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Neutral Citation Number: 2010 UKUT 127 AAC
Reported Number:
File Number: CIB 256 2009
Appellant: SSWP
Respondent: Cattrell
Judge/Commissioner: Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision: 29/03/2011
Date Added: 05/05/2010
Main Category: Incapacity benefits
Main Subcategory: awt/pca: general
Secondary Category:
Secondary Subcategory:
Notes: Reported as [2011] AACR 35 Tribunal practice – appeal to Court of Appeal – permission to appeal – grounds of appeal different from those argued before Upper Tribunal Incapacity for work – exceptional circumstances – allergy – correct approach to test of substantial risk to mental or physical health if found capable of work The claimant suffered from a latex and rubber allergy. She had been successful before the First-tier Tribunal, which, contrary to the findings of the examining medical practitioner, found that she suffered from a specific disablement for the purposes of regulation 27(b) of the Social Security (Incapacity for Work) General Regulations 1995 and that there was no work available for her which would be reliably safe. The Secretary of State appealed to the Upper Tribunal, which upheld the decision of the First-tier Tribunal ([2010] UKUT 127 (AAC)). The Secretary of State sought permission to appeal to the Court of Appeal on grounds of appeal which were significantly different from those argued before the Upper Tribunal. The Upper Tribunal granted permission to appeal. Held, dismissing the appeal, that: 1. an appeal to the Court of Appeal from the Upper Tribunal lies only on a question of law, as does the appeal from the First-tier Tribunal to the Upper Tribunal (paragraph 3); 2. permission to appeal to the Court of Appeal from the Upper Tribunal should be given only if the proposed appeal raises some important point of principle or practice or where there is some other compelling reason for the appeal to be heard (paragraph 3); 3. the Court of Appeal will always be mindful of the caution that it must exercise before substituting its own view for that of a specialist tribunal such as the Upper Tribunal: Cooke v Secretary of State for Social Security [2001] EWCA Civ 734 (reported as R(DLA) 6/01) and Napp Pharmaceuticals v DGFT [2002] EWCA Civ 796 approved (paragraphs 3 and 5); 4. it was of concern that the grounds on which permission to appeal to the Court from the Upper Tribunal was given and which were relied on before the Court were not argued by the Secretary of State in the appeal before the Upper Tribunal. It was important when applying for permission to the Court that points of law or principle were specified by the appellant. In addition the appellant must state why these matters justify the attention of the Court. What had happened in this case was that grounds of appeal to the Court were put before the Upper Tribunal and the Judge was simply asked to certify them as important (paragraphs 17 and 32); 5. the Secretary of State’s argument that the Upper Tribunal’s decision raised an important issue in relation to entitlement to incapacity benefit for many people suffering from allergies identified a matter of policy or convenience but did not identify any important point of principle or practice. This presented the Court with the difficulty that, if the point of law could not be identified, it could not reasonably interfere with the decisions below. In addition, a second appeal cannot be brought in respect of an important point of principle unless the point is one that is not yet established: Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 cited with approval (paragraphs 21 and 22); 6. the Court should be extremely slow in finding that, as specialist tribunals, the First-tier Tribunal and the Upper Tribunal had failed properly to assess the case before them (paragraph 23); 7. the Upper Tribunal had properly applied the approach in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 (reported as R(IB) 2/09) in determining that if the claimant worked, she would be at risk on the basis that the Jobcentre had stated that it could see no prospect of her getting work that would be reliably safe for her. In the circumstances of this case, there was no need to hypothesise about types of work and whether the claimant would be reasonably safe (paragraph 29).
Decision(s) to Download: CIB 0256 2009-00.doc CIB 0256 2009-00.doc  
[2011] AACR 35ws.doc [2011] AACR 35ws.doc