R v Secretary of State for Social Security, ex parte Britnell

JurisdictionUK Non-devolved
JudgeLord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Ackner,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle
Judgment Date14 March 1991
Judgment citation (vLex)[1991] UKHL J0314-1
CourtHouse of Lords
Date14 March 1991
Secretary of State for Social Security
Ex Parte Britnell (A.P.)

[1991] UKHL J0314-1

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Ackner

Lord Oliver of Aylmerton

Lord Jauncey of Tullichettle

House of Lords

Lord Keith of Kinkel

My Lords,


During periods in 1973 and 1974 the appellant was in receipt of unemployment benefit under the National Insurance Act 1965. On 24 March 1975 a review made by a national insurance officer, under section 72 of that Act, determined that payments amounting to £462.77 in respect of those periods should not have been made because the appellant was not unemployed during them. Repayment was therefore required under section 81 of the Act of 1965, and the appellant was so informed by letter date 8 April 1975. By that time section 81 had been repealed and substantially re-enacted in section 119 of the Social Security Act 1975, subsections (1) and (2) of which provided:

"(1) Where benefit is or has been paid in pursuance of a decision which is reversed or varied on appeal, or is revised on a review, then, subject to subsection (2) below, the decision given on the appeal or review shall require repayment to the Secretary of State of any benefit which was paid in pursuance of the original decision to the extent to which it-

  • ( a) would not have been payable if the decision on the appeal or review had been given in the first instance; and

  • ( b) is not directed to be treated as paid on account of the benefit awarded by the decision on appeal or review, or as having been properly paid.

(2) A decision given on appeal or review shall not require repayment of benefit paid in pursuance of the original decision in any case where it is shown to the satisfaction of the person or tribunal determining the appeal or review that in the obtaining and receipt of the benefit the beneficiary, and any person acting for him, has throughout used due care and diligence to avoid overpayment."


Regulations made under subsection (3) provided inter alia for the recovery of overpayments out of other benefits under the Act, that is to say contributory benefits. Recovery out of non-contributory benefits, such as supplementary benefit under section 4(1) of the Supplementary Benefits Act 1966 (later re-enacted in section 1(1) of the Supplementary Benefits Act 1976), was not permissible. Claims by the Secretary of State for recovery under these Regulations resulted in repayment by the appellant of sums amounting to £298.45 between November 1975 and January 1978. Thereafter the appellant was no longer in receipt of unemployment benefit but was drawing supplementary benefit under the Act of 1976. So recovery had to stop, leaving the sum of £164.32 outstanding.


The Social Security Act 1986, which came into force on 6 April 1987, repealed section 119 of the Act of 1975. Section 53(1) and (2) provide:

"(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure -

  • ( a) a payment has been made in respect of a benefit to which this section applies; or

  • ( b) any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered,

the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose.

(2) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it."


Subsection (9) makes provision for recovery through the county court or the sheriff court. Subsection (10) defines the benefits to which subsection (1) applies as including benefits under the Social Security Act 1975, thus bringing in unemployment benefit. As regards the benefits out of which recovery may be made, subsection (7) provides that there are to be "prescribed" benefits, "prescribed" being defined by section 84(1) as meaning "specified in or determined in accordance with regulations". Section 89(1) provides:

"Regulations may make such transitional and consequential provision (including provision modifying any enactment contained in this or any other Act) or saving as the Secretary of State considers necessary or expedient in preparation for or in connection with the coming into force of any provision of this Act or the operation of any enactment which is repealed or amended by a provision of this Act during any period when the repeal or amendment is not wholly in force."


The Secretary of State proceeded to make the Social Security (Payments on account, Overpayments and Recovery) Regulations 1987 (S.I. 1987 No. 491), which came into force on 6 April 1987. Regulation 16(2)(e) of these includes any supplementary pension or allowance among the benefits from which overpayments may be deducted, albeit subject to certain limitations set out in regulation 17. Regulation 20(2), under the heading "transitional provisions", provides:

"Section 53(7) and (9) (recovery by deductions from benefit and recovery through the county court or sheriff court) and Part VII of these Regulations (the process of recovery) shall apply to any amount recoverable or repayable under any enactment repealed by the Act or any Regulations revoked by these Regulations as if it was an amount recoverable under section 53(1)."


The Regulations made under section 119 of the Act of 1975 were revoked.


In August 1987 the Secretary of State, relying on regulation 20(2), started to recover the outstanding sum of £164.32 by making deductions from the appellant's supplementary benefit (now known as income support). In October 1987 he stopped making the deductions because the appellant owed a gas bill, but he proposed to continue the deductions after the latter had been paid. On 9 December 1987 the appellant instituted judicial review proceedings seeking to quash the Secretary of State's decision to deduct overpayments of unemployment benefit from the appellant's entitlement to supplementary benefit, on the ground that regulation 20(2) was ultra vires. Leave to apply was granted, but on 24 January 1989 a Divisional Court (Mann L.J. and McCowan J.) dismissed the application, and on 6 February 1991 their decision was affirmed by the Court of Appeal (Lord Donaldson of Lymington M.R., Staughton and Farquharson L.JJ.). The appellant now appeals, with leave given here, to your Lordships' House.


The argument by which it was maintained for the appellant that regulation 20(2) of the Regulations of 1987 was not within the power conferred on the Secretary of State by section 89(1) of the Act of 1986 sought to demonstrate that it was not truly a "transitional" provision within the meaning of that enactment. The reason why it was not truly transitional was said to be that it altered the substantive effect of section 53 of the Act of 1986. That section was expressed as applying only...

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