Baird, R (on the application of) v The Tribunals Service

For the statutory pension test, the question whether a clerk was required to devote substantially the whole of available working time to official duties must be assessed objectively. The assessment concerns the duties of the office, including duties arising from the particular Commissioners’ directions and working arrangements, but a clerk cannot enlarge those duties through personal practices. A policy may use a general multiplier and may exclude ordinary travel, provided it remains open to individual exceptions. An inflexible refusal to consider exceptional travel was unlawful, but the error must be material. Judicial review will not succeed where, even after correcting the error, the statutory threshold would not be met.

The claimant, a former clerk to the General Commissioners of Income Tax, sought judicial review of the Minister’s refusal of a pension under section 3(3) of the Taxes Management Act 1970. The Minister treated him as not being a full-time clerk because the hours calculated under the department’s policy fell below the required threshold. The claimant challenged the treatment of administrative work, travel, decision-making, procedural fairness, legitimate expectation and alleged inconsistency. The central issues were the proper meaning of the statutory requirement, the lawfulness of the department’s calculation policy, and whether any error was material.

1. Claim dismissed. The Minister’s approach used 1,596 available annual working hours and a 70 per cent threshold, namely 1,117.2 hours. Those assumptions were not disputed.
2. The statutory phrase requiring a clerk to devote substantially the whole of his time to official duties required an objective assessment: Smith v Abbott [1994] 1 WLR 306; [1994] 1 All ER 673. The relevant duties were the objective norm of the office, including duties imposed by the General Commissioners and differences arising from local working arrangements. “Required” meant work proposed to be done which ought to be done: Re Bruce [1905] 2 Ch 372.
3. The department was entitled to use the two-times meeting multiplier as a reasonable basis for allowing for professional and administrative work outside meetings. The evidence did not establish that the Inbucon multiplier or the claimant’s additional activities required separate allowances. The preparation of routine decisions, statistics and returns, summonses, liaison with inspectors, and expense checking were either covered by the multiplier or were not duties of the office. The claimant’s practice of collecting and dealing with post was not required by the office.
4. A general policy excluding travel could be lawful. However, it had to leave room for individual exceptions and changes in circumstances: R v Home Secretary ex parte Venables [1998] AC 407. The defendant’s inflexible refusal to consider the claimant’s travel, in circumstances involving hearings across an enlarged rural division, was unlawful. The error was immaterial because even the claimant’s more favourable figures, with contentious-case and travel time added, remained below 1,117 hours.
5. The decision involved individual consideration and no procedural unfairness. The letter concerning another clerk did not create a legitimate expectation because it contained no clear and unambiguous representation: R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213. The claimant’s challenge therefore failed for want of materiality, as required by R (on the application of Warren) v Mental Health Review Tribunal London and Northeast Region [2002] EWHC 881 (Admin Court).