Head, R (on the application of) v Social Security Commissioner & Anor

Permission to appeal may be granted only where the proposed appeal has a real prospect of success or another compelling reason for it to be heard. On a renewed application, the court asks whether the lower judge arguably erred in law or reached a plainly impermissible discretionary conclusion. Judicial review of a Social Security Commissioner’s decision is available only in the plainest case or exceptional circumstances. Permission to apply for judicial review is merely a filter and does not establish that the substantive decision was wrong. An argument expressly abandoned below ordinarily cannot be raised on appeal. The Court of Appeal must follow its binding authority on the construction of the pension legislation.

The appellant sought judicial review of a Social Security Commissioner’s refusal to grant permission to appeal against the disallowance of his pension appeal. The dispute concerned the calculation of his state retirement pension under the Pension Schemes Act 1993, following periods of contracted-out and contracted-in employment.

Nichol J refused judicial review. The appellant’s domestic statutory interpretation argument had been abandoned before that judge, although the judge considered the proposed argument under Article 1 of Protocol 1 and Article 14 of the European Convention on Human Rights. Sir Richard Buxton refused permission to appeal on paper. The Court of Appeal considered the renewed application.

Application refused. The renewed application for permission to appeal against Nichol J’s order was refused.

1. Under rule 52.3(6) of the Civil Procedure Rules 1998, permission could be granted only if the appeal had a real prospect of success or there was some other compelling reason for it to be heard. The court’s task was to examine whether the lower judge had arguably erred in law or had reached a plainly impermissible discretionary conclusion.
2. Judicial review of a Social Security Commissioner’s decision was subject to particularly stringent criteria. It was available only in the plainest possible case or in exceptional circumstances, as illustrated by R v. The Social Security Commissioner and the Social Appeal Tribunal ex parte Pattini (1993) 23 Fam Law 213 and Sinclair Gardens Investments (Kensington) Limited v The Lands Tribunal [3006] 3 All ER 650. Nichol J had correctly applied that approach.
3. The grant of permission to apply for judicial review was an ex parte procedural filter. It did not establish that the substantive judge had been wrong. The unsatisfactory nature of an earlier hearing and the fact that permission had been granted could not displace the full and proper hearing subsequently given by Nichol J.
4. An argument expressly abandoned before the lower judge could not ordinarily be introduced on appeal. The proposed section 46 stand-alone argument had not been put to Nichol J and, in any event, was inappropriate for determination on an appeal conducted on a judicial review basis.
5. The Court of Appeal was bound by its own decisions. Wilkinson v. Secretary of State for Work and Pensions [2009] EWCA Civ 1111 could not be distinguished merely because counsel had accepted in that case that an alternative construction was not seriously arguable. Read in context, Wilkinson had approved the reasoning in Pearce v Secretary of state for Work and Pension and Another and had considered the relevant previous and subsequent authority.
6. The construction adopted in Wilkinson was an insuperable obstacle. Section 46(1) required the statutory deduction to be made against the whole of the qualifying pre-April 1997 additional pension, up to the amount of the guaranteed minimum pension, rather than limiting the deduction to pension attributable to contracted-out employment. There was therefore no arguable basis for interfering with Nichol J’s decision.

• Court of Appeal (Civil Division): refused the renewed application for permission to appeal.
• High Court: Nichol J refused judicial review of the Social Security Commissioner’s refusal to grant permission to appeal.
• On paper: Sir Richard Buxton refused the initial application for permission to appeal on 7 October 2009.