Green, R (on the application of) v Secretary of State for Work & Pensions [2009] EWHC 2000 (Admin)

[2009] EWHC 2000 (Admin)Case No CO/3510/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 19 March 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF GREENClaimantv
Between
SECRETARY OF STATE FOR WORK & PENSIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Jarman appeared for ClaimantMiss Leventhal appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CRANSTON: This is an application for permission to apply for judicial review. Mr Justice Beatson thought that the best way to handle the application was to have an oral hearing. That occurred this morning. The case came on more quickly than I or Mr Jarman, for the claimant, expected. Nonetheless I think we have both done it justice.[2]Various grounds are raised in the claim form in relation to the notice of intention to seek a liability order in respect of Child Support Agency ("CSA") arrears. There are four grounds listed there: first, the defendant failed to exercise his discretion as to whether the school fees paid by the claimant could be offset against liability; secondly, the defendant's decision not to offset the school fees is biased; thirdly, the claimant and his former wife had agreed the claimant would pay the school fees, so it was unjust for the defendant to go behind that agreement; and, fourthly, the defendant failed to notify the claimant of his former wife's objection to offset the school fees against liability.[3]The claimant contends that there was agreement with his ex-wife that he would pay the school fees. I accept that. The CSA knew about this from October 2002. They told him that his payment of fees could only be offset against his liability if she agreed.[4]The story is taken up in a letter dated 17 March 2007 from the CSA to Mr Peter Luff MP in which the CSA write about Mr Luff's constituent, the claimant in this case. The letter records that in December the claimant advised that he had paid the school fees, but that he would only be able to offset this payment against arrears if the parent with care was in agreement. The CSA's letter states:
"We attempted to discuss this issue with Mrs Green without success so we wrote to her on 9 January 2003 to ask if she would accept the payment in lieu of child maintenance. On 17 January 2003 we received Mrs Green's reply. She informed us that she was not prepared to accept the payment of school fees as child maintenance. In view of this we are unable to make an adjustment from Mr Green's arrears."
[5]The story is then continued in a letter of 26 March 2007 to Mr Hatton, the claimant's solicitor. There the CSA states:
"As regards our failure to inform Mr Green about the parent with child care refusing to accept the payment of £6,000 school fees in respect of child support maintenance, once again I must apologise that we did not inform Mr Green of this decision. I cannot offer any reason for this other than a breakdown in communication."
[6]It seems to me that in the light of that letter there is at least an arguable case in relation to ground 4 of the claim. On that basis I give permission, but only in relation to that ground.[7]I should say this. Miss Leventhal made a very persuasive argument this morning that the claimant in this case has not exhausted his remedies, that he should have proceeded through the appeal mechanism provided under the Act. That mechanism was notified to the claimant on various occasions such as in the letter to which I was taken dated 3 October 2006:
"If you want to appeal you should fill in the form in leaflet CSA 2006A. Please send it to the Child Support Agency Appeals Unit within one month of the date of this letter ..... Your appeal will be heard by an independent appeal tribunal."
It seems to me that this will be a difficult argument for the claimant to overcome.[8]There is also the issue of delay. Inasmuch as the claim form identifies the decision under review as the issuing of liability proceedings before the Magistrates' Court, the case is within the time limit. But it may be, as Miss Leventhal has submitted, that the actual decision the claimant is seeking to challenge is an earlier decision and therefore the case falls outside the time limit for judicial review.[9]In the light of what I have said, it seems to me that it might be a good idea for the parties to discuss the matter and to seek to come to some sort of agreement. Nonetheless I am giving permission on the limited ground indicated.[10]In relation to the application which Mr Jarman has made to access documents, I should order that. They are relevant to the determination of the particular issue for which I have granted permission.[11](To Mr Jarman) You should see what the ex-wife said in relation to not agreeing in 2002 or 2003.[12]MR JARMAN: My Lord correctly, helpfully, identifies that as a central issue. I wonder whether the ambit of the disclosure order might say "All information of documents furnished by Mrs Green hitherto withheld by the CSA ..... "

MR JUSTICE CRANSTON: In relation to school fees.

[14]MR JARMAN: Yes.

MR JUSTICE CRANSTON: We do not want this getting out of hand.

[16]MR JARMAN: No.[17]MISS LEVENTHAL: Might I make one point in respect of the decision you gave?

MR JUSTICE CRANSTON: Absolutely.

[19]MISS LEVENTHAL: As your Lordship will be aware, the general convention would be that if delay and alternative remedy being put to the court - including technical objections - are not accepted at the permission stage, then they are usually not pursued at the substantive hearing. But we would seek in the light of the points you have made - - - - -[20]MR JUSTICE CRANSTON: I think you should because Mr Jarman quite candidly said this morning that he had not had time to develop a reply to your argument on the points. It seems to me that the issues should be canvassed.[21]MISS LEVENTHAL: In my submission it would be necessary to make provision for that in the order.

MR JUSTICE CRANSTON: Yes.

[23]MISS LEVENTHAL: Perhaps we can draw up an agreed form of order.

MR JUSTICE CRANSTON: Yes.

[25]MR JARMAN: Can I confirm my Lord's very firm and clear view as to the merits or demerits of some of the pleaded grounds. My Lord is looking puzzled as to which ground. I hesitate in suggesting that that might be gone behind at the second stage. It seems perhaps fair and helpful to say this: there is further disclosure to be forthcoming in accordance with your order. It struck me - not having, as my Lord has commented, sufficient time to master every detail of the case - that there might, perhaps regrettably in this case, be room for some slight revision of the existing pleaded grounds in the light of further disclosure. I hope to give helpful and early indication as to our provisional view the night before the initial hearing, not in any way to seek to go behind your - - - - -[26]MR JUSTICE CRANSTON: I think what you are going to have to do is to go elsewhere and get permission on those other grounds. But it seems to me that in terms of the documents and other issues, whether the CSA was biased in some way, there is nothing there. I think ground 4 is the key issue. I have also given an indication that it may get nowhere.[27]MR JARMAN: Indeed.[28]MISS LEVENTHAL: If I may make another suggestion; I do not wish to go behind the decision your Lordship has just made. If it is only ground 4 in respect of which permission has been granted and disclosure is in relation to that ground, but that we are still going to be able to take points on alternative remedy and delay and my friend would seek permission to amend the grounds, might it be - - - - -[29]MR JUSTICE CRANSTON: No. I have not given - - - - -[30]MISS LEVENTHAL: No, but my understanding is that he might seek permission.

MR JUSTICE CRANSTON: He will have to go elsewhere if he wants permission on the other grounds.

[32]MISS LEVENTHAL: I was going to make an alternative suggestion that the appropriate order to make, rather than granting permission on that one ground, might be to adjourn the matter for a rolled-up hearing so that we can run in full our alternative remedy and delay points on all the grounds, including the disclosure issue, and Mr Green's legal team can if they want to seek permission to amend their grounds. I offer that as a suggestion because I think that if I do not I might be criticised later for not making it.[33]MR JUSTICE CRANSTON: Yes. That is an exceptional approach, the rolled-up hearing. Mr Jarman, you lose on one point in that you do not have the permission but, on the other hand, you can argue these other points.[34]MR JARMAN: I see that that is the other side of the coin. It does seem to me from your short but helpful judgment that the court considers there was a proper and substantive hearing this morning on - - - - -

MR JUSTICE CRANSTON: Do you want to take instructions on that?

[36]MR JARMAN: Yes. (Pause) I regret to say that there is another question which is that I think there is a fifth pleaded ground which, in essence, is a procedural fairness point. Does my Lord consider that is subsumed in other grounds of the application in reality?

MR JUSTICE CRANSTON: I expect that is a fairer hearing in a way. (?)

[38]MR JARMAN: Yes, absolutely.[39]MR JUSTICE CRANSTON: No. I did not think you had. You had not taken me to anything that led me to think that you have not had a fair hearing. In some cases you may not have received the answer you wanted, and in some cases obviously they made mistakes.[40]MR JARMAN: That deals with that. In seeking to decide the right way forward - - - - -

MR JUSTICE CRANSTON: Do you want some time? Do you want ten minutes?

[42]MR JARMAN: I would be most grateful.[43]MR JUSTICE CRANSTON: Come back and interrupt. I have some matters in chambers, but just come back in ten minutes and let me know. You do not need to do it in open court; you can just tell the court associate.[44]MR JARMAN: Thank you.[45]MR JUSTICE CRANSTON: (To Miss Leventhal) You are going to come back with some sort of order, are you, in relation to disclosure?[46]MISS LEVENTHAL: Yes, and in relation to the Secretary of State's position as to preserving the alternative remedy and delay points for the substantive hearing.[47]MR JUSTICE CRANSTON: Why do you not agree as to what you want and put it in writing and then I can approve it. (No parties returned to court)