Challenging the Vires of Social Security Regulations: Chief Adjudication Officer v Foster
| Author | Neville Harris |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01899.x |
| Published date | 01 September 1993 |
| Date | 01 September 1993 |
i’he
Modem
Law
Review
[Vol.
56
the will of Parliament as expressed in the law.”* What then will be the response of
courts here? Will they give priority to the Minister’s clear views (and irrespective
of the quality of Minister) over unclear legislation whether the effect is to the
advantage or disadvantage of the citizen; or will they adopt the view that where the
Minister’s intentions benefit the citizen, those wishes will prevail; but that
otherwise the executive is bound by the enacted law?
Yes, Minister
may yet prove
to be an interpretive policy that does not receive unqualified approval.
Challenging the
Vires
of
Social Security Regulations:
Chief Adjudication Ofleer
v
Foster
Neville Harris
*
In
Chief Adjudication OfJicer and Another
v
Foster,’
the Court of Appeal and the
House of Lords considered the very important question of whether any of the
social security appellate bodies, in particular the Social Security Commissioners,
have jurisdiction in ordinary appeal proceedings to determine the validity of
regulations. The Court of Appeal (but not the House of Lords) also considered the
circumstances in which a court may ‘sever’
ultra vires
provisions from the rest of
an instrument leaving the remainder intact and legally applicable. Severance has
been the subject of two recent House of Lords’ decisions
(DPP
v
Hutchinson*
and
R
v
IRC, exp Woolwich Equitable Building Society3),
both of which were
considered by the Court of Appeal in
Foster.
When
Foster
reached the House of
Lords, both parties put forward submissions based on Parliamentary debate, as
reported in
Hansard,
on the relevant statutory provisions: in
so
doing, they
invoked
Pepper (Inspector
of
Taxes)
v
Hart,4
a decision which in itself may have
an important bearing on the interpretation of social security legislation by
adjudication authorities.
The importance of
Foster
thus extends far beyond the not inconsequential social
security issues it concerned, which involved the question whether parts of the
regulations governing entitlement to the Income Support severe disability premium
were legally valid. In this analysis of
Foster,
it is proposed to look at the social
security issues first and then consider the jurisdictional questions.
The
Vires
Question
Income Support
(IS)
replaced Supplementary Benefit (SB) in April 1988. As was
the case with SB, entitlement
to
IS depends on meeting the appropriate conditions
of entitlement laid down partly in the Social Security Contributions Act 1992
(consolidating,
inter alia,
the Social Security Act 1986 (as amended)) and partly in
72 Both quotations in the text are from
Re
Bolron;
exp
Beane
(1987) 162 CLR 514,
518per
Mason CJ.
*Senior Lecturer in Law, University of Liverpool.
1
2
3 [1990]
1
WLR 1400.
4
[I9931
1
All ER 705 (HL). The
Court
of Appeal’s decision is reported at [1991] 3 All ER 846.
[1990] 2 All ER 836; see A.W. Bradley, ‘Judicial Enforcement of
UIrra Vires
Byelaws: The Proper
Scope of Severance’ [1990] PL 293-300.
[1993]
1
All ER 42; [1992] 3 WLR 1032. See the comment by
D.
Miers in this issue of MLR, at
p 695.
710
0
The Modem
Law
Review Limited
1993
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