Hill, R (on the application of) v Social Security Commissioner [2008] EWHC 1546 (Admin)

Case No CO/10009/2007[2008] EWHC 1546 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 23 April 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE WILKIE
Between
THE QUEEN ON THE APPLICATION OF HILLClaimantv
Between
SOCIAL SECURITY COMMISSIONERDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person via videolink connection for in personMr P Greatorex appeared for Defendant
J U D G M E N T
[1]MR JUSTICE WILKIE: On 12 November 2007 Mr Hill commenced judicial review proceedings in which, when asked to provide the details of the decision to be judicially reviewed, he gave the reference number of the case decided by the Social Security Commissioner and the Appeal Tribunal. In his statement of facts then relied on he clarified what it was that he was seeking to challenge and why.[2]By way of background, Mr Hill says that his health has deteriorated since 1998. He had major surgery in 2003, but eventually in February 2006 his employer made him retire on medical grounds. In effect, his work as an HGV driver was put in jeopardy by his having to surrender his licence because of his ill health.[3]Mr Hill was thereafter dependent on a private pension scheme operated by his erstwhile employers, which was a final salary pension scheme, and state benefits. One of the state benefits to which he had apparently been entitled for some time was incapacity benefit. But in July 2006, because of new rules, his entitlement to that incapacity benefit was substantially reduced by reason of the income he was receiving from the private pension scheme. The amount by which his incapacity benefit was reduced was, under the rules, by reference to the gross amount of his pension rather than the net amount. That is the core of the complaint of Mr Hill and one of the principal sources of his sense of grievance.[4]Mr Hill appealed against that decision. The Appeal Tribunal, sitting at Manchester on 19 October 2006, disallowed his appeal and confirmed the decision of the Secretary of State. In the course of the reasons for that decision the Appeal Tribunal said as follows:
"Mr Hill and Mr Torpey [another appellant] confirmed that there was no challenge that in making the decision under the appeal the Secretary of State had made a mistake about any circumstances or dates or amounts or other facts or that the law as it stands had not been properly applied. There was no assertion that the pension payments which Mr Hill received from his Occupational Ill Health Early Retirement pension were not pension payments within the definition of the relevant section and there was no challenge to the accuracy of the calculation. He confirmed that the decision made on 20 June 2006 was correct in accordance with the law as it stands. His real contention was that the law as it stands is wrong in that it is unfair and that it is in breach of human rights."
[5]The tribunal went on to explain that the relevant statutory provision requiring a reduction in the rate at which incapacity benefit is made by reference to a receipt of a pension payment is mandatory and that the Appeal Tribunal had no power to make a declaration of incompatibility with Convention rights. Accordingly, the appeal was dismissed.[6]Mr Hill then sought to appeal to the Social Security Commissioner. He is entitled to do so on a point of law, but requires leave to appeal. By a decision dated 13 March 2007, leave to appeal was refused on the basis that the grounds of appeal disclosed no arguable case that the tribunal's decision was wrong in law, being the only basis on which the application for leave to appeal may properly be made to the Commissioner.[7]It appears that thereafter there was a further determination on 29 March 2007, essentially by way of review, but the Commissioner concluded that there was no ground for a review of the original decision of 13 March so the decision to refuse leave to appeal stood.[8]The application by Mr Hill for permission to challenge the findings of the Appeal Tribunal and the Commissioner came before Mr Justice Burton for him to consider on the basis of the papers. By that stage there was an acknowledgement of service served by the interested party, namely the Secretary of State for Work and Pensions. That acknowledgement of service contended that the judicial review claim was, in substance, misconceived and in any event, having been commenced in November 2007, was out of time as a challenge to a decision of the Commissioner made on 13 March. Mr Hill says that the acknowledgement of service filed on behalf of the Secretary of State and dated 19 November was itself out of time.[9]I am not at all satisfied that that is so but nor am I satisfied that it would be appropriate to refuse permission for Mr Hill to seek judicial review on the basis of timeliness. As he pointed out, these are complex matters and as a lay person no doubt it took some time for him to formulate his concerns and to articulate them as he did in his judicial review claim form.[10]Mr Justice Burton, in adjourning the application for permission for an oral hearing which has taken place today, said as follows: "The claimant may be in difficulty by virtue of being out of time in challenging a relevant decision and, in any event, this may be the wrong route to challenge - as the claimant wishes to do - the law as it stands. However if he may have a case and if the resolution of that case involves or requires or can only result in a declaration of incompatibility, a judge of the Administrative Court could make such a declaration whilst a tribunal has no jurisdiction to do so. I am accordingly giving the claimant the opportunity of presenting to the Administrative Court that he has an arguable such case. However the claimant and Mr Torpey are vehemently recommended to obtain the services of counsel no doubt through the good offices of Mr Torpey's trade union, for the purposes of - (1) reconsidering, condensing and directing the diffuse grounds of claim presently set out in the claim form. The claimant is ordered to serve and lodge prior to the hearing a concise statement of the relief he seeks." (Videolink contact broken at this point. Court waited until contact was re-established)[11]Mr Hill, I am sorry we lost contact. I did not continue. I will start with Mr Justice Burton's observations again.

Mr Justice Burton, in adjourning the application for permission to an oral hearing, said as follows:

"The claimant may be in difficulty by virtue of being out of time in challenging a relevant decision and, in any event, this may be the wrong route to challenge - as the claimant wishes to do - the law as it stands. However if he may have a case and if the resolution of that case involves or requires or can only result in a declaration of incompatibility, a judge of the Administrative Court could make such a declaration whilst a tribunal has no jurisdiction to do so. I am accordingly giving the claimant the opportunity of presenting to the Administrative court that he has an arguable such case. However the claimant and Mr Torpey are vehemently recommended to obtain the services of counsel no doubt through the good offices of Mr Torpey's trade union for the purpose of - (1) reconsidering, condensing and directing the diffuse grounds of claim presently set out in the claim form. The claimant is ordered to serve and lodge prior to the hearing a concise statement of the relief he seeks; (2) presenting the claimant's case orally at the hearing."
[13]Mr Hill has not been able to obtain legal representation. On 16 April he sent to the court two documents: a submission and a statement of his grounds for bringing judicial review dated respectively 25 March 2008 and, it would appear, 28 April 2007.[14]It is clear from those documents that Mr Hill seeks to make four fundamental points. First, he suggests that the scheme whereby the Secretary of State reduces his entitlement to incapacity benefit by deducting sums which he receives from a private pension scheme is a breach of his human rights, in particular Article 1 of the First Protocol providing for the peaceful enjoyment of possessions, namely that he has a right to regard his contributions to the National Insurance scheme which he has made over a period of almost 40 years as his possessions and that therefore when he has become entitled to benefit under that scheme any rule which reduces that benefit is a breach of his human rights. He therefore asks the court for a declaration of incompatibility in respect of that.[15]In my judgment that is a misconceived argument. From the very outset of the welfare state it has never been the position that contributions made by employees were effectively building up a fund to which they were entitled to possession or from which they were entitled to claim. Rather it has always been the case that those contributions, as they were so called, form part of the larger fund contributed to by general taxation as well as by contributions from which the various benefits forming part of the welfare benefit schemes from time to time were paid. No individual has any right of possession in respect of the contributions which he ha made from time to time; and the scheme would be chaotic and impracticable if that were so. Therefore in my judgment this aspect of the claim is misconceived and does not amount to an arguable case for making any declaration of incompatibility.[16]As far as the second point is concerned, what he says is that it is wrong and unfair that the Secretary of State should deduct from his entitlement to incapacity benefits the gross figure of his pension income. He says that the state has already taken part of that by way of taxation and therefore is, in effect, taxing him twice because it is reducing his incapacity benefit by a sum of which he has not himself had the benefit but of which, to some extent, the state has had the benefit because of the tax it has already claimed. Therefore he says that the only fair and just system would be one where the sum to be deducted would be the net sum rather than the gross sum.[17]It seems to me that whatever may or may not be the logical justification of Mr Hill's argument, and certainly it has a certain logic to it, that point is not a point for the courts to determine. That is a matter of political and economic judgment which has been reflected in decisions taken by Parliament following a full political discussion.[18]In my judgment it is not arguably a justiciable point and certainly it is a long way short of giving rise to any breach of human rights if it be sought to be argued that it is a breach of his Article 1 of the First Protocol human rights. The same point which has already been discussed in relation to his first argument applies equally.[19]His third argument concerns the fact that he has not had the benefit of legal representation because he is not eligible for legal aid. It seems that - from his submissions - he has from time to time applied for help from several organisations and been refused legal aid to argue his case. Once again, what he is seeking to do is to challenge in court decisions about the availability of legal aid and the level of earnings which operate as a disqualification for legal aid which are essentially matters of political judgment and do not fall to be determined by the courts.[20]Article 6 of the European Convention on Human Rights (ECHR) of course requires, amongst other things, equality of arms. That is catered for by making available free legal representation or legal representation with contributions based upon schemes determined from time to time by the state, subject to the European Convention. It certainly does not involve that every litigant should be entitled to free legal representation or legal representation with a minimal contribution. Once again, that would be utterly impracticable. Once again, although I have no doubt that Mr Hill has a sense of grievance, indeed the availability of legal aid has been significantly constrained in recent years and has been the subject of political controversy, this is not an area into which, in the present circumstances, the courts should remotely be asked to go.[21]Finally he says that he has a freestanding claim under the Human Rights Act. It would appear that this is an argument which addresses the contention of the Secretary of State that the court should not consider his application because it was out of time. As I have already indicated, were I of the view that there was anything arguable in the points made by Mr Hill as a matter of substance, I would not have ruled him out of arguing the point at a full hearing because of the lack of timeliness in his application. So I need not reflect further on the arguments which he raises in respect of that.[22]The Secretary of State, in his acknowledgement of service, addressed not so much these larger arguments which it appears now form the substance of Mr Hill's intentions, but dealt with the matter more technically as a challenge to the decisions taken by the Appeal Tribunal and the Social Security Commissioner. The Secretary of State points out, as is the case, that neither the Appeal Tribunal nor the Commissioner have the power to make a declaration of incompatibility and therefore could not be criticised for refusing to do so, in the case of the Appeal Tribunal, or refusing to give permission to appeal in the case of the Commissioner, arising out of the Appeal Tribunal's failure to make such a declaration.[23]It is clear from the terms of the tribunal's decision that at no stage did Mr Hill argue that there was anything substantively wrong with the decision of the Secretary of State provided the law is as it appears to be. His concerns are larger and wider in scope. It therefore follows, says the Secretary of State, that although the Administrative Court does have jurisdiction to grant judicial review of tribunal decisions, even though there are statutory routes of appeal which are unavailable, the case law to which the Secretary of State refers makes it clear that it is only in a wholly exceptional case that the Administrative Court would judicially review a decision of an inferior tribunal - effectively on the basis of procedural irregularity or conduct of such an extreme nature that it effectively removed the jurisdiction of the tribunal to decide. Mr Hill has never suggested that either the Appeal Tribunal or the Social Security Commissioner did anything other than apply the law, as they saw it to be, in a proper manner. His complaint is with the content of the law they were applying.[24]On that basis as well as the others, in my judgment there is no arguable basis for a judicial review. Therefore whilst I acknowledge the strength of Mr Hill's sense of grievance and, to some extent, the logical sense of what he says, the issues which he raises are not appropriate for a judicial forum. Rather they are arguments of an essentially political nature. Therefore I am unable to give him permission to seek judicial review. Thank you for your submissions, Mr Hill, both oral and in writing.