Dawson, R (on the application of) v Secretary Of State For Social Security

A public authority’s discretion to make interim benefit payments does not justify a mandatory order where payment pending appeal is conditional on the Secretary of State being of the opinion that entitlement exists, and the evidence does not show that opinion. A tribunal decision that has become final under the Social Security Administration Act 1992 cannot found a claim for payment contrary to it. A judicial review challenge brought about four years after the impugned decision is liable to be refused for delay. At a permission hearing, a judge may decline to call the respondent’s counsel where counsel’s assistance is unnecessary.

The applicant sought permission to appeal against Henriques J’s dismissal of his application for permission to seek judicial review and a mandatory injunction. He challenged the refusal of interim Jobseekers Allowance while a benefits appeal was pending, and the refusal to return war disablement pension sums taken into account in assessing entitlement. A Social Security Appeal Tribunal had previously found him not entitled to Jobseekers Allowance, and the challenge concerning the pension decision had been brought about four years after that decision. The issues were whether interim payments could be compelled, whether the pension decision could be reopened despite delay and prior proceedings, and whether the lower court had acted unfairly by not calling the respondent’s counsel.

Lord Justice Laws dismissed the application for permission to appeal.

1. Interim payments. Paragraph 2(1)(b) of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 conferred a discretion on the Secretary of State to make an interim payment where a claim had been made but could not immediately be determined. Paragraph 2(1A) excluded that power pending an appeal unless the Secretary of State was of the opinion that the claimant was entitled to benefit.
2. There was no evidence that the Secretary of State held the opinion required by paragraph 2(1A). Whether the earlier tribunal decision was final, or a further appeal remained pending, there was therefore no arguable case for a mandatory order requiring interim Jobseekers Allowance payments.
3. The earlier Social Security Appeal Tribunal decision that the applicant was not entitled to Jobseekers Allowance stood final under section 60 of the Social Security Administration Act 1992, there having been no appeal to the Social Security Commissioner. The challenge concerning repayment of war disablement pension was also properly refused because it had been delayed for about four years. Judicial review time limits are short for reasons of statutory policy.
4. The judge was entitled not to call the Secretary of State’s counsel where it was unnecessary to do so. That course did not establish procedural unfairness or justify permission to appeal.

Order: Application dismissed.

1. Court of Appeal (Civil Division): On 12 September 2001, Lord Justice Laws dismissed the application for permission to appeal.
2. Administrative Court, Queen’s Bench Division: Henriques J, on 14 May 2001, dismissed the application for permission to seek judicial review and a mandatory injunction.