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

A judicial review claim cannot be used to challenge the merits of legislation or policy choices merely because their consequences appear unfair or economically illogical. Decisions concerning the design of welfare benefits, the treatment of pension income, taxation effects and legal-aid eligibility are ordinarily matters of political and economic judgment. Contributions to the welfare state do not create an individual possession or proprietary entitlement to benefits for the purposes of Article 1 of the First Protocol. Judicial review of an inferior tribunal will ordinarily be exceptional where the tribunal has applied the law properly and the claimant challenges only the content of that law. A tribunal’s inability to make a declaration of incompatibility does not make its decision unlawful.

The claimant’s incapacity benefit had been reduced by reference to the gross amount of his occupational pension. The Appeal Tribunal dismissed his appeal, accepting that the statutory scheme had been correctly applied. The Social Security Commissioner refused permission to appeal on the ground that no arguable error of law had been shown and subsequently declined to review that decision.

The claimant sought judicial review. He alleged breaches of Article 1 of the First Protocol and Article 6 of the European Convention on Human Rights, challenged the deduction of gross rather than net pension income, and complained that he had been unable to obtain legal representation. The central issues were whether those complaints disclosed an arguable human-rights or public-law case and whether the Administrative Court should intervene in the tribunal proceedings.

1. Claim refused. Permission to apply for judicial review was refused because none of the claimant’s grounds disclosed an arguable basis for relief.
2. Payments made into the welfare system did not constitute a personal fund or possession belonging to the claimant. Welfare contributions formed part of a wider scheme funded by taxation and contributions, from which benefits were paid under rules determined from time to time. The claimant therefore had no individual proprietary entitlement to the contributions for the purposes of Article 1 of the First Protocol.
3. The complaint that incapacity benefit should have been reduced by the net rather than gross pension figure was not a justiciable legal issue. The choice of method involved political and economic judgment made by Parliament. Its perceived unfairness or logical difficulty did not amount to a breach of Convention rights.
4. Article 6’s requirement of equality of arms did not confer a general right to free legal representation or representation subject only to a minimal contribution. The scope and financial thresholds of legal aid were matters for the state’s policy decisions, subject to the Convention, and the circumstances disclosed no arguable breach.
5. The claimant’s challenge was directed against the content of the law, rather than any error, procedural irregularity or excess of jurisdiction by the Appeal Tribunal or Commissioner. Although the Administrative Court retained jurisdiction to review tribunal decisions where statutory appeal routes were unavailable, intervention would be exceptional. The tribunal and Commissioner had properly applied the law as they understood it, and their lack of power to make a declaration of incompatibility did not make their decisions unlawful.

1. Appeal Tribunal: dismissed the claimant’s appeal and confirmed the Secretary of State’s decision reducing incapacity benefit by reference to pension payments.
2. Social Security Commissioner: refused permission to appeal on 13 March 2007 and, on review, maintained that decision on 29 March 2007.
3. High Court (Administrative Court): refused permission to apply for judicial review.