LMN -v- Secretary of State for Work and Pensions

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Case numbers: AC-2023-LDS-000259
AC-2023-LDS-000260

In the High Court of Justice
King’s Bench Division
Administrative Court

01 July 2024

Before:
Her Honour Judge Jackson
sitting as a Judge of the High Court

Between:

The King
on the application of
LMN
-v-
The Secretary of State for Work and Pensions

AND

The King
on the application of
EFG
-v-
The Secretary of State for Work and Pensions


ORDER

Notification of the Judge’s decision on the interim applications and on the applications for permission to apply for judicial review (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimants and the Acknowledgements of Service and documents filed by the Defendant

ORDER by Her Honour Judge Jackson sitting as a Judge of the High Court

  1. The Claimants and their Children are granted anonymity.  The Claimant in case AC-2023-LDS-000259 will be referred to as AT and the Claimant in claim number AC-2023-LDS-000260 as CW.  No-one shall publish or reveal any information, including the name or address of AT or CW, likely to lead members of the public to identify AT and/or CW.  Failure to comply with this order could amount to a contempt of court.
  2. Of the Court’s own motion no documentation from this case shall be provided to a non-party unless it has been anonymised.
  3. The Claimants have permission to rely on the Replies to the Acknowledgment of Service and AT has permission to rely on her second witness statement.
  4. The application for permission to apply for judicial review is refused.
  5. The costs of preparing the Acknowledgement of Service are to be paid by the Claimants to the Defendant, summarily assessed in the sum of £8799.20.
  6. The Claimants have the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the Claimants shall pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Claimants to the amount of costs claimed shall be dealt with on that occasion.

Reasons

  1. The cases raise the same broad underlying issues.  It is therefore sensible that they are case managed together.
  2. The Claimants are the victims or alleged victims of sexual offences/domestic abuse.  AT and CW, and their children, are therefore entitled to anonymity as a matter of law.  Paragraph 1 ensures that such will be effective in this case.  In all documents filed in the case the parties must refer to the Claimants by the specified initials and must not provide any details which could lead to the circumvention of the anonymity order (e.g. details of their residence, personal information, occupation or health details).
  3. Whilst a non-party to the proceedings in the main needs to have permission to access documents on the court file this is not the case with the claim form (CPR 5.4C).  The Claimants’ names are on their claim forms as is other identifying information.  If such was provided to a non-party this would circumvent the right to anonymity and potentially place the Claimants and/or their children in danger.  Paragraph 2 seeks to prevent such a circumvention. 
  4. The second witness statement of AT and the replies to the Acknowledgments of Service can only be relied upon with the permission of the Court.  The Defendant does not object to the Cout granting permission to AT to rely on her second witness statement as it updates the Court but does oppose the Claimants being entitled to rely on the Replies to the Acknowledgements of Service.  The documents are considered relevant by the Claimants who wish the Court to take the documents into account so as to fully understand their case.  The documents have already been filed and reading and considering their contents has not delayed this decision. It is therefore right that the documents are considered in this paper application.  The documents have been so considered. 
  5. A judge will refuse permission to apply for judicial review unless satisfied that there is an arguable ground for judicial review which has a realistic prospect of success (Administrative Court Guide 2023, paragraph 9.1.3). The claim seeks to challenge decisions by the Defendant as to the Claimants’ eligibility to claim the child component of Universal Credit for more than two children. 
  6. The Claimants assert that the current ordering requirement breaches their convention rights and is unlawful because it is contrary to section 3 of the Human Rights Act 1998.  The prospects of a successful human rights challenge have been resolved by the Supreme Court’s decision in R (SC, CB and 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26.
  7. Further the Claimants in their various challenges rely on comparator groups, being those who have more than three children in their care due, in part, to adoption or non-parental caring arrangements.  The Claimants assert that the different treatment as applied to persons in their position is irrational when compared to the comparator groups. 
  8. The comparators used by the Claimants are not natural comparators to the position of the Claimants and the comparison relied upon by the Claimants is not therefore appropriate.  In both of the comparator examples non-biological parents of children are raising children to prevent the state from doing so.  In the Claimants’ cases a biological parent of children are raising their children in circumstances where it is not necessary for the state to intervene in this.  This is an important difference between the comparator groups and a rational reason for considering their positions differently.  The difference is clear from paragraph 216 of the first instance decision in SC. 
  9. In treating the Claimants differently to the suggested comparator groups the Defendant did not act irrationality.  The natural comparator group, when determining whether to conceive a raise a new child/ren, conceived consensually, are parents in differing positions regarding the consensual conception of their existing children but who are as regards the additional child/ren making the same decision (i.e. whether to conceive and raise more children by consent). 
  10. The Claimants are therefore in the same position as parents of two consensually conceived children when choosing to have more than two children for the purposes of the regulations: In deciding whether to conceive and raise any further children, by consent, they must consider whether they can afford to do so without relying on income-related benefits.  Such is a legitimate aim for legislation, approved by Parliament when approving the relevant primary legislation, and the measure is rationally connected to that aim whilst seeking to strike a balance between the right of the individual and the interests of the community. 
  11. It is clear from the evidence that in the cases before the Court the balance has been to the detriment of the individual Claimants.  This does not however provide a ground for a successful judicial review.
  12. As to the difference in treatment between the Claimants and parents of a non-consensually conceived third or subsequent child the difference is clear and obvious.  The difference in outcome of the legislation for these two groups is plainly rational given the aim of the primary legislation and directly connected to the purpose of the legislation. 
  13. Whilst the Court naturally has sympathy for both the Claimants in this case the difference in treatment is for these reasons not a breach of Article 14 and is not based on discrimination. 
  14. Further so far as relates to AT the claim is hopelessly out of time.  AT was affected by the ordering requirement on 8 January 2021.  The decision (was save for a matter touched on below) a decision as to entitlement to benefit.  Whilst the consequences of such a decision continues, subject to any reviews or appeals, during the lifetime of the child it is not an ongoing process or a continuing state of affairs.  AT’s right to apply for judicial review therefore arose on 8 January 2021.  Despite this the claim was not issued until 14 November 2023.  Whilst AT gives reasons for this in her claim and her applications none of those reason are sufficient for the court to extend time for in excess of two and a half years given that AT has had legal support and advice during this time. 
  15. If there is truly a public interest in this matter and significant numbers of people are affected by it, then a claimant with an in-time claim should be easily identifiable.  In such circumstances, it is wholly inappropriate to extend time to allow AT to continue with her claim. 
  16. The additional circumstance of AT’s case, being that a biological child was leaving care to return to her after the birth of her third child, is not therefore a ground on which this claim can be permitted to proceed, if such is in any event arguable. 
  17. This is particularly so given the claim is further now academic for AT following the acceptance by the Defendant that her third child was also conceived non-consensually. The second witness statement of AT does not show a reason why the Claimant should be permitted to continue with her academic claim given the reasons are not linked to the issue raised by the claim.  In AT’s claim she seeks for the Court to consider whether the ordering requirement is lawful in specific circumstances.  Those circumstances no longer apply to AT.  Further her claim does not raise the issue as to whether claims should be backdated. AT is no longer in the position to which the Court is asked to address its mind and therefore AT is not a relevant party to the claim. 
  18. The Claims therefore do not meet the threshold for the grant of permission.  Permission is therefore refused.  As a result it is not necessary for the Court to consider at this time if CW’s claim was brought promptly. 
  19. As to the costs order, the usual order is that a losing party pays the successful party’s costs (CPR Part 44.2). On the facts before the Court there is no reason to disapply the usual rule. Summary assessment is the usual basis of assessment in this Court and hence it has been used. The costs as submitted to the Court appear reasonable and proportionate and the work the costs reflect was necessary to deal with the Claim as submitted. The Order provides the usual cost protection for a person with the benefit of legal aid, including the right to challenge the quantum of costs at an appropriate juncture.