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

The power to suspend benefit pending an appeal may be exercised where the statutory conditions are met, including where an appeal against a First-tier Tribunal decision is pending. The existence of asserted fundamental rights under EU law does not create an automatic bar to suspension while those rights remain unsettled. The Secretary of State’s decision is reviewable on ordinary public-law grounds, including irrationality, but the court must respect the decision-maker’s evaluative responsibility. Retrospective payment, if the underlying entitlement is upheld, and the relative difficulty of recoupment are relevant to interim relief and the balance of convenience.

The claimant, a Gambian national with a UK child, challenged the Secretary of State’s decision of 15 December 2011 to suspend her Income Support. A First-tier Tribunal had found that treating her as subject to immigration control was contrary to rights said to arise under the decision in Zambrano, and an appeal was pending. The claimant sought judicial review and interim relief, contending that suspension threatened her and her child’s EU-law citizenship rights. The central issues were whether the suspension decision was unlawful and whether interim payment should be ordered pending determination of the appeal.

1. Judicial review claim dismissed. Regulation 16 of the Social Security and Child Support Decision and Appeals Regulations 1999 gave the Secretary of State express power to suspend payment where an appeal against a First-tier Tribunal decision was pending. That condition was satisfied.
2. The court could not determine the likely outcome of the pending appeal concerning Zambrano. The claimant’s EU-law rights had not been finally established. Accordingly, the asserted fundamental rights did not mean that suspension could never be justified.
3. The decision whether to suspend payment belonged to the Secretary of State. It could be challenged only on recognised public-law grounds, such as irrationality. Given that the claimant and her child had been living sustainably, although not lavishly, the challenge was not sufficiently arguable.
4. Interim relief would in any event have been refused. If the First-tier Tribunal decision were upheld, Income Support could be paid retrospectively. If benefit were paid and the Secretary of State succeeded on appeal, recoupment would generally be unavailable without misrepresentation or similar conduct. The balance of convenience therefore favoured the Secretary of State, even taking full account of the citizenship rights presently established.
5. The applications were dismissed. The court indicated that the Secretary of State would reconsider the position in light of the apparent cessation of Child Tax Credit, without predetermining the outcome.

The judgment itself was a first-instance judicial review decision. It records that the First-tier Tribunal had ruled in the claimant’s favour on entitlement to Income Support and that an appeal against that decision was pending. No citation for the tribunal decision is stated in the judgment.