McManus, R (on the application of) v Head Of Assisted Prison Visits

Permission is required to appeal a refusal by the Administrative Court of permission to seek judicial review. A challenge to the level of state assistance for prison visits engages Article 8 only if supported by evidence capable of showing an unwarranted interference with family life; an assertion that the allowance is inadequate is insufficient. In social-security proceedings, a tribunal may prefer independent medical evidence to the claimant’s account where that is a matter for its expert judgment. A decision is not irrational merely because it is unwelcome. The absence of a public delivery of tribunal or Commissioner decisions does not, without more, establish an arguable Article 6 breach where the decisions are on the public record.

Two applications for permission to appeal followed Blofeld J’s refusal in the Administrative Court of permission to apply for judicial review.

• The first concerned the amount of travel and subsistence assistance available for prison visits. The applicant relied on Article 8 and alleged deficiencies in the tribunal process and reasons.
• The second concerned a disability living allowance claim rejected by a Disability Appeal Tribunal, which preferred an examining practitioner’s opinion to the applicant’s evidence. The Social Security Commissioner refused permission to appeal. The proposed judicial review alleged partiality, irrationality, failure to consult a cardiologist and breach of Article 6 because the decisions were not delivered publicly.

The central issue was whether either matter disclosed an arguable ground warranting permission to appeal.

Both applications for permission to appeal were refused.

1. First application. The court held that permission to appeal was required under paragraph 15.1 of Part 52 of the Civil Procedure Rules. Visiting a son in prison was accepted to be an aspect of family life, and an unwarranted ban on visits might breach Article 8. A challenge to the level of financial assistance required substantially more evidence than an assertion that the mileage and subsistence allowance was inadequate. The unit’s acknowledgement that the allowance might not keep pace with fuel prices did not itself establish an arguable unlawful interference. Blofeld J had reached the correct conclusion in refusing permission to apply for judicial review.
2. Second application. The Disability Appeal Tribunal’s task was to determine entitlement on the evidence. It was entitled to obtain and prefer the opinion of an independent doctor over the applicant’s own account. That evidential assessment was a matter for the tribunal’s expert judgment. The decision was not unreasonable merely because it was unwelcome. The alleged failure to consult a cardiologist disclosed no arguable procedural impropriety, since there was no substantiated basis for saying that consultation had been requested or was required.
3. The fact that the Secretary of State was unrepresented did not require the application to succeed. Nor did the absence of public delivery of the Disability Appeal Tribunal’s and Commissioner’s decisions disclose an arguable breach of Article 6, because the decisions were on the public record. The formal order was that the applications were refused.

• Administrative Court, Queen’s Bench Division: Blofeld J refused permission to apply for judicial review in both matters.
• Court of Appeal (Civil Division): Lord Justice Sedley considered the applications for permission to appeal and refused both. [2001] EWCA Civ 966