C/2002/1623
Neutral Citation Number: [2002] EWCA Civ 1367
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(SIR RICHARD TUCKER)
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 20 September 2002
B E F O R E:

LORD JUSTICE WARD
and
LORD JUSTICE CARNWATH

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ON AN APPLICATION FOR JUDICIAL REVIEW

THE QUEEN

on the application of

KEVIN B
Claimant/Respondent
-v-

SECRETARY OF STATE FOR WORKS AND PENSIONS
Defendant/Respondent 
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MR R DRABBLE QC AND MR D KOLINSKY (instructed by Public Law Project, London WC2A 2LP) appeared on behalf of the Applicant.

The Respondent did not appear and was not represented.

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J U D G M E N T
LORD JUSTICE WARD: This is an application for permission to appeal against the order of Sir Richard Tucker, made on 17 July 2002 when he dismissed Mr B's application for judicial review of the Secretary of State's decision rejecting a request that child benefit be shared between Mr B and his former wife. 
2.	The application for permission to appeal is brought to challenge the finding of the learned judge that there was no discrimination within the scope of Article 14 of the European Convention on Human Rights. The argument was rejected because the learned judge accepted that to make that claim good, Mr B had to establish that he had been discriminated against on the basis of some personal characteristic. It appears that there are conflicting decisions of this court on that point: see St Brice v Southwark LBC [20002] 1 WLR 1537 and Michalak v Wandsworth LBC [20002] EWCA Civ 271 (CA). Keene LJ refused permission to appeal on paper, setting out cogently reasons why St Brice may be the preferable decision. I am not clever enough to understand, still less judge, whether Keene LJ is right, as he may well be. It seems to me where two judgments of this court are in conflict with each other, Mr Drabble should be allowed to argue that his view is to be preferred. In any event Brooke LJ will never speak to me again if I do not give Mr Drabble the chance to argue that Michalak is the better judgment. 
3.	On the second named issue of justification, the learned judge accepted that having some share of child benefit is a gateway to other benefits, but when looking at justification he concentrated solely on the narrow question of child benefit. That is also arguably wrong, in my judgment, and it follows that Mr B rather should be allowed to contend regulation 34 has to be construed consistently with the Convention and if necessary there has to be some declaration of incompatibility the. 
4.	For my part, it seems to me that both of these give rise to arguments with a realistic prospect of success -- they are certainly not fanciful -- and I would grant permission to appeal unconditionally and fully for those reasons.
5.	LORD JUSTICE CARNWATH: I agree also that there are reasonable arguments which have a realistic prospect, and that this is a matter of some general importance. I also would grant permission.
ORDER: Application allowed. To be heard before three Lords Justices, of whom two should be experienced in the Administrative Court and human rights. Time estimate of one and a half days. Costs in the appeal.
(Order not part of approved judgment)