Hook, R (on the application of) v Secretary of State for Work and Pensions

Judicial review of a Social Security Commissioner’s refusal of permission to appeal requires more than a merely arguable error of law. In this specialist, inquisitorial and multi-tier jurisdiction, the claimant must ordinarily identify a very substantial point of law, consistently with the need for finality and avoidance of unnecessary expense.

Where a social-security rule may interfere with Convention rights, proportionality must ultimately involve an assessment of the measure’s impact on the individual and a fair balance between individual rights and community interests. The court need not decide an abstract Article 8 issue where the human-rights argument was not properly raised or developed below. A failure to provide more elaborate reasons will not justify relief where the alleged error is insufficiently substantial in the procedural and factual context.

The claimant sought judicial review of Mr Commissioner Jacob’s refusal of permission to appeal from the Ashford Appeal Tribunal. The Tribunal had upheld the refusal of income support, housing benefit and council tax benefit after treating capital dissipated by the claimant’s new partner, before cohabitation, as notional capital attributable to the claimant’s family.

The domestic-law construction of the regulations was not challenged before the Administrative Court. The principal issue was whether the Commissioner had adequately addressed Article 8 of the Convention, including justification, proportionality and the availability of relief under the Human Rights Act 1998. The court also considered whether the alleged error satisfied the elevated threshold applicable to judicial review of a refusal of permission to appeal.

1. Application dismissed. The Commissioner’s refusal of permission to appeal was not quashed, and permission to appeal to the Court of Appeal was refused. The claimant’s publicly funded costs were directed to detailed assessment.
2. Judicial review is available against a Commissioner’s refusal of permission to appeal, but relief requires more than a debatable error of law. In this context, where the underlying proceedings were inquisitorial and had already involved substantial examination by the tribunal and Commissioner, a very substantial point of law was required. Any arguable deficiency in the reasons therefore had to be assessed against the need for finality and the procedural history.
3. The Tribunal was entitled to apply the anti-avoidance scheme to capital dissipated by a partner before cohabitation. Sections 134(1), 136(1) and 136(5)(a) of the Social Security Contributions and Benefits Act 1992, together with regulations 23 and 51 of the Income Support (General) Regulations 1987, permitted the claimant’s partner’s resources, including notional capital, to be taken into account.
4. The court did not decide whether the benefit decisions engaged Article 8. It accepted that the issue was highly arguable because the loss of housing benefit threatened the claimant’s home and affected his family life and dependence on his partner for care. Whether Article 8 is engaged, and whether interference is proportionate, are fact-specific questions requiring careful evidence and developed argument. They cannot be resolved by abstract reference to human-rights principles.
5. The Commissioner identified the statutory purpose, including economic well-being and prevention of avoidance, but gave limited reasoning on the individual impact and fair balance. More developed submissions, particularly concerning the claimant’s disability and care needs, might have required fuller reasoning. However, the human-rights issue had not been live before the Tribunal and had not been presented to the Commissioner as a developed challenge based on individual proportionality. In that context, the reasons were not an error sufficiently grave to warrant relief.
6. The Commissioner’s view that he lacked any remedy if a violation were established was potentially a substantial error if it had been decisive. Possible responses included interpreting the regulations in a Convention-compatible way, applying the phrase “unless the context otherwise requires”, reading down the regulations, or declaring subordinate legislation unlawful. That issue did not determine the case because the Commissioner had not found a violation.

This was a first-instance judicial review of the Social Security Commissioner’s refusal of permission to appeal. The Commissioner had refused permission to appeal from the Ashford Appeal Tribunal’s decision dated 6 February 2006. The Administrative Court dismissed the claim and refused permission to appeal to the Court of Appeal.