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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McAllister, Re an Application for Leave to Apeal [2003] ScotCS 249 (01 October 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/249.html Cite as: [2003] ScotCS 249 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Marnoch Lord Wheatley
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XA114/00 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPLICATION FOR LEAVE TO APPEAL under section 15 of the Social Security Act 1998 by SUSAN McALLISTER Applicant; against A decision of a Social Security Commissioner of 24 May 2000 refusing the Applicant's appeal against decision of the Disability Appeal Tribunal at Glasgow of 31 July 1998 refusing the Applicant's claim for disability living allowance _______ |
Act: Hajducki, Q.C., Brown; Anderson Strathern (Quinn Martin & Langan, Glasgow)
Alt: Davidson, Q.C.; H.F. Macdiarmid
1 October 2003
[1] The applicant applied to this court for leave to appeal against a decision of a Social Security Commissioner in which he refused the applicant's appeal against the decision of the Disability Appeal Tribunal refusing her claim for a disability living allowance. At the outset the Secretary of State for Social Security lodged answers to the application, maintaining that it should be refused. However, in due course the Secretary of State (now the Secretary of State for Work and Pensions) lodged a Minute withdrawing the answers and, for certain stated reasons, giving consent to the allowing of the application, the allowing of the appeal and the remitting of the appeal back to the Commissioner to consider de novo. A motion was then enrolled on behalf of the applicant for a similar result. [2] At that point, in view of a number of matters of concern in regard to the reasons given by the Secretary of State in the Minute, the appeal was put out by the court By Order, in order that it could be addressed by the parties. We are grateful to them for their helpful submissions, which have assisted us in reaching a view as to the correct procedure which should be followed in such circumstances. [3] Before granting an appeal against a decision of a person or body exercising statutory powers the court requires to be satisfied that there are grounds for doing so which are well-founded in law. In the absence of such grounds it is not open to the parties to bring about the granting of the appeal simply by agreeing upon what is to happen. Further, it is right that, if the court is to set aside such a decision, the person or body should know on what ground or grounds that step has been taken. [4] It follows that where the Secretary of State elects to withdraw opposition to an application or an appeal, it remains for the court to be satisfied by the applicant or appellant that the application or appeal should be granted. It is, however, plainly undesirable that there should be a full hearing where this is unnecessary. As it seems to us, therefore, the appropriate course for the applicant or appellant, when enrolling a motion for the allowance of the application or appeal, is to lodge a written note of argument setting out the reasons why the motion should be granted. [5] Whether or not the Secretary of State decides not to oppose an application or an appeal or to lodge a Minute consenting to what is sought by the other party, and for what reasons, is entirely a matter for the Secretary of State. Any policy considerations which underlie his course of action and any legal advice which has been given in regard to this, are not matters for this court, and accordingly the court would not expect the representatives of the Secretary of State to make these matters known, let alone to justify them. It should, however, be borne in mind that there may be occasions when it would clearly be of value to the court for there to be a contradictor. [6] On receipt of the motion and the note of argument, and, if any, the Minute on behalf of the Secretary of State, it will be for the court to decide whether it is necessary for the motion to be starred for hearing. The Secretary of State will not normally be required to be represented at the hearing of the motion, but there may be circumstances in which the court invites such representation in order to provide assistance in resolving the issues to which the motion relates. [7] We turn now to the present application, with the assistance of the Minute for the Secretary of State and the written outline submission for the applicant. [8] In giving the reasons for their decision the Tribunal stated at the outset that they preferred the opinion of the examining medical practitioner, in regard to the applicant's mobility and care needs, to the oral evidence which the applicant gave at the hearing before the Tribunal on 31 July 1998. Apparently by way of explanation, the Tribunal then stated that they had noted that in her claim pack the appellant had stated that she could walk 200 metres without severe discomfort and that she had no care needs. However, her oral evidence was quite different. The Tribunal then went on to state that they found the evidence of the applicant to be contradictory. She had said at first that the operation to her toe was just after the examination by the medical practitioner and that the falls (which she had said had been happening frequently since her toe operation) were as a result of the surgery. After she had left the hearing room they noted on re-reading the report of the medical practitioner that he had seen scarring on her right big toe. When she was asked to return to the hearing room to clarify the situation she then said that she had had two operations to her toe. The Tribunal remarked that they found it surprising that this had not been mentioned earlier. [9] As can be seen from the above, the Tribunal preferred the opinion which had been given by the examining medical practitioner. However, as is submitted by the applicant, the Tribunal stated in finding 6 that at the date of that examination "she could walk about 800 metres in 2-3 minutes without severe discomfort without resting". This cannot be correct since it is equivalent to covering a distance of a mile in 4-6 minutes, and it is plainly not supported by the evidence of the medical practitioner. The applicant also points out, under reference to the claim form at pages 31, 32 and 45, that she did not say that she had no care needs. [10] It also appears that the Tribunal took an adverse view of the applicant's evidence on the ground that it was contradictory. The only basis which they stated for this view of her evidence was that she had not mentioned at the outset that she had had an operation to her toe prior to being examined by the medical practitioner. However, it is not in doubt that she had had a previous operation to her toe and that a second operation on the toe was performed in February 1998. In these circumstances there appears to be no real substance to this criticism of the applicant's evidence. [11] Perhaps more importantly, it is submitted on behalf of the applicant that, while the Tribunal referred to the evidence of the applicant that she had fallen more frequently since the operation in February 1998, they do not appear to have considered whether there had been a deterioration in her condition between February 1998 and the date of the hearing on 31 July 1998. Instead the Tribunal appear to have treated her evidence of recent falls as being inconsistent with her description in the claim pack which was submitted on 26 February 1997, which was about a year earlier than the second operation on her toe. As is pointed out by the Secretary of State, it is unclear whether the Tribunal did or did not accept that the applicant had been prone to falling since the time of that operation, although the Commissioner took the view that it was apparent from finding 9 that this evidence was rejected. The Tribunal stated:"Despite her reports of frequent falls since her toe operation, she has had no new referral to the surgeon".
That statement leaves it unclear, in our view, whether, and if so why, the applicant's evidence of frequent falls was rejected. Furthermore, we are bound to say that we consider that there is force in the submission that the fact that the applicant had not been referred to the surgeon since her second operation did not provide a factual or logical basis for the Tribunal inferring that the applicant's continuing problems were of no significance.
[12] In all these circumstances we are satisfied that the reasons given by the Tribunal for their decision, when taken in conjunction with their findings, do not provide a sound basis for the rejection of the applicant's evidence. In particular, if it is the case that the Tribunal rejected the evidence as to frequent falls since her second operation, it does not appear from their reasons that they had a proper basis for doing so. [13] In these circumstances we will accede to the motion made on behalf of the applicant.