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B, R (on the application of) v Chief Adjudication Officer [1998] EWCA Civ 1934 (9 December 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1934.html
Cite as:
[1998] EWCA Civ 1934,
[1999] WLR 1695,
[1999] 1 WLR 1695
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Case
No: QBCOF 98/0906/4
IN
THE SUPREME COURT OF JUDICATURE
COURT
OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM MR JUSTICE SEDLEY
Royal
Courts of Justice
Strand,
London, WC2A 2LL
Date:
Wednesday 9th December 1998
B
e f o r e :
LORD
JUSTICE SIMON BROWN
LORD
JUSTICE PETER GIBSON
and
LORD
JUSTICE SCHIEMANN
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|
THE
QUEEN
|
|
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-
and -
|
|
|
CHIEF
ADJUDICATION OFFICER
ex
parte “B”
|
Appellant
Respondent
|
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Handed
down transcript of
Computer
Aided Transcription of the Stenograph Notes of
Smith
Bernal Reporting Limited
180
Fleet Street, London EC4A 2HD
Tel:
0171 421 4040 Fax: 0171 831 8838
Official
Shorthand Writers to the Court
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- - - - - - - - - - - - - - - - - - - -
Mr
R Drabble QC (instructed by Solicitor to the Department of Social Security,
London WC2A 2LS 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)
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- - - - - - - - - - - - - - - - - - - -
Judgment:
Approved by the court
Lord
Justice Simon Brown:
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.
Let
me now turn to the competing arguments, starting with that of the respondent
which, of course, prevailed below. The respondent relies upon the literal
reading of regulation 12(3). Thus read, its effect is to disapply regulation
4 in the case of someone who was receiving DLA before 5th February 1996 until,
after that date, his entitlement comes to be reviewed. Even assuming that the
draftsman may not have intended fixed period awards to be protected under the
regulation, that is not to say that he overlooked them. On the contrary, it
seems likely that he believed such awards (like life awards), to be amenable to
review on the basis that the Regulations themselves constituted a relevant
change of circumstances so as to make it unnecessary to provide separately for
renewals. As
ex
parte O and K
established, that belief was ill founded. (Whilst the coming into force of
relevant new Regulations would generally constitute a material change of
circumstances justifying review, that could not be so here. Regulation 12(3)
postulates that regulation 4 is of no effect
until
review: that review, therefore, could not itself be founded on the coming into
force of regulation 4.) But the fact that the draftsman mistook the ultimate
impact of regulation 12(3) on renewal claims does not justify the court
construing the provision as if no such mistake had been made. Let it be
supposed that the draftsman intended fixed period awards otherwise renewable
after 5th February 1996 to be excluded from protection. The true question is
not what he intended but whether by his draft he achieved that intention. The
respondent submits he did not.
Mr
Drabble QC for the Secretary of State advances two main arguments to the
contrary. First, he submits, it is the evident purpose of regulation 12(3)
only to exempt entitlements under existing awards, and not entitlements arising
under renewal claims submitted after 5th February 1996. The transitional
protection, he argues, was plainly intended to continue only until it becomes
necessary for the claimant’s case to be looked at again after 5th
February 1996. It is, he submits, evident that the draftsman thought it
axiomatic that the protection would not apply where the relevant entitlement
simply came to an end by effluxion of time. In support of this argument he
prays in aid the decision of Mr Commissioner Rowland in
CFC/1580
1997
(an unreported decision of 23rd December 1997 with regard to family credit,
another regulation 12(3) benefit) and in particular Mr Rowland’s
conclusion:
"...
that, despite the language of regulation 12(3), Mr Cooper [advocate for the
adjudication officer] is right in so for as he submitted that it must have been
intended that the transitional protection should not apply on a repeat claim.
It really is quite inconceivable that it should have been intended that the
transitional protection should be lost on a review but not on a repeat claim.
In this context, I use the word ´intended’ as meaning ´intended
or would have been intended had the point not been overlooked’. The
question is whether the language of the provision defeats the purpose behind it."
Given
this evident intent on the draftsman’s part, submits Mr Drabble, and
given that under the scheme of the legislation the receipt of DLA necessarily
implies a prior claim and award, regulation 12(3), he submits, should be read
as if it said:
"Where,
before the coming into force of these Regulations, a person is receiving
pursuant
to an award
... disability living allowance ... under the Disability Living Allowance
Regulations ... these Regulations shall, until such time as his entitlement to
that benefit
under
that award
is reviewed under s. ...30 ... have effect as if regulation ... 4 of these
Regulations had not been made."
That
argument was dealt with by Sedley J below as follows:
"This
exercise, Mr Drabble insists, does not involve the interpolation of words into
the text: it merely highlights what is already there. I disagree. It is an
attempt by different means to do what Mr Commissioner Rowland was also seeking
to do, namely to restrict the enacted provision to the duration of the award
extant on the eve of 5th February 1996,. in the belief that this is what the
rule-maker would have wanted to achieve."
Mr
Rowland, I should note, had sought to achieve the same end as Mr Drabble by
reading into the regulation the words “continue to” so that the
main clause reads “those Regulations shall ...
continue
to
have effect ...” As to that suggested solution Sedley J expressed
himself “unable to follow this reasoning” and observed, rightly in
my view, that the effect of inserting the words “continue to”
“would at best have been obscure and at worst nugatory.” The
judge continued:
"More
fundamentally the entire alternative argument which found favour with the
Commissioner is predicated on the imputation to the rule-maker of a larger
intent than he has expressed. This is why the Commissioner expands the word
´intended’ to include what the rule-maker would have intended had he
not overlooked it. In other words, it is only by divorcing intent from
meaning that the exercise can be conducted. Mr Drabble, appreciating this,
disclaims any reliance upon this element of the Commissioner’s reasoning."
Before
us, just as before the judge below, Mr Drabble seeks to support this first
argument by reference to the approach to statutory construction taken by the
House of Lords in
DPP
v Schildkamp
[1971] AC 1. The broad principle emerges from a passage in Lord
Hodson’s speech at page 12:
"This
is not the first time that this House has been asked to consider a situation of
this kind, that is to say, one where words which are plainly and literally
interpreted have a wide meaning have been held to be restricted by their
context to a narrower meaning."
By
the same token here, submits Mr Drabble, the present context demonstrates that
the words used should be held to have a wider meaning than that they bear if
interpreted literally.
Like
the judge below, I for my part would reject this contention. The
circumstances in
Schildkamp
could hardly have been more different. Not least that was a criminal case.
As Lord Hodson observed:
"It
would not be expected that a brand new criminal offence would be introduced by
Parliament in this way. In my opinion, even if there is room for doubt, that
doubt should be resolved in favour of the accused. It is, to my mind,
impossible to say that the words of [the relevant provision] in their context
are so plain that the context can be ignored and that this new offence has been
introduced."
I
add only this with regard to Mr Drabble’s first and main argument. Try
as I might, I have failed to understand how highlighting the meaning of this
regulation in the manner he advocates produces the effect he contends for.
Before 6th February 1996 this respondent
did
receive DLA “pursuant to an award.” And indeed, on Mr
Drabble’s wording, the “until” clause could never bite
against him once his fixed term had ended on 15th April 1997. But put that
aside, I see no warrant for giving the words used other than their obvious
meaning.
I
turn, therefore, to Mr Drabble’s second argument, by which he invites a
purposive construction to be given to regulation 12(3), an argument founded
principally upon Lord Diplock’s speech in
Jones
v Wrotham Park Settled Estates
[1980] AC 74, 105:
"...
I am not reluctant to adopt a purposive construction where to apply the literal
meaning of the legislative language used would lead to results which would
clearly defeat the purposes of the Act. But in doing so the task on which a
court of justice is engaged remains one of construction, even where this
involves reading into the Act words which are not expressly included in it.
Kammins
Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd
(1971) AC 850 provides an instance of this; but in that case the three
conditions that must be fulfilled in order to justify this course were
satisfied. First, it was possible to determine from a consideration of the
provisions of the Act read as a whole precisely what the mischief was that it
was the purpose of the Act to remedy; secondly, it was apparent that the
draftsman and Parliament had by inadvertence overlooked, and so omitted to deal
with, an eventuality that required to be dealt with if the purpose of the Act
was to be achieved; and thirdly, it was possible to state with certainty what
were the additional words that would have been inserted by the draftsman and
approved by Parliament had their attention been drawn to the omission before
the Bill passed into law. Unless this third condition is fulfilled any
attempt by a court of justice to repair the omission in the Act cannot be
justified as an exercise of its jurisdiction to determine what is the meaning
of a written law which Parliament has passed."
This
argument is not one which I understand to have been advanced by Mr Drabble
below even though it had been canvassed by Mr Cooper for the adjudication
officer in the case before Mr Rowland. Mr Rowland, I may note, having quoted
that passage from
Jones
v Wrotham Park Settled Estates,
continued as follows:
"I
would accept that the three conditions identified by Lord Diplock for reading
into an Act words that are not there are all satisfied in the present case.
However, as I am engaged in the task of construing the legislation, it seems to
me that the inserted words must be ones which can be added without doing too
much damage to the general sense - as opposed to the literal sense - of the
language used. For instance, I do not see how I can construe the clause
´until such time as his entitlement to that benefit is reviewed under s.25
or 30 of the Social Security Administration Act 1992’ as ´until such
time as his entitlement to that benefit comes to an end on the expiration of
the award or is reviewed under s.25, 30 or 35 of the Social Security
Administration Act 1992’. There is a limit to the extent to which a
purposive construction may be placed on unwholly unsuitable language. I doubt
that the omission of a reference to s.35 can be rectified by any process of
statutory construction.” [Earlier in his decision Mr Rowland had noted
that regulation 12(3)’s failure to refer to s.35 of the 1992 Act -
another reviewing section - appeared to have been ´the result of another
oversight.’]
Mr
Bennion, in the Third Edition of his work on Statutory Interpretation (at
p.733) criticises Lord Diplock’s third condition, in particular by
reference to
DPP
v Schildkamp
.
Where the case is “merely a question of supplying an accidentally
omitted word or two”, he says, “this belongs in the realm of
rectifying rather than purposive construction.” Armed with this
criticism, Mr Drabble asks us to ignore Lord Diplock’s third condition
and if necessary to do that which Mr Rowland felt unble to do, namely extend
the “until” clause to read “until such time as his
entitlement to that benefit comes to an end on the expiration of the award or
is reviewed ... “ - words which undoubtedly would have the effect the
Secretary of State contends for.
For
my part I would decline this invitation. Not because of Lord Diplock’s
third condition, but rather because of the non-fulfilment of conditions 1 and
2. As to condition 1, I do not think it
is
possible to determine precisely what the draftsman was seeking to achieve.
Why, one wonders, should the draftsman want entitlement under all time limited
awards to cease automatically at the point of renewal yet that under all life
awards to continue indefinitely until, entirely fortuitously, there arrived an
opportunity for review. As to condition 2, I am far from satisfied that the
draftsman overlooked the question of renewal claims. On the contrary, as I
have suggested, it seems likely that he intended these (and, indeed, life)
awards all to be reviewed at the Department’s convenience once the
Regulations came into force. He was mistaken as to that. But I do not think
that that entitles the court to re-write the provision, least of all to produce
a different effect for fixed period awards than for life awards. I would
accordingly reject Mr Drabble’s second argument as well as his first.
There
is one other aspect of the arguments I should notice before I end. It relates
to regulations 12(1) and 12(2), regulations which deal with narrower classes of
claimant than regulations 12(3) and with different benefits. Both, it will be
noted, appear to afford protection not only to awards extant at the coming into
force of the Regulations but also to awards made subsequent to that date.
Thus the expiry of an award through effluxion of time does not of itself bring
protection under those provisions to an end. So much, indeed, was conceded by
Mr Drabble below. That concession he now withdraws. But his real point is
that, whatever be the position under regulations 12(1) and 12(2), that under
regulation 12(3) is different, the fundamental difference being that only
regulation 12(3) contains an “until” clause. This part of Mr
Drabble’s argument I would accept. I myself find no help in regulation
12(1) and 12(2). Save perhaps for this. It was suggested at one stage of
the argument that regulation 12(3), read absolutely literally, could be
interpreted to mean that if, before 5th February 1996, any person was receiving
one of the specified benefits, then the 1996 Regulations would “have
effect”, not merely for that particular claimant but for the world at
large, as if the relevant regulation “had not been made”. That
plainly would be an absurd reading of the regulation. So too would it be
absurd to read regulation 12(3) as if it protected someone whose entitlement to
benefit had in fact ceased before 5th February 1996. For the protection to
apply the entitlement must clearly be continuous. The point I make, however,
is that this would apply to all three regulations. No one suggests that on
that account regulations 12(1) and 12(2) require to be re-written. No more
would I re-write regulation 12(3).
I
would dismiss this appeal.
Lord
Justice Peter Gibson:
This
appeal raises a short but difficult question of construction of reg. 12(3) of
the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations
1996 ("the 1996 Regulations"). By reg. 4 of the 1996 Regulations persons whose
right to reside or remain in Great Britain was subject to a limitation or
condition were disqualified from entitlement to (amongst other benefits)
disability living allowance ("DLA"). That class included, but was not limited
to, asylum seekers. The 1996 Regulations came into force on 5 February 1996.
But reg.12(3) provided an exception to the operation of reg.4 in the following
terms (so far as material):
"Where,
before the coming into force of these Regulations, a person is receiving ....
[DLA] .... 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 Administration Act 1992,
have effect as if regulation .... 4 .... of these Regulations had not been made."
S.30
enables a review of a decision of an Adjudication Officer relating to DLA to be
made if any of 5 conditions is satisfied.
DLA
is a non-contributory non-means-tested benefit for the severely disabled. It
comprises two components : the care component (the successor to the attendance
allowance) and the mobility component. Awards of benefit may be for a fixed
period or for life (s.71(3) Social Security Contributions and Benefits Act
1992). The choice between the two and, if that choice is of the former, the
length of the period will no doubt reflect the Adjudication Officer's
perception of how long the disability is likely to last. If the recipient of
an award for a fixed period wishes that award to continue after the expiry of
the period, he must make a new claim to an Adjudication Officer which will be
the subject of a fresh determination in exactly the same way as a claim made by
a claimant for the first time. It is of course possible that a claimant who
receives an award of DLA for a fixed period will not seek to have that award
continued on the expiry of the period because his circumstances then do not
warrant such a claim but subsequently will make a fresh claim when his
circumstances have changed.
The
issue in the present case has arisen because the Respondent, who on 5 February
1996 was in receipt of DLA for a fixed period, made a fresh claim for DLA on
the expiry of the period. Sedley J. in a lucid and careful judgment described
the issue as being whether on its true construction reg.12(3) has the effect
that a claim by way of renewal does not lie within the protection afforded by
the regulation or whether it preserves all preexisting DLA save where a review
takes place under s.30. The judge favoured the literal construction of
reg.12(3), so that only a review, which in the present case did not occur,
would cause a person in receipt of DLA on 5 February 1996 to be denied by reg.4
of the 1996 Regulations any entitlement to DLA under the DLA Regulations.
I
would make two comments on the judge's formulation of the issue. He referred
to "a claim by way of renewal". A renewal claim is, as I have indicated, a new
claim, and if the judge is right, the same result must follow whether the claim
is a claim for the new award to take effect on the expiry of the fixed period
of the award or days, weeks, months, years later and whether the applicant's
circumstances at the time of the initial award are the same as his
circumstances at the time of the later claim or quite different. The second
relates to his reference to reg.12(3) as preserving all preexisting DLA save
where a review under s.30 occurs. In the case of an award for a fixed period
under which a person is receiving benefit immediately before 5 February 1996,
on the expiry of the period, the entitlement to the DLA awarded prior to 5
February 1996 on any footing comes to an end. I of course accept that an
entitlement to an award under which a person is receiving DLA on 5 February
1996 will be preserved until a review, but reg.12(3) does not prevent that
entitlement ending on death or, if the award was a fixed period award, on the
expiry of the fixed period. The effect of the judge's construction is that an
entitlement to a new award under the DLA Regulations is preserved, reg.4 not
applying thereto.
That
result seems to me very surprising, as it did to Mr. Commissioner Rowland in
CFC/1580 1997. He regarded it as "really .... quite inconceivable that it
should have been intended that a transitional protection should be lost on a
review but not on a repeat claim." It is plain that reg.12(3) is a
transitional provision designed to give temporary protection. That such
protection should be given to those actually receiving DLA under an award
current at 5 February 1996 makes obvious sense and justice. But why, as a
matter of policy, should the transitional relief apply to a new claim whenever
it is made merely because on 5 February 1996 the claimant happened to be in
receipt of DLA? Take a case where a person was in receipt of DLA on that day
under a fixed period award which expired on 6 February 1996, but a year later
made a fresh claim in circumstances different from those which obtained when he
obtained his earlier award. It would be very odd if the new policy in reg.4
were not to apply to that person.
However
I accept that it is impermissible to impute an intention to the draftsman of
the 1996 Regulations which cannot be discovered from the language used in the
provision to be construed, and that the court should be very slow to read in
words which are not there. I also accept the judge's comment that while the
courts sometimes have to fill lacunae in legislation it is not their job to
devise lacunae in order to fill them.
Regulation
12(3) is not very happily drafted. Read literally the precondition for the
non-operation of reg.4, viz. "Where, before the coming into force of these
Regulations, a person is receiving .... [DLA] ....", does not specify any
precise time prior to 5 February 1996 when a person is to be in receipt of DLA.
But reg.12(3) could not sensibly have been intended to apply to a person whose
previous entitlement to DLA had ceased before 5 February 1996. Again, as
Schiemann L.J. pointed out in the course of the hearing, read literally
reg.12(3) is a general provision that the DLA Regulations shall have effect as
if reg.4 had not been made so long as there is a person who before 5 February
1996 is in receipt of DLA. Again, that cannot sensibly have been intended, and
instead one must focus on the entitlement of the person in receipt of DLA
before 5 February 1996. Further, it is very surprising that the transitional
protection is to end on a review, regardless, it seems, of the outcome of the
review.
To
my mind, the key to the meaning of the regulation is provided by the words "his
[sc. of the person receiving DLA before 5 February 1996 under the DLA
Regulations] entitlement to that benefit is reviewed under section .... 30".
That person receives DLA only under an award made by an Adjudication Officer
and his entitlement to that benefit is limited to what he has been awarded on
the decision of the Adjudication Officer on a claim made to him. The review is
by s.30(2) a review of that decision. The entire wording is consistent with
the view that the draftsman was looking only to an award under which the person
was receiving benefit on 5 February 1996. A subsequent decision by an
Adjudication Officer to make a further award after the expiry of the fixed
period of an earlier award is irrelevant to reg. 12(3). If the Respondent were
right and reg.4 did not apply to prevent a new award on a new claim being made,
the entitlement to the new benefit would not be subject to the termination
provided for in reg.12(3) because a review of the decision to make the new
award could not be a review of the person's "entitlement to
that
benefit", i.e. the DLA which he was receiving before 5 February 1996 under the
earlier award made by an Adjudication Officer. It is likely that there were
cases where the expiry of the fixed period of an award current at 5 February
1996 occurred so soon after that date that there was never any realistic
possibility of a review of the entitlement occurring. All this, in my opinion,
supports the submission of Mr. Drabble Q.C. for the Chief Adjudication Officer
that it is evident that the draftsman regarded it as axiomatic that the
transitional relief would cease to apply once the relevant entitlement simply
came to an end by effluxion of time.
I
would therefore hold that the language and context of reg.12(3) indicate that
the regulation was not intended to extend transitional protection to new
entitlements to DLA not in existence at 5 February 1996. If that involves
implying a limitation into reg.12(3), so be it. In
DPP
v Schildkamp
[1971] A.C.1 the House of Lords held that s.332(3) Companies Act 1948 was
subject to an implied limitation, that before a prosecution could be initiated
in respect of fraudulent trading carried on while the company was a going
concern, the company had to be in liquidation. The circumstances of that case
are of course very different from the present case, but that authority
demonstrates that where appropriate a limitation can be implied in order to
give effect to the evident intention of the draftsman.
I
am not impressed by a point taken by the judge based on reg.12(1) and (2) each
of which has a somewhat similar precondition to that in reg.12(3). In neither
reg.12(1) nor reg.12(2) is there language corresponding to "until such time as
his entitlement to that benefit is reviewed." Nor am I persuaded by the
argument by Mr. McCarthy Q.C. for the Respondent based on the fact that there
might be receipt of DLA without an award, for example where an interim payment
is made. That is plainly a payment on account of the award that is to be made.
I do not regard it as a serious anomaly that on the contention which I favour
the protection of reg.12(3) will cease with the expiry of an award for a fixed
period whereas it will continue until death, whenever that occurs, in the case
of an award for life. It is characteristic of transitional relief that it
preserves entitlements existing at the date when the measure comes into force.
It would be uncharacteristic of transitional relief to extend such relief to
new rights coming into existence after the coming into force of the measure.
I
was glad to be told at the outset of the hearing that the Respondent, with his
serious medical problems, had been granted indefinite leave to remain in the
United Kingdom. But for the foregoing reasons I, for my part, would allow this
appeal, set aside the order of the judge and dismiss the application for
judicial review.
Lord
Justice Schiemann:
The
broad effect of the relevant parts of the 1996 Regulations appears from the
Explanatory Note which was issued with them:-
These
Regulations exclude a person from entitlement to certain non-contributory
benefits if his right to reside or remain in Great Britain is subject to any
limitation or condition ... and make saving provisions.
Because
of the operation of Regulation 4 of the 1996 Regulations, a person in the
position of the Respondent but who entered this country after 5th February 1996
is not entitled to DLA. If the Respondent is entitled to DLA it must be because
of the effect of Regulation 12(3) of the 1996 Regulations. The difficult task
facing the Court is to construe the following words of Regulation 12(3):
Where,
before the coming into force of these Regulations, a person is receiving
.........[DLA] ........ under the Disability Allowance Regulations ..... those
Regulations shall , until such time as his entitlement to that benefit is
reviewed under section .....30 of the Social Security Administration Act 1992,
have effect as if regulation 2,4,5,6,9 or 11 as the case may be, of these
Regulations had not been made.”
A
literal reading of Regulation 12(3) of the 1996 Regulations involves the
consequence that if, before the 5th February 1996, any person was receiving one
of the specified benefits, then the Regulations under which those benefits were
conferred would have effect as if the relevant amendments specified in
regulations 2,4,5,6,9 and 11 of the 1996 Regulations had not been made. I agree
with Counsel and my Lords that this can not have been intended. In order to
avoid that absurdity it is necessary notionally to insert some such words as
“in relation to him” after “have effect”. We are
therefore faced with a situation in which it is common ground that these
Regulations can not be construed literally.
I
am mindful of the dangers, to which Sedley J. adverted, of imputing to the law
maker a larger intent than he has expressed. The fact is, however, that it is
common ground that one must impute to the law-maker a
smaller
intent
than he has expressed. The question then arises : how much smaller?.
In
those circumstances, it does seem to me legitimate to bear in mind, as Peter
Gibson L.J. states, that
It
is characteristic of transitional relief that that it preserves entitlements
existing at the date when the measure comes into force. It would be
uncharacteristic of transitional relief to extend such relief to new rights
coming into existence after the coming into force of the measure.
Thus
the general rule set out in s.16 of the Interpretation Act is that the repeal
of any enactment “shall not affect any right .... acquired ..... under
that enactment”.
....
no person shall be entitled to any benefit unless, in addition to any other
conditions relating to that benefit being satisfied -
(a)
he makes a claim for it in the manner, and within the time, prescribed in
relation to that benefit .....
The
only entitlement which the Respondent had at the date when the 1966 Regulations
came into force, was an entitlement, subject to review, to receive DLA until
16th April 1997 when the period of his existing award came to an end.
Approaching
the matter thus broadly, one would not expect any protection for an entitlement
that was not in existence at the time of the coming into force of the 1996
Regulations - namely an entitlement pursuant to the acceptance of a new (albeit
repeat) claim which had not yet been made. Seeing that the protection given
even to an
existing
entitlement
is limited to such period as expires before a review, there is even less reason
to expect protection for a future entitlement which might arise if a claim were
to be made at some time in the future.
There
was a number of possible situations in respect of which the Regulations ought
in an ideal world to have made provision. I give five situations by way of
example:-
The
person who had received benefit but was no longer entitled to do so on 4th
February 1996;
The
person who was entitled to claim benefit on 4th February but had not made a
claim;
The
person who was so entitled and had made a claim, but this had not yet been
processed;
The
person whose claim had been approved but in respect of whose claim no money had
yet been paid out;
The
person who was receiving benefit in early January 1996 but who, because of, for
example, a temporary failure to notify a change of address, had not received
any money in February.
The
use of the phrase “is receiving” does not make it easy to be
certain as to the draftsman’s intention in relation to any of these
examples. I note that paragraphs 12(1) and (2) of the 1996 Regulations adopt
different phraseology both from each other and from paragraph 12(3). I agree
with my Lords that no help is to be gained from looking at those paragraphs.
The
policy behind paragraph 12(3) is also difficult to establish. It is common
ground that its effect is that the saving provision ceases to have any
operation once a review has taken place. This can produce results which seem
capricious. An example would be a review which resulted in the Adjudication
Officer declining to make any change. In such a case, the very fact of a review
would deprive someone who prior to the review had had the protection of
paragraph 12(3) of that protection. Yet nothing would have changed in his
situation. In particular for a person with entitlement to the benefit for life,
the change might well be hugely significant.
Given
the difficulties to which I have adverted, it is not possible for the Court to
state that Regulation 12(3) must be literally interpreted. The protection given
by that paragraph is either
a
protection of the right to make and have processed claims under regulations
pursuant to which benefits have been paid in the past, or
a
protection of a right to be entitled to benefit which flowed from the
acceptance prior to 5th February 1996 of a claim made under the Regulations.
In
my judgement the latter is the case. As it seems to me Regulation 12(3) does
not bite on any claim made subsequent to the time when the 1996 Regulations
came into force.
I
would allow this appeal.
Order:
Appeal allowed. No order for costs.
Application for leave to appeal to the House of Lords refused.