Opinion Of Lord Wheatley In The Petition Of Patrick Donnelly (Ap) Against Advocate General For Scotland, Representing Secretary Of State For Works And Pensions


This Scottish Court of Session concerned an appeal against a commissioner's refusal to grant leave to appeal. The issue under appeal concerned the tribunals consideration of the medical evidence when deciding the claimant's national insurance credits claim.

The claimant submitted to the Court that the tribunal had failed to give proper reasons why it had accepted the examining medical practitioner's (EMP) report as opposed to that of his own doctor. In addition he argued that it was not clear, given it had accepted the EMP report, why it had awarded him points for certain personal capability assessment descriptors.

The Court of Session dismissed the application citing R. v Secretary of State for Social Services ex parte Connolly [1986] in which stated that:

"In a case where a commissioner has refused leave to appeal without giving reasons and an applicant seeks to challenge such refusal by way of judicial review, the onus must, in my judgment, lie on the applicant to show either (a) that the reasons which in fact caused the commissioner to refuse leave were improper or insufficient or (b) that there were not good grounds on which such leave could have been refused in the proper exercise of the commissioner's discretion.

He may well discharge this onus by showing that the decision sought to be challenged was on the face of it clearly erroneous in law or, alternatively, gave rise to a substantially arguable point of law. However, if it can be seen that there are still good grounds on which the commissioner would have been entitled to refuse leave in the proper exercise of his discretion, the court should, in my opinion, assume that he acted on those grounds unless the applicant can point to convincing reasons leading to a contrary conclusion.'

The claimant had failed to pass the test as set out in Connolly.

It was also held to be within the remit of the tribunal in carrying out its fact finding exercise to prefer the medical evidence of the EMP even if, in coming to its decision, it "reached some curious, if not bizarre, conclusions".

More information