Chief Adjudication Officer v. Maguire CI 3013 1995
| Jurisdiction | UK Non-devolved |
| Judge | Judge M. Rowland |
| Judgment Date | 23 March 1999 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Industrial injuries benefits |
| Docket Number | CI 3013 1995 |
| Appellant | Chief Adjudication Officer v. Maguire |
R(I) 3/99
(Chief Adjudication Officer and Anor. v. Maguire)
Mr. M. Rowland CI/3013/1995
18.11.96
CA (Simon Brown, Waller and Clarke LJJ)
23.3.99
Special hardship allowance - claim made after repeal of section 60 of the Social Security Act 1975 - whether claimant had an “acquired” or “accrued” right that survived the repeal
The applicant had suffered from vibration white finger prior to it being first prescribed as an industrial disease on 1 April 1985. From 1 October 1986, section 60 of the Social Security Act 1975, making provision for special hardship allowance was repealed and reduced earnings allowance was introduced in its place. The claimant claimed disablement benefit on 1 November 1989 and was awarded a disablement gratuity based on an assessment of 8% from 1 April 1985 for life. He claimed reduced earnings allowance on 22 August 1991, apparently seeking payment from 1 November 1989. The adjudication officer awarded reduced earnings allowance from 22 May 1991. The claimant appealed, seeking reduced earnings allowance from 1 April 1985. The tribunal treated the claim as having been made in respect of the period from 1 April 1985 but allowed the appeal only to the extent of awarding reduced earnings allowance from 1 November 1989. The claimant appealed to the Commissioner. By then, the Secretary of State had decided that the claim for reduced earnings allowance could be treated as a claim for that benefit in respect of the period from 1 October 1986 but it was argued on behalf of the adjudication officer that a claim for special hardship allowance by the claimant could not succeed because section 1(2)(b) of the Social Security Administration Act 1992 provided that a person should not be entitled to any benefit “except disablement benefit or reduced earnings allowance” in respect of any period more than 12 months before the date of claim.
The Commissioner held that the tribunal had exceeded their jurisdiction in treating the claim as having been made in respect of a period before 1 November 1989 (that question being one for the Secretary of State) but also held that the term “disablement benefit” in section 1(2)(b) encompassed special hardship allowance. He allowed the appeal, finding that the claimant had good cause for the delay in claiming both special hardship allowance and reduced earnings allowance, and he directed the adjudication officer to refer to the Secretary of State the question whether the claim for reduced earnings allowance should be treated as a claim for special hardship allowance. The Chief Adjudication Officer and the Secretary of State appealed to the Court of Appeal, contending that no claim for special hardship allowance made since 1 October 1986 could succeed because section 60 of the Social Security Act 1975 had been repealed from that date and the claimant did not have an acquired or accrued right to special hardship allowance which, by virtue of section 16(1)(c) of the Interpretation Act 1978, would not be affected by the repeal
Held, dismissing the appeal, that
1. the court was not concerned with a two stage enquiry, first deciding whether there was a right and then deciding whether it was an acquired or accrued right but was concerned with the single question: has the claimant established that at the time of repeal he had a right?;
2. a mere hope or expectation of acquiring a right is insufficient but an entitlement, even if inchoate or contingent, suffices and the fact that further steps may still be necessary to prove that entitlement existed before repeal, or to prove its true extent, does not preclude it from being a right;
3. whether or not there is an acquired right depends on whether at the date of the repeal the claimant has an entitlement (at least contingent) to money or other certain benefit receivable by him provided only that he takes all appropriate steps by way of notices and/or claims thereafter: Hamilton Gell v White [1922] 2 KB 422; County Council of Moray [1992] SLT 236; Convex Ltd’s Patent [1980] REC 423; Plewa v. Chief Adjudication Officer [1995] 1 AC 249; Free Lanka Insurance Ltd v. Ranasinghe [1964] AC 541;
4. (per Simon Brown LJ) the claimant’s right to special hardship allowance accrued on 1 April 1985 when vibration white finger (a disease from which he already suffered) was first prescribed;
5. (per Waller and Clarke LJJ) the claimant acquired a right to special hardship allowance before the repeal and the right accrued when he made his claim.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, brought by the claimant with the leave of a Commissioner (who extended the time for applying for leave), against the decision of the North Shields Social Security Appeal Tribunal dated 25 June 1992, whereby they held that reduced earnings allowance was payable in respect of the period of 1 November 1989 to 21 May 1991 at the maximum statutory rate but held that he was not entitled to reduced earnings allowance in respect of the period from 1 April 1985 to 31 October 1989. At the oral hearing before me, the claimant was represented by Ms. Natalie Lieven of Counsel instructed by the Wallsend People’s Centre, and the adjudication officer was represented by Mr. Jeremy Heath of the Office of the Solicitor to the Departments of Social Security and Health.
2. In view of the considerable measure of agreement in this case I can set out the history fairly briefly. On a form dated 30 October 1989 and received by the Department of Health and Social Security on 1 November 1989, the claimant claimed disablement in respect of vibration white finger. An adjudicating medical authority assessed the extent of disablement resulting from the disease at eight per cent. from 1 April 1985 (when vibration white finger was first prescribed as an industrial disease) for life. A disablement gratuity was awarded, but it was not until 22 August 1991 that the claimant made a claim for reduced earnings allowance in respect of the disease. On his claim form he said that he wished to claim from “my date of claim for VWF Oct.. ‘89”. That was read by the adjudication officer as a claim in respect of the period from 1 November 1989. The adjudication officer awarded reduced earnings allowance from 22 May 1991 but decided that the claimant was not entitled to benefit in respect of the period 1 November 1989 to 21 May 1991 on the ground that the claim was late and the claimant had not shown good cause for the delay for the purposes of regulation 19(2) of the Social Security (Claims and Payments) Regulations 1987. The claimant appealed “against the adjudication officer’s decision not to backdate my REA to 1 April 1985”. The claimant was represented at the hearing before the tribunal by Ms. Maureen Madden of the Wallsend People’s Centre. The tribunal accepted her suggestion that they should treat the letter of appeal as a claim for reduced earnings allowance in respect of the period from 1 April 1985 to 31 October 1989. They accepted that the claimant did have good cause for the delay in respect of the claim from 1 November 1989 to 21 May 1991 because they found that he had been misled by the wording of the disablement claim form. However, they found that the claimant did not have good cause for the delay in claiming in respect of the period 1 April 1985 to 31 October 1989.
3. The tribunal gave no reason at all for finding that there was no good cause for delaying the claim in respect of the period 1 April 1985 to 31 October 1989 and it is common ground that the decision is therefore erroneous in point of law for want of compliance with the duty to record the tribunal’s reasons, imposed on the chairman by regulation 25(2)(b) of the Social Security (Adjudication) Regulations 1986. It is also common ground that the tribunal erred in law in treating the letter of appeal as a claim for reduced earnings allowance in respect of the period from 1 April 1985 to 31 October 1986, because only the Secretary of State had power to do so by virtue of regulation 4(1) of the Social Security (Claims and Payments) Regulations 1987. That provides:— “Every claim for benefit shall be made in writing on a form approved by the Secretary of State for the purpose of the benefit for which the claim is made, or in such other manner, being in writing, as the Secretary of State may accept as sufficient in the circumstances of any particular case.”
4. Save in one respect, there is also agreement as to the decision I should give. Since the tribunal’s decision, the Secretary of State has agreed to treat the letter of appeal to the tribunal as a claim for reduced earnings allowance only in respect of the period from 1 October 1986 to 31 October 1989. That is because reduced earnings allowance was introduced only from 1 October 1986. It replaced “special hardship allowance” which had previously had been payable under section 60 of the Social Security Act 1975. The Secretary of State has not treated the letter of appeal to the tribunal as a claim for special hardship allowance in...
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