Chief Adjudication Officer v Foster
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BELDAM,LORD JUSTICE NOLAN |
| Judgment Date | 21 February 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0221-7 |
| Docket Number | 91/0227 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 1991 |
[1991] EWCA Civ J0221-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A SOCIAL SECURITY COMMISSIONER
(MR. COMMISSIONER SANDERS)
Royal Courts of Justice
The Master of The Rolls
(Lord Donaldson)
Lord Justice Beldam
Lord Justice Nolan
91/0227
and
MR. JOHN LAWS and MR. CHRISTOPHER KATKOWSKI (instructed by P. K. J. Thompson, Esq., New Court, 48 Carey Street, London, WC2A 2LS) appeared for the Appellants.
MR. RICHARD DRABBLE and MR. MARK ROWLAND (instructed by Nicholas Warren, Esq., Birkenhead Resource Unit, Berkenhead, Merseyside) appeared for the Respondent.
On 5th December 1990 Mr. R. A. Sanders, a Social Security Commissioner, allowed an appeal by Miss Foster against the decision of a Social Security Appeal Tribunal which had affirmed the decision of the Adjudication Officer that Miss Foster was not entitled to a severe disability premium. In reaching this decision the Commissioner held that two sub-paragraphs of the relevant regulations, one of which stood in the way of Miss Foster's claim, were ultra vires and that the remainder of the regulations were severable. The Chief Adjudication Officer and the Secretary of State appeal.
This appeal raises four distinct issues:
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1. Are the two sub-paragraphs ultra vires the Secretary of State?
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2. If so, are they severable?
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3. Had the Commissioner jurisdiction to decide upon the vires of the regulations?
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4. If not, has this court power to do so?
The rights of a large number of claimants turn upon the decision in this appeal and, in the aggregate, relatively large sums of public money are involved. The appeal was therefore expedited and at the conclusion of the argument we announced our decision on issue 3, namely that the Commissioner had no such power. It followed from this that the appeal would be allowed. However we wished to take time to consider issue 4—whether this court on the hearing of such an appeal had power to judicially review these paragraphs and, if so, whether they were ultra vires and, assuming that they were, whether they were severable. We now give our decisions on these further issues, together with the reasons for our decisions on all the issues.
The Facts
Miss Foster ("the claimant") lives with her parents in their house. She receives, and has since 11th April 1988 received, (a) a mobility allowance, (b) an attendance allowance, (c) a severe disablement allowance and (d) income support. The essence of the dispute is as to the amount of income support to which the claimant is entitled. It is common ground that this is unaffected by the amount of the mobility and attendance allowances. It is also common ground that the severe disablement allowance is rightly treated as the income of the claimant and so reduces the amount of income support pro tanto. Nothing turns on that. The amount of income support payable at any particular time is equal to the amount by which a claimant's income falls short of the"applicable amount"appropriate to her case. If a claimant qualifies for a"premium"her applicable amount is increased correspondingly and, assuming that there is no change in her income, the amount payable to her by way of income support is increased by a like amount. Equally if she ceases to qualify for a premium, her income support is reduced.
Between 11th April 1988 and 8th October 1989 the claimant received income support calculated on the footing that she was entitled to a severe disability premium. The regulations were then amended and the Adjudication Officer ruled that, as from 9th October 1989, she no longer qualified for the benefit of this premium. It is against this decision that the claimant appealed to the Social Security Appeal Tribunal and from it to the Commissioner.
The Regulations
Regulation 17 of the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967) provides for the calculation of"applicable amounts". it is unnecessary to refer to it in detail, save to note that under paragraph (d) it includes"the amount of any premiums which may be applicable to him, determined in accordance with Parts III and IV of Schedule 2 (premiums)". Paragraph 4 in Part III of the Schedule provides that the weekly premiums specified in Part IV, which are expressed as sums of money, shall be applicable to a claimant who satisfies the relevant conditions specified in paragraphs 8 to 14 in Part III. Paragraph 5 provides that in general a claimant is only entitled to one premium and, if otherwise entitled to more than one, shall be entitled to the higher or highest. Paragraph 6 excepts the severe disability premium from this general rule and provides that it may be applicable in addition to any other premium.
Paragraph 13 is the paragraph which governs the applicability of the severe disability premium. Sub-paragraph (2) (a) (iii) was amended in detail as from 9th October 1989, but this amendment did not affect the claimant. The general nature of the sub-paragraph was unchanged and is relevant to the argument. I therefore reproduce it in its current form.
"13-(1) The condition is that the claimant is a severely disabled person.
(2) For the purposes of sub-paragraph (1), a claimant shall be treated as being a severely disabled person if, and only if—
(a) in the case of a single claimant or lone parent—
(i) he is in receipt of attendance allowance, and
(ii) subject to sub-paragraph (3) [which is not material] he has no non-dependants aged 18 or over residing with him, and
(iii) an invalid care allowance under section 37 of the Social Security Act is not in payment to anyone in respect of caring for him".
The claimant was a single claimant, she was in receipt of attendance allowance and no invalid care allowance was in payment to anyone in respect of caring for her. Prior to 9th October 1989 she had no"non-dependants"aged 18 or over living with her. Hence the fact that up to that date she qualified for the premium. Nothing changed"on the ground", but as from 9th October 1989 by an amendment of the definition of"non-dependant"contained in regulation 3, her parents, with whom she had always lived and continued to live, became"non-dependants". No one suggests that the Secretary of State was not entitled to"move the goal posts"in this way, although it was undoubtedly hard on the claimant.
The vires issue
The Commissioner based his decision upon the fact that eligibility for a severe disability premium involved satisfying conditions which were extraneous to the fact or extent of the disability. Factually this is correct, so far at least as sub-paragraphs (ii) and (iii) of paragraph 13(2) (a) are concerned. Sub-paragraph (i), with its requirement that the claimant be in receipt of attendance allowance, is directly related to the extent of the disability, because that allowance is only payable if the claimant"is so severely disabled physically or mentally that…"(see section 35 of the Social Security Act 1975). Sub-paragraphs (ii) and (iii) by contrast are directed at excluding from the premium those who have, or may be expected to have, the benefit of assistance, whether in cash or kind, from those living with them or those in receipt of an allowance for caring for them. All questions of policy are for the Secretary of State and not for us and it suffices to say that whilst some would deplore his approach, others would applaud it. Our sole concern is whether the regulation-making powers in the Social Security Act 1986 were so drawn as to permit the imposition of such qualifying conditions.
Section 166(2) of the 1975 Act is applied to the 1986 Act by section 86(1) of the latter Act. It is breathtakingly wide:
"Except in so far as this Act otherwise provides, any power conferred thereby to make an Order in Council, regulations or an order may be exercised—
(a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case;
(b) so as to make, as respects the cases in relation to which it is exercised—
(i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise),
(ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case or different provision as respects the same case or class of case for different purposes of this Act,
(iii) any such provision either unconditionally or subject to any specified condition;
and where such a power is expressed to be exerciseable for alternative purposes it may be exercised in relation to the same case for any or all of those purposes; and powers to make Orders in Council, regulations or an order for the purposes of any one provision of this Act are without prejudice to powers to make regulations or an order for the purposes of any other provision."
However the subsection is ancillary to primary powers and has to be read with the relevant primary power. That is to be found in section 22 of the Act which deals with the calculation of the "applicable amount", that being the level of income to which the claimant is entitled by the addition of income support payable under section 21. Section 22 is in the following terms:
"22-(1) The applicable amount shall be such amount or the aggregate of such amounts as may be prescribed.
(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.
(3) In relation to income support, housing benefit and any...
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