Connor, R (On the Application Of) v The Secretary of State for Work And Pensions

A statutory condition requiring a benefits claimant to seek revision by the Secretary of State before appealing to the First-tier Tribunal is a condition precedent to, and an impediment of, access to court. It is not necessarily an abrogation of that right. The condition must satisfy proportionality under ECHR article 6.

For Employment and Support Allowance claimants who would qualify for payment pending appeal, the condition is disproportionate where the claimant receives no equivalent payment during the revision period and no adequate explanation is given for that difference. The resulting delay and financial burden outweigh the administrative advantages of mandatory reconsideration.

The claimant challenged the lawfulness of regulation 3ZA of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Following a decision that he no longer had limited capability for work, he requested revision. The request was not dealt with for about four months because of an administrative error.

He argued that regulation 3ZA unlawfully restricted access to the First-tier Tribunal under section 12 of the Social Security Act 1998, particularly because Employment and Support Allowance stopped during the revision period, although payment could resume once an appeal was brought under regulation 30(3) of the Employment and Support Allowance Regulations 2008. The central issue was whether that restriction was a proportionate interference with ECHR article 6.

1. Nature of the measure. Regulation 3ZA was within the enabling power in section 12(3A) and (3B) of the Social Security Act 1998. It imposed a condition precedent to the statutory right of appeal. It did not abolish access to the First-tier Tribunal, because the Secretary of State had to consider the revision application and the claimant could then appeal. It was nevertheless an impediment to access to court.
2. Proportionality. The right of access to court under ECHR article 6 includes protection against temporary hindrance, as illustrated by Golder v United Kingdom (1979) 1 EHRR 524. Regulation 3ZA pursued legitimate objectives: improving administrative decision-making and reducing unnecessary tribunal work. The relevant questions were whether the objectives could be achieved by a less intrusive measure and whether a fair balance had been struck, applying the approach in Bank Mellat v HM Treasury (No.2) [2014] AC 700.
3. ESA claimants. For claimants who would satisfy regulation 30(2) of the ESA Regulations and receive ESA pending an appeal under regulation 30(3), regulation 3ZA was disproportionate. The claimant had to wait before appealing, while receiving no equivalent ESA payment during the revision period. The absence of any explanation for treating the revision period differently from the appeal period was significant. Alternative benefits did not adequately cure the burden imposed.
4. The application therefore succeeded to the extent that regulation 3ZA was unlawful insofar as applied to ESA claimants who would qualify for payment pending appeal under regulation 30(3), subject to regulation 30(2). The appropriate remedy was a declaration.

This was a first-instance judicial review claim in the Administrative Court. The judgment records that the claim was filed on 10 June 2019 and was determined by declaration; no prior appellate decision is stated.