgment of Lord Justice Denning in the Court of Appeal in Re Gilmore's Application [1957] 1 All England Law Reports 796 at pages 800 to 801. On that basis, a tribunal may be required to give reasons in order that a Commissioner may exercise the jurisdiction to determine whether a decision is erroneous in law.
16. There is also a power for a Commissioner to direct a tribunal 'to submit a statement of such facts or other matters as he considers necessary for the proper determination of that ... appeal': see regulation 20(2) of the Social Security Commissioners (Procedure) Regulations 1999. That power can be used to prevent the Commissioner's jurisdiction being avoided by not giving reasons.
17. In some circumstances, the reason for a refusal may be obvious. The most obvious example is if no reason is given for the application. In most cases, a reason is needed. However, those reasons need not be elaborate. They must be read against the background of the terms of the application and the circumstances of the case. They need not set out every factor that the tribunal took into account. It will usually be sufficient to set out in a sentence the principal factor that the tribunal took into account. That reason need not be set out in the full statement of the tribunal's decision. It is sufficient if it appears from the record of proceedings or the decision notice."
I should say that Carrarini [1996] 1 WLR 883 is a decision of this Court in which it was held that a final decision of a medical appeal tribunal fell to be quashed because, on the facts, a refusal of an adjournment had been unfair and thus amounted to an error of law.
- Given that an unreasoned refusal of an adjournment might, without any recourse to the regulation, be objectionable as a matter of municipal law along the lines described by the Commissioner in this case, Article 6 could only provide any separate comfort for the appellant if it imposed a standard of reasoning higher than that which the Commissioner has acknowledged here; for if the complaint is that the reasons given were legally inadequate in any event (that is to say, that they fell below the standard described by the Commissioner), that is the distinct subject matter of ground 3, to which I will come in a moment.
- As regards ground 2, in my view there is no distinct Convention point here. Counsel has cited the recent decision of David Steel J in Mousaka v Golden Seagull Maritime [2002] 1 WLR 395. I need not, with respect, set it out. It is enough to say that the judge, in summarising the principles to be deemed from the Strasbourg cases, demonstrates that the extent or the depth of a duty to give reasons is heavily dependent on the context in which the duty arises. For my part I consider it clear that, in the ordinary way and as a matter of practical good sense, any obligation to give reasons for an ancillary or procedural act, such as the grant or refusal of an adjournment, will be relatively summary in nature, at least by contrast to the quality of reasons required for an outcome decision itself.
- In my judgment it is simply impossible to conclude that the jurisprudence of the Strasbourg Court, in a context such as the present, would require a higher or more rigorous standard for the giving of reasons than that which was expounded by Mr. Commissioner Jacobs in the extract from his decision which I have set out.
- There is therefore nothing in ground 2; and in fairness, though I have dealt with the ground substantively, Mr. Clayton was, I think, disposed to accept that this ground really had no, or little, self-standing force. The real debate on reasons falls within grounds 1 and 3.
- I turn then to ground 3. That was to the effect that the Commissioner should have held that the reasons given for refusing the adjournment here were in any event legally inadequate. I have already set out paragraph 19 of the Commissioner's decision. I consider that the reasoning there elaborated is convincing essentially for the reasons which are summarised in paragraphs 85 and 86 of Mr. Maurici's skeleton argument for the respondent:
"85....
(a) there was a period of nearly 3 months between the bringing of the appeal and the hearing;
(b) the appellant was represented throughout (or at least from 21 March 2001) by solicitors;
(c) although (i) the appellant's solicitors sought a medical report from the appellant's GP for the purposes of the appeal; and (ii) the appellant's GP agreed to write the report on 6 April 2001, the appellant's solicitor made no efforts whatsoever to chase the report until 14 May 2001 - a mere 2 weeks before the hearing date. Even more strikingly, having discovered that no report was available so close to the hearing, no further efforts were made to chase the report until 29 May 2001, the day before the hearing, when it transpired that the report was still not available;
(d) if the appellant's GP was not able to produce a report it was open to the appellant and his advisers to obtain a report from another medical practitioner.
86. In short the tribunal were entitled to decide that the appellant's advisers had not done enough to show why a report was not obtained earlier, given in particular how late the GP was chased and the failure to pursue alternatives."
29. It seems to me important to recognise that the brief reference given by the tribunal itself in the decision notice to the refusal to adjourn, though in one sense a statement which could be regarded as more of a conclusion than a reason, was addressed to a tutored audience. Everyone involved in the case knew the short summary of facts which I have just repeated from the respondent's skeleton. Mr. Clayton says that the tribunal should have weighed the considerations pro and those con the grant of an adjournment, and there was here no prejudice in granting such an adjournment. But in my view it was for the appellant to establish that there were solid grounds to grant the adjournment. The tribunal obviously knew of the importance of the matter for the appellant; and in my view adjournments are always prejudicial to justice in the sense that they involve delay, though of course they are in many cases well justified. Accordingly, in my view there is nothing in the third ground.
- That leaves ground 4, which was to the effect that the refusal of an adjournment was perverse. After some exchanges between counsel and the court this morning, Mr. Clayton was disposed to put the matter somewhat differently. Recalling the decision of their Lordships' House in G v. G, he formulated it thus: the refusal of an adjournment was beyond the admittedly generous limits of discretion enjoyed by the tribunal.
- In my view it is plain beyond the possibility of argument that the refusal of an adjournment was not perverse. As regards the other way in which the matter is put, for my part I think it clear that this decision not to adjourn was well within the legitimate scope of the tribunal's judicial discretion in dealing with procedural applications and was not unfair. It does not seem to me to be necessary to say any more about it, not least because this was very much a matter of impression for the tribunal. They concluded that the appellant's solicitors could, and should, have done more, or earlier, to obtain medical evidence in time for the hearing on 30 May. That was a conclusion they were entitled to reach. They were entitled to conclude, therefore, that there was no sufficient basis made out for granting an adjournment. Their refusal of that adjournment was accordingly not unlawful and the Commissioner cannot be criticised for failing to strike it down.
- For all these reasons I, for my part, would dismiss the appeal.
LORD JUSTICE JONATHAN PARKER:
- I agree.
LORD JUSTICE WARD:
- I also agree.
Order: appeal dismissed with costs, to be adjourned to the costs judge under section 11; public funding assessment of the appellant's costs.
