Smith, R (on the application of) v Department of Work and Pensions

At the permission stage of judicial review, the court determines whether a ground is arguable, not whether it will ultimately succeed. A challenge to a statutory scheme may be arguable where the statutory particulars appear materially less detailed than those describing other schemes. A claim is not necessarily academic merely because the claimant is no longer receiving the relevant benefit, particularly where unlawful compulsion may justify declaratory relief or the issue has wider significance. Permission may be refused on a separate ground while the refusal is stayed pending clarification from an appellate court. Permission must remain confined to the decisions and scheme actually challenged.

The claimant sought permission to apply for judicial review of decisions and communications which led to her attending a Skills Conditionality Scheme assessment interview and approximately two weeks of training in November 2013. Her grounds included an alleged lack of statutory authority under section 17 A of the Jobseekers Act 1995, inadequate notice of what she was required to do, and concerns about supplying confidential information through a website requiring cookies.

Stewart J had refused permission on the papers, treating attendance as voluntary and the claim as academic. On renewal, the court considered whether grounds 1 to 6 were arguable and whether permission should be granted or refused.

1. Permission threshold. The court was concerned only with arguability. It was not appropriate at this stage to decide the ultimate validity of the Skills Conditionality Scheme or the merits of the claimant’s grounds.
2. Statutory authority. The challenge under section 17 A of the Jobseekers Act 1995 was arguable. Regulation 3(7) contained relatively short particulars compared with the fuller descriptions of other schemes. A full analysis might establish compliance, but the contrary argument could not be characterised as unarguable.
3. Academic nature of the claim. The fact that the claimant was no longer actively seeking Jobseeker’s Allowance did not necessarily make the claim academic. If she had been compelled to attend an unlawful course, declaratory relief might remain available, and the issue could have wider public importance.
4. Notice. The challenge to the November notice was arguable because it was materially identical to the earlier notice and was not defeated by the withdrawal or suspension of the July communication. Since Stewart J had regarded the point as arguable, the court did not take a different view on renewal.
5. Other grounds and order. Ground 3 was granted permission, although the judge indicated that it appeared arguable mainly as an adjunct to ground 1. Permission was refused on ground 4 concerning confidential information and cookies, and on grounds 5 and 6 as unarguable. The refusal on ground 4 was stayed pending the Court of Appeal’s consideration of the related Duplessis issue. Permission was granted only in relation to the skills confidentiality training, not the wider post-work-programmes support. Detailed grounds and evidence were to follow 35 days after the relevant decision or reconsideration concerning Duplessis.

High Court (Administrative Court): Stewart J refused permission on the papers. On renewal, Mr Justice Foskett granted permission on grounds 1, 2 and 3, refused it on grounds 4, 5 and 6, and stayed the refusal on ground 4 pending the Court of Appeal’s consideration of Duplessis.