Chief Adjudication Officer v Foster
| Jurisdiction | UK Non-devolved |
| Judge | Lord Templeman,Lord Bridge of Harwich,Lord Ackner,Lord Browne-Wilkinson,Lord Slynn of Hadley |
| Judgment Date | 28 January 1993 |
| Judgment citation (vLex) | [1993] UKHL J0128-2 |
| Date | 28 January 1993 |
| Court | House of Lords |
[1993] UKHL J0128-2
Lord Templeman
Lord Bridge of Harwich
Lord Ackner
Lord Browne-Wilkinson
Lord Slynn of Hadley
House of Lords
My Lords,
For the reasons given by my noble and learned friend Lord Bridge of Harwich I would dismiss the appeal.
My Lords,
The appellant is a young single woman who is severely disabled and who lives at home with her parents. The extent of her disability is such that she is entitled to and does receive under the Social Security Act 1975, as amended by subsequent legislation, attendance allowance, severe disability allowance and mobility allowance. These are non-contributory benefits which are not means-tested. Under the Social Security Act 1986 and regulations made thereunder she is also entitled to the income-related benefit known as income support. This is a form of social security payment designed to provide or supplement the income of those in need so as to ensure that it does not fall below a certain minimum level. The minimum level is known as "the applicable amount". The applicable amount in relation to any individual varies according to the circumstances of that individual as provided by Part IV of the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967) ("the 1987 Regulations"). In particular the applicable amount otherwise determined is to be enhanced by the amount of any "premium" to which the individual is entitled under Part III of Schedule 2 to the 1987 Regulations. One of these is the severe disability premium, entitlement to which is prescribed by paragraph 13 of Schedule 2. The issue in this appeal is whether, in the relevant circumstances and in accordance with the regulations in force since 9 October 1989, the appellant is entitled to the severe disability premium as part of her income support. The adjudication officer held that she was not and the Birkenhead Social Security Appeal Tribunal affirmed his decision. On appeal to a Social Security Commissioner, it was held by Mr. Commissioner Sanders, that so much of paragraph 13(2)(a) as operated to defeat the appellant's claim to the severe disability premium was in excess of the Secretary of State's regulation-making power and that this was severable from the remainder of the sub-paragraph which established her entitlement. He accordingly allowed her appeal. From this decision the Chief Adjudication Officer and the Secretary of State appealed to the Court of Appeal. The court (Lord Donaldson of Lymington M.R., Beldam and Nolan L.JJ.) held first, unanimously, that the Commissioner had no jurisdiction to question the vires of a regulation made by the Secretary of State, so that the appeal fell strictly to be allowed on this ground alone. They went on to hold, however, that in the circumstances it was both possible and appropriate for the court to consider the substantive issue of the vires of the provision which the appellant sought to impugn by the device of allowing her to invoke the original jurisdiction of the Court of Appeal to entertain an application for judicial review. On the issue of vires the majority (Beldam and Nolan L.JJ.) held the relevant provision to be intra vires, Lord Donaldson M.R. held it to be ultra vires, but further held that it was not severable from the remainder of the regulation. In the result the appellant failed. The Court of Appeal's decision is reported at [1992] Q.B. 31. The appellant now appeals from it by leave of your Lordships' House.
The jurisdiction of the Commissioners
The issue as to the Commissioners' jurisdiction is in one sense academic, since, if your Lordships were to affirm the Court of Appeal on this issue, it would still be necessary to go on, as the Court of Appeal did, to determine the issue of the vires of the provision under challenge and it is only if the appellant succeeds on this second issue that she can effectively succeed in the appeal. The jurisdiction issue, however, has far-reaching procedural implications for the future, it has been very fully argued and it is important that your Lordships should resolve it, the more so, perhaps, since the Court of Appeal's decision in the instant case runs counter to the practice of the Social Security Commissioners established by a long series of decisions, both by single Commissioners and by Tribunals of Commissioners, holding that they had jurisdiction to decide and in fact deciding issues as to the vires of secondary legislation. Some of those decisions have been reviewed by the courts without any previous suggestion that issues of vires were beyond the jurisdiction of the Commissioners.
Part III of the Social Security Act 1975 is headed "Determination of Claims and Questions". It has been extensively amended by subsequent legislation and any reference in this opinion to the provisions of the Act will be to their form as in force at the material time. The fasciculus of sections 97–104 is headed "Adjudication officers, social security appeal tribunals and Commissioners". Section 97 provides that in the first instance an adjudication officer is to determine any claim for benefit and any question arising in connection with a claim for benefit except questions required by some other provision in Part III to be determined otherwise than by an adjudication officer. From the adjudication officer's decision the claimant has an appeal as of right to a social security appeal tribunal: section 100. From the decision of a social security appeal tribunal an appeal lies to a Social Security Commissioner on the ground that the decision of the tribunal was "erroneous in point of law:" section 101. The Commissioners, who are of comparable standing to Circuit Judges, normally sit singly but the Chief Commissioner may direct that an appeal involving a question of law of special difficulty be dealt with by a Tribunal of three Commissioners. Provision for an appeal from a Commissioner's decision to the Court of Appeal is made by section 14 of the Social Security Act 1980. An appeal lies on a point of law, but only with the leave of the Commissioner or the Court of Appeal and the parties entitled to appeal include the Secretary of State.
This is only the barest outline of the statutory scheme for the adjudication of benefit claims. But it focuses immediately on the central question, which is whether a claimant otherwise entitled to some social security benefit which has been denied to him by the adjudication officer and the appeal tribunal in reliance on some provision in a regulation which the Secretary of State had no power to make is entitled to succeed on appeal to the Commissioner on the ground that the decision against him was "erroneous in point of law" or whether, as must follow if the Court of Appeal were right, before he invokes the statutory machinery by which alone his claim can be enforced, he must first proceed by way of an application for judicial review to have the offending provision quashed or declared invalid. It is common ground that the principle of O'Reilly v. Mackman [1983] 2 A.C. 237 has no application, since there can be no abuse of process by a party who seeks a remedy by the very process which statute requires him to pursue. It was further righly accepted by Mr. Beloff before your Lordships that a decision giving effect to secondary legislation which is ultra vires is, indeed, in the ordinary meaning of the words "erroneous in point of law." The question then is whether, when that phrase is used in section 101 of the Act of 1975, there is something in the context in which it appears which requires by necessary implication that it be given a restricted meaning so as to exclude from its ambit any errors of law referable to a misuse by the Secretary of State of his regulation-making power.
I shall seek to summarise, hoping that I do them justice, the several considerations relied on in the judgments of the Court of Appeal and in the arguments advanced for the respondents before your Lordships as giving rise to such an implied restriction and consider them in turn.
It is pointed out rightly, that, if the Commissioner can base his decision in any case on the invalidity of some provision in regulations made under the Act, it must follow that appeal tribunals and adjudication officers can do likewise. Adjudication officers may be, and no doubt normally are, civil servants without legal qualifications and it cannot have been intended by Parliament, it is said, that such relatively lowly officials should have power to question the validity of regulations made by the Secretary of State. Closely allied to this point is the point made that the Secretary of State is not a party to an appeal from the adjudication officer to the appeal tribunal and cannot, therefore, appear before it to defend the vires of any provision in regulations which is challenged or himself appeal to the Commissioner from an adverse decision of an appeal tribunal. I think both these objections are theoretical rather than real. Under section 99(2) the adjudication officer to whom a claim or question is submitted may either decide it himself or refer it to an appeal tribunal and I should expect that whenever a claimant before an adjudication officer sought to mount a challenge to the vires of some provision in regulations, the adjudication officer, if he thought there might be any substance in the point, would refer it to an appeal tribunal. Moreover, there is a Chief Adjudication Officer whose duty it is under section 97(1C) to advise adjudication officers on the performance of their functions and I should expect him to give or to have given advice to this effect. Again, once such a challenge is before an appeal tribunal, the adjudication officer becomes a party to the proceedings and, on this or any other issue of law of whatever...
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