B, R (on the application of) v Secretary Of State For Works And Pensions

Permission to appeal should be granted where the proposed grounds raise arguments with a realistic prospect of success and are not fanciful. This applies where conflicting decisions of the Court of Appeal create a properly arguable question about the interpretation of Article 14 of the European Convention on Human Rights. A justification analysis may also require consideration of the wider benefits connected with the benefit under challenge, rather than the narrow benefit alone. The appeal was therefore permitted to proceed on the discrimination issue and on the proposed Convention-consistent construction of regulation 34.

Sir Richard Tucker dismissed an application for judicial review challenging the Secretary of State’s refusal to share child benefit between the claimant and his former wife. The claimant sought permission to appeal, arguing that the judge had wrongly concluded that there was no discrimination within the scope of Article 14 because no personal characteristic had been identified.

The claimant also argued that the judge had addressed justification too narrowly by considering child benefit alone, although entitlement to some child benefit operated as a gateway to other benefits. The Court of Appeal considered the conflict between St Brice v Southwark LBC and Michalak v Wandsworth LBC, and whether regulation 34 required a Convention-consistent construction.

1. Permission granted. The proposed grounds had a realistic prospect of success and were not fanciful. The matter was also of general importance.
2. The claimant was entitled to argue that the conflicting Court of Appeal decisions on whether Article 14 discrimination requires a personal characteristic should be resolved in favour of the approach adopted in Michalak v Wandsworth LBC, rather than St Brice v Southwark LBC. The permission decision did not finally determine which authority was correct.
3. The judge’s approach to justification was arguably too narrow. Although the immediate issue concerned child benefit, having a share of that benefit was accepted to be a gateway to other benefits. The justification analysis therefore arguably had to address that wider statutory and practical context.
4. It was also reasonably arguable that regulation 34 should be construed consistently with the Convention and, if necessary, that a declaration of incompatibility might be required.
5. Permission was granted unconditionally and in full. The appeal was directed to a constitution of three Lords Justices, two of whom were to have Administrative Court and human-rights experience. Costs were awarded in the appeal.

• Court of Appeal (Civil Division): Permission to appeal granted unconditionally and in full from the dismissal of the judicial review application.
• Administrative Court: Sir Richard Tucker dismissed the claimant’s application for judicial review of the refusal to share child benefit.