Court of Appeal in Northern Ireland Decisions

15 December 1999

CARC3117 IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

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BETWEEN

THE CHIEF ADJUDICATION OFFICER

Appellant

and

(1) CAROLINE CREIGHTON (EDNA BRUCE Appointee)

(2) SAMUEL BELL

(3) AGNES CROSS Deceased (BRIAN CROSS Appointee)

(4) ROLAND MITCHELL

(5) CATHERINE CAMPBELL

Respondents

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CARSWELL LCJ

Introduction

These appeals from decisions of Social Security Commissioners each involve the same net point of construction of regulations governing entitlement to attendance allowance. The respondents are all persons the cost of whose accommodation in residential or nursing homes was discharged on a provisional basis by health boards or trusts pending the completion of assessment of their means or realisation of their capital assets. In each case it was established that the claimant was liable to pay the cost of his or her accommodation, and made a refund to the paying authority of the amounts previously paid out by it. Each claimant was entitled to receive attendance allowance, and all were paid that benefit from the time when they commenced to pay for their own accommodation. The appellant contended, relying on decisions given by Social Security Commissioners in England, that on the true construction of the governing regulations the claimants were not entitled to receive attendance allowance during the period for which the boards or trusts were paying the cost of their accommodation, notwithstanding the fact that that outlay was ultimately repaid by or on behalf of the claimants. The Social Security Commissioners in Northern Ireland upheld the claimant's entitlement in each case, and the Chief Adjudication Officer has appealed to this court against the decisions.

The Statutory Provisions

Entitlement to attendance allowance is dealt with in sections 64 to 67 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. The respondents all satisfied the conditions set out in section 64 qualifying them for receipt of the allowance. The issue was whether payment for the relevant periods was excluded by the provisions of the regulations made under the power contained in section 67(2), which provides:

" (2) Regulations may provide that an attendance allowance shall not be payable in respect of a person for any period when he is a person for whom accommodation is provided -

(a) in pursuance of Article 5, 7, 15 or 36 of the Health and Personal Social Services (Northern Ireland) Order 1972;

(b) in circumstances in which the cost is, or may be, borne wholly or partly out of public or local funds, in pursuance of those enactments or of any other enactment relating to persons under disability."

Article 15(1) of the Health and Personal Social Services (Northern Ireland) Order 1972 (the 1972 Order) empowers the Department to make such arrangements as it considers suitable and adequate in the exercise of its functions under Article 4(1) of that Order. Article 15(1A) goes on to provide:

" (1A) Arrangements under paragraph (1) may include arrangements for the provision by any other body or person of any of the personal social services on such terms and conditions as may be agreed between the Department and that other body or person."

Arrangements for accommodation are covered by Article 36, laying down the terms upon which they may be made for residential accommodation and in particular that in which nursing care is provided. The essence of these provisions is that the Department may arrange for persons requiring such accommodation to be placed in privately-run residential or nursing homes, which must meet certain requirements. Unlike hospital care, this is means-tested and those in receipt of income above a certain level or possessed of prescribed amounts of capital have to pay the cost of their accommodation or make a contribution towards it. Paragraphs (3) to (8) make provision for arrangements whereby the Department may pay the provider the costs of the claimant's accommodation, subject to a right to claim in due course a refund from the claimant. In practice these arrangements are made by health and social service boards or health and social service trusts, both of which administer public funds, and the refunds are made to them. This power is constantly used where claimants move into residential or nursing homes and their means have to be assessed or they have to take steps to realise capital assets such as a dwelling-house. In such a case the board or trust pays the cost of the accommodation for a period, then if it is established that the claimant must pay for the accommodation he or she must refund to the board or trust all or part of the amount which it has paid out.

The regulations made in pursuance of the power contained in section 67(2) are the Social Security (Attendance Allowance) Regulations (Northern Ireland) 1992 (the 1992 Regulations). A person who comes within the terms of Regulation 7(1) is not entitled to attendance allowance:

"7.(1) Except in the cases specified in paragraph (3) and subject to regulations 7A and 8, a person shall not be paid any amount in respect of an attendance allowance for any period where throughout that period he is a person for whom accommodation, not being accommodation to which regulation 6 refers, is provided -

(a) in pursuance of Article 5, 15 or 36 of the Order;

(b) in circumstances where the cost of the accommodation is borne wholly or partly out of public or local funds in pursuance of that enactment or of any other enactment relating to persons under disability; or

(c) in circumstances where the costs of the accommodation may be borne wholly or partly out of public or local funds in pursuance of that enactment or of any other enactment relating to persons under disability."

It was not in dispute that the accommodation in which each respondent resided came within the definition contained in Regulation 7(1). Regulation 8 creates a number of exceptions from Regulation 7, the material one being contained in Regulation 8(6):

" (6) Regulation 7 shall not apply, except in a case to which paragraph (7) applies, in any particular case for any period during which -

(a) the person for whom the accommodation is provided -

(i) is not entitled to income support or income-based jobseeker's allowance,

(ii) is not entitled to housing benefit, or

(iii) is not a member of a married or unmarried couple for whom an amount is included for income support or income-based jobseeker's allowance purposes in the weekly applicable amount of the other member; and

(b) the whole of the cost of the accommodation is met -

(i) out of the person's own resources, or partly out of his own resources and partly with assistance from another person or a charity, or

(ii) on his behalf by another person or a charity."

The Factual Background

The several cases shared the common feature that in each a health board or trust paid the cost of the claimant's accommodation for a period and then obtained a refund. The facts were straightforward in each case and were not in dispute and can be briefly summarised.

Caroline Creighton C2/96(AA)

Mrs Creighton's daughter submitted an application on her behalf on 16 November 1993 for attendance allowance. Mrs Creighton was then living in a private nursing home, the cost of which was being paid by a Health and Social Services Board as an interim measure until her property was sold. It was ultimately sold and a full refund was made to the Board of all sums which it had paid to the nursing home for Mrs Creighton's accommodation. An adjudication officer decided that she was not entitled to receive attendance allowance for the period following 16 November 1993 – the length of which was unspecified in the papers before us – but Belfast Social Security Appeal Tribunal allowed her appeal against that decision. The Chief Social Security Commissioner upheld the Tribunal in a written decision number C2/96(AA) dated 11 June 1997.

Samuel Bell C3/96(AA)

Mr Bell was resident in a private nursing home from 1 February 1993. He made a claim for attendance allowance on 7 February 1994. An adjudication officer decided that he satisfied the conditions for an award of benefit but that he was not entitled to receive it for the period between 7 February and 23 August 1994 because South and East Belfast Health and Social Services Trust had paid the cost of his accommodation during that period. It had done so because Mr Bell's means had not been assessed, but he subsequently made a full refund of all sums paid by the Trust during the period. A Social Security Appeal Tribunal allowed Mr Bell's appeal in respect of the period and Mr Commissioner McNally affirmed the Tribunal's decision in a written decision number C3/96(AA) dated 16 April 1997.

Agnes Cross C3/95(AA)

Mrs Cross entered a private nursing home on 2 June 1993. On 2 November 1993 a claim for attendance allowance was made on her behalf. The adjudication officer found that she fulfilled the criteria but decided that she was not entitled to payment because at the time the South Eastern Health and Social Services Board paid the cost of her accommodation until 26 September 1994, pending the sale of her property. The Board invoiced the claimant's son, who had been appointed as her attorney, in accordance with a prior agreement to that effect, and he paid in full on her behalf the sums paid by the Board to the nursing home. The Social Security Appeal Tribunal allowed her appeal against the refusal of benefit and the Chief Social Security Commissioner upheld that decision in a written decision number C3/95/AA dated 1 May 1997.

Roland Mitchell C15/96(AA)

Mr Mitchell made a claim for attendance allowance on 1 May 1990 and was given an award for life. He went into a private nursing home on 29 July 1994 and apart from a few days in September 1994 he remained there on a permanent basis. The cost of his accommodation was initially paid by a health board, but Mr Mitchell subsequently reimbursed the board in full, in accordance with an agreement to that effect. The adjudicating officer decided that he was not entitled to receive attendance for the period between 29 July and 22 September 1994. The Social Security Appeal Tribunal reversed that decision and the Chief Social Security Commissioner upheld the Tribunal's decision in a written decision dated 6 May 1997.

Catherine Campbell C4/95(AA)

Mrs Campbell, who was resident in a private nursing home, made a claim for attendance allowance on 17 November 1993. The South and East Belfast Health Services Trust was at that time paying the cost of her accommodation, pending assessment of her means. It was subsequently adjudged that she was liable to pay the full cost herself, and she refunded to the Trust all sums paid by it to the nursing home on her behalf. For some unexplained reason the nursing home continued to send the bills for her accommodation to the Trust, which paid them and then invoiced the claimant, who refunded the outlay to the Trust. These arrangements were discontinued on 31 July 1994, from which time the nursing home invoiced Mrs Campbell and she through her attorney paid the bills direct to the nursing home. The adjudicating officer decided that Mrs Campbell was not entitled to receive payment by way of attendance allowance between 17 May 1994, the date at which she qualified for receipt of attendance allowance, and 31 July 1994, because she came within Regulation 7 and did not satisfy the terms of Regulation 8(6). The Social Security Appeal Tribunal reversed his decision and Mr Commissioner McNally upheld the Tribunal in a written decision.

The English Commissioners' Decisions

In reaching the decisions under appeal the Chief Social Security Commissioner and Mr Commissioner McNally cited and discussed some decisions of Social Security Commissioners in England on the construction of the regulations, which we must consider before we turn to the local decisions the subject of these appeals. The legislation governing attendance allowance is identical in England and in Northern Ireland.

The first in point of time, given on 3 May 1996, was that of Mr Commissioner Morcom in CA/7126/1995. In that case the claimant's nursing home fees were paid by a county council between 16 October 1993 and 4 March 1994, on which date her nephew was appointed receiver of her property by the Court of Protection. He then assumed responsibility for payment of the fees and refunded the outlay made by the county council, in accordance with the understanding reached betwen them when the claimant was admitted to the nursing home. The adjudication officer disallowed payment of attendance allowance between 16 October 1993 and 4 March 1994, the social security appeal tribunal reversed his decision, but the commissioner allowed the adjudication officer's appeal. He held that there had been an "arrangement" within the meaning of section 26 of the National Assistance 1948 (the analogue of Article 36 of the Health and Personal Social Services (Northern Ireland) Order 1972). He then accepted without further discussion the submission advanced on behalf of the adjudicating officer that the case did not come within Regulaton 8(6), because "the cost of the accommodation is not met out of the claimant's own resources".

That submission was considered in greater detail by Mr Commissioner Mesher in CA/11185/1995, decided on 20 December 1996. The claimant in that case submitted a claim for attendance on 20 October 1993, when she was an in-patient in hospital. She was discharged on 25 November, when she was admitted to a residential care home, in pursuance of an arrangement made by the county council under Part III of the National Assistance Act 1948 for payment of the fees. The council paid the feees until 30 May 1994, when her son, who had by then sold her house, repaid the council's outlay and took over payment of his mother's fees.

The commissioner held that the claimant was not entitled to receive payment of attendance allowance for the period 25 November 1993 to 30 May 1994. The first reason which he expressed was based on the statutory provisions for review of an adjudication officer's decision. Mr Weatherup QC for the appellant did not seek to rely upon this ground and we need not discuss it further. His other ground was that the effect of Regulation 8(6) was to deprive the claimant of payment while her fees were being paid by the council, notwithstanding the subsequent reimbursement. He acknowledged that his construction of the regulation was contrary to comon sense and fairness, but considered that he was compelled by the wording to reach that conclusion. He set out his reasons as follows:

"The other reason why I cannot decide for the claimant relates to the construction of regulation 8(6)(b) of the Attendance Allowance Regulations. In my view the reference there to the whole cost of the accommodation being met out of the claimant's or other persons' resources or on the claimant's behalf is restricted to the case where the payment is made to meet a liability owed directly by the person concerned to the provider of the accommodation. Here, when Hertfordshire County Council made the payments to the residential care home under section 26(2) and (3) of the 1948 Act, the claimant came under a statutory liability (subject to her ability to pay) to make a refund to the Council. When the claimant's son made the payment to the Council on the invoice submitted in relation to the period from 25 November 1993 to 26 May 1994 he was discharging that liability. That seems to me not to create a situation where it can be said, looking backwards after the payment has been made, that the terms of regulation 8(6)(b) are satisfied. The cost of the accommodation had primarily been met by the Council, as provided by the arrangement under Part III of the 1948 Act, and the claimant's son had paid a refund of the amounts paid by the Council. That is a different thing from meeting the whole cost of the accommodation under regulation 8(6)(b)."

In CA/4723/95, decided on 16 January 1997, Mr Commissioner Heald decided in favour of the claimant on the facts of the case. The claimant was admitted to a residential home in or about October 1993. A Devon County Council social worker told her son in September 1993 that the council would loan the fees until the claimant's house was sold, when they could be repaid. The council wrote to the son on 30 September 1993, confirming that they would "enter into an arrangement" to pay the fees to the home and bill him, allowing the amount outstanding to build up until his mother's house was sold. This arrangement was kept and the council was reimbursed in due course. The adjudication officer disallowed payment for the period during which the council paid the fees, but the social security tribunal reversed his decision, holding that it was at all times clearly understood that this was a loan arrangement. The commissioner upheld the tribunal, stating at paragraph 9 of his written decision:

"The transaction described in the letter of 30 September 1993 was clearly that of a loan. It is not material that the actual word `loan' was not used in the letter, nor was it necessary to consider the powers of the Council to make such a loan. I entirely accept what the Chairman said when he refused leave to appeal. It follows that there was no need for the tribunal to make any findings in relation to the application of regulation 7 of the Attendance Allowance Regulations, since no arrangements at all had been made by the local authority in relation to the residential accommodation. The conclusion must therefore be that neither of the grounds of appeal put forward succeed, and that the appeal must be dismissed. The consequence is that the claimant was entitled to Attendance Allowance for the period set out in paragraph 1 above."

The Decisions under Appeal

The first decision in point of time appears to be that of the Chief Social Commissioner Judge Chambers QC in the case of Agnes Cross C3/95/AA dated 1 May 1997, which is referred to in Bell's case C3/96/AA, notwithstanding the fact that the date indorsed on the latter decision is 16 April 1997. The Chief Social Security Commissioner considered in some detail the three English decisions to which we have referred, and stated his opinion that the facts in CA/4723/1995 were closest to those of the case with which he was concerned. He adopted the approach of Mr Commissioner Heald and said that he proposed to follow his decision. He upheld the decision of the Social Security Appeal Tribunal allowing payment of benefit, stating:

"The Tribunal were entitled to look at the reality of the agreement concerning the payment of the claimant's accommodation costs, which was that they were borne, not out of public or local funds, but by the claimant herself."

In so holding the Chief Commissioner appears to have accepted that the arrangement was by way of loan and that this took it outside the purview of Regulation 7 of the 1992 Regulations. In his conclusions at the end of the decision he spelled out the general proposition that if there is a prior arrangement for payment and reimbursement of fees it is open to a tribunal to find that the costs have not been borne by public funds, so in effect taking the transaction outside Article 36 of the 1972 Order and the 1992 Regulations.

Although this finding was sufficient to dispose of the appeal before him, the Chief Commissioner set out his views on "the wider question of the application of Regulations 7(1) and 8(6) of the Attendance Allowance Regulations to circumstances in which there may not have been any prior agreement to reimburse a claimant's costs". In commenting on Decision number CA/11185/1995 he stated:

"As I understand it, regulation 8(6) was intended to have effect in circumstances in which regulation 7 would otherwise have operated so as to prevent a claimant from receiving payment of attendance allowance. If regulation 8(6) cannot apply unless payment is made directly by the person concerned to the provider of the accommodation it seems to me that it serves very little purpose. I am also of the opinion that the argument in favour of the commonsense approach - namely, that where public funds have been wholly relieved of the cost of a claimant's accommodation there is no good reason to refuse payment of attendance allowance - is in no way affected or weakened by the provisions of regulation 8(7); under which regulation 8(6) has no application in the case of a person who is residing in a home owned or managed, or owned and managed by a local authority. In my view it is only right that a person who in no way relies upon public funds for the payment of the cost of his accommodation should be entitled to receive payment of attendance allowance, whether he is being cared for in his own home or in a nursing home. I further accept that, because it may be less expensive to stay in accommodation which is owned and/or managed by a local authority, (in Northern Ireland by Health & Social Services Board or Trust), than in similar privately run accommodation, it is reasonable that special provisions should be made for the non-payment of attendance allowance in such circumstances. I see no reason why regulations 7 and 8 of the Attendance Allowance Regulations should not be interpreted in such a way as to achieve those objectives. In particular, I do not see why the relief afforded by regulation 8(6) should be restricted to cases were the payment of the whole of the cost of the claimant's accommodation is made directly by the person concerned to the provider of the accommodation. In my view it is sufficient if, as in the present case, the whole of the cost of the accommodation is met out of the person's own resources, whether payment is made directly to the home or by way of a refund to a local authority or Health & Social Services Board."

He expressed his final conclusions on this issues in the following propositions:

"(c) Where the cost of the claimant's accommodation is initially borne out of public funds, but is subsequently repaid in full from the claimant's own resources while the claimant is still in residence, attendance allowance is payable throughout the whole of the period covered by such repayment:- 8(6) of the Attendance Allowance Regulations. In such circumstances, the whole of the period in respect of which repayment is made is part of a period during which the whole of the cost of the accommodation is met out of the claimant's own resources. I express no opinion on the possible application of regulation 8(6) to circumstances in which repayment of accommodation cost is not made until after the claimant had ceased to be in residence; perhaps because of death or removal to hospital."

In Mitchell's case C15/96(AA), in which the decision is dated 6 May 1997, the Chief Commissioner again based his conclusions on CA/4723/1995, holding that, as in that case –

"there was an agreement that the local authority would pay the claimant's costs directly to the Residential Home, and that the full amount would subsequently be repaid by her out of her own resources."

He accordingly held that the Appeal Tribunal's decision was not erroneous in law in any respect. In Creighton's case C2/96(AA), in which the decision is dated 11 June 1997, the Chief Commissioner based his conclusion squarely on his construction of Regulation 8(6), not on any prior arrangement, and held that it operated so as to render Regulation 7 inapplicable.

In Bell's case C3/96(AA) the decision is dated 16 April 1997, but Mr Commissioner McNally refers to Decision C3/95(AA) in Cross's case, with which he expressed agreement. He referred to Decision CA/4723/95, but considered that it did not matter whether the claimant entered the home in pursuance of an arrangement or not. All that mattered was whether the cost was borne out of public funds. He took the view that the words "borne" and "paid" do not have the same meaning and that if the cost is paid in the first instance by the public authority and subsequently reimbursed by or on behalf of the claimant that cost is not borne out of public funds but is met out of the claimant's own resources. In Campbell's case C4/95(AA), decided on 3 June 1997, Mr Commissioner McNally adopted the same reasoning in his conclusion in favour of the claimant.

Conclusions

We do not find it possible to support the reasoning which regards a prior arrangement for payment and reimbursement of claimants' nursing or residential home fees as a loan which takes the case outside the purview of Article 36 of the 1972 Order. In our view it remains an arrangement within Article 36 of that Order. Accordingly the accommodation is provided in pursuance of Article 15 or 36, bringing the case within Regulation 7(1)(a) of the 1992 Regulations. In this respect we are not in agreement with Mr Commissioner's Heald's decision in CA/4723/1995, the Chief Social Security Commissioner's decision in Mitchell's case or that part of his decision in Cross's case which turns upon this point.

On the other hand, we are in agreement with the Chief Commissioner and Mr Commissioner McNally in their construction of Regulation 8(6) of the 1992 Regulations. We are of opinion that the word "met" in that provision is intended to refer to the person who ultimately meets the costs, not the person or body who makes the actual payment at the time when the fees are paid over to the provider of the accommodation. The use of the word "met" appears to us to be deliberate. If the word "paid" had been used instead in Regulation 8(6) it would have given more force to the construction adopted by the adjudication officers, but by using "met" instead Parliament was in our view focussing on the person upon whom liability for the payments eventually falls, knowing that the actual payment might often be made by a different payor on an interim or provisional basis. As the several commissioners have pointed out, the contrary construction is repugnant to common sense and elementary fairness. Where two constructions are reasonably possible, it is to be supposed that Parliament did not intend that which would bring about such a result. We accordingly hold that in cases where a health board or trust enters into an arrangement with the provider of accommodation and pays the costs, but is ultimately reimbursed by or on behalf of the claimant, the case falls within Regulation 8(6) and the claimant does not lose his or her entitlement to payment of attendance allowance. The cost is borne out of public funds in the first instance when the board or trust makes the payments, bringing Regulation 7 into play; but when the refund is made that cost is met out of the claimant 's own resources and Regulation 8(6) operates to make Regulation 7 inapplicable. We do not consider that it makes a difference whether reimbursement is agreed in advance between the board or trust and the claimant or his representatives or whether it is subsequently arranged, if it is in fact made.

We conclude accordingly that the Chief Commissioner's decision in Mrs Creighton's case C2/96(AA) was correct in law, as were the decisions of Mr Commissioner McNally in Mr Bell's case C3/96(AA) and Mrs Campbell C4/95(AA). In each of those cases we answer each question posed in the affirmative (though we are not clear why there are two questions, as they seem to cover the same ground) and dismiss the appeal.

In Mrs Cross's case C3/95(AA) the Chief Social Security Commissioner was not in our opinion correct in his first conclusion that because of the prior arrangement for payment and refund the cost of the respondent's accommodation was not borne out of public or local funds within the meaning of Regulation 7(1) of the 1992 Regulations. He was, however, correct in his second conclusion that the case came within Regulation 8(6). We accordingly propose to reframe the questions posed in the case stated as follows:

"1. Was the Chief Social Security Commissioner correct in law in holding that because of the prior arrangement between the Southern Health and Social Services Board and the respondent's son the cost of the respondent's accommodation was not borne out of public or local funds within the meaning of Regulation 7(1) of the Social Security (Attendance Allowance) Regulations (Northern Ireland) 1992?

2. Was the Chief Social Security Commissioner correct in law in holding that attendance allowance was payable to the respondent on the ground that the conditions of Regulation 8(6) of the 1992 Regulations were satisfied?"

We answer question 1 No and question 2 Yes and dismiss the appeal.

The Chief Commissioner decided Mr Mitchell's case C15/96(AA) on an incorrect ground, that the cost was not borne out of public or local funds because of the prior arrangement with the health board. It follows from our conclusions expressed above that on the facts set out in the case stated the respondent satisfied the conditions in Regulation 8(6) of the 1992 Regulations and that he was entitled to payment of attendance allowance. We do not find it necessary to remit the case for any further findings. We shall express a conclusion that the conditions in Regulation 8(6) are satisfied. We propose to reframe the questions as follows:

"1. Was the Chief Social Security Commissioner correct in law in holding that because of the prior arrangement between the health board and the respondent the cost of the respondent's accommodation was not borne out of public or local funds within the meaning of Regulation 7(1) of the Social Security (Attendance Allowance) Regulations (Northern Ireland) 1992?

2. Was attendance allowance payable to the respondent on the ground that he satisfied the conditions of Regulation 8(6) of the 1992 Regulations?"

We shall answer the first question No and the second question Yes and dismiss the appeal.

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

_____

BETWEEN

THE CHIEF ADJUDICATION OFFICER

Appellant

and

(1) CAROLINE CREIGHTON (EDNA BRUCE Appointee)

(2) SAMUEL BELL

(3) AGNES CROSS Deceased (BRIAN CROSS Appointee)

(4) ROLAND MITCHELL

(5) CATHERINE CAMPBELL

Respondents

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JUDGMENT

OF

CARSWELL LCJ

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