Green, R (on the application of) v Secretary of State for Work & Pensions

Permission to apply for judicial review may be granted on a limited ground where the claimant shows an arguable public law complaint, even though alternative remedies and delay may present substantial obstacles at the substantive hearing. A failure by a public authority to notify a person of an opposing party’s objection may be arguable where the omission could affect the challenged decision. Permission should not be treated as granted on other pleaded grounds that have not been shown to be arguable.

The claimant challenged steps taken by the Child Support Agency concerning child support arrears and school fees paid pursuant to an agreement with his former wife. The claim raised grounds concerning failure to exercise a discretion, alleged bias, the effect of the private agreement, and failure to notify him that his former wife objected to treating the school-fee payments as child maintenance.

At an oral permission hearing, the court considered whether the claimant should first use the statutory appeal mechanism and whether the claim was out of time. The central issue was whether any ground was arguable and, if so, the appropriate scope of permission and disclosure.

1. Permission. Permission to apply for judicial review was granted only in relation to the allegation that the claimant had not been informed of his former wife’s refusal to accept the school-fee payment as child maintenance. The correspondence disclosed an arguable case, since the Child Support Agency accepted that it had failed to notify him and attributed this to a breakdown in communication.
2. The grounds alleging failure to exercise a discretion, bias, and injustice arising from the agreement with the former wife were not considered arguable on the material placed before the court. The claimant would have to seek permission elsewhere if he wished to pursue those grounds.
3. The defendant had made a persuasive submission that the claimant had not exhausted the appeal mechanism provided under the Act. The court considered that this would be difficult for the claimant to overcome at the substantive hearing, but left the point open because it had not been fully answered at the permission hearing.
4. Delay was also left open. If the decision under challenge was the commencement of liability proceedings, the claim appeared to be within time. If the relevant decision was an earlier one, the claim might be out of time.
5. Disclosure was ordered in relation to documents or information supplied by the former wife concerning the school fees and previously withheld by the Child Support Agency. The court indicated that the alternative-remedy and delay points could be preserved for determination at the substantive hearing.