R v National Insurance Commissioner.ex parte Stratton
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BRIDGE,LORD JUSTICE TEMPLEMAN |
| Judgment Date | 20 December 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J1220-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 1978 |
[1978] EWCA Civ J1220-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
(Divisional Court)
The Master Of The Rolls
(Lord Denning)
Lord Justice Bridge and
Lord Justice Templeman
In The Matter Of An Application By Derrick Ross Stratton For An Order Of Certiorari
And In The Matter Of A Decision Dated The 3rd Day Of November, 1977 Made By The National Insurance Commissioner
MR. D. LATHAM (instructed by the Solicitor, Department of Health and Social Security) appeared on behalf of the Appellants.
MR. H. WOOLF and MR. I. GLICK (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
RESERVED JUDGMENT
During the war Derrick Stratton, like so many young joined the Royal Air Force. He was then only 19. After the war he stayed on in the service and was given a permanent commission. He made his way up and became a squadron leader. He had every expectation of continuing his service career until the normal retiring age of 55: and then retiring on pension. But, when he was 50 years of age, his service career was cut short. He was "axed" when he had still more than four years to go. It was on the 30th November, 1975. He left the Royal Ail Force after serving for 32 years. He was paid redundancy compensation of £8,000. But he could not get a Job in civilian life. He found himself unemployed. So, like otter unemployed persons, he applied for unemployment benefit. It was treated as a test case. It went up to the Chief National Insurance Commissioner himself. He held that the squadron leader was not entitled to unemployment benefit. The Ministry of Defence have now taken up the case on behalf of the squadron leader. They seek to show that he is entitled to unemployment benefit. They point out that a civilian who gets a redundancy payment is nevertheless entitled to unemployment benefit. So should the squadron leader.
REDUNDANCY PAYMENTS FOR SERVING OFFICERS AND MEN
On many occasions the armed services have been reduced in numbers. Many officers and men have been "axed". They become entitled, of course, to a retirement pension. But, in addition, they are paid a sum to compensate them for early retirement. The latest occasion was in 1975. The Government issued a White Paper in which they gave the numbers of officers and men who were to be made redundant. They included 800 officers of one Royal Air Force. The principle of compensation was set out asan annex to the White Paper. It said:
"Redundancy Compensation for the Armed Forces:
"As in past redundancy programmes, the compensation will take account or the curtailment of their expected Service careers (to which they are committed by binding engagements). their loss of prospects, the higher rate of pension which they might have earned had they served longer, and the difficulties they may face in starting new careers in civilian life.
"For officers serving on permanent commission who are prematurely retired … compensation will take the form of a tax-free lump-sum payment, a special capital payment, graduated according to length of service given and the length of time for which, but for redundancy, the individual could have expected to serve before normal retirement".
In pursuance of that White Paper, the Minister of Defence issued a Standing Instruction which gave the terms of compensation. This showed that, for officers in the Royal Air Force, the Special Capital Payment was to be calculated in two different ways:-
(i) Less than 12 years' service
If an officer had served for less than 12 years, he was compensated by being paid a sum calculated according to his past service. For instance, after three years' service, he got a special capital payment of five months' pay. After six years' service, ten months' pay; after nine years' service, fifteen months' pay; after eleven years' service, nineteen months' pay.
(ii) More than thirteen years' service
If an officer had served for 13 years or more, he was compensated by being paid a sum calculated according to his future expected service. For instance, if he had only one yearto go before the reached retiring age, he only got three months' pay. If he had four years to go before retiring, he got 15 months' pay. If he had five years or more to go, he got 18 months' pay.
Squadron Leader Stratton had done 32 years' service. He had only four years and three months to go before reaching the retiring age of 55. He was entitled under the Standing Instruction to a Special Capital Payment of 15 months' pay. It came to £8,000.36.
THE STATUTORY PROVISION
The statute which provides for unemployment benefit is the National Insurance Act 1965, now replaced by the Social Security Act 1975. It entitles a qualified person to unemployment benefit "in respect of any day of unemployment which forms part of a period of interruption of employment". The statute does not define a "day of unemployment". That was done by regulations. There were several versions. The material version for us is a regulation made in 1967, No. 330, as amended by 1971, No. 807, now re-enacted in 1975, No. 564. The regulations allow a man to receive unemployment benefit in most cases when he is out of work, but they disallow it when he has already received compensation in respect of his being unemployed. This disallowance for present purposes is to be found in Regulation 7(1)(d), which says that:
"… a day shall not be treated as a day of unemployment if it is a day in respect of which a person receives a payment (whether or not a payment made in pursuance of a legally enforceable obligation) in lieu either of notice or of the remuneration which he would have received had his employment not been terminated, so, however, that the provisions of thissub-paragraph shall not apply to any day which does not fall within the period of one year from the date on which the employment of that person terminated".
Those last words show that the disallowance 'is only for one year anyway.
PRECEDENTS SET BY COMMISSIONERS
In order to interpret this regulation, we were referred by Mr. Latham to many decisions of the National Insurance Commissioners. And it is important to decide whether they should be accepted, or not. To this end I will set out the position as I understand it.
Unemployment benefit - as well as other benefits - is administered by a huge machine under the control of the Department of Social Security. There are offices all over the country where payment is made to those who are unemployed.
Payment of unemployment benefit is regulated by a complex set of regulations. These are made by the Secretary of State, but he has the advice of a National Insurance Advisory Committee. That is a statutory committee in which all sides of industry are represented. Whenever the Secretary of State proposes to make or amend any regulation he has to consult the committee except in cases of urgency. The intention of Parliament was no doubt, that the regulations should be kept constantly under review: and amended whenever necessary to meet any defects shown up in the working of them. I hope this is being done.
In order to resolve any dispute, there is a corps of adjudicators. They consist of insurance officers, with an appeal to local insurance tribunals and then an appeal to National Insurance Commissioners. These commissioners arejudges, and their decisions are by statute made final. There 'is no appeal from their decisions. They give hundreds of decisions on points of law regarding the interpretation of the regulations. They know just how they "work. The more important decisions are printed and published by the Department and are applied by all those concerned. They have been analysed and explained in an excellent book this year by Ogus and Baredet on Social Security.
At one time it was thought that the High Court had no power to intervene with the decisions of commissioners, but in 1957 it was held by this court that there was power by certiorari to quash a decision of the commissioners for error of law on the face of the record. But, as I said at the time, "they are so well versed in the law and deservedly held in such high regard, that it will be rare that they fall into error such as to need correction": see Regina v. Medical Appeal Tribunal (1957) 1 Queen's Bench at page 585. That forecast hag proved right. Very seldom have any of their decisions been brought before the High Court. I have counted them. There have only been eight in the last twenty years, over the whole insurance field. This is the first one on unemployment benefit.
I venture to suggest that we should proceed on this principle:- If a decision of the commissioners has remained undisturbed for a long time, not amended by regulation, nor challenged by certiorari, and has been acted upon by all concerned, it should normally be regarded as binding. The High Court should not interfere with it save in exceptional circumstances, such as where there is a difference of opinion between commissioners, see Regina v. National InsuranceCommissioners, Ex parte Michael (1977) 1 Weekly Law Reports 109. A recent decision is less binding. It may be brought before the High Court with the very object or getting a ruling on a difficult point. The Department itself should do it, if need be. Then the High Court can and should do whatever the justice of the case requires.
THE DECISIONS ON UNEMPLOYMENT BENEFIT
When unemployment benefit was introduced in 1946 the regulations were made in relation to the labour law as it then existed. Most men could be dismissed by a week's notice or a week's pay in lieu of notice: or, at any rate, a month's notice, or a month's pay in lieu. If a man was...
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