Lord Justice Scott Baker's order and transcript of judgment

This morning Declan received the news that his application of 17 January for permission to appeal Judge Walker’s decision of 11 December to dismiss our claim for judicial review against the Department for Work and Pensions (DWP) has been refused by the Court of Appeal “as being totally without merit”. The order by Lord Justice Scott Baker, who was Conservative education secretary from 1986 to 1989, was made on 22 March; permission for the decision to be reconsidered at an oral hearing denied.

When it comes to coincidence, 22 March is an interesting date: that night two police community support officers visited us at the porch we sleep in and informed us that all rough sleepers are to be moved out of the City of London, that we are going to be “harassed” by the police over the next two weeks, and that we may be asked to move beyond city boundaries. As I wrote in the previous blog, I didn’t find anything on this police policy on the internet.

Lord Justice Scott Baker’s order reads:

ORDER made by the Rt. Hon Lord/Lady Justice SCOTT BAKER
On consideration of the appellant’s notice and accompanying documents, but without an oral hearing, in respect of an application for permission to appeal
Decision: Refused, as being totally without merit.
Reasons: The reasons are clearly explained in the judgment of Walker J.
Information for the parties: This decision is final. Where the Court of Appeal refuses permission to appeal without a hearing, it may, if it considers that application is totally without merit, make an order that the person seeking permission may not request the decision to be reconsidered at a hearing (see CPR 52.3(4A)). Such an order has been made in this case. The appellant is therefore unable to request that an oral hearing be arranged.

Under Civil Procedure Rule 54.12.3 ("Appeals to the House of Lords"), there can be no appeal to the House of Lords against a decision of the Court of Appeal refusing permission to apply for judicial review. This morning, therefore, Declan spent £85.00 on the book “Taking a Case to the European Court of Human Rights” by Philip Leach.

The content of the transcript of Judge Walker’s judgment referred to in this order from the Court of Appeal is presented below. Paragraph 32 refers to a secret document from the DWP that we have never seen, a letter from the DWP that says there is a good reason for the termination of our benefits other than the one Declan is complaining about, namely that he did not “sign on” on 27 September last when he was not due to do so until two days later, on 29 September. Judge Walker doesn't specify the reason given, we note.

Personally, I don’t see what all the fuss is about: are there not plenty of people, including some very successful and high profile authors and scientists, already campaigning to take religion out of science and public policy? What is so special about us?

On another subject, there is a new phenomenon occurring in Covent Garden (we sell The Big Issue there on weekends): I am now attracting its beggars! They come to me while I am selling the magazine and demand to know if I am alright. “Speak up,” one of them actually shouted at me. Declan runs into problems there too. Last Saturday the vendor we share our pitch with, who Declan had to threaten with a complaint the second time he ran into him on the pitch, approached Declan while he was eating his lunch in private and started shouting abuse at him after Declan told him that he wished to eat his lunch in peace.

The beggars of Covent Garden are late-comers: homeless frequenting the Whitechapel Mission and the Dellow Centre are bothering us – I should say harassing us – for ages now. For example, a few days back, at 6.05am in the women’s washroom of the Whitechapel Mission, a homeless woman threw a ball of wet toilet paper at me she had just been using to clean her sink (many homeless men and women spit and blow their noses into their sinks) after I wouldn’t get into conversation with her. And today in the Dellow Centre, while I was in the sitting room, a homeless guy just happened to spill a cup of coffee over my coat, which was hanging unobtrusively at the back of my chair. Also women, in both establishments, are now using the toilet with the door open ... I am actually looking forward to what they will come up with next.

Anyway, this is the judgement of Judge Walker, which Mr. Justice Scott Baker finds no fault with (it goes without saying that we will be finding plenty of fault with it in what will be Declan's application to the European Court of Human Rights):

   1.    MR JUSTICE WALKER: On 19th August 2006 the local Jobcentre Plus (“JCP”) in Erdington made a decision to suspend the claimant’s Job Seeker’s Allowance (“JSA”) as from 19th August 2006. The claimant issued an application for permission to apply for judicial review and lodged it with the Administrative Court on 24th August 2006. He said the decision -- which concerned the joint position of himself and his wife -- was irrational. He asked for a mandatory order that the defendants cause his claim for Job Seeker’s Allowance to be reinstated immediately and for payment of the accumulated arrears.
   2.    The matter came before Sullivan J on the papers. In an order dated 25th August 2006, he abridged the defendants’ time for filing and serving its acknowledgement of service and summary grounds from 21 to 14 days. He added, among other things: “I question whether judicial review is an appropriate remedy at this stage. Is there no internal appeal/review process whereby such a decision can be reconsidered?”
   3.    The question Sullivan J asked was answered in summary grounds on behalf of the defendants. These formed part of an acknowledgement of service lodged on 14th September 2006, the reason for the delay being that the solicitor for the Secretary of State had not in fact received the claim until it was forwarded by the Erdington JCP. The summary grounds explained that section 21 of the Social Security Act 1998 dealt with suspension of payments. It enabled regulations to be made in that regard, in particular where it appeared to the Secretary of State that an issue arose whether the conditions for entitlement to a relevant benefit are fulfilled.
   4.    The summary grounds then referred to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991). I shall refer to then as “the Regulations”. Regulation 16 dealt with suspension of payment. Prescribed circumstances in which the Secretary of State was empowered to suspend payment included those where an issue arose whether the conditions for entitlement to the relevant benefit were or are fulfilled. Indeed, in those circumstances, in particular, there was not merely a power but a duty on the Secretary of State to suspend payment of JSA.
   5.    The summary grounds went into the reasons why an issue had arisen of that kind in relation to the claimant. I need not set out the detail in that regard at the moment. The summary grounds also added that at that stage a decision had yet to be made regarding the claimant’s entitlement to JSA. If the decision went in his favour, that would result in the suspended JSA monies being paid to him. If it went against him, he would be able to appeal to an Appeal Tribunal or to request reconsideration.
   6.    What then happened was that a decision was taken and, on the face of it, it was a decision in the claimant’s favour. If lifted the suspension and the decision provided for (and as far as I am aware, this was carried out) payment to the claimant to put him in a position that he would have been if there had not been a suspension in August.
   7.    The claimant, however, responded that the defendant had behaved disingenuously. It had made an assertion to the effect that the claimant’s contentions as to what could go into a Job Seeker’s Agreement were not accepted. The result was that when the claimant was asked to come for interview, the claimant responded “I am not going to come unless you tell me in advance that my contentions are accepted”. The upshot was that when the claimant failed to attend the interview on 19th September, his payment of JSA was again suspended.
   8.    On that occasion, the eventual decision was not in his favour. It was communicated by a letter dated 27th September.
   9.    MR HEAVEY: My Lord, there is a major error there which would seriously impact any judgment. You have missed that I was actually reinstated on 25th September, terminated on 27th September for the reasons provided. But I was actually reinstated. You are correct that I was suspended on 19th September, but I was reinstated on 25th September.
   10.    MR JUSTICE WALKER: That correction will be noted in the judgment.
   11.    On 27th September a letter was written to the claimant which said that he could not be paid his JSA from 19th September 2006 because he had not attended to sign his declaration.
   12.    MR HEAVEY: Another factual error, my Lord. What the letter said is that I did not sign my declaration but I was not due to sign until two days later.
   13.    MR JUSTICE WALKER: I am just quoting from the letter, Mr Heavey. The letter says: “You did not attend to sign your declaration.”
   14.    MR HEAVEY: Yes.
   15.    MR JUSTICE WALKER: This must have been a disappointment to Mr Heavey. It told him that he would receive his final payment of JSA ending on 18th September 2006. It added that he might be entitled to other help. If he wished other help he could seek a particular leaflet.
   16.    There was then a heading: “If you want to know more about this decision or if you think it is wrong”. Under that heading the letter asked the claimant to contact the defendant so that they could give an explanation; “Such contact should be within a month of the date of the letter”. There was then a heading: “What happens after the decision is looked at again”. Under that heading the letter said if the decision could be changed then the defendant would send a new decision. If the decision could not be changed, the defendant would say why. It added this: “You will still have the right of appeal against the decision.” That right of appeal was dealt with by the next heading: “How to appeal”. Under that heading it was explained that there was a leaflet to fill in. It should be sent within a month of the date of the letter. The appeal would be heard by an Independent Appeal Tribunal. I need not go into the details.
   17.    The application for permission to apply for judicial review then came before Collins J on the papers. He refused permission. He added some observations. The first point he made was that he appreciated the claimant’s concern that the defendants were not, according to the claimant, properly acknowledging the relevant legal position as regards the Job Seeker’s Agreement. Collins J went on: “But judicial review is not the correct route. The claimant or his wife must exercise any appeal rights to deal with what is said to be a wrong decision which results in detriment to him. Judicial review is a remedy of last resort. I make no order for costs at this stage, but the claimant must realise he may be vulnerable to such an order if the persists and it is held that he has no arguable claim.”
   18.    MR HEAVEY: My Lord, there are two substantive further omissions if I may raise them with the court. Very substantive omissions. The first one, which I hope has been added to the record is that I was reinstated on 25th September. Two major omissions subsequently have been that when I was terminated on 27th I did indeed contact Erdington Job Centre Plus and they provided me with no explanation, nor did they give any indication that they were going to provide me with any explanation which would have allowed me to take matters further. Secondly, Collins J was not aware on 13th October when he made his order that I had in fact been terminated. His order refers to a reinstatement dated 13th September, despite the fact that I had notified the court that I had been subsequently suspended again on the 19th and terminated on the 27th. Collins J made no reference to termination. His order was strictly based on reading the statement and telling me that the matter of an ES 2JP, which is an irrelevant factor in this case, is really not a matter for judicial review which I entirely agree with. He had no idea that the matter had been terminated. He was not informed as such by the court manager who I had briefed. His only briefing came from the Department for Work and Pensions. I entirely agree with his ruling with regard to the form ES 2JP but he failed to deal with, and it would appear that he had no knowledge of, the fact that I was unlawfully terminated on 27th September.
   19.    MR JUSTICE WALKER: That intervention will have been noted.
   20.    MR HEAVEY: Thank you, my Lord.
   21.    MR JUSTICE WALKER: On 17th October 2006, Mr Heavey lodged a notice of renewal of his claim. He referred to his answer to the letter of 27th September. This was that it was disingenuous at that stage to assert that he had not attended to sign his declaration, for his “sign on” day was not until two days later, 29th September. He went on that that irrational termination was no more than an alternative measure to deny his wife her right to have a decision-maker decide the question about the Job Seeker’s Agreement. He repeated that the decision of 18th August to suspend the joint claim from 19th August was irrational.
   22.    At the start of today’s hearing Mr Heavey, who appeared in person before me, handed in a document comprising a statement by him dated today, 11th December 006. Paragraph 1 repeated the point in the notice of renewal that the reason given in the letter of 27th September was unfounded because the sign on day was not in fact until two days later. Paragraph 2 made an application for a mandatory order for the JSA to be reinstated immediately and arrears paid, along with a transfer to a local Job Centre in Tower Hamlets. Paragraph 3 explained that he and his wife had moved to London and had two registered pitches at Liverpool Street station to sell the Big Issue magazine. Paragraph 4 complained that the claimant and his wife found themselves in a position where their employment prospects in the Midlands were seriously compromised by the Department for Work and Pensions. Paragraph 5 said that it had been a question of taking to the street either in Birmingham or London and, given their prospects in Birmingham, they were left with no option other than to come to London. Paragraph 6 addressed Sullivan J’s question as to whether there was no internal appeal or review process. It said that given the unlawful termination of benefit on 27th September following internal review, the application for judicial review was neither premature nor disproportionate.
   23.    During Mr Heavey’s oral submissions I asked him whether Sullivan J had not been right to question whether there was an internal procedure. Mr Heavey acknowledged that the suspension of payments had indeed been reversed by an internal procedure, but added that the reversal was disingenuous as shown by the events in September. In particular, on the one hand the decision-maker had said that the earlier doubt was removed, but on the other the decision maker had added a proviso about the dispute as to how the Job Seeker’s Agreement should be dealt with. The contention that the claimant and his wife had failed to sign on was plainly wrong. That had resulted in the need to move to London and it was only by selling the Big Issue that the claimant and his wife had been able to survive.
   24.    He accepted that the letter of 27th September told him what to do if he disagreed with it and how to appeal. He had sent a number of letters to the Job Centre. They had simply acknowledged them. The letters indeed had been copied to others, including the Secretary of State himself, but that had led to nothing additional on the part of the defendant. In his initial application he was seeking what he described as a remedy of last resort. He said it required a substantive hearing to establish that. He claimed he did not know why his application was being opposed. He added that the arrears since 19th September were now over £1,000.
   25.    MR HEAVEY: My Lord, I am very aware of why it is opposed. I just would require a substantive hearing to establish how erroneous and misleading to the court the grounds of resistance are. A substantive hearing and cross-examination, I believe, will show that the grounds of resistance by the Secretary of State in this case hold no water.
   26.    MR JUSTICE WALKER: Again, Mr Heavey, your intervention will be noted.
   27.    The question that I have to decide is whether permission should now be given for this claim to proceed. I shall examine first the question in relation to the suspension in August. As to that, the suspension was reversed. Sullivan J was shown to have been absolutely right to question whether there was an internal procedure that could assist the claimant. There was and it did. The claim for judicial review was brought at a stage when the internal process was underway. It was, in my view, plainly premature.
   28.    MR HEAVEY: My Lord –
   29.    MR JUSTICE WALKER: Mr Heavey, we have reached a stage now where I have recited my understanding of your contentions and I am dealing with them. We will come on to your rights of appeal in due course. If you just make a note of points to yourself as I go through it, then you will be in a position to identify what concerns you have and whether you wish to seek an appeal. We have now reached a stage where I must set out my reasoning.
   30.    Thus, I conclude that the claim as formulated was not a claim which ought to have been brought at all. As formulated, it plainly should not receive permission to apply for judicial review.
   31.    Is the position any different as a result of subsequent events? I quite understand that the claimant wants the Department to accept a particular contention of his about the Job Seeker’s Agreement. The position is that the Department, having suspended payment on 19th September, then went on to look at the matter internally. Mr Heavey says that they decided to reinstate the claim on 25th September. That may well be. I do not need to go into that, however, because they did not pay any money in consequence of whatever happened on 25th September.
   32.    The defendant went on to formulate a letter sent on 27th September. That letter gave a reason for terminating payment. Mr Heavey says the reason was plainly wrong. It seems almost certain that Mr Heavey is correct. Indeed, there is a letter from the Department which says that in the letter of 27th September the reference to him having failed to sign on was a mistake. The Department says that there is another good reason for terminating payment. Whether he is right or wrong, however, as the letter of 27th September made perfectly clear, he had open to him a right of appeal. As Collins J pointed out, judicial review is a remedy of last resort. There is no reason whatever in the material before me to think that there was any obstacle to Mr Heavey’s complaint about the letter of 27th September being determined by a fair and impartial tribunal on appeal.
   33.    I am concerned that Mr Heavey and his wife have found themselves in a position where they have had to live on the streets and have had to move to London for that purpose. As appears from my recital of the facts, however, the Department had in correspondence drawn attention to other avenues available to those who are in hardship.
   34.    On the primary question, which is the complaint about the suspension from 19th September onwards, it seems to me that the position is absolutely clear. The Department sent a letter of 27th September which claimed to justify that suspension. Mr Heavey disputed that claim. He could and should have sought an appeal. Having failed to follow the internal procedure, it would be quite wrong for this court to give him permission to apply for judicial review. Accordingly, this application for permission to apply for judicial review as renewed orally is refused.
   35.    Mr Heavey, you asked about two other matters. The first is the question of appeal. It is open to you, if you wish, to renew your application before the Court of Appeal. You have to fill in an appeal form and I am sure court staff will help you with that if you wish to do that. The second thing you raised with me was whether you could have a transcript of my judgment, and I shall direct that a transcript should be made available to you at public expense. Thank you very much.

This afternoon Declan was told in the Civil Appeals Office that he has to write to the Deputy Master of Civil Appeals to request access to the case file. He will do so, seeking sight, and copy, of this secret document from the DWP which says that “there is another good reason for terminating payment”.