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

Judicial review is ordinarily refused where the claimant has an adequate alternative statutory remedy, including reconsideration followed by an appeal to the First-tier Tribunal. Once reconsideration has taken place, a challenge to the original decision may also be academic. A claim alleging breach of a duty of care causing loss should be brought by civil proceedings for damages, not in the Administrative Court. Questions concerning the relevance or admission of evidence in a benefits claim are matters for the tribunal where a proper evidential basis exists. An individual judicial review cannot be used to advance a general claim on behalf of a large class of claimants.

The claimant applied for Employment and Support Allowance and was found, following a work capability assessment, not to satisfy the relevant criteria. He sought mandatory reconsideration of the decision and subsequently received an adverse reconsideration decision. He brought judicial review proceedings challenging the original assessment, alleging unlawful acquisition of evidence and a breach of duty of care by the Secretary of State.

The court considered whether permission should be granted despite the available reconsideration and appeal procedures, whether the claim had become academic, and whether the claimant’s complaints belonged in judicial review or ordinary civil proceedings.

1. Application dismissed. Permission to seek judicial review was refused.
2. The claimant had an alternative remedy against the decision of 23 September 2015. The statutory scheme provided mandatory reconsideration, which the claimant invoked, and a right of appeal to the First-tier Tribunal. In those circumstances, the court should not interfere with the challenged decision through judicial review.
3. The original challenge had also become academic because reconsideration had taken place and had produced a further adverse decision. Even if amendment had been sought to challenge that later decision, permission would still have been refused because an appeal to the First-tier Tribunal was available.
4. The claimant could not use an individual judicial review to advance a general claim concerning the treatment of thousands of allegedly disabled people. His individual public-law challenge had to be confined to the decision affecting him.
5. An alleged duty of care causing tangible loss should be pursued by an ordinary civil claim for damages in the High Court or County Court, rather than in the Administrative Court.
6. Arguments concerning the relevance or admission of allegedly unlawfully obtained evidence were matters for the tribunal, provided there was a proper evidential basis for consideration.
7. Permission to appeal was refused. The judge found no error of law in refusing permission on the grounds of alternative remedy and academicity.

The judgment describes an application for permission to seek judicial review of the Employment and Support Allowance assessment dated 23 September 2015. The application was dismissed, and permission to appeal to the Court of Appeal was refused.