M (A Minor) v Secretary of State for Social Security
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD NICHOLLS OF BIRKENHEAD,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT,LORD SCOTT OF FOSCOTE |
| Judgment Date | 05 July 2001 |
| Neutral Citation | [2001] UKHL 35 |
| Court | House of Lords |
| Date | 05 July 2001 |
[2001] UKHL 35
HOUSE OF LORDS
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hobhouse of Wood-borough
Lord Lord Millett
Lord Scott of Foscote
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Millett, and gratefully adopt his summary of the relevant facts and submissions.
Disability benefit is paid out of public funds to those who are severely disabled. The applicant's condition was such that she qualified for and received this benefit. Regulation 4 of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 (SI 1996/30) introduced a new condition of eligibility for payment of the grant, relating not to an applicant's medical need for assistance but to an applicant's immigration status. The introduction of this new condition plainly presented the draftsman with a question to be resolved: how was the new immigration condition to be applied to recipients currently in receipt of the benefit who did not meet the new condition?
One answer would have been to provide that those in receipt of the benefit when the new condition came into effect should continue to be eligible to receive it, whether they met the new condition or not, so long as their medical need for assistance persisted. This solution would have had the humanitarian advantage that benefit would not be withdrawn from those who continued to need it on medical grounds and had received it in the past and might have come to depend on it. This is, in effect, the solution which the applicant says was adopted. Another answer would have been to provide that existing recipients should continue to be eligible until the period (whether fixed or indefinite) of their current grants of benefit expired or they ceased to need the grant on medical grounds, whichever might be sooner. This solution would have served the ends of greater economy and uniformity. It is, in effect, the solution which the Secretary of State says was adopted. Whatever the answer favoured by the draftsman it should not have been hard to express it with enough clarity to avoid argument.
The diversity of opinion among members of the social security appeal tribunal in this case and the Court of Appeal, in the earlier case of R v Chief Adjudication Officer, Ex p B [1999] 1 WLR 1695, culminating in this appeal to the House, unhappily shows that such clarity was not achieved. I am not for my part persuaded that the Secretary of State's construction favoured by all my noble and learned friends is clearly correct; but equally I find no clear indication that the applicant's construction is to be preferred, and the Secretary of State's construction is somewhat more consistent with the language used. With some misgiving, therefore, and considerable sympathy for the applicant, I am prepared to agree that the decision in Ex p B should be affirmed and this appeal dismissed.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Millett. For the reasons he gives, and with which I agree, I too would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech which my noble and learned friend Lord Millett is about to deliver. I agree that the appeal should be dismissed for the reasons which he has given.
LORD MILLETT My Lords,
The appellant is a severely disabled child aged 9. She was born in Pakistan and was brought here by her parents in 1993 when she was one year old. She lives with her parents in Lancashire.
On 8 September 1993 she made a claim for disability living allowance. She satisfied the conditions of residence and presence in Great Britain currently prescribed by regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890) ("the principal regulations"). On 16 December 1993 an adjudication officer of the Department of Social Security awarded her an allowance for a period of three years from 27 September 1993 to 26 September 1996.
On 5 February 1996 regulation 4 of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 (SI 1996/30) ("the amending regulations") imposed an additional condition of entitlement to the allowance. This required that a claimant's right to reside or remain in Great Britain be not subject to any limitation or condition. The appellant did not satisfy this condition because she had remained beyond the time limited by her leave to enter the United Kingdom. The relevant conditions are now contained in reworded but substantially identical form in section 115 of the Immigration and Asylum Act 1999 which came into force on 3 April 2000. The appellant and her parents were granted indefinite leave to remain in the United Kingdom on 19 July 2000. The appellant thus now satisfies the conditions of the allowance but has done so only since 19 July 2000. The present dispute concerns her entitlement to the allowance between 27 September 1996 and 18 July 2000.
On 7 June 1996 in anticipation of the expiry of the current award the appellant made a claim to an allowance for a further period. On 16 August 1996 an adjudication officer ruled that the appellant did not satisfy the additional condition imposed by regulation 4 of the amending regulations and was accordingly not entitled to a further award. On 31 October 1996 another adjudication officer reviewed the decision but affirmed it.
The appellant's appeal was allowed by a social security appeal tribunal (by a majority) on the ground that regulation 12(3) of the amending regulations applied to her claim. On 21 June 1999 a social security commissioner, bound by a decision of the majority of the Court of Appeal (Peter Gibson and Schiemann LJJ, Simon Brown LJ dissenting) in R v Chief Adjudication Officer, Ex p B [1999] 1 WLR 1695, allowed the appeal of the adjudication officer and restored his decision of 31 October 1996. The Court of Appeal formally dismissed the appellant's appeal from the decision of the social security commissioner.
The present appeal is thus effectively an appeal from the decision of the Court of Appeal in E x p B. It turns on the true construction of regulation 12(3) of the amending regulations. Omitting words which relate to other benefits this reads as follows:
"Where, before the coming into force of these Regulations, a person is receiving … disability living allowance … under … the … Disability Living Allowance Regulations … those Regulations shall, until such time as his entitlement to that benefit is reviewed under section … 30 of the Social Security Administration Act 1992, have effect as if regulation … 4 … of these Regulations had not been made."
The question for decision is whether the principal Regulations apply in their unamended form to a claim to disability living allowance made after the date on which the amending Regulations came into force by a claimant who was in receipt of the allowance immediately before that date under an award for a fixed term which has since expired.
In order that the context in which this question arises may be understood, it is necessary to give a brief description of the structure of the benefit system. Disability living allowance is a non-contributory, non-means-tested benefit for the severely disabled. It comprises two components: a care component and a mobility allowance. Like most benefits, it is calculated at a weekly rate and is normally paid weekly. Section 1 of the Social Security Administration Act 1992 provides that (with exceptions which are not material) no person is entitled to any benefit (including disability living allowance) unless he is eligible for such benefit and makes a claim for it in the manner and at the time prescribed by regulations. Save in special circumstances, therefore, every entitlement to benefit is preceded by a claim.
A successful claim results in a decision of an adjudication officer under which the claimant is entitled to receive benefit for the duration of the award. In the case of disability living allowance the award must be either for life or for a fixed period: section 71(2) of the Social Security Contributions and Benefits Act 1992. In the present case it was for a fixed period of three years. Benefit awarded for a fixed period automatically ceases to be payable at the expiration of the period. A claimant who wishes to continue to receive benefit after the expiry of the period for which it was awarded must make a further claim and seek a fresh award on that claim. If he is to avoid any discontinuity in the receipt of benefit, he must make the claim before the expiry of the current award.
A claimant may also cease to be entitled to benefit if the decision under which it is payable is reviewed pursuant to a statutory provision to that effect. In the case of disability living allowance, section 30(2) of the Social Security Administration Act 1992 makes provision for a decision to be reviewed on specified grounds. These include the case where the award was made in ignorance of, or was based on a mistake as to, some material fact; or where there has been any relevant change of circumstances since the decision was made; or the decision was erroneous in point of law. At one time the Department took the view that the coming into force of the amending regulations was a change of circumstances capable of...
To continue reading
Request your trial
-
Shah v. Secretary of State for Social Security [2002] EWCA Civ 285 CIS 6608 1999
...that have not been pursued in the light of the decision of the House of Lords in M (A Minor) v. Secretary of State for Social Security [2001] 1 WLR 1453. 10. Those amendment regulations came into force or 5 February 1996. Soon after that, on 8 March 1996, the appellant returned to the Unite......
-
Mohammed Aziz Shah v Secretary of State for Social Security
...and grounds of appeal in relation to that have not been pursued in the light of the decision of the House of Lords in M (A Minor) v. Secretary of State for Social Security [2001] 1 WLR 1453. 10 Those amendment regulations came into force or 5th February 1996. Soon after that, on 8th March 1......