Davies, R (on the application of) v The Commissioners Office & Anor [2008] EWHC 334 (Admin)

[2008] EWHC 334 (Admin)Case No CO/7363/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 th March 2008
Before
THE HONOURABLE MRS JUSTICE BLACK
Between
The Queen on the Application of Gwynne Evans DaviesClaimantThe Commissioners OfficeDefendantChild Support AgencyDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Gwynne Evans Davies (In Person) for ClaimantMiss Katherine Olley (instructed by The Secretary of State) for DefendantHearing Hearing date: Wednesday 19 December 2007
JudgmentBlack J:
[1]Mr Davies seeks judicial review of a number of decisions made in relation to proceedings before the Child Support Appeal Tribunal (the tribunal) concerning the amount of his child support payments for his two children. I heard this matter on 18 December 2007 when there was just time to complete the oral submissions. I therefore agreed to provide this judgment in writing.[2]There have been two separate applications before me. In claim CO/7363/2006 (which I will call “the substantive application”), the Claimant (who acts in person) set out the details of the decision to be judicially reviewed in his Claim Form in these terms:
“The two orders of the Tribunal of 7.10.2005 and 27.04.2006 agreed by the Child Support Agency have not been obeyed which they have knowingly and deliberately refused to obey.”
Mr Justice Wilkie gave permission on paper on 20 April 2007 for that judicial review to proceed, commenting:
“On the face of it, there are two orders by the Appeals Tribunal requiring disclosure of documents on the file “relating to (the Claimant’s) assessment and that which it revised.”
These orders have not been complied with at all apparently because the CSA is under the impression that it could require documents to be disclosed in breach of the Data Protection Act. The CSA needs to address why it should not comply with orders to which it agreed and, if there are other documents in the file which are not so required to be disclosed, though agreed by the order, should say so and, if so, why.” He did not have the benefit of an Acknowledgment of Service putting the point of view of the tribunal or of the interested party, the Secretary of State for Work and Pensions (who has been the only party, apart from the Claimant, appearing before me). This was not because of lack of diligence on the Secretary of State’s part but because the Claim Form had not been served on him. Since then, full Grounds of Defence have been filed.[3]Claim CO/4782/2007 (“the permission application”) seeks judicial review of “Refusal of Leave to Appeal the refusals to set aside decisions of 21.08.2006 and refusal to set aside determinations of 28.03.2007”. The dates of the decisions in question are given as 31 October 2006, 2 February 2007, 28 March 2007 and 30 April 2007. Forbes J considered this claim on paper and ordered that the permission application be dealt with in open court at the same time as the substantive application.[4]Five lever arch files and an ordinary ring binder full of documents have been supplied to me for a hearing scheduled to take half a day. The majority of the material was supplied by the Claimant and I appreciate the difficulties that a litigant in person has in determining what may be useful to the court. The Claimant also supplied a chronology but unfortunately it was not cross referenced to the bundles so I have not been able to verify all the entries on it. I have done the best I can to identify the relevant steps in the chronology of this matter. The starting point seems to have been 2 August 2004 when the CSA determined the level of maintenance that the Claimant had to pay for his children who are cared for by their mother. The Claimant appealed. His Appeal Application Form is dated 6 September 2004. It submits that the CSA’s decision “is wrong, excessive, incorrectly calculated and bad in law”. On 18 October 2004, the CSA notified the Claimant of a slight adjustment to their determination. The Claimant appealed this. On 5 March 2005 a further revision to the assessment was made by the CSA. The revised maintenance calculation required the payment of £105 per week from 15 March 2004. On 23 March 2005, the Claimant appealed that revised assessment, giving the same grounds as in his earlier appeal form. On 7 October 2005, the Claimant having ceased employment and being in receipt of benefit, the CSA issued an assessment requiring payment of £5 per week from 11 July 2005. On 1 November 2005, the Claimant appealed that, again on the same grounds.[5]The appeal with regard to the calculation of £5 per week was joined with the earlier appeal with regard to the calculation of £105 per week. On 7 October 2005, the tribunal gave directions in the earlier appeal. These included, by agreement of the parties, the following provisions:
“a) The Secretary of State shall produce to the Appellant (with copies to the Tribunal office and the [obliterated in my copy]) within 28 days copies of all documents retained by the Child Support Agency in relation to the assessment and that which it revised. b) The original documents shall be available for inspection at the hearing…….. f) If the Secretary of State does not comply with (a) I will be prepared to consider an application to vacate the hearing date.”
[6]The matter came back before the tribunal on 27 April 2006. The Secretary of State had not complied with the disclosure obligations of the 7 October 2005 order. The tribunal adjourned the appeal. It ordered:
“The second respondent [the Secretary of State] is within 28 days to send to the appellant (with copies to the Presenting Officer the respondent and the tribunal) copies of all documents relating to him retained by the Child Support Agency. This was directed by me on 7.10.2005 and agreed by the then Presenting Officer. The original file is to be available at the hearing for inspection. Whilst it is quite wrong that papers should not have been supplied to the appellant as had been agreed, I draw attention to the fact that it is not plain to me what undisclosed documents that there could be [sic] on the file which could affect the decision I take. Further adjournment should not be assumed.”
[7]On 17 August 2006, the appeal was heard. Full disclosure in accordance with the earlier orders had still not taken place although some documents had been made available. The tribunal chairman sets out the situation in his decision as follows:
“The appellant invited me further to adjourn his appeals because he said he could not make his case without seeing the material withheld from him. He expressed concern that the second respondent had failed to comply with my directions. Whilst I share the appellant’s concern at the failure of those who take decisions in the name of the Secretary of Work and Pensions to do as they are told, it has become a regrettably frequent practice, and one which, in the absence of power to commit or penalise in costs, is rather hard to stop. I explained in addition that in such circumstances, one had to consider the likely value and effect of the information being withhold. I asked the appellant to consider what information the second respondent could possibly be withholding which could have any impact on the amount of the assessment. The appellant, despite being pressed upon the point, declined to speculate on such matters and said that he simply could not do so in the absence of all the information at the disposal of the second respondent. I indicated that I could not myself conceive of any information which could have been withheld that could have any effect upon the maintenance calculations. I indicated that in the circumstances I did not consider that it was an offence against the interests of justice to proceed with the case. I did take the opportunity of pointing out to the appellant that I could scarcely be influenced by any information which had been withheld from me and that if indeed at some subsequent stage it was found that information had been withheld from me, that would mean that my decision (assuming the information to be material) would have been taken in error of fact. I explained to the appellant that that would mean that my decision would be liable to be changed by the revision or supersession processes. Unfortunately, the appellant felt unable to remain whilst I considered the calculations which were before me. I did attempt to dissuade him from leaving, but he would have none of it.”
[8]Having scrutinised the CSA’s maintenance calculations, the tribunal found that the calculation of the weekly sum of £105 was correct. As to the £5 per week calculation, the amount (which is a flat rate payable where the non-resident parent is in receipt of certain benefits including the contribution-based job-seeker’s allowance which the Claimant was by then receiving) was correct but, in accordance with a written submission placed before it by the CSA, the tribunal put back the date from which that figure was payable (“the effective date”) to 13 September 2005. This meant that instead of having his payment reduced from £105 to £5 from 11 July 2005, the Claimant would have to wait until 13 September 2005. The reason for this was that the CSA thought (and the tribunal accepted) that they had discovered an error in their approach to the question of the effective date. Having checked their records, they thought they had found that the date on which they were notified by the Claimant of his changed circumstances was later than the date they had used in determining the effective date. I will return to this in due course as it seemed to me, from the documents to which I was taken during the hearing, that the CSA’s second thoughts on this were wrong and there was evidence that they had indeed been notified on the earlier date.[9]It has been impossible to ascertain which documents from the CSA’s files were disclosed to the tribunal and the Claimant and which were not. I asked counsel for the Secretary of State to help me on this point. Given that the judicial review was in relation to the disclosure orders and given the remarks that Mr Justice Wilkie made when he gave permission, it was disappointing that she had not been provided with an analysis of the material in the file, identifying which items had been disclosed and which items had not. She attempted to obtain the information for me but was instructed that the file had now been reassembled without differentiating between the disclosed and the undisclosed material and there was no record of what had and had not been disclosed. She told me that the best that could be done would be for the contents to be considered again, according to the same principles that were used when the original decision was made as to what to disclose, and an indication given of what documents would be likely not to have been disclosed. I decided that this time consuming exercise, which would in all probability have required an adjournment of the judicial review hearing, might not be proportionate and that the sensible course would be to hear argument and only to require it to be carried out if absolutely necessary. In the event, I was able to determine the issues before me without insisting on this. I cannot help but observe, however, that good practice surely dictates that a reliable record is kept of which documents have been disclosed in accordance with a tribunal order for disclosure.[10]The tribunal chairman appears to have been under the impression that the disclosure directions had been “substantially complied with”. No doubt this was because the CSA told him that was the case. The Claimant would not have been in any position to comment and the chairman himself had not seen the file. The best guide to what had happened seems perhaps to be the letter from the CSA Data Protection Unit dated 19 July 2006 to the Claimant. It is apparent from the letter that the Claimant’s request for a copy of the whole unedited file had been passed to the writer, the Data Protection Manager. The letter asserts:
“If information about other individuals is held on the file and this information is not relevant to the appeal, then you are not allowed access to it. This is because we can only disclose information where it is necessary and essential in order for you to understand what is happening with your case.”
It refers to s 35(2) of the Data Protection Act 1998 and continues:
“The Department would not normally comply with any request under Section 35(2), as we are not in a position to make a decision as to whether the necessity test can be met. Only a Court can decide whether personal data meet the necessity test. The requesting party will therefore have to rely upon a Court Order to obtain the information.”
There follows an invitation to the Claimant to contact the Information Commissioner about the matter if he considers that the CSA has not complied with the Data Protection Act.[11]This letter is extraordinary. I am fairly sure that what is behind it is the CSA’s resistance to disclosing to the Claimant material relating to his ex-wife, the mother of the children. Sometimes, it may be entirely proper for the Agency to protect data relating to third parties in this way. However, in this case, the letter is completely off the point. There is no reference whatsoever in it to the fact that there were two court orders requiring disclosure of the file. Counsel for the Secretary of State wisely did not attempt to argue that the orders should be construed to limit the disclosure required to documents relevant to the appeal or to documents relating to the Claimant himself. The Presenting Officer had initially agreed to an order for disclosure of “all documents retained by the Child Support Agency in relation to the assessment and that which it revised” and the order of April 2006 required the “original file” to be available at the hearing for inspection, not a file comprising the documents that the Agency thought were relevant to the appeal or thought they could disclose without offending against the Data Protection Act. Where there is a court order requiring disclosure, s 35(1) of the Act regulates the position, not s 35(2). The whole section reads:
“(1) Personal data are exempt from the non-disclosure provisions where disclosure is required by or under any enactment, by any rule of law or by the order of a court. (2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary – (a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or (b) for the purpose of obtaining legal advice, or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.”
It was not argued on behalf of the Secretary of State that a tribunal did not come within the definition of a court for the purposes of s 35(1) or that for any other reason s 35(1) was inapplicable. It follows that the non-disclosure provisions of the Data Protection Act did not apply to personal data in this file in the light of the tribunal’s disclosure orders. Miss Olley conceded that the Act did not entitle the Secretary of State to override the order and that the correct course, in the circumstances, would have been for an application to have been made to the tribunal to vary the disclosure orders in the event that it was considered, on reflection, that they were too widely drawn. Absent a successful variation application, the obligation of the Secretary of State was to comply precisely with the terms of the orders. or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.”[12]It is of particular concern that the tribunal chairman commented that it had become “a regrettably frequent practice” for those who take decisions in the name of the Secretary of State to fail “to do as they are told” and one which the tribunal felt relatively powerless to control. I note that the Commissioner, considering an application by the Claimant for leave to appeal on March 2007, also commented adversely on the refusal of the CSA to comply with directions saying, “I share the tribunal’s frustration and annoyance at the refusal of the Child Support Agency to comply with its directions. I understand that this is a regular problem for the tribunal. In an appropriate case, I would be prepared to grant leave so that the issue can be discussed at Commissioner level.”[13]I was told in argument that the Secretary of State had apologised to the tribunal chairman for the default and explained that it was by virtue of misapprehension rather than arrogance. An apology was also offered to me although the thrust of the Grounds of Defence was that the undisclosed information was irrelevant to the appeal and such acknowledgment as they contain of the Secretary of State’s failure to comply with the two tribunal orders is well hidden and unenthusiastic. I was told that lessons would be learned from this case and I hope that that will indeed be so.[14]I was invited, in the circumstances, not to grant any relief at all in relation to the position with regard to the disclosure orders. I will deal presently with the reasons why the relief that I intend to grant will be limited in its ambit and why I shall not, in particular, be ordering disclosure of the full file to the Claimant. However, I am satisfied that it is appropriate to grant relief in the form of a declaration against the Secretary of State. I have treated the Claimant’s application as relating to the decision of the Secretary of State not to obey the disclosure orders of the tribunal of 7 October 2005 and 27 April 2006. I declare that this decision was irrational. The only proper course for the Secretary of State, faced with these orders, was to return to the tribunal and seek a variation, either by consent if the Claimant would give his consent or on notice if he opposed.[15]I turn then to the Secretary of State’s argument that the undisclosed material was irrelevant to the appeal. I sympathise with the Claimant’s view that whilst he remains in ignorance of what is in the file, he can hardly be expected to say what might be there that might have been of use to him in his appeal to the tribunal. However, I have approached the matter by considering what the task of the tribunal was, whether it had the material it required and whether there is anything to suggest that there might have been something in the file which would have thrown light on the exercise and altered the outcome.[16]The role of the tribunal was to check the child support calculation made by the CSA. Child support calculations are considerably simpler these days than they once were. The circumstances of the person with care of the children are now irrelevant. The rate of payment depends on the net income of the payer and upon whether he has any children living with him (which the Claimant does not).[17]In this case, in relation to the period when the Claimant was earning, the Agency used the payslips supplied to them by the Claimant to calculate his net income. They made the appropriate deductions from the gross pay to arrive at the Claimant’s net pay and then applied the relevant percentage (20% because the Claimant has two children) to that figure to arrive at the maintenance he was liable to pay. This was all a matter of mathematics which the tribunal was able to check by applying the Regulations to the information available to it. Whatever else there was in the CSA file, it would not have altered the outcome.[18]In relation to the period when the Claimant was receiving the contribution-based job-seeker’s allowance, a flat rate of £5 per week applies. The only issue that there could have been was when the effective date for the reduction to this flat rate was. The submission made by the CSA to the tribunal was that the CSA had been over-generous and taken too early a date. The Claimant says that he did not see this submission in advance and he certainly did not stay to argue his case on this or indeed any point. The tribunal accepted what the CSA said about it and substituted a later effective date as I have already explained. The effective date of such a change should be the first day of the maintenance period in which the change is notified to the Agency. The Claimant was able to take me to letters written by him to the Agency as early as 14 June 2005 notifying them that he had lost his job. This suggests to me that the original decision to treat a date in July 2005 as the effective date was the correct one. I invited the Agency to look again at this and they agreed to do so. Nothing in the undisclosed material from the file will have any bearing on this consideration. Given that, and given the Agency’s agreement to check their figures again, no relief is necessary from this court in relation to that issue.[19]When I invited the Claimant to explain to me what he thought himself he would gain in relation to the child support issue from seeing the whole file, he submitted that it might reveal that his ex-wife had behaved fraudulently and was not entitled to benefits. He submitted that if this were the case, the question of him paying child support should never have come before the CSA because it had been referred automatically as a consequence of her benefits claim. In reply to this, counsel for the Secretary of State pointed out that it is not only by virtue of a benefits claim having been made that matters reach the CSA. It is also possible for a private application to be made to them by the parent with care of the children. It did not follow therefore that if the Claimant’s ex-wife did not have a valid benefits claim, the case would not have come to their attention. Furthermore, Miss Olley submitted, as the circumstances of the parent with care are irrelevant, it mattered not whether that parent was validly on benefits or not. I accept these submissions. Furthermore, it seems to me that once the CSA is seised of a claim that comes within its remit, it is not open to the payer to launch an enquiry into the method by which it came to the Agency. His interest is limited to the accuracy of the resulting maintenance calculation.[20]The Claimant also submitted that full sight of the file would have given him the option to take an informed decision as to whether to continue with his appeal. He might have concluded that he could take it no further and withdrawn it. I explained to him that his perceived loss of the chance to withdraw the appeal was not a matter that was properly the subject of these judicial review proceedings.[21]In summary, therefore, like the tribunal chairman who considered the matter in August 2006 and the Commissioner who considered it in March 2007, I am entirely satisfied that none of the undisclosed material in the CSA file could have been relevant to the appeal in August 2006 and that it would be entirely otiose for the full file now to be disclosed. That disposes of the substantive application, the outcome of which is a declaration in the terms I have indicated above.[22]I turn now to the permission application. Following the appeal in August 2006, the Claimant continued to attempt to gain disclosure of the file and to relitigate the issues determined in that appeal. He did so by making various applications for leave to appeal or to have decisions set aside. He now seeks judicial review of the various refusals to allow him to unscramble the August 2006 decision on the basis of non-disclosure of the entire file and on the basis that he had not had sight of all the documents that the tribunal had. The only document that the Claimant identified for me as having been seen by the tribunal and not by him was the CSA submission about the effective date for the flat rate figure of £5. In the light of the Secretary of State’s agreement to review the issue of the effective date, it would be wrong to give permission for judicial review on that basis. As far as the undisclosed contents of the file are concerned, given my conclusion that they could have had no relevance to the August 2006 decision, there is no purpose in giving the Claimant permission for a judicial review of the later decisions refusing to overturn that August decision on that basis either. The application for permission is therefore dismissed.