Chief Adjudication Officer and Another v Jonathan Richard Woods

Friday, 12th December 1997

The rules of precedent play an important part in the administration of our social security legislation. Decisions made by special adjudicators and appeal tribunals involve questions of law as well as fact. Properly and understandably, when a question of law arises which has already been ruled upon in an earlier case, they are pre-disposed to apply the same view of the law, in the interests of uniformity and fairness as between applicants. They are not bound to do so, but if a case goes to appeal before a Commissioner, which it can only do on a question of law, then the Commissioner's ruling, even if not strictly binding, will be acted upon in future cases.

A very few cases proceed by way of appeal to the Court of Appeal, and sometimes thence to the House of Lords. The Court's ruling establishes what the law is, meaning in most cases the correct interpretation of a statute or statutory instrument, and in principle the law as so stated must thereafter be applied at all levels.

The common law and our legal system generally subscribe to the fiction that the Court declares what the law has always been. Its ruling does not change the law, even when it is the opposite of what was previously supposed to be the correct view. It follows from this that the previous contrary view was erroneously held, and any decisions based upon it were wrong as a matter of law.

This gives rise to a practical problem. Previous decisions which are thus shown to have been wrong in law ought in theory not to stand. Therefore a large number of appeals or requests for review might be sought to be made in respect of decisions which were accepted as having been correctly decided at the time. There is nothing inherently unjust, in my view, in a statutory provision which declares that what I shall call the new view of the law shall not have retrospective effect. Such a provision is found in section 69 of the Social Security Administration Act 1992, the meaning and effect of which is the issue raised by this appeal. (I shall refer to it simply as "section 69".)

The appeal lies from a decision of the Social Security Commissioner, Mr J Mesher, in case No. D/11/061/94/0074 dated 27th June 1996. He allowed an appeal from a decision of the Huddersfield Disability Appeal Tribunal dated 26th May 1994. He held that the claimant (who is the respondent to this appeal) is entitled to recover the care component of disability living allowance at the middle rate from 6th April 1992, when his application was first made. The statutory meaning of those terms is found in section 72 of the Social Security Contributions and Benefits Act 1992.

The appeal tribunal had held that the claimant's entitlement to the middle rate began only on 21st April 1994. They felt themselves constrained by section 69 to hold that for the period before 21st April 1994 he was limited to the lower rate which was awarded to him by the adjudication officer on 6th May 1992. The significance of 21st April 1994 was that it was the date of the House of Lords' judgment in Mallinson v Secretary of State for Social Security [1994] 1 WLR 630. That judgment was favourable to the claimant because it enabled him to claim the care component at the middle rate based on the need for "frequent attention in connection with bodily functions" (those words are found here in section 72(1)(b)(i) of the Social Security Contributions and Benefits Act 1992), whereas previously it was thought, and the Court of Appeal in that case had held, that the need for assistance required while walking out of doors was not within the statutory definition.

Here the appeal tribunal found that the claimant was disabled in that respect. It follows from that finding, unless section 69 applies, that he is entitled to recover the middle rate for life from the date when the allowance began, viz 6th April 1992 (see regulation 64A and 64B of the Social Security (Adjudication) Regulations 1986, now regulation 58 of the 1995 Regulations).

The contention for the appellant is that section 69(2) requires the courts, as it required the Commissioner, to apply the law as it was said to be, by a delegated medical practitioner on behalf of the Attendance Allowance Board, in Mallinson's case, notwithstanding that that view of the law was held to be wrong by the House of Lords.

Sections 68(1) and (2) and 69(1) and (2) provide as follows:

"68—(1) This section applies 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) after both -

(i) 13th July 1990 (the date of the coming into force of section 165D of the 1975 Act, the provision of that Act corresponding to this section); and

(ii) the date of the relevant determination,

a claim which falls, or which would apart from this section fall, to be decided in accordance with the relevant determination is made or treated under section 7(1) above as made by any person for any benefit.

(2) Where this section applies, any question which arises on, or on the review of a decision which is referable to, the claim mentioned in subsection (1)(b) above and which relates to the entitlement of the claimant or any other person to any benefit -

(a) in respect of a period before the relevant date; or

(b) in the case of a widow's payment, in respect of a death occurring before that date,

shall be determined as if the decision referred to in subsection (1)(a) above had been found by the Commissioner or court in question not to have been erroneous in point of law.

69—(1) Subsection (2) 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 (2) below, fall) to be revised on a review carried out under section 25(2) above on or after 13th July 1990 (the date of the passing of the Social Security Act 1990, which added to the 1975 Act sections 104(7) to (10), corresponding to this section) or on a review under section 30 above on the ground that the decision under review was erroneous in point of law.

(2) Where this subsection applies, any question arising on the review referred to in subsection (1)(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 (1)(a) above had been found by the Commissioner or court in question not to have been erroneous in point of law."

Those sections were formally section 104 subsections (7) and (8) of the Social Security Act 1975, as amended in 1990.

The issue raised by the present appeal is this. The appellants rely on a strictly literal construction of section 69(1) and (2). The relevant determination, they say, was Mallinson, the House of Lords' decision on 21st April 1994. The previous decision of the adjudicating authority in Mallinson was then held to be erroneous in law. If section 69(2) applies, then "any question … as to … entitlement … in respect of any period before [21.4.94] …" has to be determined as if the adjudicating authority in Mallinson was correct, i.e. disregarding the House of Lords' decision. They submit that section 69(2) does apply because the requirements of section 69(1) are satisfied. This is, they say, a case where "in consequence of" the Mallinson decision the decision of the adjudicating officer in this case "falls … to be revised on a review … on the ground that …".

The contrary argument for the respondent which the Commissioner held was correct is that section 69(1) does not apply in the present case, essentially because the application for a review was pending when Mallinson was decided by the House of Lords. The review, they say, did not come about "in consequence of" that judgment. The intention of section 69, they submit, is to prevent fresh applications for review after judgment has been given in another case in favour of claimants in respect of any period before the judgment is given. They point to section 68, where it is clear from the wording that pending claims are not affected by the section. Those claims, therefore, are governed by the law as it has been declared to be.

For the appellants, Mr McManus responds that the wording of section 68(1) is clear and different from section 69(1). This points, he...