Bate v Chief Adjudication Officer and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date30 November 1994
Date30 November 1994

Glidewell, Mann and Millett, L JJ

Appeal – social security – income support – severe disability premium – whether claimant was entitled to review of decision not to award severe disability premium from April 1988 – whether claimant would have been eligible to award of income support with severe disability premium if steps had been taken much sooner to challenge decision of social security appeal tribunal not to award income support with severe disability premium as from April 1988.

Social security – income support – severe disability premium – application made by mentally handicapped woman claimant in April 1988 – award of income support without severe disability premium approved – claimant resided in parental home.

Review – income support – severe disability premium – application by claimant for review made in 1990 after successful appeals to social security commissioner by two other mentally handicapped claimants – application for review refused by adjudication officer – appeal to social security appeal tribunal by claimant upheld – tribunal determined that severe disability premium would only be paid as from 9 October 1989 – tribunal granted adjudication officer leave to appeal – adjudication officer's appeal upheld by social security commissioner – claimant granted leave to appeal.

In April 1988 a mentally handicapped adult woman ("the claimant") submitted an application for income support. Her application was duly granted; however a severe disability premium was not included in the amount payable to her.

On 14 August 1990, following successful appeals to a social security commissioner by two other claimants, the claimant applied for a review of the award of income support without a severe disability premium.

On 31 August 1990 an adjudication officer determined that the original decision should not be reviewed. The claimant appealed to a social security appeal tribunal which decided that the earlier decision of April 1988 was reviewable but that the severe disability premium would only be payable from 9 October 1989. The adjudication officer appealed.

On 13 January 1993, Mr Commissioner Sanders granted the adjudication officer's appeal and gave the claimant leave to appeal to the Court of Appeal.

Held – allowing the appeal: (1) Section 104(8) of the Social Security Act 1975 (now s 69(2) of the Social Security Administration Act 1992) was limited to decisions made by adjudication officers and social security appeal tribunals. That section created a statutory assumption that the decisions of adjudication officers made in the two previous cases had been found by a commissioner not to have been erroneous in law. Further, that an

adjudication officer was bound by a commissioner's decision, which he was required to assume the commissioner had correctly made in earlier cases, in order to reject the claimant's application for a review. The statutory assumption was binding on any decisions made by an adjudication officer or a social security appeal tribunal conducting a review but did not bind commissioners or the appellate courts. Questions to be determined by commissioners or the appellate courts did not "arise on a review" but rather on an appeal from a refusal to entertain a review. Thus the Court of Appeal was not bound by the decision nor did it affect the decision of a commissioner who could but was not bound to follow previous decisions made by him. It was therefore open to the Court of Appeal to decide whether or not the adjudication officer's original decision was wrong in law. There was nothing in s 104(8) which prevented the Court of Appeal from reaching its own conclusion on the meaning of reg 3(2)(c) of the Income Support (General) Regulations 1987 despite the conclusion reached by the commissioner in earlier decisions; or from deciding that the decision of the social security appeal tribunal to reject the claimant's application for a review was wrong in law. As a consequence, any questions regarding the claimant's application had to be determined as if those decisions had been upheld rather than disallowed by the commissioner. The decisions had the status of a decision of a commissioner and no more and thus did not purport to change the law.

(2) Section 104(8) was not directed to decisions made by commissioners or the Court of Appeal as there was little point in directing a decision-making body to decide a question before it in accordance with an assumption if the assumption made no difference to the decision. Parliament could not have intended that if a commissioner or the Court of Appeal was bound to apply s 104(8) then the outcome of the claimant's case and entitlement to benefit depended on the fact that the commissioner's decision in the earlier cases was not appealed to and upheld by the Court of Appeal. If it had been then the Court of Appeal would have been bound by the previous decision which would have meant that the court would have had to have reached a conclusion contrary to the House of Lords and the European Court of Justice.

(3) In deciding whether the claimant satisfied the criteria for claiming severe disability premium it was necessary for para 13 of Sch 2 to the 1987 Regulations to be satisfied ie that the claimant had to be a severely disabled person because the claimant was in receipt of attendance allowance; the claimant had to have no non-dependants aged 18 or over residing with her; and no one had to be in receipt of an invalid care allowance in respect of caring for the claimant. In deciding whether there were any "non-dependants aged 18 or over residing with her [the claimant]" it was necessary to interpret reg 3 of the 1987 Regulations and determine whether the claimant's parents were persons who "jointly occupied" the claimant's dwelling. "Jointly occupied", within the context of reg 3, meant that there had to exist a legal relationship between the joint occupiers. The phrase connoted occupation of a dwelling by two or more persons, whether as owner occupiers or as tenants or as licensees, by virtue of one and the same legal right. However, as the claimant did not reside in her parents' home as a result of any legal relationships but as a gratuitous licensee the claimant and her parents did not "jointly occupy" the dwelling. As a result para 13(2)(a)(ii) of Sch 2 to the 1987 Regulations was not satisfied.

(4) Despite the fact that para 13(2)(a)(ii) of Sch 2 to the 1987 Regulations was not satisfied the claimant nevertheless satisfied the criteria in reg 3(1) of the 1987 Regulations as the claimant's parents were not "non-dependants" ie "any person ... who normally resides with a claimant". In deciding whether a person resided with another person the question to ask was not whether the claimant's parents could be brought within the exception in reg 3(2)(c) of the 1987 Regulations but to ask whether they were persons who normally resided with the claimant. The central figure, in deciding that question, was the claimant to the severe disability premium as it was the characteristics of the one or more persons who lived with the claimant in the dwelling-house which determined whether or

not the claimant was entitled to the severe disability premium. In interpreting reg 3(2)(c) it was necessary to start with the claimant and ask what right did the claimant have to occupy the dwelling-house and whether the person or persons residing with the claimant were occupying the dwelling in the same capacity. If the claimant and the person or persons were occupying the dwelling-house in the same capacity the claimant would normally be deprived of severe disability premium because if the claimant had allowed someone to reside with her it was reasonable to expect her to have made arrangements for that person to help look after her in return for accommodation. The words contained in reg 3(2)(c) lent further support to the view that a difference was intended to be drawn between a case where a claimant resided with another person and a case where that other person resided with a claimant. The critical feature of reg 3(2)(c) was the fact that where a claimant invited her parents to live with her, in order to look after her, the parents would be residing with the claimant and the benefit would be lost. If, however, the parents invited the claimant to live with them, the claimant would retain her entitlement to benefit as the parents would not be giving their help in return for accommodation. On the facts, the claimant's parents were non-dependants as it was the claimant who normally resided with them and not they with the claimant. Consequently, the claimant was entitled to be awarded income support with the severe disability premium.

Statutory provisions referred to:

Housing Benefit (General) Regulations 1987 (SI 1987/1971), reg 3(1) and (2)(d).

Income Support (General) Amendment No 3 Regulations 1989 (SI 1989/1678).

Income Support (General) (Regulations 1987 (SI 1987/1967) regs 3(1), (2)(a), (b), (c), (d), (e), (4), 16, 17(a), (b), (c), (d), Sch 2 Part III, para 2(c), 13(1), (2)(a), (i), (ii), (iii), Part IV.

Social Security Act 1975, ss 104(1A), (2), (4), (7)(a), (b)(i), (ii), (8)(a), 165D(4).

Social Security Act 1986, s 22.

Social Security Benefit (Persons Residing Together) Regulations 1977 (SI 1977/956).

Social Security Contributions and Benefits Act 1992, s 135(5).

Cases referred to in judgment:

Chief Adjudication Officer and Another v Foster [1993] AC 754; [1993] 2 WLR 292; [1993] 1 All ER 705.

R v Chesterfield Borough Council, ex parte Fullwood[1994] 2 FCR 158, sub nom Fullwood v Chesterfield Borough Council (1993) 92 LGR 160.


Appeal from Mr Commissioner Sanders.

David Pannick, QC and Bethan Harris for the claimant.

Stephen Richards and Richard McManus for the Chief Adjudication Officer and Secretary of State for Social Security.


The Social Security Act 1986 introduced new forms of social security benefit, including income support. The Act also revised...

To continue reading

Request your trial
5 cases
  • Bate v Chief Adjudication Officer and Another
    • United Kingdom
    • House of Lords
    • 16 May 1996
    ...within the meaning of reg 3. Accordingly, the severe disability premium was not payable to the claimant. Decision of the Court of Appeal [1995] 3 FCR 145 Statutory provisions referred to:Housing Benefit (General) Regulations 1987, reg 3. Income Support (General) Regulations 1987, regs 3, 9 ......
  • R (Kadhim) v Brent London Borough Council Housing Benefit Review Board
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 December 2000
    ...had to be given its ordinary meaning: a view also taken, in respect of different regulations, by Lord Slynn of Hadley in Bate v Chief Adjudication Officer [1996] 1 WLR 814. Regulation 3(4) did not, in its natural meaning, provide such counter-indication so as to substitute for a general app......
  • R v Housing Benefit Review Board and Another ex parte and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 22 June 2000
    ...of the Court of Appeal in Borough of Thamesdown v. Goonery (1995) February 13th; and the decision of the House of Lords in Bate v. Chief Adjudication Officer [1996] 1 WLR 814, particularly the speech of Lord Slynn of Hadley at 823C to G. In Dadson, Henry J. was concerned to explore the mean......
  • CIS 20002 2000
    • United Kingdom
    • Upper Tribunal (Administrative Appeals Chamber)
    • 4 September 2000
    ...Bate v. Chief Adjudication Officer [1996] 1. WLR 814 [R(IS) 12/96], reversing the Court of Appeal’s decision in that case, reported in [1995] 3 FCR 145 and in the Times Newspaper on 12 December 1994. It is partly as a result of those changes in the law that the complicated situation arose i......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT