Bate v Chief Adjudication Officer and Another
| Jurisdiction | England & Wales |
| Judge | Lord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson,Lord Slynn of Hadley,Lord Hoffmann |
| Judgment Date | 16 May 1996 |
| Judgment citation (vLex) | [1996] UKHL J0516-1 |
| Date | 16 May 1996 |
| Court | House of Lords |
[1996] UKHL J0516-1
House of Lords
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Hoffmann
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley and for the reasons he gives I too would allow the appeal.
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley and for the reasons he gives I too would allow the appeal.
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley and for the reasons he gives I too would allow the appeal.
This case concerns the entitlement of Miss Bate, the respondent to this appeal, to an allowance as a severely disabled person which it is common ground that she is.
The appeal raises two distinct issues, one as to the interpretation of section 104 of the Social Security Act 1975 as amended in 1983, 1986 and 1990 (now sections 25( 2) and 69( 1) and (2) of the Social Security Administration Act 1992); the other as to the meaning of regulation 3 of the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967) which were made pursuant to the Social Security Act 1986.
As a somewhat discouraging introduction to the case, it is to be recalled that Glidewell L.J. in the Court of Appeal said:
"Even for this legislation, they [subsections ( 7) and (8) of the Act of 1975] are particularly obscure in their meaning. It is no wonder in my view that an experienced Appeal Tribunal has formed a different view of the proper meaning of these provisions from that formed by the Commissioner. I comment, not merely in relation to these provisions, but to the Regulations which we have to consider in relation to the second issue, that it is deplorable that legislation which affects some of the most disadvantaged people in society should be couched in language which is so difficult for even a lawyer trained and practising in this field to understand."
Whether in the event your Lordships agree wholly with that view it is underlined in the Court of Appeal by the fact that Millett L.J. (with whom, in the result, Glidewell and Mann L. JJ. agreed) found that the construction of the statute adopted by the Commissioner "is not only unwarranted by the wording of [subsection (8)], but is unacceptable in its effect and capricious in its application."
The Social Security Act 1986 provided for the payment of "income support" in place of "supplementary benefit" and section 22(3) (now section 135(5) of the Social Security Contributions and Benefits Act of 1992) provided that:
"in relation to income support and housing benefit the applicable amount for a severely disabled person shall include an amount in respect of his being a severely disabled person."
The "applicable amount" for the purpose of calculating the benefit was to be prescribed by regulations. Income support and the severe disability premium ("the premium") became payable with effect from 11th April 1988. Miss Bate received income support from that date but initially was not paid the premium which she had claimed.
According to the agreed statement of facts "At all material times she lived with her parents in a house owned by them [i.e. the parents]." Following a Commissioner's decision on the 17th May 1990 that two other claimants in a similar position to Miss Bate (Miss Trotman and Miss Crompton who also lived with their parents without being joint owners of the property with their parents) were entitled to the allowance. Miss Bate applied for a review of the award of income support without the premium. The adjudication officer decided that the earlier decision should not be reviewed; a Social Security Tribunal on the 20th November 1990 reviewed the initial decision and awarded the premium from 9th October 1989; on the 13th January 1993 the Commissioner allowed the adjudication officer's appeal against the decision of the Tribunal and held that Miss Bate was not entitled to the premium. The Court of Appeal allowed Miss Bate's appeal.
Whether there was and is jurisdiction to review the initial decision to award Miss Bate income support without the premium in the light of the decision in Trotman and Crompton is the first issue in this appeal and depends on the correct interpretation of section 104 of the Act of 1975 as amended in particular by paragraph 7(1) of schedule 6 to the Social Security Act 1990. By section 104(1) of the Act of 1975:
"Any decision under this Act of an adjudication officer, a social security appeal tribunal or a Commissioner may be reviewed at any time by an adjudication officer, or, on a reference by an adjudication officer, by a social security appeal tribunal."
Such a review may take place where the decision was given in ignorance of, or was based on a mistake as to, some material fact, or where there has been a relevant change of circumstances: by sub-section (1A):
"Any decision of an adjudication officer may be reviewed, upon the ground that it was erroneous in point of law, by an adjudication officer or, on a reference from an adjudication officer, by a social security appeal tribunal."
Sub-section (1) is not relied on here but it is said that on the basis of the decision in Trotman and Crompton the adjudication officer"s initial decision in 1988 in Miss Bate's case was erroneous in law. Accordingly if sub-section (1A) had stood alone Miss Bate was entitled to have that initial decision in her case reviewed.
Sub-sections 104( 7) and (8) as introduced by the Act of 1990, however, provided:
"(7) Subsection (8) below applies in any case where —
( a) on the determination, whenever made, of a Commissioner or the court (the 'relevant determination'), a decision made by an adjudicating authority is or was found to have been erroneous in point of law, and
( b) in consequence of that determination, any other decision —
(i) which was made before the date of that determination, and
(ii) which is referable to a claim made or treated as made by any person for any benefit, falls (or would, apart from subsection (8) below, fall) to be revised on a review carried out under subsection (1A) above after the coming into force of this subsection.
(8) Where this subsection applies, any question arising on the review referred to in subsection (7)( b) above, or on any subsequent review of a decision which is referable to the same claim, as to any person's entitlement to, or right to payment of, any benefit —
( a) in respect of any period before the date of the relevant determination, or
( b) in the case of widow's payment, in respect of a death occurring before that date,
shall be determined as if the decision referred to in subsection (7)( a) above had been found by the Commissioner or court in question not to have been erroneous in point of law.
By subsection (10) "adjudicating authority" and "the court" have the same meaning as in section 165D of the Act of 1975. Subsection (4) of the latter section provides that "adjudicating authority" means "( a) an adjudication officer, the Attendance Allowance Board, a Social Security Appeal Tribunal or a Medical Appeal Tribunal." "The court" means so far as England and Wales are concerned the High Court, the Court of Appeal, the House of Lords or the Court of Justice of the European Community.
The Social Security Commissioner appointed pursuant to section 97 of the Act of 1975 is not in either category though an appeal to him is provided by section 101 of the Act of 1975.
The respondent accepts that, where a decision is taken by a Commissioner or by a court that the decision of the adjudicating authority is wrong in law, the assumption is to be made in other cases (contrary to the fact) that the adjudicating authority's decision was correct in law. It follows that, so far as the first two levels in the hierarchy are concerned, decisions cannot be re-opened because of a subsequent decision that they were wrong, because by statute they are to be taken as being right. It is said, however, that this does not affect the power of the Commissioner or of a court to set aside earlier decisions when they have been shown to be wrong. Such a result is said to flow from the language of the section and from the fact that the appellate bodies, the Commissioner and the courts, are not part of the review process; it is also said to be inherent in the power of the higher court to make sure that the law is observed. If there is ambiguity in the language it is said that section 104( 7) and (8) should be given the narrowest construction so as to ensure that claimants can have the social security benefit to which they are on a proper construction of the legislation entitled. Alternatively it is said by the respondent that the use of the words "found to have been erroneous in point of law" make it clear that the provisions of section 104( 7) and (8) are only to apply where a Commissioner or a court has reversed a previous decision which was binding on the adjudicating authority. Until such a decision was taken the adjudicating authority could not have known that its decision was erroneous in point of law or dealt with such an error since he was bound by higher authority. It is only when the adjudicating authority has followed previous wrong but binding decisions that public funds should be protected from claims being re-opened. Here Trotman and Crompton did not overrule any previously binding authority so that section 104( 7) and (8) do not apply.
The Court of Appeal accepted...
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