Davies, R (on the application of) v The Commissioners Office & Anor

Where a tribunal orders disclosure, the recipient must comply with the order unless it is successfully varied. The Data Protection Act 1998 does not justify unilateral non-compliance: section 35(1) exempts disclosure required by a court order from the non-disclosure provisions. The proper response to an objection is an application to the tribunal to vary the order.

Judicial review relief may nevertheless be limited where the undisclosed material could not have affected the decision under review. In child support proceedings, the tribunal’s task is to verify the maintenance calculation. The payer cannot use disclosure proceedings to investigate the circumstances in which the case came before the Agency where those circumstances do not affect the calculation.

The claimant sought judicial review concerning child support proceedings before the Child Support Appeal Tribunal. He challenged the Secretary of State’s failure to comply with tribunal disclosure orders made on 7 October 2005 and 27 April 2006. He also sought permission to challenge later refusals to set aside or appeal the tribunal’s August 2006 decision.

The tribunal had upheld a weekly assessment of £105 and applied a flat-rate assessment of £5 from a later effective date. The central issues were whether the Data Protection Act 1998 justified withholding the file, whether the undisclosed material could have affected the tribunal’s decision, and whether the later procedural decisions should be reviewed.

1. The substantive application succeeded to the limited extent that a declaration was granted. The Secretary of State’s decision not to comply with the tribunal’s disclosure orders was irrational.

2. The tribunal’s orders required disclosure of the documents specified and inspection of the original file. The Secretary of State could not unilaterally restrict disclosure by reference to relevance, third-party data, or the Data Protection Act 1998. Section 35(1) applied because disclosure was required by a court order. Section 35(2) was therefore not the relevant provision.

3. If the Agency considered that the orders were too widely drawn, the proper course was to apply to the tribunal for variation, by consent or on notice. Until such an application succeeded, the orders had to be obeyed precisely.

4. No order for disclosure of the full file was necessary. The tribunal’s role was to check the child support calculation. The earnings-based assessment was a mathematical calculation from the claimant’s payslips and the applicable percentage. During the period when he received contribution-based job-seeker’s allowance, the only material issue was the effective date of the flat-rate assessment.

5. The claimant could not use the proceedings to investigate whether the other parent had fraudulently claimed benefits or whether that claim had caused the case to reach the Agency. The circumstances of the parent with care were irrelevant to the calculation, and a payer’s interest was confined to the accuracy of the resulting maintenance assessment.

6. The permission application was dismissed. The later refusals to reopen the August 2006 decision could not properly be challenged on the basis of material which could not have affected that decision. The Agency agreed to reconsider the effective date, so judicial review relief was unnecessary on that issue.

The judgment concerned two judicial review applications arising from proceedings before the Child Support Appeal Tribunal. The substantive application challenged the Secretary of State’s failure to comply with tribunal disclosure orders. The permission application challenged later refusals to appeal or set aside the tribunal’s August 2006 decision. The Administrative Court granted a declaration on the disclosure issue and dismissed the application for permission.