Cowling, R (on the application of) v Child Support Commissioners' Office

Judicial review of a refusal of permission to appeal in child support proceedings is exceptional where Parliament has imposed a statutory leave requirement. Judicial review must not become an indirect appeal against the merits of the refusal. A simple error of law, without exceptional circumstances or exceptional gravity, is insufficient. A later application to set aside cannot ordinarily be used to revive an out-of-time challenge to the original decision. A decision not to disclose an appellate file is lawful where the applicant knows in principle what documents were before the decision-maker and cannot identify a credible category of missing, relevant material.

The claimant challenged three decisions concerning child support appeals: the refusal of permission to appeal by a Child Support Commissioner, the refusal to set that decision aside, and the refusal to provide or allow inspection of the Commissioner's file. The original child support appeals concerned maintenance claims and had produced six linked tribunal decisions. A previous application for permission to bring judicial review proceedings had been refused on the papers by Wilkie J. The claimant renewed that application before the Administrative Court.

1. Refusal of permission to appeal. The challenge was seriously out of time, but the court was not inclined to refuse permission solely on that ground because the claimant said she had relied on advice from court staff. The claim nevertheless disclosed no arguable basis for intervention.
2. Parliament had restricted appeals in child support cases by requiring permission. Judicial review could not be allowed to undermine that scheme by treating every alleged irrationality or error of law in a refusal of permission as reviewable. The approach in Sivasubramaniam v Wandsworth County Court [2003] 1 WLR 475 and Sinclair Gardens Investments (Kensington) Limited v the Lands Tribunal [2006] 3 All ER 650 applied.
3. The alleged error concerning the claimant's supposed 2000 supersession application was, at most, a simple error of law. It was not accompanied by exceptional circumstances or exceptional gravity capable of justifying judicial review. The Commissioner was probably correct in any event.
4. The challenge to the refusal to set aside was abusive. A claimant out of time to challenge a primary decision could not ordinarily obtain a fresh period by seeking a review of that decision and then challenging the refusal of review. In any event, the second challenge raised no separate substantive issue.
5. The refusal to provide or permit inspection of the file disclosed no arguable error of law. The claimant had been told that the Commissioner had the tribunal's file and therefore, in principle, the documents before the tribunal. It was reasonable to require her to identify a possible missing class of relevant documents before requiring further disclosure or inspection.
6. The Secretary of State was entitled to participate as an interested party, substantially in the role of an amicus. No wasted costs order was made against the claimant's solicitor because the high threshold for such an order was not met. Wilkie J's refusal of permission was upheld.

• High Court (Administrative Court): Wilkie J refused permission to apply for judicial review on the papers on 25 February 2008. On renewal, Mr Justice Underhill upheld that refusal and dismissed the application.