FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40029/02 by Alberta Pamela WINGRAVE against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 18 May 2004 as a Chamber composed of:

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mrs V. Strážnická , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 28 October 2002,

Having regard to the partial decision of 8 April 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Alberta Pamela Wingrave, is a United Kingdom national, who was born in October 1936 and lives in Exeter.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The claim for disability living allowance

On 21 December 1995 the applicant submitted a claim to the Benefits Agency for disability living allowance (DLA) on the grounds that she suffered, inter alia, from a degenerated slipped disc, sciatica, irritable bowel syndrome, eczema, gastric ulcers and depression and anxiety. On 5 February 1996 the applicant was granted a lifetime award of DLA to begin from 21 December 1995. The DLA award included both a mobility component  at the higher rate and a care component at the middle rate.

2. The review of the decision of 5 February 1997 on the application of the Secretary of State

Following the award of DLA, the applicant completed two benefit integrity questionnaires on her condition received by the Benefits Agency on 14 July 1997 and 23 October 1997. On 20 October 1997 the applicant underwent a medical examination, the results of which suggested that the applicant's medical problems were not as serious as previously thought. The doctor found, inter alia , that the applicant was capable of walking at a reasonable pace without severe discomfort, that the applicant did not require night care attention and that the applicant was able to deal with all her personal care needs safely and unaided. The Secretary of State consequently applied for a review of the award of DLA, after the time limit for such an application had expired, on the grounds that there had been a relevant change in circumstances. On 4 November 1997 the adjudication officer reviewed the award made on 5 February 1996 and found that the applicant was not entitled to either the mobility component or the care component of DLA from and including 20 October 1997, the date of the medical examination.

3. The first hearing before the Disability Appeal Tribunal

By letter dated 15 November 1997 the applicant applied for a review of the decision of 4 November 1997 to withdraw her entitlement to DLA. On 12 January 1998 the adjudication officer confirmed the decision of 4 November 1997 that the applicant did not satisfy the criteria for entitlement to either the mobility or the care component of DLA.

By letter dated 24 January 1998, the applicant appealed further to the Disability Appeal Tribunal (DAT). She submitted additional medical evidence but did not attend the tribunal hearing. On 3 August 1998 the DAT found that the applicant was entitled to the higher rate of the mobility component of DLA from 21 October 1997 until 20 October 2000 but was not entitled to any of the care component. The DAT accepted that the applicant was unable to walk without severe discomfort but time-limited the mobility component for three years on the grounds that the applicant's lumbar spine injury might improve in that period. On the basis of the applicant's statement to the medical practitioner, the DAT concluded that she did not require attention in connection with bodily functions or supervision during the day or night to prevent substantial danger to herself.

4. The appeal to the Social Security Commissioner

By letter dated 13 September 1998, the applicant applied for leave to appeal against the decision of 3 August 1998 to the Chairman of the DAT. This application was refused on 17 February 1999. On 23 March 1999, the applicant's application for leave to appeal to the Social Security Commissioner was received by his office but due to missing documents that had to be requested from the applicant and the Appeal Service the complete file was not sent to the Commissioner until 20 July 1999.

On 23 July 1999, the Commissioner granted leave to appeal. The Secretary of State supported the appeal, submitting, inter alia, that the DAT did not establish the existence of grounds for review, failed to make findings on all questions of fact, gave inadequate reasons for limiting the period of the award of the mobility component of DLA and did not adequately deal with the need for supervision due to the risk of falls. Following an extensive exchange of correspondence including at least nine letters from the applicant and numerous telephone enquiries, on 8 November 2000 the Social Security Commissioner set aside the decision of the DAT of 3 August 1998 on the basis that it was erroneous in law and referred the case back to a differently constituted DAT. Since both parties consented to the setting aside of the decision of 3 August 1998, the Commissioner was not required to give reasons for his decision according to the relevant regulations but stated that he agreed with the submission of the Secretary of State in its entirety.

5. The second hearing before the Disability Appeal Tribunal

The case came before a differently constituted DAT on 30 July 2001. The applicant again did not attend the hearing and did not provide new submissions or full copies of the previous medical reports. She declined to undergo a new medical examination. On 29 August 2001, after reviewing the decision of 4 November 1997, the DAT decided that the applicant was not entitled to either the mobility or the care component of the DLA from and including 20 October 1997. The DAT considered that there were grounds for a review of the lifetime award due to a change in circumstances. It felt unable to rely on the medical evidence previously submitted by the applicant since portions of the report had been erased by the applicant. Relying principally on the report of the medical practitioner of 20 October 1997, it found that the applicant was not entitled to the care component of DLA from 20 October 1997 as she could carry out all necessary activities without help and did not need frequent attention during the day or night. On the applicant's history of falls, the DAT concluded that on the balance of probabilities, the fact of three falls over a two year period did not indicate the need for continual supervision. The DAT also found that the applicant was not entitled to the mobility component of DLA as she was not “virtually unable” to walk.

6. The second appeal to the Social Security Commissioner

The applicant applied for leave to appeal against the decision of the DAT of 29 August 2001 and leave was granted by the Social Security Commissioner on 23 January 2002. In a statement of 18 January 2002, the Secretary of State again supported the appeal on the grounds that:

“... the statement of findings and reasons for decision is disorderly, extensive and, unfortunately it omits properly to consider the matters [brought to the DAT's attention by the earlier decision of the Social Security Commissioner] ...”

but did not support the applicant's allegations of unfairness. The Secretary of State considered that the DAT failed to give reasons for its conclusion that there had been a change of circumstances, that the tribunal had uncritically accepted the report of the examining medical officer without discussing the merits of the applicant's contentions and that the tribunal did not make all the necessary findings of fact.

On 8 May 2002 the Social Security Commissioner set aside the DAT decision of 29 August 2001, again on the grounds that it was erroneous in law and referred the case back to a differently constituted DAT. The Commissioner considered that the appeal should be allowed for the reasons put forward by the Secretary of State. The Commissioner considered that the DAT had not explained what improvement had taken place in the applicant's conditions since the award of DLA and had not reconciled the differences between the assertions in the benefit integrity questionnaires and the results of the medical examination. He also agreed with the Secretary of State that the DAT had not explained why they accepted the assessment of the examining medical officer and that it had failed to make sufficient findings of fact as to the distance which the applicant could walk before the onset of severe discomfort. In referring the case for rehearing by the DAT, the Commissioner noted that under the terms of the applicable legislation, the DAT would have to consider the applicant's condition until the date of her latest claim for DLA, which was made on 11 September 2001.

7. Claim for Disability Living Allowance from 11 September 2001

On 11 September 2001 the applicant submitted a new claim for disability living allowance from that date onwards. The applicant would not have been able to submit a claim for DLA from 23 October 2001 onwards since, under the relevant legislation, there is no entitlement to DLA after the age of 65 unless an earlier award has been made. On 13 March 2002 an adjudication officer refused the application. The applicant applied for a review of the decision and on 13 May 2002, the decision was confirmed by the adjudication officer. The applicant was entitled to bring a further appeal before the DAT within one month of the date of notification but did not do so. At the time of the third hearing before the DAT on 16 July 2002, the applicant had not appealed against the decision since she alleged that she believed that this issue would be incorporated into the first appeal and the time limit for the appeal had already passed.

8. The third hearing before the Disability Appeal Tribunal

On 16 July 2002 the case relating to the original claim for DLA came before a differently constituted DAT. The applicant attended this hearing. On 17 July 2002, the tribunal decided that the applicant was entitled to the mobility component of DLA from 20 October 1997 until 10 September 2001 but was not entitled to the care component over the same period. The DAT found that in reviewing the lifetime award of DLA in light of the medical examination of 20 October 1997, the adjudication officer should have separately considered the entitlement to the mobility component and the entitlement to the care component in deciding whether the award could be reviewed. It considered that there were no grounds to review the entitlement to the mobility component after 20 October 1997 since although the doctor doubted whether the applicant could not walk any distance without severe discomfort, he concluded that he was unable to make accurate assessments of her mobility. Therefore, the applicant was entitled to the mobility component of DLA from 20 October 1997 until 10 September 2001. In contrast, the DAT concluded that entitlement to the care component after 20 October 1997 was open to review since the original award had been made in ignorance of a material fact. The DAT went on to conclude that the applicant was not entitled to the care component of DLA from the date of the original award on 21 December 1995 on the grounds that she did not, at any time, reasonably require assistance with bodily functions or supervision to keep her safe.

9. Events after the Disability Appeal Tribunal decision of 17 July 2002

The applicant was entitled to appeal against the decision of 17 July 2002 to the Social Security Commissioner within one month of the date of notification of the decision (30 July 2002) but did not do so.

In a letter of 12 August 2002 to the Social Security Appeals Service, the applicant stated inter alia that she believed that the decision of 17 July 2002 was wrong. In a letter of 12 September 2002, the Appeals Service advised the applicant that she was entitled to apply to the Social Security Commissioner for leave to appeal against the decision of 17 July 2002.

On 12 August 2002 the applicant also wrote to the Disability and Carers Service at the Department of Work and Pensions and complained about the decision of 17 July 2002 and the decision of 13 May 2002 in relation to her second claim for DLA. In a letter of 21 August 2002, the Service advised the applicant that she could apply to the Social Security Commissioner for the decision of 17 July 2002 to be set aside. With respect to the decision of 13 May 2002, the applicant was informed that although she had not lodged an appeal with the DAT within the one-month time limit, she could request a late appeal if she provided reasons why the appeal was late.

B. Relevant domestic law and practice

(1) Appeals against the decision of an adjudication officer on disability living allowance: Social Security Administration Act 1992

Sections 30 to 35 of the Social Security Administration Act 1992 set out the procedure for appeals against decisions on entitlement to disability living allowance on the application of the claimant or the Secretary of State. Section 30 establishes the grounds on which the decision of an adjudication officer may be reviewed, which differ depending on whether the application for review was made within or outside the relevant time limit:

“30.-(1) On an application under this section made within the prescribed period, a decision of an adjudication officer  ... may be reviewed on any ground ...

(2) On an application under this section made after the end of the prescribed period, a decision of an adjudication officer ... may be reviewed if-

(a) the adjudication officer is satisfied that the decision was given in ignorance of, or was based on a mistake as to, some material fact; or

(b) there has been any relevant change of circumstances since the decision was given; or

(c) it is anticipated that a relevant change of circumstances will so occur; or

(d) the decision was erroneous in point of law...”

Section 32(4) sets out the grounds for review of a lifetime award of DLA:

“(4) Where a person has been awarded a component for life, on a review under section 30 above the adjudication officer shall not consider the question of his entitlement to that component or the rate of that component or the period for which it has been awarded unless-

(a) the person awarded the component expressly applies for the consideration of that question; or

(b) information is available to the adjudication officer which gives him reasonable grounds for believing that entitlement to the component, or entitlement to it at the rate awarded or for that period, ought not to continue”.

Section 33(1) provides that a claimant may appeal to the DAT against the decision on review of an adjudication officer:

33.-(1) Where an adjudication officer has given a decision on a review under section 30(1) above, the claimant or such other person as may be prescribed may appeal-

(a) in prescribed cases, to a disability appeal tribunal; ...”

Section 33(6) sets out the grounds for the review of a lifetime award of DLA by the DAT:

“(6) The tribunal shall not consider-

(a) a person's entitlement to a component which has been awarded for life; or

(b) the rate of a component so awarded; or

(c) the period for which a component has been so awarded,

unless-

(i) the appeal expressly raises that question; or

(ii) information is available to the tribunal which gives it reasonable grounds for believing that entitlement to the component, or entitlement to it at the rate awarded or for that period, ought not to continue.”

Section 34 provides for an appeal to a Social Security Commissioner from the decision of the DAT:

“ 34.-(1) Subject to the provisions of this section, an appeal lies to a Commissioner from any decision of a social security appeal tribunal or disability appeal tribunal under section 33 above on the ground that the decision of the tribunal was erroneous in point of law.”

Section 6(1)  provides:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

Section 8 provides:

“(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy or make such order, within its powers, as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.”

COMPLAINTS

The applicant complained under Article 6 of the Convention about the delays in the procedures for deciding her claim to DLA.

THE LAW

The applicant complains about the length of time it took for her claim to DLA to be finally decided, invoking Article 6 which, as relevant, provides :

“In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”

The parties' submissions

The Government submitted that the applicant could have raised the substance of her complaint concerning the alleged delay in the DLA proceedings before the domestic courts, following the full coming into force of the Human Rights Act 1998 on 2 October 2000. Although the 1998 Act was not as such retrospective, they argued that the applicant had not tested before the courts the application of the non-retrospectivity provisions in a length case. A complaint under this Act could have resulted in a finding that a public authority had acted incompatibly with Article 6 of the Convention. Although the DAT and the Commissioner did not have power to award damages, if damages or some form of compensation were found to be necessary to afford just satisfaction, they could be awarded by the civil courts where such claims are normally dealt with. They pointed to a letter from the Department of Social Security dated 13 February 2001 which advised her that if she required further information about bringing a case under the 1998 Act she could obtain advice from a solicitor or welfare rights organisation such as the Citizens' Advice Bureau. She also failed formally to pursue the alleged delay as a complaint on appeal to the Commissioner, either expressly or by reference to Article 6 in substance.

The applicant submitted that it was not fair or just to require her to take a case in the civil courts to prevent a continuing Government violation, pointing also to the lack of legal aid, the Government's unlimited resources and the relative value of the claim.

2. The Court's assessment

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey , judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).

The Court notes that the Human Rights Act 1998 did not come into force until 2 October 2000 and that the Act is not retrospective in effect. While accepting that a complaint by the applicant under the Act could thus only properly have extended to the period on or after that date, the Government had asserted that the operation of the non-retrospectivity provisions of the Act in a length of proceedings case had not yet been determined by the domestic courts and that the operation of the Act in this respect should have been tested by the applicant. However, no authority has been cited by the Government to suggest that in such a case the provisions of the Act would have been interpreted in a different manner so as to give the Act retrospective effect or that it would have been open to the domestic courts to take account of the length of the proceedings prior to the coming into effect of the Act. In these circumstances, it has not been sufficiently shown that proceedings under the 1998 Act would have afforded an adequate and effective remedy for the applicant's complaint concerning the overall length of the proceedings.

Nor is the Court persuaded that the applicant failed to exhaust domestic remedies by not invoking Article 6 § 1 of the Convention before the Commissioner. It has not been shown that this could be regarded as in itself a procedure capable of remedying the applicant's complaint either by expediting the proceedings or providing redress for any undue delays which might previously have occurred during the proceedings.

The Court therefore rejects the Government's preliminary objections.

1. The parties' submissions

The Government submitted that the proceedings ran from the applicant's letter dated 15 November 1997 seeking a review of the decision of 4 November 1997 and ended on 17 July 2002, some four years and eight months later, after three levels of jurisdiction and at least 11 separate substantive decisions. They considered that in all the circumstances of the case and in particular taking account of the conduct of the applicant and the efforts made by the authorities, this period of time was not unreasonable.

The Government submitted that this was not a case in which the applicant was kept out of a benefit to which she was entitled nor where she was suffering from a life-threatening disease.  It concerned sums claimed to assist with claimed mobility and care needs and the importance of the case to her should not be overestimated. The Government submitted that there was no stagnation in the proceedings which progressed at a reasonable rate. Insofar as there was a lapse of time in the Commissioner reaching his decision, time was taken in making up missing documents in the file and no less than 9 letters were received from the applicant, all of which had to be acknowledged and replied to, causing the applicant's file to be removed from the queue of files waiting to be dealt with. The applicant's conduct in writing numerous letters to all the various authorities connected with her case inevitably slowed the proceedings on a number of occasions and to a significant extent. She also refused to undergo an independent medical examination several times and failed to attend the hearings prior to the third DAT hearing and generally added to the factual complexity of the proceedings.

The applicant submitted that much of the delay resulted from the failure of the DAT properly to apply the legislation for which she was not responsible. She considered that the appeals system was overwhelmed by cases following Government cutbacks in benefits and in particular that there was a limited number of Commissioners to cope with the workload. She considered that it was unreasonable for her to have to apply for leave to appeal to the Commissioner from the incompetent Chairman of the DAT, in particular where it took him six months to issue his refusal.  She considered that she had good reasons for not attending various hearings and had informed the authorities accordingly. She was also entitled to refuse medical examinations where not performed by a doctor with the necessary expertise.

Having regard to the applicant's complaints and the parties' submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The remainder of the application, as regarding the length of proceedings, cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Michael O'Boyle Matti Pellonpää Registrar President