R v Chief Adjudication Officer, ex parte B
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Peter Gibson,Lord Justice Schiemann |
| Judgment Date | 03 February 2000 |
| Judgment citation (vLex) | [1998] EWCA Civ J1209-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 February 2000 |
| Docket Number | Case No: QBCOF 98/0906/4 |
[1998] EWCA Civ J1209-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE SEDLEY
Royal Courts of Justice
Strand, London, WC2A 21L
Lord Justice Simon Brown
Lord Justice Peter Gibson
and
Lord Justice Schiemann
Case No: QBCOF 98/0906/4
Mr R Drabble QC (instructed by Solicitor to the Department of Social Security, London WC2A 21S for the Appellant)
Mr R McCarthy QC and Mr S Cox (instructed by the Solicitor to the Joint Council for the Welfare of Immigrants of 115 Old Street London EC1V 9JR for the Respondent)
Judgment: Approved by the court
This is the Secretary of State's appeal by leave of the judge below against the order of Sedley J made on 19th June 1998 quashing decisions of adjudication officers refusing to award the respondent disability living allowance (DLA) from 16th April 1997. It raises a point of some importance as to the proper construction and application of regulation 12(3) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 (the Regulations).
The issue arises as follows. The respondent is a Sri Lankan Tamil who came to this country in 1992 and claimed asylum. He suffers from chronic renal failure for which he is under continual treatment. In 1995 he claimed and was granted a time-limited DLA under the relevant Social Security legislation. The award was made on 15th April 1995 for a two year period.
On 5th February 1996 the Regulations came into force. Regulation 4 among other things disqualifies from entitlement to DLA persons whose right to reside or remain in Great Britain is subject to any limitation or condition. Such persons are so defined as to include asylum seekers like the respondent. Regulation 12, captioned "Saving", made the following further provision:
"12 (1)Where, before the coming into force of these Regulations, a person who becomes an asylum seeker under regulation 4A(5)(a)(1) of the Council Tax Benefit Regulations, regulation 7A(5)(a)(i) of the Housing Benefit Regulations or regulation 70(3A)(a) of the Income Support Regulations, as the case may be, is entitled to benefit under any of those Regulations, those provisions of those Regulations as then in force shall continue to have effect as if regulations 3(a) and (b), 7(a) and (b) or 8(2) and 3(c), as the case may be, of these Regulations had not been made.
(2)Where, before the coming into force of these Regulations, a person, in respect of whom an undertaking was given by another person or persons to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled, or is receiving benefit, under the Council Tax Benefit Regulations, the Housing Benefit Regulations or the Income Support Regulations, as the case may be, those Regulations as then in force shall have effect as if regulations 3, 7 or 8, as the case may be, of these Regulations had not been made.
(3)Where, before the coming into force of these Regulations, a person is receiving attendance allowance, disability living allowance, disability working allowance, family credit, invalid care allowance or severe disablement allowance under, as the case may be, the Attendance Allowance Regulations, Disability Living Allowance Regulations, Disability Working Allowance Regulations, Family Credit Regulations, Invalid Care Allowance Regulations or Severe Disablement Allowance Regulations, those Regulations shall, until such time as his entitlement to that benefit is reviewed under section 25 or 30 of the Social Security Administration Act 1992(c) have effect as if regulation 2, 4, 5, 6, 9 or 11, as the case may be, of these Regulations had not been made."
The words central to the present appeal are these:
"12(3) 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 Amendment Act 1992, have effect as if regulation … 4 … of these Regulations had not been made."
Section 30(2) of the Social Security Amendment Act 1992 (the review section) provides:
"On an application under this section … a decision of an adjudication officer … which relates to … a disability living allowance … may be reviewed if -
(a)the adjudication officer is satisfied that the decision was given in ignorance of, or was based on a mistake as to, some material fact; or
(b)there has been any relevant change of circumstances since the decision was given; or
(c)it is anticipated that a relevant change of circumstances will so occur; or
(d)the decision was erroneous in point of law; or
(e)the decision was to make an award for a period wholly or partly after the date on which the claim was made or treated as made but subject to a condition being fulfilled and that condition has not been fulfilled, …"
On 1st April 1997 the respondent made a claim for further DLA as from 16th April 1997. On 1st May 1997 the adjudication officer purported to review the respondent's award pursuant to s.30(2)(b) on the ground that the 1996 Regulations constituted a relevant change of circumstances whereby the respondent's immigration status had become a bar to payment of DLA. In so doing the adjudication officer followed the standard practice in relation to DLA recipients with limited immigration status who had been in receipt of the benefit since before 5th February 1996 when the Regulations came into effect. This standard practice was challenged by other claimants in ex parte O and K whereupon the Department abandoned its contention that the coming into effect of the 1996 Regulations fell within s.30(2)(b) and a consequential consent declaration was made by the court on 18th August 1997. The adjudication officer therefore reviewed his earlier decision of 1st May 1997 on the ground that it was itself erroneous in point of law (see s.30(2)(d)), but on 25th November 1997 again refused the respondent's application on the ground that claims by way of renewal do not come within the protection afforded by regulation 12(3).
That, therefore, is the critical issue raised in these proceedings: whether on its true construction regulation 12(3) preserves all pre-existing DLA entitlement save where a subsequent review takes place under section 30, or whether it preserves only such DLA as was payable under awards made before 5th February 1996.
I should at this stage note that at the time of the judge's order below the respondent's appeal against the Home Secretary's refusal of asylum was still pending. On 30th October 1998 he was granted indefinite leave to remain on the basis of his exceptional compassionate circumstances and from that date there is no dispute that he became entitled to the benefit. The respondent's entitlement between 16th April 1997 and 30th October 1998, however, remains in issue.
Before turning to the rival arguments, it is convenient first to note certain features of the benefit here in question. DLA is a non-contributory and non means tested benefit for the severely disabled. It comprises two components: care and mobility, the care component being the successor to attendance allowance. Entitlement to the benefit (like all benefits) requires first that a claim be made for it. A person may be entitled to either component or to both. Importantly for present purposes it is provided by s.71(3) of the Social Security Contributions and Benefits Act 1992 that:
"A person may be awarded either component for a fixed period or for life …"
I have already set out the review provision. An application for review may be made either by the claimant or by the Secretary of State and, upon review, decisions may be adjusted in favour of the claimant, or against him, in whole or in part, depending upon the circumstances.
It will readily be apparent that anyone receiving DLA (or, of course, any other benefit covered by regulation 12(3)) who prima facie is disentitled by regulation 4, will, upon review of the decision after 5th February 1996, immediately lose the benefit, and that is so even if the review would otherwise have led to an increase in the benefit payable. The only qualification to that is that one of the five pre-conditions for review stipulated by s.30(2) must be satisfied. It was, of course, the non-satisfaction of s.30(2)(b) which forced the adjudication officer in the present case to look to a basis other than review upon which to decide that benefit was no longer to be payable to this respondent.
It follows that if with regard to a life award there is no basis for instigating a review, then that award will continue for life, even though the claimant would otherwise be disqualified from the benefit were regulation 4 to apply. Similarly, of course, an award for a fixed period, unless there are grounds for its review after 5th February 1996, will continue at least until the fixed period ends. The critical question now arising, of course, is whether for asylum seekers and the like such an award can, after 5th February 1996, be renewed.
Regulation 12(3) is, both sides agree, a saving provision. But for regulation 12(3), regulation 4 would disentitle all claimants (I use the expression here to refer to those, like the respondent during the relevant period, with only limited or conditional leave to be here) with effect from 5th February 1996. The issue, therefore, is as to the true scope of this exception to the normal
rule.
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