England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMINSTRATIVE COURT)
(HENRIQUES J)
(Application of applicant for PTA
the decision to refuse PTC for JR
and mandatory injunction)

		Royal Courts of Justice Strand London WC2
		12th September 2001

1. LORD JUSTICE LAWS: This is an application for permission to appeal against a decision of Henriques J made on 14th May 2001 when he dismissed the applicant's application for permission to seek judicial review and a mandatory injunction.

2. The case was listed in this court at 10 am today. Mr Dawson, the applicant, did not appear. After allowing him some twenty minutes or so I indicated that I would dismiss the application for want of its being prosecuted by him. However at that moment he appeared in court. I have revoked any order to the effect that the application be dismissed and I have heard him on the merits of the matter this morning.
3. The subject matter of his proposed judicial review was set out by him in his claim form shortly as follows:

"The respondent's refusal to make interim payments of Jobseekers Allowance pending the applicant's appeal against refusal to reinstate his entitlement to benefit and refusing to return to the applicant sums of war disablement pension wrongly taken into account for the purpose of calculating entitlement to that benefit."

4. Mr Dawson sought to apply for an order to quash this refusal to make interim payments and in effect a mandatory injunction requiring interim payments to be made.
5. The core facts of the matter are crisply summarised by Henriques J in paragraphs 2 to 4 of his judgment as follows:

"2. The claimant completed his service with the Royal Navy on 11th September 1974 and first claimed a war pension in 1982. This was refused. The Pensions Appeal Tribunal upheld the decision in 1984. But, in the light of new medical evidence, the Secretary of State and the claimant made a joint application to the Pensions Appeal Tribunal, resulting in an award of a War Pension commencing on 16th September 1985. The initial award was paid in a lump sum because the claimant's disability was in the 6 to 14% bracket. This payment is referred to in the Regulations as a gratuity.

3. From March 1993 the claimant claimed Income Support, which was later known as Income Based Jobseekers Allowance. On 23rd January 1997 the Pensions Appeal Tribunal increased the level of the claimant's disablement to 20%, resulting in an entitlement to regular weekly payments of a War Pension, payable in arrears back to 23rd March 1994. Although still payable as a lump-sum payment, the Regulations do not refer to such payment as a gratuity. However, by reason of the fact that the claimant had been paid either Income Support or Jobseekers Allowance during this period, the back-dated War Pension arrears were abated by the Secretary of State pursuant to section 74(2) of the Social Security Administration Act 1992.

4. The claimant is presently appealing to an independent Social Security Appeal Tribunal against the defendant's refusal to pay Jobseekers Allowance, and, in the meantime, seeks interim payments on account of Jobseekers Allowance while he is awaiting the final determination of that appeal."

6. There had in fact been an earlier appeal to the Social Security Tribunal which had been dismissed. Mr Dawson tells me this morning that there remains outstanding, as there was at the time of the hearing before Henriques J, a fresh application for Jobseekers Allowance based on fresh evidence.
7. The Secretary of State had refused to make interim payments by letter of 14th March 2001 to which the applicant referred this morning. It is clear that he had a discretion in the matter, as Henriques J recognised. Paragraph 2(1)(b) of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 provides in part as follows:

"2(1). The Secretary of State may in his discretion, make an interim payment, that is to say a payment on account of any benefit to which it appears to him that a person is or may be entitled, in the following circumstances--

(b) a claim to that benefit has been so made, but it would be impracticable for it or a reference or review, application or appeal which relates to it to be determined immediately; ...

(1A)Paragraph (1) shall not apply pending the determination of an appeal unless the Secretary of State is of the opinion that there is entitlement to benefit."

8. Henriques J said this, paragraph 8 of his judgment:

"Since the Social Security Appeal Tribunal held that the claimant is not entitled to Jobseekers Allowance, and in the absence of an appeal against that decision the decision shall be final, it is manifest that, as at present, the claimant is not entitled to benefit and thus has no arguable case in respect of the Secretary of State's refusal to make interim payments of Jobseekers Allowance. In respect of the Social Security Appeal Tribunal's determination, the claimant had an obvious alternative remedy, namely an appeal to the Social Security Commissioner."

9. If it be the case that the applicant still has an appeal pending to the Social Security Appeal Tribunal, Henriques J would have arrived at the same conclusion since, so far as I can see, there is no shred of evidence to suggest that the Secretary of State was of the opinion that the applicant was entitled to the benefit.
10. I am afraid to say that there is, in my judgment, no arguable case to require the Secretary of State, as a matter of mandatory order, to make interim payments and Henriques J was right to dismiss the application.
11. He proceeded to deal with Mr Dawson's complaint to the effect that the Secretary of State was wrong to have refused to return was disablement pension. Mr Dawson this morning has submitted to me that that decision of the Secretary of State was based on a misunderstanding or misconstruction of the relevant primary legislation.
12. Henriques J said this paragraphs 10 and 11:

"10. The claimant then appealed the refusal to pay him Jobseekers Allowance to the Social Security Appeal Tribunal, who determined that he was not entitled to Jobseekers Allowance because his War Pension exceeded the applicable amount. He did not pursue any statutory appeal to the Social Security Commissioner. Accordingly, the decision that he is not entitled to Jobseekers Allowance stands, and section 60 of the Social Security Administration Act 1992 renders the decision final. A second set of High Court proceedings followed, inter alia, for arrears of benefit. A defence was filed, and upon the claimant taking no further action, those proceedings were stayed.

11. As to the refusal to return to the applicant sums of War Disablement Pension, this decision was taken in 1997. It has been the subject of two sets of High Court proceedings. This application is delayed some four years and for that reason alone should be refused."

13. I fear that that conclusion was unarguably right. The time limits for proceedings by way of judicial review are well known and are short for very good reasons of statutory policy.
14. Mr Dawson has expressed his grounds of appeal in writing thus:

"The learned judge was wrong not to allow the claimant to rebut the evidence of the defendants when he advised counsel that it was unnecessary for him to adduce his evidence in contradiction to the claimant's application for permission to apply for judicial review. Further, the learned judge refused to exercise his discretion and override the time limit for the making of the application or no such time limit existed for the refusal to grant leave to apply for judicial review."

15. I have effectively held that the second of these contentions is plainly wrong. As for the first, it appears that Henriques J did not find it necessary to call on counsel for the Secretary of State who was in court before him. Very obviously he was entitled to take that course. There is, I fear, nothing in this application, which is dismissed.
ORDER: Application dismissed.