Neutral Citation Number: 2012 EWHC 2579 (Admin)

CO/6312/2011

Neutral Citation Number: [2012] EWHC 2579 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Tuesday 17 July 2012

B e f o r e:

MR JUSTICE SINGH

------

Between:

THE QUEEN ON APPLICATION OF CHILD POVERTY ACTION GROUP

Claimant

v

SECRETARY OF STATE FOR WORK AND PENSIONS

First Defendant

SECRETARY OF STATE FOR EDUCATION

Second Defendant

------

ComputerAided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

------

Mr Richard Drabble QC (instructed by Child Poverty Action Group) appeared on behalf of the Claimant

Mr Paul Nicholls QC (instructed by Legal Department, Department for Work and Pensions ) appeared on behalf of the First Defendant

The Second Defendant was not represented, did not attend

------

J U D G M E N T

SMITH BERNAL WORDWAVE

MR JUSTICE SINGH:

Introduction

Permission to bring this claim for judicial review was granted by Mr Justice Bean on 11 November 2011. The claimant is a wellknown charity founded in 1965 with a long history of involvement in both campaigning to help disadvantaged people in this country, especially children, and in test cases.

The claimant's challenge is to a strategy document published on 5 April 2010 called "A new Approach to Child Poverty: Tackling the Causes of Disadvantage and Transforming Families' Lives".

Child Poverty Act 2010 as enacted

Section 1 of the Child Poverty Act 2010 provides:

"(1) The Secretary of State must, as soon as reasonably practicable after the end of the 2010 target year and in any event not later than 30 June 2012, lay before Parliament a report on whether the 2010 target has been met.

(2) The 2010 target is that in the financial year beginning with 1 April 2010, 1.7 million children or fewer live in qualifying households in the United Kingdom that fell within the relevant income group for the purposes of section 3 (the relative low income target).

.....

(5) If the target has not been met, the report must explain why it has not been met.

(6) The 2010 target year is the financial year beginning with 1 April 2010."

Section 2 of the Act imposes a duty on the Secretary of State to ensure that the following targets are met in relation to the United Kingdom in relation to the target year:

" .....

(a) the relative low income target in section 3,

(b)the combined low income and material deprivation target in section 4,

(c) the absolute low income target in section 5, and,

(d) the persistent poverty target in section 6.

(2) The target year [for this purpose] is the financial year beginning with 1 April 2020."

Section 3, as we have seen, defines the relative low income target. That is to be

"(1) ..... that less ten per cent of children who live in qualifying households live in households that fall within the relevant income group."

The relevant income group is defined to be a household where

"(2) ..... if its equivalised net income for the financial year is less than sixty per cent of median equivalised net household income for the financial year."

The interpretation in Section 7 (3) explains that

(3) In this Part 'equivalised', in relation to household income, means adjusted to take account of variations in household size and composition."

Section 4 refers to the combined low income and material deprivation target. That target is

"(1) ..... that less than five per cent of children who live in qualifying households

(a) live in households that fall within the relevant income group, and

(b) experience material deprivation."

For this purpose

" ..... a household falls within the relevant income group ..... if its equivalised net income ..... is less than seventy per cent of median equivalised net household income for the financial year."

Section 5 relates to the absolute low income target which is

"(1) ..... that less than five per cent of children who live in qualifying households live in households falling within the relevant income group."

For this purpose

"(2) ..... a household falls within the relevant income group ..... if its equivalised net income ..... is less than sixty per cent of the adjusted base amount.

(3) 'The adjusted base amount' ..... is the base amount adjusted in a prescribed manner to take account of changes in the value of money since the base year.

"(4) ....

'the base amount' means the amount of median equivalised net household income for the base year;

'the base year' means the financial year beginning with 1 April 2010."

Finally in relation to the targets, reference should be made to Section 6 which relates to the persistent poverty target. This is

"(1) ..... that less than the target percentage of children who have lived in qualifying households during each of the survey years have lived in households that have been within the relevant income group in at least three of the survey years.

(2) The survey years are —

(a) the calendar year that ends in the relevant financial year, and

(b) the three previous calendar years.

(3) For the purposes of this section, the target percentage is a percentage to be prescribed by regulations made before 2015.

(4) For the purposes of this section, a household falls within the relevant income group ..... if its equivalised net income for the year is less than sixty per cent of median equivalised net household income for the year."

Section 8 of the 2010 Act provided that

"(1) There is to be a body called the Child Poverty Commission .....

(2) The Commission's functions are those conferred on it by or under this Act.

(3) Schedule 1 contains further provisions about the Commission.

(4) The Secretary of State may by order provide for the Commission to cease to exist on a day —

(a) specified in or determined in accordance with the order, and

(b) falling after the target year.

..... "

Before leaving that provision, it is important to observe that, although the Secretary of State was given an express power to provide for the Commission to cease to exist, he was not given power, for example, by order or other subordinate legislation to delay its coming into existence or indeed to decide that the Commission should never come into existence.

Schedule 1, as indicated by Section 8 (3), made more detailed provision in relation to the Child Poverty Commission which Parliament ordained should be established. One finds in Schedule 1 the sort of matters going to its membership and appointment and terms of office that one would expect to find in such legislation. Particular attention was drawn on behalf of the claimant to paragraph 1 (4) of Schedule 1 which provides that

"(1) The Secretary of State must have regard to the desirability of securing that the Commission (taken as a whole) has experience in or knowledge of

(a) the formulation, implementation and evaluation of policy relating to child poverty;

(b) research in connection with child poverty; and

(c) work with children and families experiencing poverty."

Attention was also drawn to paragraph 10 which enabled the Commission

"(10) ..... at any time [to] request the Secretary of State to carry out, or commission others to carry out, such research on behalf of the Commission for the purpose of the carrying out of the Commission's functions as the Commission may specify in the request."

It was also submitted on behalf of the claimant that an important provision can be found in paragraph 17 of Schedule 1, in particular (3), which provides that as soon as reasonably practicable after giving advice under either of those sections referred to, which includes Section 10 to which I will return, the Commission "must publish the advice in such manner as it thinks fit." That requirement for publication is something which has been emphasised on behalf of the claimant before me.

I return to the main body of the 2010 Act. Section 9 has the sidenote "UK Strategies" and provides:

"(1) The Secretary of State must, before the end of the period of 12 months beginning with the day on which this Act is passed, publish and lay before Parliament the first UK strategy.

(2) A 'UK strategy' is a strategy under this section setting out the measures that the Secretary of State proposes to take —

(a) for the purpose of complying with section 2 (duty to ensure that targets are met), and

(b) for the purpose of ensuring as far as possible that children in the United Kingdom do not experience socioeconomic disadvantage.

.....

(4) Before the end of the period to which a UK strategy relates, the Secretary of State must review the strategy and publish and lay before Parliament a revised UK strategy, but this subsection does not apply after the beginning of the target year.

.....

(7) A UK strategy must —

(a) where it relates to a period ending before the end of the target year —

(i) describe the progress that the Secretary of State considers needs to be made by the end of the period to which the strategy relates if the targets in sections 3 to 6 are to be met in relation to the United Kingdom in relation to the target year, and

(ii) describe the other progress that the Secretary of State intends to make by the end of the period to which the strategy relates in achieving the purpose mentioned in subsection (2) (b), and

(b) describe the progress that the Secretary of State intends to make by the end of the target year in achieving the purpose mentioned in subsection (2) (b), otherwise than by ensuring that the targets are met.

.... "

Section 10 provides that

"(1) In preparing a UK strategy, the Secretary of State must request the advice of the Commission, and specify in the request the date by which the advice is to be given.

.....

(3) The Secretary of State must have regard to any advice given by the Commission under this section.

(4) In preparing a UK strategy, the Secretary of State —

(a) must consult such local authorities and associations of local authorities in England as the Secretary of State thinks fit,

(b) must consult the Scottish Ministers, the Welsh Ministers and the relevant Northern Ireland department,

(c) must consult such children, and organisations working with or representing children, as the Secretary of State thinks fit,

(d) must consult such parents, and organisations working with or representing parents, as the Secretary of State thinks fit, and

(e) may consult such other persons as the Secretary of State thinks fit.

..... "

Welfare Reform Act 2012

The Child Poverty Act 2010 has been amended by the Welfare Reform Act 2012. I will refer to the key provisions which have been amended and which are material to the present proceedings. The 2012 Act received royal assent on 8 May 2012. Relevant provisions came into force on that date. However they were not given, as they might have been in principle, any retrospective effect. A new Section 8 has been substituted into the 2010 Act. Section 8 now provides that there is to be a body called "The Social Mobility and Child Poverty Commission". This Commission's functions are those conferred on it by or under the Act and Schedule 1 contains further provision about the Commission. It is not necessary to set out in detail the provisions of Schedule 1. However, it should be noted that a new schedule 1 consisting of paragraphs 1 to 15 has replaced the old schedule 1. In particular, for example, the old paragraph 17 is no longer in schedule 1.

Turning again to the body of the Act, a new section 8A is inserted into the 2010 Act. This provides that the Commission must, on request, give advice to a Minister of the Crown about how to measure socioeconomic disadvantage, social mobility and child poverty. It also provides that advice given under this section must be published. Section 8B provides for annual reports to be published by the Commission setting out its views on the progress made towards the goals in subsection (2). Those goals are

"(a) improving social mobility in the United Kingdom, and

(b) reducing child poverty in the United Kingdom and, in particular

(i) meeting the targets in sections 3 to 6, and

(ii) implementing the most recent UK strategy."

Subsection (6) provides that the Minister of the Crown must lay a report by the Commission under that section before Parliament.

Section 9 of the 2010 Act has been amended so far as material so that subsection (7) no longer uses the word "progress" but instead requires that

"(7) A UK strategy must

(a) where it relates to a period ending before the end of the target year

(i) describe the measures that the Secretary of State considers need to be taken by the end of the period to which the strategy relates if the targets in sections 3 to 6 are to be met in relation to the United Kingdom in relation to the target year; .....

..... "

Another very important thing to note about the amendments to the 2010 Act made by the 2012 Act is that section 10 (1), which required advice to be taken from the old Commission in the process leading up to the formation of a United Kingdom strategy, has been repealed.