Neutral Citation no.[2001] NIQB 29
Ref:
KERF3473

 
Judgment: approved by the Court for handing down
Delivered:
06.07.2001
(subject to editorial corrections)

 

 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
 ________ 
IN THE MATTER OF AN APPLICATION BY BRIAN SMYTH FOR JUDICIAL REVIEW
 
 ________ 
 
KERR J
Introduction
This is an application by Brian Smyth for judicial review of a decision of the Department of Social Development to apply Regulation 22A of the Income Support (General) Regulations (Northern Ireland) 1987 to the applicant pending his appeal to the Social Security Commissioner against the decision of a social security tribunal.  On 4 July 2000 the tribunal had dismissed the applicant's appeal against a decision of the Department that he was fit for work.  On 9 November 2000 the applicant obtained leave to appeal to the Social Security Commissioner. 
Under paragraph 25 of Schedule 1B to the Income Support (General) Regulations (Northern Ireland) 1987 the applicant was entitled to claim income support pending his appeal to the Commissioner.  By virtue of regulation 22A of the Regulations, however, the income support actually paid is reduced by 20%.  It is the application of this reduction to which the applicant objects.  
The Commissioner set aside the decision of the Tribunal on the basis that she could not be convinced that the Tribunal had actually heard evidence that the applicant had attended hospital three times per week for six months at a time.  This level of attendance had been used by the tribunal in reaching its conclusion on the applicant's appeal.  The Commissioner ordered that the applicant's appeal be heard and determined by a differently constituted tribunal.
The statutory framework
Section 123 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 provides:
"123.- (1)         A person in Northern Ireland is entitled to income support if -
 
(a)        he is of or over the age of 16;
 
(b)       he has no income or his income does not exceed the applicable amount;
 
(c)        he is not engaged in remunerative work and, if he is a member of a married or unmarried couple, the other member is not so engaged;
 
(d)       except in such circumstances as may be prescribed, he is not receiving relevant education;
 
(e)        he falls within a prescribed category of person; and
 
(f)        he is not entitled to a jobseeker's allowance and, if he is a member of a married or unmarried couple, the other member of the couple is not entitled to an income-based jobseeker's allowance.
 
…
 
(4)        Subject to subsection (5) below, where a person is entitled to income support, then-
 
(a)        if he has no income, the amount shall be the applicable amount; and
 
(b)       if he has income, the amount shall be the difference between his income and the applicable amount.
 
(5)        Where a person is entitled to income support for a period to which this subsection applies, the Amount payable shall for that period shall be calculated in such manner as may be prescribed.
 
(6)        Subsection (5) above applies-
 
(a)        to a period of less than a week which is the whole period for which income support is payable; and 
 
(b)       to any other period of less than a week for which it is payable."
 
It is agreed that the applicant satisfies the requirements of section 123 (1) (a) to (e).  It was submitted on his behalf that he could not fulfil the conditions requisite to entitlement to jobseeker's allowance since he was not fit for work.  That allowance is premised on the proposition that the applicant for the allowance is capable of work.
Paragraph 25 of Schedule 1B to the Income Support (General) Regulations (Northern Ireland) 1987provides: -
"A person-
 
(a)        in respect of whom it has been determined for the purposes of section 167C of the Contributions and Benefits Act (the personal capability assessment) that he is not incapable of work; and 
(b)       who has made and is pursuing an appeal against the decision which embodies a determination that he is not so incapable,
 
but only for the period prior to the determination of his appeal [shall be entitled to income support]."
 
The rate of income support payable to a person appealing a decision that he is not incapable of work is fixed by Regulation 22A of the 1987 Regulations which provides: -
"22A.- (1)        Subject to paragraph (3), where a claimant falls within paragraph 25 of Schedule 1B (persons appealing against a decision which embodies a determination that they are not incapable of work under the personal capability assessment) and none of the other paragraphs of that Schedule applies to him, his applicable amount shall be reduced by a sum equivalent to 20 per cent …"
 
In the applicant's case, this provision was invoked by the Department to reduce the amount of income support that would otherwise be payable to him pending his appeal to the Social Security Commissioner.
The case for the applicant
For the applicant, Mr Larkin argued that the application of Regulation 22A acted as a disincentive to appeal against the finding that he was not incapable of work.  Any reduction of the amount payable was "an impermissible clog" on the exercise of the appeal right and therefore a violation of Article 6 of the European Convention on Human Rights.
Mr Larkin accepted that the right enshrined by Article 6 (1) may, in appropriate cases, be subject to limitations but, relying on Ait-Mouhoub v France (1999) 30 EHRR 382 he submitted that such limitations "must pursue a legitimate aim, be proportionate and must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right was impaired".  He claimed that in the present case no legitimate aim was pursued by the reduction of the benefit payable, it was unrelated to the merits of the appeal.  On the contrary, Mr Larkin suggested, the purpose of the provision was to deter appeals.  This was clear, he claimed, from the statement made by Stewart Love, a deputy principal officer in the Department, in an affidavit filed on behalf of the respondent, to the effect that the reduction "supports the policy that a person who is adjudged capable for work should look for work".
Mr Larkin submitted that Regulation 22A should be declared invalid; alternatively, its application to the applicant should be declared to be a violation of the applicant's Article 6 rights.
The case for the respondent
Mr Maguire for the respondent contended that the European Convention on Human Rights was concerned with political or social rights.  It did not require the payment of a particular level of financial assistance or income support.  The payment of a reduced level of income support after the applicant had failed in his appeal to the tribunal was not to be viewed as a restriction on his access to "an independent and impartial tribunal".  In fact, he argued, this acted as a support mechanism for those who wished to appeal.  Appeals against the disallowance of other forms of benefit did not carry a right to payment of the benefit even at a reduced level.
Furthermore, Mr Maguire pointed out, the applicant had had the full amount of the benefit restored to him after he succeeded in his appeal to the Social security Commissioner.  There was not therefore any actual violation of Article 6.  The applicant had not been deterred from pursuing his appeal and has received full payment of income support (albeit backdated) for the period that his appeal was pending.
Finally, Mr Maguire submitted that the applicant had an efficacious alternative remedy which he ought to have pursued.  He could have appealed the decision to reduce the allowance by 20% to a tribunal under Article 13 (1) of the Social Security (Northern Ireland) Order 1998.
Article 6
Article 6 (1) of the European Convention guarantees the right to a fair trial by an independent and impartial tribunal for the determination of an individual's civil rights and obligations.  In Ait-Mouhoub v France Judge de Meyer, in a concurring opinion, suggested that the applicability of Article 6 (1) should not be interpreted narrowly.  In his view, "anyone who believes, rightly or wrongly, that he is entitled to assert a right must be able to put his case before a court, even if only to be told he is mistaken".   
In that case the applicant had appealed against his conviction on various charges.  Subsequently, he lodged two criminal complaints with civil party applications against gendarmes involved in the judicial investigation that had led to his conviction.  He was refused legal aid in respect of both, despite his means being assessed at nil, because his appeal against conviction was pending.  A judge in each case directed that he should pay 80,000FF as security for costs.  It was held by ECtHR that this amounted to a violation of Article 6 because requiring the applicant to pay such a large sum amounted in practice to depriving him of his recourse before the investigating judge. 
It was also held that Article 6 (1) might be subject to limitations permitted by implication, but the limitations must pursue a legitimate aim, be proportionate and must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right was impaired.  
In Tolstoy v United Kingdom 20 EHRR 442 ECtHR has held that there was no violation of Article 6 where the applicant was ordered to pay £124,900 as security for costs in an appeal in defamation proceedings, on the basis hat he had had a full first instance hearing and the Court of Appeal had adequately considered whether a n appeal should proceed.  The imposition of an order for security for costs in that instance was for the legitimate aim of protecting the other side's position in relation to potentially recoverable costs.
It is clear therefore that ECtHR has recognised that there may be circumstances in which a deterrent to the pursuit of claims will be appropriate.  The deterrent must not have the effect of impairing the "very essence" of the right, however.  It must moreover be for a legitimate aim and be proportionate.
In my view, the reduction of the benefit payable while an applicant for income support pursues an appeal against a finding that he is not incapable of work can hardly be said to be an encouragement to exercise the right of appeal.  Such a reduction is, however, a proportionate means of discouraging unmeritorious or frivolous appeals, in my opinion.  To deter such unworthy appeals is a legitimate aim and, as this case demonstrates, it is not such a disincentive that it destroys the essence of the right to appeal.  It appears to me that the applicant's Article 6 rights are sufficiently safeguarded by the existence of the right of appeal, the availability of income support (albeit at a reduced level) while the appeal is pending and the backdated repayment of the full amount on a successful outcome for the appeal.
Alternative remedy
The respondent submitted that the decision to reduce the applicant's benefit was a decision superseding an earlier decision within the meaning of Article 11 (1) of the Social Security (Northern Ireland) Order 1998.  It provides: -
"11.- (1)           Subject to paragraphs (3) and (4) and Article 36(3), the following, namely-
 
(a)        any decision of the Department under Article 9 or this Article, whether as originally made or as revised under Article 10; and
 
(b)       any decision under this Chapter of an appeal tribunal or a Commissioner,
 
may be superseded by a decision made by the Department, either on an application made for the purpose or on the Department's own initiative."
 
The applicant claimed that the decision had been madeunder Article 9 (1) (a) of the Order.  It provides: -
" 9.-(1)Subject to the provisions of this Chapter, it shall be for the Department-
 
(a)        to decide any claim for a relevant benefit"  
 
The question whether this is an Article 9 decision or one made under Article 11 may not be critical because of the provisions of Article 13 which provides for rights of appeal to an appeal tribunal.  The relevant provisions are Article 13 (1) and (2).  They provide: -
"13.-(1)            This Article applies to any decision of the Department under Article 9 or 11 (whether as originally made or as revised under Article 10) which-
 
(a)        is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2;
 
(b)       is made otherwise than on such a claim or award, and falls within Schedule 3; or
 
(c)        relates to statutory sick pay or statutory maternity pay.
 
(2)        In the case of a decision to which this Article applies-
 
(a)        if it relates to statutory sick pay or statutory maternity pay, the employee and employer concerned shall each have a right to appeal to an appeal tribunal; and
 
(b)       in any other case, the claimant and such other person as may be prescribed shall have a right to do so,
 
but nothing in this paragraph shall confer a right of appeal in relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision."
 
For the applicant, Mr Larkin argued that the decision under challenge in the present case viz the reduction of the applicant's benefit pending his appeal was a decision "on an award of a relevant benefit" as provided for in Article 13 (1) (a) but that it fell within Schedule 2.  In particular, he submitted that it came within paragraph 6 (a) of Schedule 2  which covered decisions as to the amount of benefit to which a person is entitled, where it appears to the Department that the amount is determined by the rate of benefit provided for by law.  The rate of benefit that was payable to the applicant pending his appeal fell to be determined by regulation 22A of the 1987 Regulations and no right of appeal to an appeal tribunal existed therefore, Mr Larkin claimed.
For the Department, Mr Maguire argued that this decision does not fall within Schedule 2.  It was not, he said, a "rate of benefit" case.  That term referred to the situation where the rate payable was determined by statute.  Where Parliament has stipulated a particular sum to be the rate of benefit payable, there was no appeal but where there has been a reduction of benefit, albeit one sanctioned by statute, there was a right of appeal under article 13.
I accept the argument of the respondent on this issue.  It appears to me that the challenge in this case is not to the rate of benefit paid but to the propriety of reducing the amount of benefit paid.  The appropriateness of the rate is not under challenge; what is at stake is the correctness of the decision to reduce the amount paid and whether the application of regulation 22A gives rise to a violation of Article 6 of the Convention.  There is a statutory right of appeal against that decision, in my opinion.
On the question whether an alternative remedy should be availed of before resort is had to judicial review the Court of Appeal in Re Ballyedmond's Application [2000] NI 174, 179 quoted with approval an article by Beloff and Mountfield in [1999] JR 143 which summarised the principles to be applied thus: -
"(a)      The existence of an alternative statutory machinery will mean that courts will look for "special circumstances" before granting an alternative remedy.
 
(b)       There are, however, a number of factors which may amount to "special circumstances" , and the court should be astute not to abdicate its supervisory role.
 
(c)        What is the most efficient and convenient method of resolving a dispute should be determined having regard not only to the interests of the applicant and the respondent before the court, but also the wider public interest.
 
(d)       Whether the allegedly alternative remedy can, in reality, be equally efficacious to solve the problem before the court, having regard both to the interests of the parties before the court, the public interest and the overall working of the legal  system.
 
(e)        In determining the most efficacious procedure, the scope of enquiry should be considered.  It may be that fact-finding is better carried out by an alternative tribunal.  However, if an individual case challenges a general policy, the relevant evidence may be more readily admissible if the challenge is brought as a judicial review …
 
(f)        Expense of the alternative remedy or delay may constitute special circumstances."
 
The application of these principles to the present case does not, in my opinion, provide a ready answer to the question whether judicial review should be refused because of the existence of an alternative remedy.  It is not easy to decide whether the wider public interest weighs in favour of a judicial review hearing.  On one view, the judicial review court is more accustomed to dealing with challenges of the type mounted in the present case; on the other hand, the appeal tribunal is constituted a public authority by virtue of section 6 of the Human Rights Act 1998 and is under the same duty as is the court not to act in a manner that would infringe the applicant's Convention rights.  The appeal tribunal clearly enjoys superior experience in the matter of benefits but the challenge in the present case is to the compatibility of a provision in the Regulations with the European Convention which is the type of issue that has frequently exercised the judicial review court in recent times.
It is unnecessary for me to reach a final view on this question and I will content myself with a tentative opinion.  It is to the effect that judicial review proceedings are more apt to deal with this type of issue than is a hearing before the appeal tribunal and that this consideration should be regarded as constituting "special circumstances" justifying the exercise of the court's supervisory role.
Conclusions
I do not consider that the applicant has established a violation of Article 6 of the European Convention on Human Rights and the application for judicial review must be dismissed.  

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
 ________ 

IN THE MATTER OF AN APPLICATION BY BRIAN SMYTH FOR JUDICIAL REVIEW
 
 ________ 

J U D G M E N T
 
O F
 
KERR J
 
 ________