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Neutral Citation Number:
Reported Number:	R(DLA) 6 01
File Number:	CDLA 5148 1999
Appellant:	Cooke v. Secretary of State for Social Security [2001] EWCA Civ 734
Respondent:
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	25/04/2001
Date Added:	26/03/2002
Main Category:	Commissioners' procedure and practice
Main Subcategory:	leave to appeal to higher courts
Secondary Category:
Secondary Subcategory:
Notes:	Review - medical opinion providing evidence that circumstances were not as they had previously been accepted to be - whether evidence of change of circumstances Court of Appeal practice - application for permission to appeal - whether need to show real prospect of success The claimant had been awarded the higher rates of the care and mobility components of disability living allowance for life. It came to light that the claimant might not have been so severely disabled as she had claimed and she was asked to complete a further claim form and to submit to an examination by a Benefits Agency Medical Service doctor, following which a review was conducted resulting in an award of the lower rate care component only. The claimant appealed to a disability appeal tribunal, who refused the appeal, deciding there had been a change of circumstances in that the Benefits Agency Medical Service doctor's report indicated that the criteria for an award of the higher rates of mobility and care components were not satisfied. They gave reasons for preferring the evidence of the Benefits Agency Medical Services doctor to that of the claimant's consultant. The claimant appealed, contending that the tribunal had erred in law by preferring the evidence of the Benefits Agency Medical Service doctor to that of her consultant who was a specialist in the field and that the new medical report was not in itself a change in circumstances. The Deputy Commissioner refused the appeal holding that the tribunal were entitled to prefer the evidence of either doctor provided they gave good reasons for their choice, which they had done, and that where a new medical report provided evidence that circumstances were not as they had previously been accepted to be, either circumstances must have changed or the previous assumptions must have been incorrect, and in this case to assume that there had been an improvement in the claimant's condition operated in her favour. The claimant appealed to the Court of Appeal, relying on Regina v. Social Security Commissioner, ex parte Chamberlain (Lightman J, 7 July 2000). Held, unanimously dismissing the appeal, that: 1. a new medical opinion is not itself a relevant change of circumstances, but may be evidence of an actual change of circumstances or a mistake of fact (para. 9); 2. distinguishing ex parte Chamberlain, a medical report which "provides evidence that circumstances were not as they had previously been accepted to be" is not the same as a report which merely offers a different opinion on the basis of the same circumstances (para. 13); 3. the tribunal had compared the evidence from the claimant as to her condition at the time of the original claim with the evidence available at the time of the review and had found there were differences, but, they had not been not invited, and had not been prepared uninvited, to hold that the claimant had been mistaken or untruthful in what she said at the time of her original claim and consequently they had been bound to conclude on the basis of the differences that there had been a change, which was a finding of fact that could not be challenged on appeal (para. 12); 4. the criterion for granting leave to appeal to the Court of Appeal is whether the appeal would have a real prospect of success but a robust attitude ought to be adopted to that criterion on applications for leave to appeal from Social Security Commissioners (paras. 14 to 17).
Decision(s) to Download:	dla6_01.doc