Murdoch v Department for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 30 July 2010 |
| Neutral Citation | [2010] EWHC 1988 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Appeal No: AP 16/10 |
| Date | 30 July 2010 |
[2010] EWHC 1988 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE DISTRICT REGISTRY
On appeal from Newcastle-upon-Tyne County Court
His Honour Judge Lancaster
Before: Mr Justice Walker
Appeal No: AP 16/10
8SR00350
Paul Stagg (instructed by Ben Hoare Bell) for the appellant
Helen Bell (instructed by DWP/DH Legal Services) for the respondent
Hearing dates: Friday 23 April
Mr Justice Walker:
Introduction
In early 2002 the claimant (“Mr Murdoch”) was receiving payments from the defendant Department for Work and Pensions (“DWP”) by way of incapacity benefit and income support. DWP stopped those payments in April 2002 when it decided that he had failed to attend a medical examination without good cause. Mr Murdoch eventually satisfied DWP that letters about the medical examination had been sent to the wrong address, and that he therefore had good cause for not attending. On 24 July 2002 DWP made a decision (“the July 2002 decision”) that he was entitled to incapacity benefit from and including the date from which his entitlement had been brought to an end in April. In the ordinary course it was to be expected that this decision would be put into effect so that Mr Murdoch would receive future payments of incapacity benefit from shortly after 24 July 2002 onwards, along with a payment of arrears accrued until the date that the future payments began. It could also be expected that Mr Murdoch would receive similar payments of income support, entitlement to which in the circumstances of his case proceeded in tandem with entitlement to incapacity benefit. In the event neither of these things happened in the ordinary course. Regular payments of benefit did not start for some time, and in the meantime substantial arrears built up. Arrears of incapacity benefit amounting to £7,265.61 were eventually paid to Mr Murdoch on 11 March 2003. As to income support, there was a partial payment in the sum of £865.90 on 10 June 2004. This did not include payment in respect of housing cost arrears. Those arrears were not paid until 25 November 2004, by which time they amounted to £1,519.41.
In these proceedings Mr Murdoch says that the delay in receipt of these benefits caused him substantial loss because he had in the meantime found it necessary to resort to an unregulated lender from whom he borrowed £7,260 and to whom he was obliged to repay not only that sum but also a large amount of compound interest. He says he was able to pay £7,000 in March 2003, but was not able to make any further payments until November 2006. He adds that at that stage he was able to extinguish his liability for the remaining amount of principal and compound interest by paying a sum of £60,000.
Mr Murdoch complains that the delay in payment of benefit was the result of negligence on the part of DWP in sending letters about the medical appointment to the wrong address and in failing timeously to give effect to the July 2002 decision. He asserts that a duty of care was owed to him by DWP in this regard, and that accordingly he is entitled to sue DWP and recover his losses by way of damages for negligence. He accepts that he has received compensation from DWP in accordance with its Financial Redress for Maladministration Guide (“FRMG”). This is an extra-statutory scheme which is operated by DWP under delegated authority from HM Treasury. It enables DWP to make what are described as “special payments” to provide “fair and reasonable” redress for official error. Mr Murdoch has received special payments amounting to £799.34, but he says that this sum is nothing like enough to compensate him for the financial loss described earlier. He also concedes for the purposes of argument in the High Court that a claimant to benefit cannot sue DWP for a negligent “decision”. I consider that the concession is rightly made, at least so far as this stage of the proceedings is concerned. Relevant in this regard is Jones v Department of Employment [1989] QB 1, where the Court of Appeal held that no duty of care arose in relation to an allegedly negligent decision as to unemployment benefit. That, however, Mr Murdoch says is to be distinguished from a case such as the present where no complaint is made about the relevant decisions themselves.
When filing a defence in these proceedings DWP applied to have the claim struck out, or for summary judgment against Mr Murdoch, and for this purpose asked the court to determine that there was in law no duty of care in relation to the matters complained of. His Honour Judge Lancaster accepted DWP's arguments and in a judgment dated 19 October 2009 he concluded that the claim should be struck out. With the permission of the judge Mr Murdoch now appeals.
A preliminary question?
Mr Paul Stagg appeared on behalf of Mr Murdoch, for whom he also appeared below. He identified a preliminary question: was it right for the court to entertain a strike-out application? Relying on statements of high authority Mr Stagg submitted that in a difficult and developing area of the law, such as the question of whether a public authority owes a common law duty of care, it is unsatisfactory to decide issues of law on assumed facts.
Ms Helen Bell appeared on behalf of DWP, for whom she also appeared below. Her answer to the preliminary question was that the test to be applied to determine the existence of a duty of care was well settled.
The judge agreed with Ms Bell in this regard and accordingly rejected Mr Stagg's contention that the case was unsuitable for a strike-out application. For my part, however, I doubt whether the “preliminary” question is in truth preliminary. A similar question arose in Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598, [2007] 1 WLR 2861. The leading judgment in the Court of Appeal was given by Dyson LJ. Waller and Keene LJJ agreed with him and did not add any additional reasons. It is right to say that at a relatively early stage in his judgment Dyson LJ dealt with the question whether the case was appropriate for strike-out. At paragraph 22, having referred to the authorities now relied on by Mr Stagg, he said this:
… There are many cases where it is inappropriate to decide the question whether a public authority owes a common law duty of care without a full consideration of the facts which can only be undertaken at a trial. But there are some cases where it is possible to decide the question without a trial. Such a case is one where it is clear that, even if it is assumed in the claimant's favour that all the facts that he or she alleges are true, the claim must fail …
It follows that in order to decide whether I can accept Mr Stagg's submissions on the “preliminary” question I need to consider whether it is clear that Mr Murdoch's claim must fail, even if it is assumed that all the facts he alleges are true. In truth the “preliminary” question is bound up with the main question – if I consider that DWP are clearly right on the main question, then there is no bar to the court considering and determining a strike-out application.
Before turning to the main question I shall set out the admitted and alleged facts in more detail, describe key legislative provisions, give a summary of the judgment below, and discuss the concession described earlier, three authorities which were examined in detail by counsel, and the ability of those awarded benefit to sue in the County Court for amounts due to them.
The admitted and alleged facts
In this section I set out matters which for the most part are asserted in Mr Murdoch's particulars of claim and deal with events up to and including the July decision. Those matters which are common ground are described without qualification. The remaining matters are assertions which DWP does not accept. In such cases I use expressions such as “Mr Murdoch says”.
Prior to and during 2001 Mr Murdoch was in receipt of incapacity benefit. He was also in receipt of income support, which included an amount payable in respect of housing costs. Mr Murdoch's most recent assessment under the personal capability test had been on March 8th 2000. He was found without medical examination to satisfy the test and hence was treated as “incapable of work” for the purposes of entitlement to incapacity benefit and income support.
In late 2001, following a report from Mr Murdoch's GP, DWP decided to require Mr Murdoch to attend a medical examination with Sema (UK) Ltd (“Sema”), an organisation used by DWP for this purpose. The medical examination was scheduled for 10.15am on January 5th 2002. Mr Murdoch did not attend the examination.
On January 7th 2002 DWP wrote to Mr Murdoch asking him why he did not attend the examination on January 5th. Mr Murdoch replied, stating:
I didn't receive any appointment for this examination. Would you please forward a copy of the original appointment as proof it has been sent to me.
DWP decided to give Mr Murdoch another opportunity to attend a medical examination. On February 20th 2002 Sema sent a letter to Mr Murdoch inviting him to attend an examination on March 7th 2002. Mr Murdoch says that the letter was sent to the wrong address and did not reach him.
On March 1st 2002 a reminder letter was sent. Mr Murdoch says it was presumably sent to the same wrong address. He did not attend the examination on March 7th 2002, and says this was because he was unaware of the appointment.
On April 8th 2002 DWP made a decision (“the April 2002 decision”) that Mr Murdoch was to be treated as capable of work from 8 March 2002 onwards because he had failed to attend the examination on March 7th 2002 without good cause. As a consequence of that decision Mr Murdoch stopped...
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