Head v Social Security Commissioner
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 14 January 2010 |
| Neutral Citation | [2010] EWCA Civ 3 |
| Date | 14 January 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/1093 |
[2010] EWCA Civ 3
COURT OF APPEAL (CIVIL DIVISION)
On Appeal From their application on paper by Sir Richard Buxton (himself a recently retired judge of the Court of Appeal) dated 7 October 2009.
Before: Lord Justice Wall
Case No: C1/2009/1093
Mr Head appeared in person
Hearing date: 4th November 2009
Lord Justice Wall:
I heard this application on 4 November 2009. At that point I had unfortunately not had the opportunity fully to read the papers. What I decided to do, therefore, was to hear the applicant (who was represented by his wife) and to reserve judgment. I had intended to hand down judgment in the Michaelmas term, but was prevented from doing so by pressure of other work. I would like, accordingly to apologise to the applicant and to Mrs. Head for the fact that I have not been able to give the application my full attention until today.
I am also very grateful to Mr and Mrs. Head for supplying me promptly with their response to the written refusal of their application on paper by Sir Richard Buxton (himself a recently retired judge of the Court of Appeal) dated 7 October 2009.
Before dealing with the substance of the application, it seems to me necessary to explain to Mr. and Mrs. Head just how limited my function is in an application of this nature. I am dealing with a renewed application for permission to appeal. I can only grant permission if I consider (a) that the appeal would have a real prospect of success or (b) there is some other compelling reason why the appeal should be heard:- see rule 52.3(6) of the Civil Procedure Rules 1998 (CPR).
My function, accordingly, is to look at what the judge did and said. Did he (arguably) make any error of law? Alternatively, is his decision so plainly wrong that, arguably, he must have been in error in some way in the manner in which he exercised his discretion not to make an order? If I am satisfied that the judged acted appropriately, and reached a conclusion which was properly open to him, there is no basis upon which this court can interfere, and permission to appeal must be refused.
Secondly, as Sir Richard Buxton pointed out, this is an application for permission to appeal against a refusal by a High Court Judge to grant judicial review, to which particularly stringent criteria apply.
Thirdly, Mr. George was represented before the judge, and the essence of the argument which he seeks to advance was not put to Nichol J. I cite the first paragraph of the judge's judgment:—
The Claimant in this case seeks judicial review of the refusal of a Social Security Commissioner to grant him permission to appeal against the disallowance of his appeal by the Social Security Appeal Tribunal. The underlying issue of substance concerns the computation of the state retirement pension to which Mr Head is entitled. For part of his working life, Mr Head was a member of an Occupational Pension Scheme (OPS) that was contracted out of the State Earnings Related Pension Scheme (SERPS). For another part, Mr Head was not contracted out of SERPS. This state of affairs is sometimes called ‘contracted in’. Although that term gives the misleading impression that some positive agreement was necessary, it is a convenient label which I, too, will use. While he was contracted out of SERPS, Mr Head had to pay only a lower rate of National Insurance contributions (NICs). His NICs were higher when his employment was contracted in. Mr Head's essential complaint is that the method of computing his pension does not sufficiently allow for the period that his employment was contracted in and he was paying these higher rates of contributions. As originally formulated, the Claim Form took issue with the interpretation of the relevant legislation, which is the Pension Schemes Act 1993 s.46, as a matter of purely domestic law. At the hearing of the present application, Mr Clifford on behalf of the Claimant made clear that he was not pursuing those arguments. However, he does submit that the interpretation which has so far been adopted by the Department for Work and Pensions and the Appeal Tribunal is incompatible with his rights under Article 1 Protocol 1 of the European Convention on Human Rights. At the hearing he canvassed an alternative possibility that the 1993 Act discriminated against him contrary to Article 14 of the ECHR when read with Article 1 of Protocol 1.
It is very unusual for this court to allow an appellant to raise in this court an argument which was expressly abandoned before the judge.
Fourthly, the Court of Appeal operates on the doctrine of precedent. This means that not only is the judge at first instance bound by decisions of this court, but that this court regards itself as bound by its own decisions. For a summary of this position, see paragraph 12–54 of volume 2 of Civil Procedure (otherwise known as “The White Book”) for 2009.
What Nichol J did was, first of all, to examine what he described as the “procedural issues” to see whether, on the authorities, it was open to him to grant judicial review to quash the decision of a Social Security Commissioner. After examining the authorities, he cane to the conclusion that judicial review was open but that it was to be invoked “only in the plainest possible case” ( R v. The Social Security Commissioner and the Social Appeal Tribunal ex parte Pattini (1993) 23 Fam Law 213 or where there were “exceptional circumstances”: see Sinclair Gardens Investments (Kensington) Limited v The Lands Tribunal [3006] 3 All ER 650.
Like Sir Richard Buxton, I cannot fault the judge on this part of the application. Mr and Mrs. Head seem to raise two arguments in reply. The first is that Calvert Smith J gave leave to apply, so he must have thought the case sufficiently exceptional: the second which has echoes of the facts in Pattini is that their...
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