Murdoch v. Chief Adjudication Officer  UKSSCSC CSIS_55_1991 (22 April 1993)
Mr. W. M. Walker CSIS/55/19919.8.91
CS (Murray, McCluskey and Kincraig LJJ)22.4.93
Deductions for arrears of community charge - application by levying authority possibly not stating the total amount of arrears specific in the summary warrant or decree - whether adjudication officer entitled to question the validity of the application
A local authority with responsibility for collecting Community Charge applied to the Secretary of State to make deductions from the income support payable to the claimant to secure the payment of arrears of community charge. The claimant argued that the written application did not comply with a mandatory requirement to state the total amount of the arrears specified in the summary warrant or decree and the total amount which the levying authority wished to have deducted from income support. The Commissioner held that neither the adjudication officer nor the social security appeal tribunal had power to consider the validity of an application by the levying authority.
On 22 April 1993, the Court of Session (Lords Murray, McCluskey, and Kincraig), on appeal by the claimant, affirmed the decision of the Commissioner and
the jurisdiction of the adjudication officer was limited to determining the questions whether (i) there was sufficient entitlement to income support to enable a deduction to be made and (ii) the priority of any sums to be deducted in competition with other specified sums. The adjudication officer had no jurisdiction to scrutinise the application or enquire into its validity.
" . . . has sufficient entitlement to income support to enable a deduction in respect of community charge to be made."
That was a decision made under and in terms of regulation 2(4) of the Community Charges (Deductions from Income Support) (Scotland) Regulations 1989 as amended. The claimant appealed. The tribunal unanimously allowed the appeal. The ground for doing so was that the application which had set in train the procedure had been defective in a particular specified in regulation 2(2) of the regulations. In short the tribunal had held that the document was not an application i.e. was, for that purpose, null. For their decision their findings and reasons are adequate. But the adjudication officer appeals now, with leave of the chairman. Because of a number of similar cases depending or proceeding before tribunals there was a request by the acting Regional Chairman for a Commissioner's decision upon the question of principle involved. She therefore requested an expedited hearing of this appeal in particular, a hearing having been requested on behalf of the claimant. I granted these requests.
" An application from a levying authority shall be in writing and shall contain the following particulars -
(a) the name and address of the debtor or where the summary warrant or decree is granted against a couple, the names and addresses of both of them;
(b) the name and place of the court at which the summary warrant or decree was obtained;
(c) the date when the summary warrant or decree was obtained;
(d) the total amount of the arrears specified in the summary warrant or decree;
(e) the total amount which the levying authority wishes to have deducted from income support."
A question arose as to whether the second "shall" in that paragraph was mandatory like the first, or only directory. In the light of the view which I have reached upon the main issue I do not require to answer that question. However I think it right, out of deference to the submissions put before me, to record that I incline to a view that both are mandatory. I cannot think that either (a) or (e) could, at the least, be other than essential to the purpose of the procedure. Nor can I think that the second "shall" could be mandatory in regard to some of the five heads but only directory in regard to the others. Although the obverse in a sense of that adopted by Lord Denning MR in Howard v. Secretary of State  1 All ER 644 at 648 the logic is the same.
" Where it appears to the Secretary of State that an application from a levying authority gives insufficient particulars to enable the debtor to be identified he may require the levying authority to furnish such particulars as may reasonably be required."
It was not in dispute that that paragraph would allow the Secretary of State to seek further particulars where what was stated in respect of 2(2)(a) was insufficient for his purposes. There was a faint suggestion that it might be that that power could be used to obtain further particulars in respect of the other paragraphs if, again, they had been insufficiently complied with and even where one or more of them had been omitted. Again because of the view which I take about the central issue that is not a question which I have to answer but I preferred the narrower interpretation.
"Subject to regulation 4(1), where the Secretary of State receives an application from a levying authority, he shall refer it to an adjudication officer who shall determine, so far as is practicable within 14 days of its submission to him, the following questions-
(a) whether there is sufficient entitlement to income support so as to enable the Secretary of State to make any deduction -
(i) [test for a single debtor]
(ii) [test for a couple]
and if the amount payable by way of income support to the debtor were to be 10p or more after any such deduction, the adjudication officer shall determine that there is sufficient entitlement; .
(b) [not applicable]."
I have not set out the mathematics which the adjudication officer is to apply at (a) (i) or (ii). Mr. Cassidy's point was that if the Secretary of State received what he was prepared to regard as an application with sufficient particulars upon it he was to refer it to an adjudication officer who was to determine (a) whether there was a sufficient entitlement in the particular claimant to income support to enable the Secretary of State to make any deduction, and (b) as to whether there was involved any prior deduction: and these two questions only. Paragraph (5) provides that, rights of appeal or review apart, " the decision of the adjudication officer shall be final." And then regulation 5 provides for the right to appeal to a tribunal in respect of an adjudication officer's decision made " under regulation 2(4) " 5(2) provides for an appeal to the Commissioner against any decision of a tribunal on the grounds " that the decision of that tribunal was erroneous in point of law . . .". And there is provision for further appeal to the Court of Session, for review and for incidental procedures in a manner familiar from the more regular Adjudication and Commissioner Procedure Regulations.
" based its decision on some matter which, under the provisions setting it up, it had no right to take into account."
If that is enough to render null a decision otherwise apparently valid in such a situation then, even given the cautionary words of the tribunal, if this tribunal have done the same I see no reason why not to reach a similar judgment.
Date: 9 August 1991 (signed) Mr. W. M. Walker
The claimant appealed to the Court of Session. The opinion of the Court of Session follows.
22 April 1993
This appeal comes before this Court by leave of the social security Commissioner. The application for leave was made to him under section 14 of the Social Security Act 1980 and he granted leave to appeal in terms of that section and the relative regulations. Before us, however, parties were agreed that this was properly to be regarded as an appeal on a question of law in terms of regulation 5(4) of the Community Charges (Deduction from Income Support) (Scotland) Regulations 1989 as amended by the Community Charges (Deductions from Income Support) (Scotland) (Amendment) Regulations 1990, hereinafter referred to as "the Regulations". We are content to proceed on this basis.
The background to the matter is fully narrated in the decision of the Commissioner dated 9 August 1991. We refer to that summary with gratitude and do not find it necessary to repeat it. We need mention only the essentials. Paragraph 7A of Schedule 2 to the Abolition of Domestic Rates Etc. (Scotland) Act 1987, as amended by the Local Government Finance Act 1988, Schedule 12, paragraph 36(10) empowered the Secretary of State to make regulations to regulate the right of a levying authority (the authority with the responsibility for collecting the Community Charge) to apply to the Secretary of State asking him to deduct, from any amounts payable to a Community Charge debtor by way of income support, sums of money in order thereby to secure the payment of any arrears of Community Charges in respect of which a summary warrant or decree had been granted. Regulation 2 of the regulations (as amended) provided that the levying authority might apply to the Secretary of State by sending a written application in respect of each debtor. That application would invite the Secretary of State to make deductions from any amount payable to a debtor by way of income support. Regulation 2(2), as amended, provided, at the time relevant to this case:
"(2) An application from a levying authority shall be in writing and shall contain the following particulars -
(a) the name and address of the debtor or where the summary warrant or decree is granted against a couple, the names and address of both of them;
(b) the name and place of the court at which the summary warrant or decree was obtained;
(c) the date when the summary warrant or decree was obtained;
(d) the total amount of arrears specified in the summary warrant or decree;
(e) the total amount which the levying authority wishes to have deducted from income support".
Regulation 2(4) is also of importance but it is not necessary to quote it in full. It included the following:
"(4) Subject to regulation 4(1) where the Secretary of State receives an application from a levying authority, he shall refer it to an adjudication officer who shall determine so far as is practicable within 14 days of its submission to him, the following questions-
(a) whether there is sufficient entitlement to income support so as to enable the Secretary of State to make any deduction . . . and if the amount payable by way of income support to the debtor were to be ten pence or more after any such deduction, the adjudication officer shall determine that there is sufficient entitlement;
(b) the priority of any sum to be deducted as against any payments to third parties where there is sufficient entitlement to income support to meet both the deduction in respect of arrears of community charges and those payments to third parties, the following priorities shall apply -
(i) any liability mentioned in paragraph 3 (housing costs) of Schedule 9 to the Social Security (Claims and Payments) Regulation 1987;
(ii) any liability mentioned in paragraph 5 (certain service charges for fuel, and rent) of Schedule 9 to those regulations;
(iii) any liability mentioned in paragraph 6 of Schedule 9 to those regulations;
(iv) any liability for arrears in respect of community charges".
Regulation 2(5) provided:
"(5) Subject to any right of appeal or review under these regulations, the decision of the adjudication officer shall be final".
Regulation 3 required the Secretary of State to notify the debtor in writing of the adjudication officer's decision and of the debtor's right of appeal. That right of appeal was conferred by Regulation 5 in the following terms:
"5(1) Where the adjudication officer has decided a question under regulation 2(4), the debtor may appeal to a tribunal".
Regulation 5(2) provided:
"An appeal lies to a Commissioner from any decision of a tribunal on the grounds that the decision of that tribunal was erroneous in point of law and the persons who may appeal are the debtor and the adjudication officer".
Regulation 5(4) provided:
"An appeal on a question of law lies to the Court of Session from any decision of a Commissioner on a question of law with the leave of the Commissioner who gave the decision and the persons who may appeal are-
(a) the debtor;
(b) the adjudication officer; and
(c) the Secretary of State".
The grounds of appeal consist of a preamble and four specified grounds. It is not necessary in this Opinion to repeat the terms of the grounds of appeal and we are content to refer to them. It will be seen, however, that the essence of the appeal is that the regulations referred to above contained a mandatory requirement upon the levying authority to include in their written application to the Secretary of State asking him to make deductions, statements both of the total amount of the arrears specified in the summary warrant or decree and of the total amount which the levying authority wished to have deducted from income support. What was submitted was that this mandatory requirement had not been complied with and that as a result the application by the levying authority fell to be regarded as a nullity. That nullity fell to be noticed both by the tribunal and the Commissioner; each should have concluded that the application was invalidated by its deficiencies. The tribunal had properly exercised their jurisdiction in this regard and the Commissioner had erred in holding that the tribunal had no competence to consider the underlying question of the invalidity of the defective application.
The first question which has to be considered by this Court is this; if it is alleged that there has been a failure by the levying authority to comply strictly with the provisions contained in regulation 2(2), when preparing and sending to the Secretary of State the written application whose terms are governed by that regulation, does that allegation raise an issue that falls to be determined in the course of the proceedings, including the appeal proceedings, envisaged and regulated by the regulations? The arguments in relation to this matter are set out in the decision of the Commissioner and we need not repeat them in full. In essence, the appellant submitted that the requirements in regulation 2(2) were mandatory; the debtor had had no opportunity to see and comment upon the terms of such an application either when the application was sent to the Secretary of State, or when it was referred to an adjudication officer or indeed at any time until an appeal was taken to a tribunal. It had then come to his attention for the first time because the adjudication officer, in preparing for a tribunal appearance, had to inform the debtor of the necessary matters in relation to that appeal and in so doing would have sent a copy of the written application. Accordingly it was only at that stage that the debtor could have discovered whether or not there had been compliance by the levying authority with the peremptory requirements of regulation 2(2). As that was the first opportunity he had had to consider the terms of the application it was entirely appropriate that he should be able to raise before the tribunal the question as to whether or not what had been placed before the adjudication officer was truly an application as defined and regulated by regulation 2. That was a question of law integral to the matter that fell to be decided, and it was therefore a question which the tribunal and the Commissioner had to consider; the Commissioner was wrong to hold otherwise. Indeed, as submitted to the Commissioner, it was also a matter that the adjudication officer himself might consider; of course the adjudication officer was not conducting a hearing at which the debtor was present but he might ex proprio motu take notice of some deficiency in the application and could, in an appropriate case, hold that it rendered the application a nullity. The Commissioner had fallen into error by rejecting the arguments presented to him on this matter. In particular, he had erred in relying on certain observations contained in the Opinion of the Master of the Rolls in Adjudication Officer and Secretary of State v. Foster, Court of Appeal, 21 February 1991; the decision of the Court of Appeal in that case had been reversed by the House of Lords in January 1993,  2 WLR 292 and the reasoning of the Master of the Rolls was unsound. Applying the reasoning contained in the speech of Lord Bridge of Harwich it was plain that the validity of the application itself was a matter which was properly before the adjudication officer and in any event was properly before the tribunal and the Commissioner. The tribunal was right and the Commissioner was wrong on this point.
In answer to these submissions, Miss Dunlop, for the respondents, submitted that the jurisdiction of the adjudication officer was very strictly defined in the regulations. He had simply to determine the questions specified in regulation 2(4)(a) and (b), namely (i) whether or not there was sufficient entitlement to income support to enable a deduction to be made and (ii) the priority of any sum to be deducted in competition with other specified sums. Furthermore, his decision on this matter was final, subject to any right of appeal or review conferred by the regulations. What regulation 3 envisaged was that the Secretary of State would notify the debtor in writing of the adjudication officer's decision in relation to each of these strictly defined questions. That was the context in which the appeal was conferred by regulation 5(1); it specifically referred to "a question under regulation 2(4)". That clearly meant that the tribunal's jurisdiction was restricted in precisely the same way as the adjudication officer's jurisdiction was. Similarly the Commissioner's jurisdiction and indeed that of the Court of Session was restricted to the same matters. Accordingly, the question of the validity or effectiveness of a written application was not something which could be before the adjudication officer or indeed before the tribunal, the Commissioner or the Court of Session under this statutory procedure. The case of Foster was dealing with an entirely different situation. In that case the officer in question was dealing with a question of entitlement. He had to decide whether or not the claim was to succeed. If it was necessary, in order to decide that matter, to arrive at a decision as to the vires of the regulations which regulated the claim itself then that question of vires was one which properly arose within his jurisdiction. In this case, however, the equivalent of that matter of entitlement was contained not in any provision relating to the jurisdiction of the adjudication officer or the appeal from him; it was contained in regulation 4 which governed the making by the Secretary of State of deductions from income support. It was the Secretary of State alone who was empowered and indeed required to make deductions in the circumstances specified in that regulation.
In our opinion, the appeal must fail on this preliminary but basic point. The Commissioner, in our opinion, reached the correct conclusion. We have no doubt that the regulations founded upon did not confer upon the adjudication officer any broad jurisdiction in relation to the making of deductions from income support in respect of outstanding Community Charges. All that the regulations do, at least so far as the adjudication officer is concerned, is to nominate him as the person to whom the Secretary of State, after receiving an application from a levying authority, is to refer for determination the two questions of sufficient entitlement and priority. The adjudication officer has no obligation or jurisdiction to scrutinise the application or to enquire into its history. In that respect at least, this case bears a similarity to the case of Regina v. Secretary of State for Home Department [ex parte Malhi]  2 WLR 932 to which Miss Dunlop referred us. It will be observed that the matters which have to be referred to an adjudication officer are essentially technical. The question of "sufficient entitlement" ... is ultimately a matter of arithmetic. The question of "priority" is a question of ranking the various liabilities specified in regulation 2(4)(b) in a certain order in relation to the Community Charge debt. No doubt the adjudication officer must act judicially, but his jurisdiction is defined and restricted to the determination of these two matters. It is perhaps worth noting at this point that, in the course of his submissions to us, counsel for the appellant was unable to suggest that the determination by an adjudication officer on either of these matters would be affected in any way by any information of the kind which was required to be contained in the application by regulation 2(2)(d) or (e). Indeed it is quite clear that what the adjudication officer is determining is effectively the rate at which deductions may be made, not the amount of any deduction. The question of the amount of any deduction must arise under regulation 4, but that is a matter for the Secretary of State to determine. It is not for us to express views as to what remedies might be available in the event of the Secretary of State's making an error in the exercise of any of his powers under the regulations. It is sufficient to note that there is no statutory procedure under Rule 5 in relation to any such error. Similarly, in relation to the possibility of some error being made in the submitting of the application by the levying authority to the Secretary of State (including some omission from it of necessary information) it may be that the Secretary of State would have some form of remedy against the levying authority (though one would expect any deficiency in the written application to be dealt with informally rather than by any formal, forensic procedure); but we are not in this process concerned with that. The case of Foster is clearly dealing not only with an entirely different set of statutory provisions but also with an entirely different matter; the vires issue which was raised in Foster was one which had to be decided in the course of determining the entitlement of the claimant. In other words, the jurisdiction of the adjudication officer in that case included the matter which it was sought to raise. The present regulations confer no such jurisdiction upon the adjudication officer; and they define his jurisdiction in such a limited and restricted manner as to make it plain that he cannot deal with matters beyond such restricted definition. The restriction of his jurisdiction is determinative of the matters that may be the subject of the statutory appeal procedure. We do not consider that this matter needs further elaboration. The Commissioner reached the correct decision on the jurisdiction issue.
In these circumstances, it is not necessary to decide the other matters which were before us. However, as we did hear submissions, we should briefly indicate our views. It was suggested that the obligations contained in regulation 2(2) were mandatory and peremptory and accordingly imposed a duty upon the levying authority to frame the application so as to contain each item of information there specified. The consequence, it was submitted, of failure to do that was that the application became a nullity. In our view, the brief answer to that is that the application was an application not the adjudication officer but to the Secretary of State. A body such as a licensing authority or other body empowered to receive applications may, if the form of application is specified strictly by statute, decline to entertain an application which does not comply with the appropriate statutory form; although, as the Court pointed out in Johnston v. Secretary of State for Scotland  SLT 387, the legal consequences of a failure to observe a provision couched in a mandatory form have to be assessed in the light of the overall purposes of the statutory scheme. The Secretary of State has certain duties of his own under the statutory scheme in relation to the making of deductions from income support in respect of outstanding Community Charges. It was for the Secretary of State to determine whether or not the application from the levying authority was adequate for his purposes. Accordingly, even assuming that the application in this case was deficient in the respects alleged, that did not automatically make the application a nullity. The Secretary of State might well have rejected the application on the ground of some important deficiency in its form; but he was entitled not to do so. Any question of the validity of such an application was for him to determine; whatever determination he makes in that regard, the regulations provide no form of statutory appeal in respect of it. Although regulation 2(4) provides that the Secretary of State "shall refer it (scil. the application) to an adjudication officer" it is plain that, on a proper construction of this regulation, all that in fact he has to refer to the adjudication officer consists of the two matters of entitlement and priority. Accordingly, we would not have held that the application was necessarily a nullity or invalid simply because it did not contain every detail envisaged by regulation 2(2). The Secretary of State was entitled to treat it as sufficient for his purposes.
In any event, we are not satisfied that the application in question omitted to give information required by regulation 2(2)(d) and (e). We refer to the terms of this regulation. Obviously it would have been better if the application letter had contained separate heads for each of the items (a), (b), (c), (d) and (e) particularised in regulation 2(2). In fact as can be seen from the application which is printed in the appendix, the part containing such information as was desiderated by regulation 2(2)(d) and (e) read as follows,
"A summary warrant was obtained on 22 January 1990 from Glasgow Sheriff Court. The amount to be recovered is £65.38".
It was suggested that the total amount of the arrears specified in the summary warrant or decree was omitted and that the £65.38 appeared to be the total amount which the levying authority wished to have deducted from income support. We do not consider that there is any ex facie omission from this document. It is plain from the terms of paragraph 7A of Schedule 2 to the 1987 Act that the total amount which the levying authority wishes to have deducted from income support will always be the same as or less than the total amount of arrears specified in the summary warrant of decree. When, as will commonly be the case, the two amounts are the same then the giving of the amount once might well satisfy the literal requirements of regulation 2(2) (d) and (e). Obviously however, it was envisaged by the regulations that the amounts should be specified separately even of the two amounts were the same. We do not doubt that the Secretary of State would have been entitled to require the levying authority to clarify this matter had there been any doubt about it. But we do not consider that on the face of the letter it was apparent that the required information had not been supplied. Indeed it appears as if the Secretary of State did not consider that he was lacking information which he was entitled to receive in the written application. Accordingly, we would have been against the submissions of the appellant in this matter as well had we required to decide this point.
In the whole circumstances, for the reasons given, the Court will affirm the decision of the Commissioner.