Awodiya & Anor v HM Revenue and Customs

Judicial review is generally inappropriate where a claimant has an adequate statutory reconsideration and appeal route that remains available. A claimant cannot require provisional benefit payments merely by asserting entitlement while refusing to provide information reasonably requested to verify the statutory conditions. It is rational for a public authority responsible for public funds to withhold discretionary provisional payments pending satisfactory evidence of continuing entitlement. The court may also address abusive or improper interventions in litigation, including referring relevant papers to the Attorney General.

The claimants sought permission to challenge HMRC’s refusal to continue provisional Child Tax Credit payments. HMRC had requested information, including evidence concerning whether the claimants’ children continued to live with them, but the claimants refused to provide satisfactory supporting material.

Permission had previously been refused on paper by Farbey J in the claimants’ absence. Turner J reopened the permission question because the court had sent the hearing order to the wrong email address and the claimants had insufficient notice to prepare.

The central issues were whether HMRC’s refusal to make provisional payments was rational and whether judicial review should be permitted while mandatory reconsideration and a statutory appeal remained available.

1. Rationality of withholding provisional payments. The relevant statutory scheme required responsibility for qualifying children, including the applicable residence requirement. HMRC was entitled to seek information reasonably capable of confirming continuing entitlement. Given that the claimants had provided no satisfactory information or documentary evidence showing that the children continued to live with them, it was rational for HMRC to refuse discretionary provisional payments while that refusal continued.
2. The public authority had a duty to protect public funds by avoiding payments where entitlement had not been established. The scheme could not operate on the basis that claimants were entitled to payment merely by asserting entitlement while refusing reasonable requests for substantiating information.
3. Alternative remedy. The claimants had been informed of the substantive decision, the mandatory reconsideration procedure and the right of appeal to the Social Security and Child Support Tribunal. At the hearing, at least six days remained to request reconsideration. The availability of that statutory route meant that the claimants had not exhausted their alternative remedies and should not use judicial review to circumvent the statutory procedures.
4. The application for permission was therefore refused. The court also criticised the deployment of the proceedings to advance collateral allegations and political claims, regarded the associated intervention as an abuse of the court process, and referred the papers to the Attorney General.

Farbey J refused permission on paper on 11 December 2018, subsequently listing an oral hearing. Turner J set aside the practical consequence of the earlier refusal and heard the permission application afresh because the claimants had been given inadequate notice. Permission was then refused.