The Permanent Secretary, Ministry of Social Development and Family Services and another v Ruth Peters
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales |
| Judgment Date | 27 June 2023 |
| Neutral Citation | [2023] UKPC 23 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0021 of 2021 |
[2023] UKPC 23
Lord Briggs
Lord Sales
Lord Hamblen
Lord Burrows
Lord Stephens
Privy Council Appeal No 0021 of 2021
Privy Council
Trinity Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Anand Beharrylal KC
Siân McGibbon
Dinesh Rambally
Kiel Taklasingh
Stefan Ramkissoon
(Instructed by Rhea Khan, Sovereign Chambers (Trinidad))
Respondents
Robert Strang
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 27 March 2023
In July 2018 the appellant was diagnosed with Guillain-Barré Syndrome, a debilitating illness which has had a significant impact on her life. At that time the appellant was assessed as having 90% disability, which meant that she was unable to work. This appeal concerns her application for state disability benefits. Relevant state benefits are of two kinds: disability assistance benefit and public assistance benefit. Disability assistance benefit is paid at a higher rate.
The appellant obtained a certificate dated 23 October 2018 from a government medical officer which stated that she was disabled from earning and, as to the duration of her disability, stated “1 year pending clinical reports”. On the basis of this certificate the appellant applied to the Sangre Grande Welfare Office for disability assistance benefit, but it was refused. This was on the basis that such benefit would only be paid where the medical certificate states that the individual is permanently disabled. The decision of the Welfare Office was confirmed by the Permanent Secretary of the Ministry of Social Development and Family Services (“the Permanent Secretary”), who is the first respondent. The appellant was told she should apply for public assistance benefit instead.
The primary legislation governing both these benefits is the Public Assistance Act (“the PAA”), which has been amended from time to time. According to provisions of the PAA introduced in 1996, in order to claim disability assistance benefit an individual had to be permanently disabled. Subordinate legislation promulgated pursuant to the PAA shortly afterwards, the Public Assistance (Disability Assistance) (Prescribed Forms) Regulations (“the Forms Regulations”), specified the form to be used to apply for disability assistance benefit. The prescribed form stated that certification of permanent disablement is a condition of eligibility for disability assistance benefit.
There was a further round of amendments to the PAA in 1998. The wording of the provision governing the grant of disability assistance benefit, section 11A, was changed and no longer referred to permanent disablement. Instead, the relevant condition in section 11A(1)(d) now requires in relation to the individual claiming to be entitled to disability assistance benefit that “he is in the opinion of the Local Board so disabled that he is unable to earn a livelihood and has been certified by a Medical Officer as being so disabled”. The Forms Regulations remained in force. Therefore, although the reference to permanent disablement was removed from the face of the PAA, it remained a requirement appearing on the face of the application form prescribed by the Forms Regulations that the individual had to obtain a medical certificate of permanent disablement.
The principal issue which arises in these proceedings is whether Parliament, by making the changes to the wording of section 11A in 1998, removed the requirement that an individual has to be permanently disabled in order to be eligible for disability assistance benefit, or whether that requirement remains in place, in line with what is stated in the Forms Regulations.
The PAA makes provision for payment of public assistance benefit and for payment of disability assistance benefit, as part of an integrated scheme of benefits. By virtue of the definition provision in section 2, disability assistance benefit is treated as a form of public assistance benefit unless the context otherwise requires. Public assistance benefit is a benefit with wider application than disability assistance benefit and covers a range of situations in which persons or households might find themselves in straitened financial circumstances.
The 1996 version of section 11A of the PAA provided that a person is entitled to receive disability assistance benefit if certain conditions were satisfied, including that his or her income was below a certain level, that they were aged between 40 and 65 (at which point they would be eligible for an old age pension), and as to their disablement. It provided in relevant part as follows:
“11A. (1) Notwithstanding any provision of this Act, a person is entitled to receive disability assistance if—
…
(d) he is certified by a Government Medical Officer as handicapped with a disability that—
(i) is attributable to an intellectual, psychiatric, sensory or physical impairment or a combination of such impairments;
(ii) is permanent or likely to be permanent; and
(iii) results in inability to earn a living which in the opinion of the Local Board would be adequate.
(2) Notwithstanding certification pursuant to subsection (1)(d), the Director (Social Welfare) may, if he sees fit, refer the applicant to the Chief Medical Officer for assessment and certification of disability and if such certification is not obtained, the Local Board may refuse the applicant's claim in accordance with this Act.”
Section 11B was also added to the PAA. It provided:
“An application for disability assistance shall be submitted in writing in the form and manner prescribed in Regulations made under this Act, to the Local Board.”
Section 16(1) of the PAA has at all material times provided that “The Minister may make Regulations for carrying the purposes and provisions of this Act into effect, and, without limiting the generality of the foregoing may make Regulations- … (b) prescribing the procedure to be followed on and the forms to be used for applications for public assistance”.
In 1997 the Minister made the Public Assistance Regulations, which have remained in force at all material times. These specify the circumstances in which public assistance benefit will be payable. Regulation 3 provides as follows:
“3. (1) Public assistance may be provided to a person who is in need by reason of his being prevented by some physical or mental disability from earning a living.
(2) Public assistance shall be in the form of a grant for a period not exceeding twelve months and is subject to review.”
Regulation 5 provides in relevant part that “an application for public assistance shall be supported by a medical certificate from a Government Medical Officer and forwarded to the Chairman of the Local Board in the Local Public Assistance District in which the applicant resides”. It is common ground that public assistance benefit is available to individuals who are temporarily disabled.
Regulation 11A, added by amendment in 2004, provides that where a recipient of disability assistance benefit is absent from Trinidad and Tobago for a period in excess of twelve months, that benefit shall be discontinued. If he returns, he may reapply for it.
In 1997 the Forms Regulations were promulgated. They are stated on their face to be “made under section 11B”. Regulation 3 provides that “the form required to be prescribed under section 11B of the Act is the form set out in the Schedule”. The Schedule to the Regulations sets out the “Form of Claim for Disability Assistance Grant”, including a set of qualifications regarding age, citizenship or residency in Trinidad and Tobago, income and disablement. In relation to disablement the form says:
“To be eligible for a Disability Assistance Grant, a person –
…
(d) must be certified by a Government Medical Officer as being permanently disabled from earning a livelihood as a result of visual, mental, hearing or physical impairment.”
The prescribed form includes a declaration to be made by the individual applying for the benefit saying that they are not, to the best of their knowledge, disqualified from receiving the benefit “for any of the reasons stated on this form”.
The form of certificate used by the government medical officer in the appellant's case, dated 23 October 2018, had been drawn up by the Ministry to reflect the prescribed form to be used by an applicant for disability assistance benefit. It included spaces for the officer to state the “Nature of Disability”, “Whether [the applicant was] Disabled from earning”, “Percentage of disability” and “Whether Disability is Permanent”. It was in this latter space that the medical officer in the appellant's case had written the note set out at para 2 above.
In 1998, section 11A of the PAA was amended. The...
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