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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Pogson, R (on the application of) v Secretary of State for Work & Pensions [2016] EWHC 1628 (Admin) (26 April 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1628.html Cite as: [2016] EWHC 1628 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		26 April 2016

1. JUDGE GORE: The claimant applied for Employment and Support Allowance. Pursuant to statute and regulations regarding that allowance, he had to be assessed for it. He was assessed on 23 September 2015. That assessment resulted in a decision in the following terms:

i. "Your work capability assessment shows that although you may have an illness, health condition or disability, you are now capable of doing some work. We realise that this may not be the same type of work you have done before. We can help you identify types of work you can do taking into consideration any illness, health condition or disability you may have."

2. As a result, the assessment found that he did not satisfy any of the criteria for obtaining the allowance for which he had applied. The reasons for that decision occupy four pages in the decision letter resulting from that assessment.
3. Relevant regulations give a disappointed applicant in such circumstances a right to mandatory reconsideration of the decision. The right of mandatory reconsideration is precisely that: the dissatisfied applicant seeking reconsideration gives rise to an obligation on the part of the Secretary of State for Work and Pensions to consider the case afresh. At the time that the claim form was issued in this case, according to the summary grounds for resistance, the claimant had sought to exercise his right of mandatory reconsideration, firstly by a telephone call and secondly by a follow-up letter, respectively dated 23 September and 29 September 2015.
4. The Secretary of State for Work and Pensions asserts that they did not receive those requests at that time. But, be that as it may, they did become aware of the request for reconsideration, and according to paragraph 4 of the statement of grounds: "Following receipt of the documents in the present claim the process has been initiated". That was the position on 26 January 2016.
5. As emerges from documents now filed by the claimant, that reconsideration has in fact occurred. Indeed, the claimant failed in securing the result that he sought by way of reconsideration. Notification of the outcome of that reconsideration, dated 9 February 2016, is in the papers now lodged.
6. As is asserted by the Secretary of State in the summary grounds of defence, and indeed as is clearly also identified in the documentation that has followed the reconsideration process, a disappointed applicant such as Mr Pogson in those circumstances has a right of appeal under, as I understand it, the Social Security Act 1998 as amended and subordinate regulations.
7. I am not sure whether he has in fact exercised that right. It is profoundly unclear to me what decisions have in fact been referred to First-tier Tribunals pursuant to appeal rights and whether they include any appeal against either the decision of 23 September 2015 or reconsideration of it in the notification dated 9 February 2016, although I note that there remains an appeal outstanding before the First-tier Tribunal.
8. The precise history in that regard is irrelevant to the decision that I have to make. The decision challenged in the claim form is the decision dated 23 September 2015. As at the date that he issued the claim form in these proceedings, the claimant had an alternative remedy in respect of the adverse decision dated 23 September 2015. That alternative remedy was reconsideration; he invoked that remedy; and, as a matter of jurisdiction and discretion, in those circumstances I should not interfere with or permit the challenge to the decision dated 23 September 2015 because of the existence of an alternative remedy. In addition to that, the reconsideration having taken place, the application to challenge the decision dated 23 September 2015 has therefore become academic, and that affords a second ground for not granting the application for permission in this case. Thirdly, in any event even if I were to permit amendment of the grounds of challenge to deal with the reconsideration of the decision of 9 February 2016 (and no application for that has been made), for the selfsame reason I should not grant permission because again there is an alternative remedy in the form of an appeal from the decision of the officer who undertook the reconsideration to the First-tier Tribunal.
9. Lying at the root of all of this is a wide-ranging complaint that the claimant has, not only in relation to the treatment of him as an individual in relation to his claim for Employment and Support Allowance, but what he alleges to be something fundamentally unlawful about the way in which these claims are dealt with on behalf of thousands of allegedly disabled people under the system of statutes and regulations now in place. Thus it is that in his oral submissions to me he says that this is not a case about a single claimant but about a class of claimants, and indeed a class of claimants numbering so many tens of thousands that the amount in issue, he submits, runs into millions of pounds.
10. That is not the type of claim that an individual such as Mr Pogson is entitled to advance in an individual application for judicial review such as that that he now makes. What he seeks to do on an individual basis is to argue that there are public law grounds to challenge the conduct of the Secretary of State for Work and Pensions in its dealing with his claim for this allowance. He bases those complaints on broadly two grounds: firstly, illegality in the obtaining of the evidence deployed in applications of this nature; and secondly, what he asserts to be a wholesale breach of duty of care causing him damage on the part of the Secretary of State for Work and Pensions.
11. As regards the second of those grounds, a claimant who wishes to assert the existence of a relevant duty of care owed by a legal person and of which a litigant wishes to assert that there has been a relevant or material breach causing tangible and relevant loss the subject of a claim, the proper route to ventilate such a complaint is a civil action for damages, depending on the size of the claim either in the High Court of Justice, Queen's Bench Division, or in the County Court; but in either case not in the Administrative Court. Again, therefore, there is, in my judgment, an alternative vehicle or remedy by which the claimant seeks to ventilate his complaints in this regard.
12. Finally, as regards the alleged illegality of the obtaining of the evidence, evidence is either relevant or irrelevant irrespective of whether it was obtained legally or illegally. It seems to me that its relevance, and indeed any arguments as to its admission into any applications for relevant allowances, are matters that can and will be considered by a tribunal if satisfied that there is a proper evidential basis made out to justify consideration.
13. These are again, therefore, arguments that do not justify the grant of permission to seek judicial review in these proceedings but are matters that properly are left to the pursuit of the alternative remedies that exist in this case if Mr Pogson chooses to deploy them. In all of those circumstances and for those reasons, this application for permission to seek judicial review is dismissed.
14. THE CLAIMANT: Thank you, my Lord. Can I apply for permission for leave to appeal to the Court of Appeal, as I mentioned earlier?
15. JUDGE GORE: Mr Pogson, what error of law do you assert that I have made in the decision that I have just announced?
16. THE CLAIMANT: That Jones, first of all, v University of Warwick, broader consideration where one takes it is in fact a case that affects many, many claimants and therefore is litigation as a whole has not been properly considered. The second ground is that the First-tier Tribunal does not have the jurisdiction to hear the case that the claimant has brought, and that when they make that determination, having already made it the last time around, that therefore the case has been effectively shoved away to where it cannot be heard.
17. JUDGE GORE: Mr Pogson, dealing with the second of those grounds first, it is not the First-tier Tribunal, according to my judgment, that has the jurisdiction to deal with that, it is the civil court, either the High Court or the County Court in ordinarily civil proceedings. Therefore your application for permission to appeal on that ground of error of law is misconceived and is dismissed.
18. So far as the first application for permission to appeal is concerned, I have simply exercised my discretion to the effect that the existence of an alternative remedy, and the academic nature of this application now that there has been reconsideration in your case, are grounds that justify me refusing to exercise what is after all a discretion whether or not to grant permission to seek judicial review. There is, in my judgment, no error of law in my approach and therefore permission to appeal on that ground is refused.
19. You will have noticed that there are two barristers sitting behind you because there remains one case outstanding in my list. I will not, therefore, be able to deal with the relevant document that I must issue in those circumstances on form N460. I can tell you now that I will not be able to issue it today. I will have to issue it tomorrow, and it will come to you together with the form of order duly issued by this court. But in short, the application for permission to appeal is refused.
20. THE CLAIMANT: Thank you, my Lord.