Howard, R (on the application of) v The Official Receiver

This judicial review challenged the Official Receiver's decision of 6 December 2011 to revoke a Debt Relief Order made on 26 May 2011. The claimant relied on the public sector equality duty in section 149 of the Equality Act 2010, asserting she was disabled for the purposes of section 6 and Schedule 1. The principal legal issue was whether the Official Receiver, in deciding to revoke the DRO under section 251L of the Insolvency Act 1986 and related provisions, was exercising a "judicial function" within the meaning of paragraph 3(1)(a) of Schedule 18 to the Equality Act 2010 so that section 149 did not apply.

The court held that the decision to revoke a DRO determines rights and liabilities of debtor and creditor, is governed by statutory conditions and presumptions, and is analogous in its effect to decisions made by courts; accordingly the Official Receiver was exercising a judicial function and was not subject to the section 149 public sector equality duty. The claim for judicial review was therefore dismissed.

The claimant, Amanda Howard, applied for judicial review of the Official Receiver's decision to revoke her Debt Relief Order (DRO). The DRO had been made on 26 May 2011; the Official Receiver decided to revoke it on grounds that, in light of information subsequently provided (including lump-sum tax-credit and benefit adjustments and ongoing higher-rate ESA), the claimant's "monthly surplus income" exceeded the statutory threshold in Schedule 4ZA to the Insolvency Act 1986. The claimant asserted that she is disabled (within section 6 and Schedule 1 Equality Act 2010) and that the Official Receiver failed to comply with the public sector equality duty in section 149 of the Equality Act 2010 when deciding to revoke the DRO.

Nature of the claim/application: judicial review challenging the legality of the Official Receiver’s decision to revoke a DRO on the ground of failure to comply with the public sector equality duty (Equality Act 2010 s.149).

Issues framed by the court:

• Whether the Official Receiver, when deciding to revoke a DRO, was exercising a "judicial function" within paragraph 3(1)(a) of Schedule 18 to the Equality Act 2010 so that section 149 did not apply;
• if not, whether the Official Receiver had in any event complied with the section 149 duty (this was only to be considered if the first issue were decided for the claimant).

Court’s reasoning (concise): the court analysed the DRO regime and the OR's statutory powers and duties (Insolvency Act 1986, Schedule 4ZA, Insolvency Rules). It concluded that making or revoking a DRO has direct, decisive legal consequences for creditors and debtors, and that the OR's role involves evaluating statutory conditions, applying evidential presumptions, considering objections and carrying out investigations prior to making determinative orders. Those attributes align the OR’s decision-making in respect of DROs with judicial functions (Schedule 18(3)(1)(a)). The court further reasoned that permitting the section 149 duty to apply to OR DRO-decisions would create a direct and anomalous conflict with mandatory statutory duties and with the court's own unfettered power to revoke under section 251M; identical facts could otherwise produce different outcomes depending on whether the OR or the court decided the matter. Having found the OR was exercising a judicial function, the court did not undertake a full hypothetical analysis of any failure to comply with s.149. The claim was dismissed.

The judgment notes procedural steps prior to the High Court hearing (including the OR's correspondence, pre-action exchanges, the County Court proceedings and permission decisions in the Administrative Court) and explains why it was unnecessary to decide the second issue on a hypothetical basis.

The claim is dismissed. The court held that when deciding whether to revoke a Debt Relief Order the Official Receiver was exercising a judicial function within paragraph 3(1)(a) of Schedule 18 to the Equality Act 2010; accordingly section 149 of the Equality Act 2010 did not apply to the OR's decision and the claimant's challenge failed.

Permission to apply for judicial review was initially refused on paper by HHJ Pelling QC (order dated 12 April 2012) but permission was subsequently granted on renewal by HHJ Stephen Davies QC (17 May 2012). The County Court application for quashing the OR’s decision was adjourned on multiple occasions and there were interlocutory steps in Oldham County Court; the High Court administrative judicial review was determined on 28 June 2013.