Smeaton, R (On the Application Of) v Secretary of State for the Department of Transport

MR JUSTICE GOSS: The claimant was (at the time of his application for judicial review) a resident of the London Borough of Harrow, to whom I shall refer as "the Council," and who are the interested party in these proceedings. He no longer lives there.

By these proceedings, which were commenced on 8 May 2013, he seeks to challenge the Secretary of State for the Department of Transport in relation to the blue badge parking scheme, by which a national arrangement of parking concessions is provided for people who have a permanent and substantial disability, thereby allowing them to park close to their destination in designated areas when travelling independently, either as a driver or passenger.

Permission to bring this claim was granted by Mr Nicholas Padfield QC, sitting as a Deputy High Court Judge, on 25 January 2014. It is to be observed at the outset that the claimant has named Access Independent Limited, to whom I shall refer as "AIL", as the second defendant.

AIL is a private company and has played no part in these proceedings. It is an independent mobility assessor, employed by the Council for the purpose of certifying whether an applicant for a blue badge has a qualifying permanent and substantial disability.

The claimant has also named the Council as an interested party, but proceedings have not been served on them. Accordingly, the only party concerned and participating in these proceedings is the Secretary of State for the Department of Transport, the first defendant. The claimant seeks mandatory orders requiring the first defendant to amend the regulations relating to the issue of blue badges, and to issue him with a blue badge.

The relevant background to the claim is that the claimant had, at the relevant time, a diagnosis of left knee osteoarthritis. In fact, since the commencement of these proceedings, he has undergone he told me. During the course of this hearing, a knee replacement operation. The replaced knee is still causing him difficulty and he is receiving physiotherapy for the difficulty with his left knee.

In 2009, he was issued by the Council with a blue badge which was valid until 2012. Early in 2012, he applied for its renewal. By that time, the regulations in relation to the issuing of blue badges had been changed. Following assessment by AIL, his application was refused. His appeal against that decision was rejected on 8 August 2012.

It is that decision made by a mobility assessor on behalf the Council, who were applying the statutory criteria, that underlies this claim. Two matters need to be highlighted in relation to this:

First, the claim was not made promptly, being commenced some 9 months after the decision and well outside the 3 month time limit for judicial review proceedings.

Second, there is no identifiable public law error by the decision maker, AIL, who, as I have already commented, are a private company, and who simply applied the statutory criteria they were obliged to apply on the instructions of the Council.

So it is that the secondary basis of this claim, and the underlying premise of this claim, is that the outsourcing of mobility assessments for blue badges by councils in general and by the London Borough of Harrow in this case, has resulted in a discriminatory and unfair scheme in general, and led to an unfair and cruel result in the claimant's case. This is the only public body decision relevant to this case. In other words, whether the regulations are lawful or not.

The qualifying categories for the issue of a blue badge are set out in regulation 4.1 of the Disabled Person (Badges for Motor Vehicles) (England) Regulations 2000 (SI 2000/682) as amended, made pursuant to section 21 sub-section 7 of the Chronically Sick and Disabled Persons Act 1970. That Act prescribed that blue badges are to be issued by Local Authorities.

Under regulation 4.1(a), the prescribed descriptions of a disabled person, to whom a disabled person's badge may be issued includes:

The claimant sought to bring himself within regulation 4.2(f) on the grounds of the osteoarthritis in his left knee. That qualifying description relates to a person who:

The report of the AIL mobility assessor reveals that the claimant failed to qualify for identified reasons. The medical evidence the claimant provided did not address the qualifying criteria.

There is no substance in the claimant's complaint that his own medical evidence was ignored. Nor is there any substance in his assertion that the question of pain was not considered. It was clearly identified and taken into account in the assessment process, as is apparent from the file contained within the papers in this case.

This is not, therefore, a case in which the claimant's medical experts were being overruled or de-rated, as alleged by the claimant. Nor has there been any abuse of discretion.

The assessor was required by regulation 2.1 to be independent, hold a professional qualification, be trained in the assessment of a person's ability to walk, and have the necessary expertise to assess the ability of the person to walk. These criteria were met. I reiterate all that took place was the Council using a private body as an independent assessor, in accordance with the statutory regime, applying the law.

I turn, therefore, to the lawfulness of the regulations that were applied in this case. The claimant contends that the regulations constituted or breached a number of legal principles. Namely:

There can be no question of the Regulations in their form as opposed to their proper application constituting cruel, inhuman or degrading treatment in any legal or other sense. They simply provide conditions that are to be met to entitle a person to a parking concession. To have a system of assessment to determine such entitlement is normal and to be expected. Similarly, the use of independent, trained and qualified assessors is not susceptible to any rational criticism or capable of being considered in any way unlawful.

Moreover, there can be no question of discrimination. The scheme's very purpose is to advance equality by assisting the disabled. There is a system of independent assessment and a right of appeal. As stated earlier, there is no question of the overruling of medical opinion and no evidence of any negligence. Furthermore, the regulations contain no inherent complication to the disadvantage of dyslexia sufferers.

Finally, I refer to the basis upon which Mr Nicholas Padfield QC granted leave to the claimant. He identified three points:

Firstly, the denial of a blue badge was on the ground that the claimant suffered from a mental health disability.

Secondly, the NHS appeared to be discriminating against those who suffered from a mental disability in favour of those suffering from a physical disability.

Thirdly, the decision to grant a blue badge was now reserved to the Secretary of State, whereas it was previously decided by medical practitioners.

None of these grounds was advanced by the claimant in his claim form, although in oral submissions he has advanced complaint about the decision being handed to independent assessors pursuant to the Secretary of State's regulations, rather than being determined by medical practitioners.

The learned Deputy High Court Judge did not have the benefit of representations from the first defendant when he identified these three points. In fact, the decision in this case was made entirely on physical grounds. No issue of mental health arose or arises in relation to the regulations.

In any event, the claimant's condition is dyslexia, not any mental health difficulty. The National Health Service has no role in the assessment for blue badges and Local Authorities make the decision to a blue badge. There is, therefore, no merit in relation to any of these grounds.

Accordingly, this claim is out of time but in any event has no merit in relation to any of the grounds raised in any claim against the first defendant or the second defendant, for the reasons I have given.

The claimant has, in fact, since he has undergone his knee replacement surgery made a subsequent application for a blue badge to the London Borough in which he now lives, and tells me that has been refused as well.

It is open to him, subject to the obtaining of permission, to launch further judicial proceedings if he so wishes in relation to this. However, it does not need me to point out to him the difficulty that he may face in the light of this claim having been advanced and refused on, as I understand it, substantially the same grounds that he would have to advance in relation to any subsequent claim. He is not entitled to any of the relief claimed in this case and this application for judicial review is refused.

THE CLAIMANT: Permission to appeal the decision, my Lord?

MR JUSTICE GOSS: Permission to appeal this decision. Would you like to advance the grounds as to why you should be given permission to appeal.

THE CLAIMANT: I was unable to obtain, in time, doctors, which, when I wanted to -- we had this listed -- I wanted to bring in some witnesses to support the arguments, professionals, which is why the case was listed for a day. Unfortunately, due to circumstances beyond my control I was not able to do that as yet.

Secondly, I think the human rights laws overwrite the UK statutory regulations which negate the basis of your judgment. In this regard, we have to have constitutional argument about the validity of the statute that you are applying to this, which I think needs to be addressed because Article 8 is a right to a family and normal life.

Someone with disabilities in this is clearly impaired and wants the application of Article 8 to your decision and also Article 14, which might say there is a discrimination, which you have said there is no discrimination.

You mentioned in your judgment the UN regulation which is 9546, I understand, which -- it was not to be expanded upon, all those issues needed to be expanded upon to support the validity of your judgment.

There was another point I wanted to make. Well, I can't think of the other point -- I did have the other point.

MR JUSTICE GOSS: Do not worry. You can have a moment to think. I will just hear what Miss Wilkinson wants to say. Have you thought of it?

THE CLAIMANT: It will come back, go ahead.

MR JUSTICE GOSS: All right.

MISS WILKINSON: My Lord, in wishing to seek permission to appeal, Mr Smeaton needs to identify an error of law in your judgment. In fact, he did not deal with any of the issues now raised and they were not advanced in the first place, so those cannot be ground of the appeal.

THE CLAIMANT: They are in the skeleton arguments.

MR JUSTICE GOSS: I know.

THE CLAIMANT: Your Lordship read the skeleton arguments, and I am a layman. The other side of the -- if I had the dyslexic documents which I mentioned to you before -- the level playing field. That is the point I was trying make.

In the dyslexia documents, it says that the a measured side-effect of dyslexia is confusion in stressful situations. That was diagnosed by the Royal Academy Working Team on Dyslexia, who did this. The implication is that I have become somewhat confused, as has just occurred, because the anxiety increases to a degree where I start becoming confused and I cannot present the case that properly.

That is the point of the dyslexia issue, and it is diagnosed, that inhibits me presenting a case properly. That has not been considered in your judgment, and therefore the mental health issues -- if that is a disability, it is still the effect of the disability.

The two cases I have cited in this, Wilson -- I cannot remember their names -- this is another problem: dyslexia is a memory problem as well. The three cases I cite in here, supporting this, you have not addressed the issues of those cases at all and they were advanced in the skeleton and you read the skeleton.

So, the legal precedents that have been established, you have not addressed and this is part of the constitutionality of this whole thing. I understand that, you know, going further on the constitutional issue, article 39 and 40 of Magna Carta upon which our whole legal basis and social basis is created is to protect the citizen, not organisations.

Constitutionally, I think your judgment is questionable for the reasons I have stated, and because of the disability the level playing field has not occurred, because I am unrepresented as I said initially.

I do not know the rules of evidence you have just quoted and therefore, because of my being a layman as I stated, I did not know what or how to present the case properly and I should have the entitlement to do that before your judgment can be made, can be valid.

It is also correct to say that I think it is a contravention of 6.1 of the Human Rights Act, access to the courts, because it has to be a level playing field, and it is not a level playing field. Your judgment is based upon a non-level playing field, which is what case law, in here, supports if it had been addressed.

I should have brought those out, but it is a tremendous anxiety for me to try and do this by myself without professional assistance. Getting professional assistance is virtually impossible these days because Legal Aid, you cannot get it at all, and so I am dumped into the situation where I am being prejudiced because I cannot advance the arguments properly.

MISS WILKINSON: My Lord, there are three short points. Firstly, an appeal application is not a rehearing of the original case. You are not required to address every argument in Mr Smeaton's skeleton if overarching principles dispose of those matters.

One last point. Of course Mr Smeaton is to renew his application if permission will be accorded by his extended CRO of an application in this court for which he would require permission, to seek permission to appeal. I simply remind him of that fact.

THE CLAIMANT: On the CRO point, my Lord, evidence -- has not been justified by the courts yet -- proves that abuse of due process of law, and not based on the facts. I can give you the arguments about that to show they are invalid.

At the moment there is an appeal against the CROs in civil appeals and which is proceeding, and until that judgment has occurred, I understand I still have to have permission. I have not sought that permission as yet.

But, I really think that, you know, and in this case U v Wilson (unchecked) by Wilkie J found that -- because somebody with a disability was having mental issues, dyslexia is a mental issue but it is a mental defect. It is not like a cold, it is a permanent mental defect.

What happens is that it is caused by a malformation of the two lobes. The two lobes of the brain compete, and the information coming in is -- it takes a long time for my eyes and brain to recognise the information it is looking at, to understand it.

Then the process of assessing the information gets confused and the information going out becomes twisted, and therefore it is classed under the Human Rights Act as a disability.

In criminal courts, the Legal Aid applications in the criminal courts specifically state (and it mentioned dyslexia) that Legal Aid must be granted because it is a disability, because the subject cannot present the case properly which is exactly what has happened here.

Therefore, in the Ud[?] case -- I do not have the name of the case, I cannot understand the documents in this situation very well. Wilkie J said that because of that condition, the normal procedures in a court case must be waived to create the level playing field, and that has not happened here, unfortunately. That is why I took the time to try and state and mention it here, that the dyslexia diagnosis was not before you at the time, so you could understand the effects.

Again, the same thing applies in this diagnosis being able to present the case properly of which the occupational therapist did not bother to try and understand, was aware of it. So, it is constitutional issues that I think need to be fully addressed and that is why I should have permission to appeal.

MR JUSTICE GOSS: Thank you very much.

This application for permission to appeal my decision is refused. The grounds that are being advanced by the claimant are either new grounds that have not been previously advanced or do not identify a specific error of law in relation to the decision that I have reached. Accordingly the application for permission is refused.

Costs.

MISS WILKINSON: Yes, I am afraid so, my Lord. It is in your discretion. It is always difficult in a case like this, but I am instructed to apply for costs in the sum of £5,274.02 pursuant to the cost schedule that was served on the Court Office on Mr Smeaton, on Monday.

MR JUSTICE GOSS: Yes.

MISS WILKINSON: In this case there is no compliance with the pre-action protocol. The decision on the papers was that the claim was frivolous and wholly without merit. On that basis, whilst it is always difficult to apply for a cost order against a layman, in these circumstances we would ask you to exercise your discretion such as to make that order.

THE CLAIMANT: Your Honour, I am on pension credits because of these disabilities. I have no employer and am on pension credits and have no money to pay costs, unfortunately.

I cannot understand, I have not been able to understand this document just handed to me now, so I do not understand what it is, because of the dyslexia problem. It is going to take me some hours to try and figure what it is and how it applies.

But if the case, as the other side say, has absolutely no merit, then I cannot understand how they can come to £5,800 for something that on the face of has no merit. What did they have to do to find that it had no merit?

I mean, any professional will look at that and say in 5 minutes it has no merit, if that is the case, which means that there are virtually no costs at all. They know my condition in the light of these disabilities, so it is totally unfair to demand £5,000, which I will never be able to get in any event, which is going to cause me further severe problems.

MR JUSTICE GOSS: You have been on notice, Mr Smeaton, for some time now, that the costs were going to be claimed in the event of this application failing.

THE CLAIMANT: Well, the point is that --

MR JUSTICE GOSS: Why should you have a free ride at the public expense?

THE CLAIMANT: It is not a question of a "free ride at the public expense", it is a question of what is reasonable. I mean, £5,000, to say --

MR JUSTICE GOSS: Let us deal with it in two stages. In principle, do you agree that you should pay the costs having lost the claim: before we come on to the quantum, the amount?

THE CLAIMANT: Well, subject to being appealed to the validity of the judgment.

MR JUSTICE GOSS: Well, yes, obviously. If I am wrong, then obviously you would not have to pay the costs.

THE CLAIMANT: That is the point.

MR JUSTICE GOSS: Yes, but you have to proceed now on the basis that I am not wrong and that you have lost your case, and the appeal, should you not pay the costs?

THE CLAIMANT: Well, until -- if an appeal is granted and heard, then it should be stayed or is it "caused", in a cause, is that correct? Until an appeal is resolved, to see whether a validity to a judgment is correct or not, because there is no way I can come up with £5,000 now at all.

MR JUSTICE GOSS: No, we are not coming on to the amount. I am dealing with the principle, first of all.

THE CLAIMANT: Well, the principle is if there was no merit to the case, then they should have stated that -- it seems unreasonable that an award should be granted if there was no case to answer.

Well, I am not saying -- it is, on the question of "should costs be paid", is, is -- if there was Legal Aid, if I was able to get Legal Aid and Legal Aid was available with a Legal Aid Certificate, that would state that because I am on Legal Aid no costs are awarded. But because the changes in the Government and the Legal Aid is to facilitate --

MR JUSTICE GOSS: Well, it is not to be enforced without permission, that is what -- the effect -- if you had the protection of a public funding order then that would be the effect of the order: that there would be an order for costs but it would not be enforced without permission.

THE CLAIMANT: That is right.

MR JUSTICE GOSS: So that if you won the lottery or something, then people could come back.

THE CLAIMANT: Yes, I understand that. But on the basis that the prior judge has given me permission to proceed, Legal Aid should have been granted.

MR JUSTICE GOSS: That may be your stronger point, in fact.

THE CLAIMANT: He should not have let it be allowed to proceed on that particular point. They did not turn up at that particular point. They were on notice of that hearing and they did not attend, which was not my fault, and they should have advanced those arguments then and none of this would have happened, which is their fault, not mine.

MR JUSTICE GOSS: Yes. It comes ill from your mouth to blame the defendant for saying that -- anyway, I am not going to pursue this. You know what I mean. What do you say about this, Miss Wilkinson? I think there are two points that may have some merit:

One, that if he did have the benefit of public funding then any order would not be enforced without permission.

Secondly, a Deputy High Court Judge did give him permission.

MISS WILKINSON: My Lord, on the second point, I think that could be reflected in quantum.

MR JUSTICE GOSS: Yes.

MISS WILKINSON: The principle that the costs, on any event, is unaffected by that.

MR JUSTICE GOSS: What were the costs of filing the acknowledgment of service?

MISS WILKINSON: I think really quite minimal.

MR JUSTICE GOSS: If we look, £640, because that is what HHJ Stokes QC ordered when he refused.

MISS WILKINSON: Yes.

MR JUSTICE GOSS: All right. What I am minded to do is to order the payment of the costs of the acknowledgment of service, £640. I know it is a lot, but it is a small proportion.

MISS WILKINSON: Recovery is highly unlikely in this case, anyway.

MR JUSTICE GOSS: In any event.

MISS WILKINSON: My Lord, I do not think my clients will be dissatisfied with that.

MR JUSTICE GOSS: All right. I will therefore order that the claimant pay the first defendant's costs, summarily assessed at £640 in the circumstances, which are the costs of filing the acknowledgment of service, all right. You appreciate that is about one-tenth?

THE CLAIMANT: I understand, my Lord.

MR JUSTICE GOSS: Which is very, very favourable from your point of view.

I think you should be on notice, Mr Smeaton, that if you wish to pursue this matter further (and you are entitled to apply to the Court of Appeal for permission to appeal) but you will have to get permission, given that you are still subject to an order.

THE CLAIMANT: I understand.

MR JUSTICE GOSS: The courts will not continue to look at these matters favourably.

THE CLAIMANT: No, I understand.

MR JUSTICE GOSS: You understand that. All right, is there anything else anything, Miss Wilkinson, that that I need to address further?

MISS WILKINSON: No, I am sending a copy of the draft order.

MR JUSTICE GOSS: Would you, please. Thank you very much indeed and thank you for your assistance in relation to this case and the documents that you have filed, and thank you, Mr Smeaton, for your skeleton arguments. No need for you to stand. You may go, thank you.

MISS WILKINSON: Grateful, my Lord.

MR JUSTICE GOSS: Thank you.