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Court of Appeal – Second appeal

Fowler v Secretary of State for Work & Pensions (2019) EWCA (Court of Appeal)

This was a second appeal to the Court of Appeal against a decision of the Upper Tribunal. The appeal raised an important point of law regarding the nature and scope of the First Tier Tribunal’s jurisdiction to reduce Industrial Injuries Disability Benefit (IIDB) on appeal under s.12 of the Social Security Act 1998.

The First Tier Tribunal reduced the Appellant’s industrial injuries benefit to 5% when, based on medical evidence, the Respondent confirmed that the degree of the Appellant’s disablement was 36%. The Respondent stood by that assessment in its mandatory reconsideration decision. Nevertheless, the FTT reduced the IIDB exercising its inquisitorial jurisdiction. Based on authority, it was said that the FTT possessed jurisdiction under s.12 8 (a) of the Social Security Act 1998.

The Upper Tribunal Judge Hemingway upheld the FTT. He concluded that the issue for appeal was the correctness or otherwise of the assessment generally, rather than whether or not either the 36% percentage was correct, or too low.

The Appellant appealed to the Court of Appeal. Lord Justice Newey granted permission to appeal on the basis that there was point of general public importance regarding the jurisdiction of the FTT in respect to which the Appellant had real prospects of success.

The matter came before the Court of Appeal who adjourned the appeal for the Appellant to be represented by Counsel. Arfan Khan was then instructed to lead the appeal, and produced a Replacement Skeleton. This identified a novel statutory scheme, not applied or considered in any of the cases in this area. It contended that the issue of jurisdiction fell to be determined through the statutory scheme by looking at the substance of the appeal, and that the inquisitorial jurisdiction of the tribunal did not extend to looking at issues which are not raised through this jurisdictional gateway. The authorities relied upon by the Respondent were not on point. But could be read consistently with the statutory scheme.

The Respondent filed a Supplemental Skeleton argument on 15/11/2019 (Friday), which was met by a Reply skeleton from the Appellant on 16/11/2019 (Saturday). The Respondent proceeded to compromise the appeal by signing a consent order on the morning of the appeal hearing. It did so by agreeing, amongst other matters, to pay the Appellant’s IIDB for the relevant period at 36%, and the Appellant’s costs to be assessed if not agreed.

Lady Justice Rafferty, Lady Justice King and Lord Justice Richards approved the consent order at an oral hearing. As a result, the appeal was withdrawn. But in response from some probing questions from the Court of Appeal bench, the Respondent agreed to place a notice on its website to the effect that, the decision of M R Hemingway Judge of the Upper Tribunal in Fowler v Secretary of State for Work & Pensions, is not to be relied upon as persuasive authority in future cases.