R (MM and DM) JR 2638 2012
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 20 October 2015 |
| Neutral Citation | 2015 UKUT 566 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Secretary of State for Work and Pensions (Costs) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | JR 2638 2012 |
| Appellant | R (MM and DM) |
[2016] AACR 12
(R (MM and DM) v Secretary of State for Work and Pensions (Costs)
[2015] UKUT 566 (AAC)
Mr Justice Charles CP JR/2638/2012
Judge Jacobs JR/2639/2012
Judge Lane
20 October 2015
Tribunal procedure and practice – costs – case transferred from High Court to UT – UT to apply approach taken under rule 44.2 of the Civil Procedure Rules
Judicial review – discretionary transfer – costs – principles to be adopted
Following the Upper Tribunal’s decision in R (MM and DM) v Secretary of State for Work and Pensions [2013] EWCA Civ 1565; [2016] AACR 11 both the Secretary of State and the applicants applied for their costs in pursuing the case. The issue before the Upper Tribunal (UT) was to decide the costs regime that applied in its judicial review jurisdiction when the High Court had exercised its discretion to transfer proceedings to the UT.
Held, allowing the application by the Secretary of State, that:
- the proper approach in such cases was for the UT to apply the same principles and general approach to a decision on costs as would be applied by the Administrative Court under rule 44.2 of the Civil Procedure Rules (paragraphs 18 and 50)
- (per Chamber President and Judge Lane) given the relevant factors, the applicants should pay the Secretary of State the percentage of his costs in the UT equal to the costs that the Court of Appeal had ordered him to pay to them, the award for costs made by the UT being set-off against the award of costs made by Court of Appeal (paragraphs 87)
- (per Judge Jacobs, dissenting) allowance should be made for the measure of the applicants’ success by way of a reduction in the Secretary of State’s award of costs (paragraph 93)
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The applicants are to pay to the Secretary of State the percentage of his costs in the Upper Tribunal that equals the costs that the Court of Appeal ordered him to pay to the applicants. The effect of this is that, without the need for assessment, there is a set-off of this award for costs against the award of costs made by the Court of Appeal.
REASONS FOR DECISION
TABLE OF CONTENTS
In electronic copies of this decision, CTRL-left click on any entry in this Table will jump to the relevant section.
A. What we have to decide
B. The course of the proceedings
C. The costs rules
The Upper Tribunal rules
Civil Procedure Rules (CPR)
D. The overriding objective and the duty to co-operate
The Upper Tribunal Rules
CPR
E. Costs in Tribunals
F. R (LR) v First-tier Tribunal
G. Other case law relevant to the Upper Tribunal
H. The arguments
For the Secretary of State
For the applicants
I. Our analysis in principle
J. Our application of the principle
Reasons of Charles J and Judge Lane
Judge Jacobs’ dissenting view
A. What we have to decide
- R (LR) v First-tier Tribunal (HESC) and Hertfordshire County Council (Costs) [2013] UKUT 294 (AAC); [2013] AACR 27 was a case within the Upper Tribunal’s mandatory and exclusive judicial review jurisdiction. A three-judge panel of the Upper Tribunal decided that the costs regime applicable to a jurisdiction of the First-tier Tribunal applied also in judicial review proceedings brought in respect of decisions of that tribunal. We have to decide the costs regime that applies in the Upper Tribunal’s judicial review jurisdiction when the High Court has exercised its discretion to transfer proceedings to the Upper Tribunal. We have decided that the Upper Tribunal should apply the Administrative Court’s approach.
- MM and DM (the applicants) applied for judicial review in respect of the process of assessment for entitlement to employment and support allowance, arguing that it discriminated against claimants with mental health problems by reason of the failure of the Secretary of State to obtain further medical evidence relating to them in breach of the duty to make “reasonable adjustments” pursuant to the duty to do so under section 20(3) the Equality Act 2010.
- The proceedings were commenced in the Administrative Court. Edwards-Stuart J gave permission to bring the proceedings and transferred the cases to the Upper Tribunal on the grounds that they were fact sensitive and involved issues that could have significant ramifications for the administration of employment and support allowance: [2012] EWHC 2106 (Admin). He considered that a tribunal consisting of a member or members who had experience of the workings of the state benefits system would be an advantage.
- We gave an interim decision on 22 May 2013 under reference [2013] UKUT 259 and 260 (AAC). We summarised our decision as follows:
“(1) The establishment of the duty to make reasonable adjustments pursuant to section 20(3) is based on a generic test.
(2) On that basis, the first limb of the statutory test set by section 20(3) of the Equality Act 2010 is satisfied, because the present practice of the SSWP relating to FME, has the result that in a significant number of claims by claimants with MHPs, those claimants, and thus that class of claimants, are placed at a substantial disadvantage (and so, as defined, one that is more than minor or trivial) and/or suffer an unreasonably adverse experience.
(3) At this stage, it would not be reasonable for the SSWP to investigate or implement the introduction of a change in practice to one where FME was sought in respect of every claim because, at this stage, this would not be a reasonable step to take to avoid that substantial disadvantage.
(4) We do not have sufficient evidence to enable us to determine, on a properly informed basis and with appropriate particularity, the steps that it would be reasonable for the SSWP to take to avoid that substantial disadvantage, and thus to make an order that defines the steps to be taken by the SSWP under the second limb of the test set by section 20(3) of the Equality Act 2010.
(5) We should direct the SSWP to take defined steps, within a defined period, to investigate and assess the implementation of significant changes in the practice relating to obtaining FME in respect of claimants with MHPs to provide the evidence referred to in (4).
(6) Those steps are in line with a recommendation concerning the obtaining of further documentary evidence made by Professor Harrington.”
- We set out our order on remedy with our specific reasons on 24 May 2013:
“1. It is hereby declared that persons with MHPs (as defined in paragraph 2 of our Decision promulgated on 22 May 2013 – ‘the judgment’) suffer substantial disadvantage in the present process of assessment for eligibility for Employment Support Allowance (‘the Present Practice’) in the manner and for the reasons set out in the judgment (‘the Substantial Disadvantages’).
2. The burden on the issue whether the adjustment advanced by the Applicants (the Evidence Seeking Recommendation as it is construed in paragraphs 70(i), (v) to (viii), 72, 73, 163 to 167 of the judgment ‘the ESR’)) or steps towards implementing it involve steps that it has been, is or will be reasonable for the Respondent (the SSWP) to take to avoid the Substantial...
To continue reading
Request your trial