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R (Pigott) v Secretary of State for Work and Pensions [2006] EWHC 1484 (Admin)

The claimant’s application for permission to apply for judicial review is refused.

Queens Bench Division: Sullivan J (23 January 2006)

The claimant's application for permission to apply for judicial review is refused.

A CSA assessment was made against the Claimant in 1994. The Claimant's earnings were subsequently attached. In 1999 the amount was increased and the Claimant wrote to the Defendant explaining he should not be liable. He complained that he should not have been assessed as liable at all and he questioned whether he was a Non-Resident Parent. After much inexcusable delay the Defendant reconsidered the matter and in 2004 refused to revise the assessment. The Defendant advised that there was a right of appeal which the Claimant subsequently filed in 2005. The Defendant wrote to the Claimant referring to the lodging of the appeal and advised that it would be out of time. Judicial Review proceedings were prompted by the arrival of bailiffs at the Claimant's house in October 2005 with a warrant to levy distress which flowed from a liability order obtained from the Magistrates in 2004. The Claim form was unclear as to which decision was challenged although even if the latest in time was taken the challenge was well out of time.

The Claimant submitted that when the Magistrates made the liability order they were not allowed to investigate the underlying basis of the order so at that stage there was no basis to challenge the decision. However the Court of Appeal's decision in Farley v Secretary of State for Work and Pensions [2005] EWCA Civ 778 had changed the law in so far as the Magistrates now have jurisdiction to examine the underlying basis of a liability order. (NB since this judgment the House of Lords has affirmed that the Magistrates do not jurisdiction to examine the basis upon which a liability order is made. See Farley v Child Support Agency [2006] UKHL 31)

Held, refusing permission to apply for judicial review, that the claim was so hopelessly out of time it should not be allowed to proceed.

Sullivan J considered that the Magistrates had not been made respondents to the proceedings and nor had there been any application to the Magistrates to stay the case in light of Farley. He considered the underlying challenge was to the fundamental decision as to whether or nor the Claimant was a NRP and therefore whether he should have been assessed as liable at all. This decision was made in 1994.

Judicial review is an appeal process on the merits. The Claimant has to be able to identify a decision, which he says is unlawful, and explain the reasons why that decision is unlawful. Further the Claimant must persuade the court that the decision is being challenged promptly. The basic preconditions were not met and therefore permission to apply was refused. The Claimant was ordered to pay the Defendant's costs of filing the acknowledgement of service.

Digest prepared by Lynsey Cade-Davies

Read the full text of the judgment here