Broxson v Commissioners For Social Security

On judicial review of a discretionary decision, the question is whether the decision-maker acted outside the legal limits of the discretion conferred. A reviewing court should not substitute its own assessment where the decision was reasonably open to the decision-maker. In deciding whether to extend time for an appeal, the decision-maker may consider the applicant’s knowledge of the decision, access to advisers and failure to pursue the matter promptly. An application for judicial review that is itself out of time may provide an additional reason why judicial review is inappropriate.

This was a renewed application by Thomas Broxson for permission to appeal against Crane J’s refusal of permission to seek judicial review.

The proposed judicial review concerned Commissioner Levenson’s refusal to extend time for an application for permission to appeal against a Social Security Appeal Tribunal decision. The tribunal had decided that Mr Broxson had received an overpayment of income support. He claimed that he had not received the tribunal’s full written decision promptly and therefore could not appeal in time.

The central issues were whether the Commissioner had acted outside the discretion available to him and whether judicial review was, in any event, unavailable because the claim had been lodged out of time.

Lord Justice Buxton refused the renewed application and ordered that permission to appeal be refused.

1. Scope of judicial review. The question was whether the Commissioner’s reasons fell outside the legal limits of the discretion conferred on him. The Court of Appeal would not intervene merely because another view might have been possible.
2. Extension of time. The Commissioner was entitled to take account of Mr Broxson’s knowledge of the substance of the tribunal’s decision, his access to advisers and his failure to pursue the matter after advisers had requested the decision so that he could consider his options. It was open to the Commissioner to regard the delay as inordinate and to refuse an extension of time. There was therefore no proper basis for judicial review, and Crane J was correct to reach that conclusion.
3. Out-of-time judicial review. By way of an additional point, which had not been necessary for the decision, the Court noted that the judicial review application was itself out of time. Even if Crane J had been wrong on the substantive issue, judicial review would not have been appropriate in the circumstances.

The formal order was: permission to appeal refused.

• Court of Appeal (Civil Division): On 31 January 2002, the renewed application for permission to appeal was refused.
• Queen’s Bench Division, Crane J: On 14 November 2001, refused the renewed application for permission to apply for judicial review.
• High Court, Munby J: In August 2001, refused permission on paper.