Smith, R (on the application of) v Department of Work and Pensions

Neutral Citation Number: [2014] EWHC 2590 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/13860/2013 Birmingham Civil and Family Justice Hearing Centre Priory Courts 33 Bull Street Birmingham West Midlands B4 6DS Monday, 19th May 2014 B e f o r e: MR JUSTICE FOSKETT - - - - - - - - - - - - - Between: THE QUEEN ON THE APPLICATION OF SMITH v DEPARTMENT OF WORK AND PENSIONS - - - - - - - - - - - - - Tape Transcript of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Claimant Defendant The Claimant appeared in Person Mr Sharland (instructed by Department of Work and Pensions) appeared on behalf of the Defendant - - - - - - - - - - - - - J U D G M E N T MR JUSTICE FOSKETT: This is a renewed application by the claimant for permission to apply for judicial review of a decision of the defendant to refer her for a skills conditionality assessment interview and thereafter to participate in a Skills Conditionality Scheme period of training that took place over a period of about 2 weeks in November 2013. Her original claim form sought to challenge a letter to similar effect as the communications she received in October and November 2013, that letter having been received back in July 2013. However, that letter was either withdrawn or suspended and when this application came before Stewart J on the papers in December 2013, it would appear that he was unaware of the amended grounds that had been agreed that the claimant could lodge, updating her challenge in effect to reflect a challenge to the decisions and communications that led to her attending the training course in November to which I have referred. She does seek to make wider challenges than the challenges to which I have referred but I will focus on those challenges for the moment. Stewart J took the view that as the call from the defendant to the claimant to attend an interview and the course was voluntary and not mandatory, that was the end of the matter and the claim was academic. However, it appears that the attendance was only treated as voluntarily in the sense that the claimant had been sent the incorrect referral letter in July and that was in the process of being withdrawn when the course that she had been intended to go on commenced. The letters received in October/November did not, at least arguably, give any message that her attendance was voluntary. At all events, if she could show that the Skills Conditionality Scheme was ultra vires section 17A of the Jobseekers Act 1995, then she would have grounds for complaining about what either was or was perceived to be compulsory attendance on the course. Section 17A of the 1995 Act was of course the provision that was at the heart of the Reilly case that started with me at first instance, went to the Court of Appeal and then eventually to the Supreme Court. Considerable reliance is, of course, placed on what was said by the Supreme Court in particular (and also the Court of Appeal) in that case. Stewart J felt that it was unarguable that the Skills Conditionality Scheme was ultra vires section 17A. That may ultimately prove to be so, but I would not myself characterise the contrary argument as unarguable. Without descending into detail, the particulars in regulation 3(7) are fairly short, certainly by comparison with the description of other schemes that appear in the regulation and are more fully described. It is possible, but I put it absolutely no higher than that, that a court on full analysis might find that it was not sufficient to comply with section 17A. Mrs Smith's husband, Mr Smith, has raised a similar issue on another provision in a case before Hickinbottom J which is reported at [2014] EWHC 843 (Admin). Mr Smith lost on that issue, but I am told that Hickinbottom J has granted permission to appeal. Again, without going into any detail for present purposes, the details given in regulation 3(7) are rather less full than the particulars given in the provision under consideration in that case. At all events it is not, in my judgment, possible to characterise the point sought to be advanced by Mrs Smith as unarguable. Mr Sharland has said that this is all academic because Mrs Smith is no longer actively seeking Job Seekers Allowance. However, whilst I would not say that that could not be argued at any substantive hearing, and nothing I say today is intended to prevent that argument being advanced, I think it is arguable that if Mrs Smith was in effect forced to go on a course that was unlawful, she would at least be entitled to a declaration to that effect and there is, of course, always the wider interest on an issue such as this. Her second ground relates to the notice she was given on 12th November 2013, about taking part in the Skills Conditionality Scheme and she says it gave no details of what she was required to do. I express no view about that. But Stewart J said that he considered that she would have had an arguable case for so contending had it not been for, as he perceived it to have been, the withdrawal of the letter of 16 July and the rendering of her claim on that basis academic. However, because she is relying now on an identical letter sent to her in November, that point no longer obtains and no longer of itself defeats the arguability of the point. Since a High Court Judge, Stewart J, has considered the point arguable, I would not see it as appropriate to take a different view at this stage. One is, of course, only concerned with the question of arguability. It follows therefore that I would grant her permission on grounds 1 and 2, her target in both cases being the communications and decisions made in October/November 2013. Stewart J also considered that ground 3 was arguable but for the matters concerning the July 2013 letter, which as I have indicated already have now been overtaken. I think, with respect, I might have been less disposed to accept that this point was arguable other than as an adjunct to ground 1, but since he considered it arguable, again I do not think I should take a different view. Accordingly I will grant permission on ground 3. Ground 4 relates to the requirement that confidential information must be supplied on a specific website and, putting the matter very generally, to concerns that cookies are required when someone does so. For my part I found the arguments of Mr Sharland, as set out in paragraphs 23 to 31 of his amended summary grounds of resistance, persuasive and would not be inclined to grant permission on this ground. This has been the position taken so far in the case of Duplessis in which Mr Sharland has acted for the Secretary of State. However, he has very properly told me that there is a renewed application for permission to appeal to the Court of Appeal following initial refusal on the papers, that application to be heard in June 2014. If permission is granted, it may place his arguments in a different light and may make a claimant's argument potentially tenable. It seems to me therefore that the right course is for me to refuse permission to apply for judicial review on this ground, but to stay the operation of any order giving effect to that refusal until after the Court of Appeal has considered the position in Duplessis. If permission to appeal is given Mrs Smith can apply to me in writing to review my decision. SMITH BERNAL WORDWAVE I do not consider that either grounds 5 or 6 add anything to the essential points sought to be argued by Mrs Smith and they are in any event, in my judgment, unarguable for the reasons given in Mr Sharland's amended summary grounds of resistance. For the reasons I have given, and solely related, I should emphasise, to the skills confidentiality training upon which the claimant was required to go, and not on any wider basis involving the post work programmes support, I grant permission on grounds 1, 2 and 3 and refuse permission on grounds 4, 5 and 6, the refusal on ground 4 being stayed upon the terms that I have indicated. MR JUSTICE FOSKETT: That concludes the ruling. I think it would be helpful Mr Sharland if I could possibly invite you to draw up an order giving effect to that, submitting it to Mrs Smith for, I hope, her agreement that it reflects what I have said and I do not know whether you need or we need to discuss future directions. It does not seem to be a case where anything other than the normal directions are required. I will ask Mr Sharland to speak first of all. MR SHARLAND: My Lord, in relation to drafting the order, of course I will produce the draft and circulate it to Mrs Smith and then hopefully, if agreed, send it you. If not agreed you can see what is not agreed and determine any issue that is contentious. In relation to directions, normally the next stage would be for the defendant to lodge detailed grounds and the witness evidence within 35 days. My only point is that given what has been said on ground 4, the Duplessis point, if we were required to do that within 35 days, I do not know when the Court of Appeal ... although the hearing is at the end in June, that does not mean there is a decision in June. There probably will be but it is not inevitable evidence, and we only have a short time because if that decision, then that applying for judicial review then your consideration. I would suggest that the 35 day period ran either from the date of the Court of Appeal refusing or you reaching a different view on permission if it is granted. That will obviously delay matters slightly, but given this is not a case where Mrs Smith is subject to anything at present, whilst I am sure she would rather the matter not be delayed, looking at the matter in round I would suggest that is a sensible course of action. MR JUSTICE FOSKETT: I can certainly see the force, subject to anything Mrs Smith says, to at least delaying the submission of evidence until you know what the position is. Whether one delays it as long as 35 days after the decision is perhaps a matter of debate. MR SHARLAND: Yes. It is not just the evidence but also the detailed grounds of resistance. My Lord, can I very briefly take instructions in case there is anything else? (Pause) No I am very grateful nothing else. MR JUSTICE FOSKETT: Mrs Smith, I do not know whether you have been able to digest what we have been discussing. You obviously have some knowledge of how these things work. Your husband certainly does. Are you amenable to the delay that there is to await the outcome of Duplessis? SMITH BERNAL WORDWAVE THE CLAIMANT: Yes, I am amenable to that. MR JUSTICE FOSKETT: It makes sense as far as I can see. THE CLAIMANT: Yes, particularly in my case. I do have a copious amount of tape recordings which I would like to transcribe for evidence. That would take some time so... MR JUSTICE FOSKETT: Obviously that is a matter for you and I must make no comment one way or other about that. At the moment, as Mr Sharland quite rightly says, the next step is normally for the defendants to put in detailed grounds of resistance and evidence. If you do not mind him drafting the order, I imagine he will submit it to you and if you disagree with it then you must say so and I will make a decision. But Mr Sharland then perhaps you would put the 35 days from the day when the decision in Duplessis is given? MR SHARLAND: If permission is refused by the Court of Appeal, that is clear cut. If permission on the other hand is granted ... I would suggest if it is refused, 35 days from that date; if it is granted 35 days from your consideration of any rehearing. MR JUSTICE FOSKETT: Would you include that in the order. Thank you very much. THE CLAIMANT: That's fine. MR JUSTICE FOSKETT: All right. Nothing else? I am very grateful to you for your assistance. Thank you very much. SMITH BERNAL WORDWAVE