Bennett, R (on the application of) v Social Security Commissioner

Permission for judicial review should be refused where the challenged decision was lawful and the applicant’s complaints concern the political effects of legislation rather than a justiciable legal issue. New material unrelated to the original claim cannot revive that claim. A fresh judicial review application based on different facts must begin in the Administrative Court; it cannot be initiated in the Court of Appeal.

The applicant challenged the refusal of permission to appeal in social security proceedings concerning the deduction of occupational pension income from income support. Permission for judicial review had already been refused by the Administrative Court on successive occasions, and permission to appeal had also been refused in the Court of Appeal.

The matter returned to the Court of Appeal as a reinstated application. The applicant relied on new material concerning mortgage possession proceedings and alleged that he had been prevented from earning a living. The central questions were whether the original judicial review application should proceed and whether the new material provided a basis for relief.

1. Disposition. The application was refused and dismissed.
2. The original judicial review application disclosed no basis for permission. The decision concerning the treatment of the occupational pension payment as income, and the resulting deduction from income support, had been held by the lower courts to accord with the law and the relevant legislation. The applicant’s complaints about the wider effects of the regulations were political arguments, not issues which the court could resolve through judicial review.
3. The additional material did not materially relate to the original application. It concerned mortgage possession proceedings, complaints against the building society and the county court, and the alleged inability to work. It was not formulated in a manner suitable for judicial review and had no bearing on the original challenge.
4. A new judicial review application based on those different facts could not be commenced in the Court of Appeal. It would have to be brought first in the Administrative Court. The court expressly cautioned that its observations should not be understood as encouragement to pursue such a claim.

• Court of Appeal (Civil Division): Lord Justice May refused the reinstated application and ordered that it be dismissed.
• High Court, Administrative Court: Mr Justice Latham refused permission to apply for judicial review. Mr Justice Maurice Kay subsequently refused permission at an oral hearing.
• Court of Appeal (Civil Division): Lord Justice Schiemann refused permission to appeal, concluding that there was no legal error in the Commissioner’s decision.
• Social Security Commissioner: The Commissioner declined to set aside the earlier refusal of permission to appeal.
• Department of Social Security Tribunal: The tribunal made a final decision that part of the occupational pension payment should be deducted from income support.