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URL: http://www.bailii.org/uk/cases/UKSSCSC/1990/CG_53_1988.html
Cite as: (1992) 4 Admin LR 57, [1991] 2 All ER 712, [1990] UKSSCSC CG_53_1988, 4 Admin LR 57

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Secretary of State v. Tunnicliffe [1990] UKSSCSC CG_53_1988 (13 December 1990)

R(G) 4/91

(S of S and CAO v. Tunnicliffe)

Mr. M. H. Johnson CG/53/1988

CA (Mustill, Staughton and McCowan LJJ)

Recovery of overpayment – payment made before repeal of section 119 of the Social Security Act 1975 – whether claimant had an "acquired" or "accrued" right that survived the repeal

The claimant, a widow whose husband died in 1982, was receiving child benefit in respect of two children. She made a late claim for widowed mother's allowance, which was awarded from 14 February 1984 with appropriate additions for the children. After both children had left her address, she continued to receive widowed mother's allowance although, as she no longer had a child under the age of 19 living with her, her entitlement thereto had ceased. As she had failed to disclose the change in circumstances that had brought such entitlement to a close the social security appeal tribunal decided there had been an overpayment recoverable under section 53 of the Social Security Act 1986. The claimant appealed to a social security Commissioner.

Held:

(by the Commissioner) that the resulting overpayment having arisen prior to 6 April 1987, when section 53 of the Social Security Act 1986 came into force, the appeal tribunal had erred in law in applying that section, rather than section 119 of the Social Security Act 1975, to the question of whether or not repayment was required of the claimant of the amount overpaid to her. When the claimant received the overpayment, the law told her she must use due care and diligence to avoid overpayment. If the tribunal applied the law as it stood from 6 April 1987 a new obligation would be created or a new duty imposed on the claimant which would prima facie be contrary to the clear intention of section 16 of the Interpretation Act;

(by the Court of Appeal) (Mustill, Staughton and McCowan, LJJ), allowing the appeal.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the unanimous decision of the social security appeal tribunal given on 15 December 1987 is erroneous in point of law. Accordingly I set it aside and remit the matter for rehearing by an entirely differently constituted tribunal.

On 22 June 1989 I held an oral hearing of this appeal by the claimant, who was represented by Mr. Mark Rowland, of Counsel, instructed by the Child Poverty Action Group as agents for Tower Hamlets Law Centre. The adjudication officer was represented by Mr. N. Butt, of the Solicitor's Office of the Departments of Health and Social Security.

The claimant appeals with leave of the chairman of the tribunal against the decision of the tribunal which substantially upheld the decision of the adjudication officer, issued on 13 August 1987, reviewing the award of widowed mother's allowance to the claimant and revising it with the effect that benefit for the inclusive period from 22 July 1986 to 30 March 1987 was withdrawn and the sum accordingly overpaid to her during that period was recoverable. The tribunal revised that decision by finding that overpayment had been made and repayment was required for the inclusive period from 29 July 1986 to 30 March 1987.

Section 25(1) of the Social Security Act 1975 provides that a person is entitled to a widowed mother's allowance if her late husband satisfied the relevant contribution conditions and she is "entitled to child benefit in respect of a child falling within subsection (2)". Subsection (2) requires that, subject to one of the conditions of section 43(1) being satisfied, the child should be inter alia "a son or daughter of the woman and her late husband". Section 43(1), in so far as it is relevant to the instant case, provides that, in order to qualify for an increase for a dependent child under section 41, the claimant must be a person who "would be treated for the purposes of the Child Benefit Act as having the child living with her". The effect of those statutory provisions is modified by regulation 16 of the Social Security (Widow's Benefit and Retirement Pensions) Regulations 1979 [SI 1979 No. 642], which provides that "any person under the age of 19 residing with the widow shall be deemed to be a child falling within section 25(2) of the [1975] Act". At the material time, therefore, the effect of the relevant legislation was that a widowed mother was entitled to a widowed mother's allowance provided a child under the age of 19 was residing with her and, further, if she was entitled to child benefit for that child, then she was also entitled to an increase in her allowance, but such increase would cease when child benefit ceased to be payable.

The background to this matter is briefly as follows. The claimant's husband died in 1982; she was then aged 32 and had two children, J and D, born respectively on 28 March 1969 and 28 August 1971, for both of whom she received child benefit. For reasons I do not know, and which do not affect this decision, the claimant made a late claim for widowed mother's allowance; that was awarded with effect from 14 February 1984 with the appropriate additions for J and D. J attained the age of 16 on 28 March 1985 and, in accordance with the relevant provisions of the relevant regulations, which I do not need to set out here, child benefit for her ceased on 4 June 1985. The increase of widowed mother's allowance for J also then ceased but, by virtue of regulation 16 of the Widow's Benefit Regulations 1979, referred to in the preceding paragraph, the claimant's entitlement to widowed mother's allowance was unaffected. On a date which has not been precisely established, but which was prior to 11 November 1985, J left home and claimed supplementary benefit in her own right. The claimant says, and the tribunal accepted, that she telephoned the Department and advised them of J's departure, but was told that would not affect her benefit. That advice was plainly correct the appropriate adjustment to the claimant's benefit had been made when J's child benefit ceased and, at that time, she still qualified as a "widowed mother" because D was living with her.

The next event of any significance occurred on 11 April 1986 when D was received into the care of the local authority. However, as from 9 June 1986 he lived with the claimant for two nights and the intervening day each week, and she accordingly remained entitled to child benefit for him as long as that arrangement continued. On 29 July 1986 the claimant made a statement on form MF47 that:

"My son, [D], has left my address as from 28 July 1986 as a permanent move."

The claimant did not receive child benefit for D after that date, and it is common ground that she made full and prompt disclosure of that change in her domestic circumstances.

The claimant continued to receive widowed mother's allowance although, as she no longer had a child under the age of 19 residing with her, her entitlement thereto had ceased. On 5 March 1987 the Central Pension Branch of the Department asked for confirmation that J was still living with the claimant and, on 23 March 1987, the claimant replied:

"With reference to our telephone conversation I can again only state that you will have to check your records for the information asked for. I informed your office at the time [J] stopped living with me but did not keep a record of this."

It was in those circumstances that the adjudication officer reviewed the original decision and decided that widowed mother's allowance was not payable to the claimant from 22 July 1986 to 30 March 1987, that there had been an overpayment of the allowance to the claimant during that period, which was recoverable from her because each time she had signed a girocheque or an order in her allowance book she had "misrepresented the material fact that she was entitled to that benefit".

The claimant appealed to the tribunal, to whom she is recorded as giving evidence of the information she had given to the local office about both J and D leaving home. The presenting officer is noted as stating that she had checked the records and had found no record of the telephone call regarding J, but that "there would have been no need for a record ... the impact on entitlement being non-existent". The tribunal found as facts material to their decision that:

"1. The appellant informed the Department by telephone that [J] had 'left home.'

No record was made of that information.

The appellant informed the local office that [D] had left home.

The appellant failed to tell the Department that no children under 19 were living, with her.

The appellant qualifies for the benefit in the week 22 July 1986 – 28 July 1986."

Accordingly they revised the decision of the adjudication officer as to the sum repayable by the claimant, and gave as their reasons for their decision that a lesser amount was recoverable:

"The tribunal directed itself to consider a single issue: 'Was there a duty to state on 29 July 1986 that no children under the age of 19 were residing with her i.e. the appellant?' The tribunal, concluded that there was a duty to make full disclosure."

And they went on to state their reasons for that decision, including their view that "The very title [denotes] the nature of the benefit" that on 29 July 1986 the claimant had a duty to disclose that the basis of her entitlement had ceased and that failure to so disclose "constituted an omission ... which by its very nature constituted a misrepresentation"

It is common ground that, in their assessment of the sum overpaid to and recoverable from the claimant, the tribunal wrongfully included (as had the adjudication officer's calculation) the £10 "Christmas Bonus" paid in December 1986. There is and at the material time, was no provision for the recovery of such a sum and consequently the tribunal erred in law in so directing. That error of law suffices to set aside the tribunal's decision but, in the submission dated 12 January 1989 by the adjudication officer now concerned with the case, it is submitted that the tribunal's decision contains other errors of law. However that maybe they seem to me to be subsumed by the point taken on behalf of the claimant, initially by the Tower Hamlets Law Centre, and elaborated at the oral hearing by Mr. Rowland. This is that the tribunal erred in law in applying section 53 of the Social Security Act 1986, rather than section 119 of the 1975 Act, to the question of whether or not repayment was to be required of the claimant of whatever amount had in fact been overpaid to her.

The basis of that submission is that section 53 was brought into force on 6 April 1987 by virtue of article 4 of the Schedule to the Social Security Act 1986 (Commencement No. 4) Order 1986 [SI 1986 No. 1959]. Article 4 provides as follows:

"4.(1) The bringing into operation of subsections (1), (2), (4) and (5) of section 53 (overpayments) and the repeal, in whole or in part, of the enactments specified in paragraph (2) of this article (overpayments and set-off) and the provisions by which those enactments have been amended shall not have effect in relation to any review of, or appeal from, any determination, first made before 6 April 1987, of any questions of repayment or recoverability under those enactments." (my emphasis).

Mr. Rowland submitted that the effect of that article was that the review of or appeal against a decision made before 6 April 1987 regarding recovery, to which the provisions of section 119 of the 1975 Act applied, would not be affected by the repeal of that section. He further submitted that as the Order was silent as to what should happen in circumstances such as those in the instant case, where the overpayment occurred before 6 April 1987 but the adjudication officer's decision regarding recovery was after that date, it was necessary, in the absence of any specific provisions, to have regard to the common law rules and to section 16 of the Interpretation Act 1978.

The common law has always leaned against retrospective legislation. Section 16(1) of the Interpretation Act 1978 provides that:

"16.(1) Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, -

(a) revive anything not in force or existing at the time at which the repeal takes effect;

(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that enactment;

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed."

(Section 15 deals with a repeal which is itself repealed and is not in point in this case).

In Yew Bon Tew v. Kenderaan Bas Mara [1983] AC 553, Lord Brightman says at page 558F:

"A statute is retrospective if it takes away or impairs a vested right required under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past",

thereby adopting almost verbatim what is said at page 387 of Craies on Statute Law (7th edition) which then goes on to quote the words of Lindley LJ in Lauri v. Renad [1892] 3Ch 402:

"It is a fundamental rule of English law, that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such, construction"

and the principle is emphasised at page 389 thus:

"...perhaps no rule of construction is more firmly established than this- that retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matters of procedure, unless that effect, cannot be avoided without doing violence to the language of the enactment."

In the instant case the overpayment of widowed mother's allowance occurred entirely before the relevant provisions of the 1986 Act (section 53) came into force on 6 April 1987 (see paragraph 11 above). At the time, therefore, that the claimant received the overpayments section 119(2) of the 1975 Act provided that:

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

Until 6 April 1987, when that subsection was replaced by virtue of section 86(2) of the 1986 Act and Schedule 11 thereto, overpayment and repayment of benefit (apart from supplementary benefit) accordingly depended on the question of due care and diligence, whereas after that date the question of overpayment was dealt with by section 53(1) of the 1986 Act as follows:

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

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

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

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

The tribunal clearly proceeded to consider the matter on the same basis as the adjudication officer, namely that the claimant had misrepresented a material fact by failing to disclose that she had no child aged less than 19 living with her. In my judgment they thereby cast upon her a duty which did not exist at the relevant period; when the claimant received the overpayment the law told her she must use due care and diligence to avoid overpayment. If the tribunal applied the law as it stood after 6 April 1987 then plainly the effect would be to create a new obligation or impose a new duty on the claimant, which would prima facie be contrary to the clear intention of section 16 of the Interpretation Act.

Mr. Butt contended that the section did not apply because the change in the law was purely procedural and therefore not objectionable for having a retrospective effect. I accept that if the alteration in the law was procedural then that would be correct, but I do not accept that was the case. In my judgment the change of the criteria governing repayment from "due care and diligence" to disclosure is a substantive and not merely procedural. The position in my view distinguishable from that considered by the Divisional Court in R v. Secretary of State for Social Services Ex parte Britnell, in which judgment was given on 24 January 1989, and to which I was helpfully referred; in that case it was held that regulation 20(2) of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1987 [SI 1987 No. 491] (and, it would presumably follow, regulation 15(l) of the identically named 1988 regulations [SI 1988 No. 664]), were not retrospective, but were a new means of recovering liabilities which existed before the 1986 Act came into force. The issue in the present case is what, if any, liability the claimant had under the 1975 Act. If she should have any such liability then it is not disputed that it would be recoverable.

In these circumstances, in my judgment the claimant's liability, if any, to repay the amount overpaid to her, or any part thereof, should have been considered under section 119 of the 1975 Act. Consequently the tribunal erred in law in that respect also.

I would have wished to give the decision which the tribunal should have given and, on the basis of their findings, of fact regarding disclosure, I might well have been able to find that the claimant had adequately discharged the onus upon her. However, I have come to the conclusion that there are insufficient findings of fact to enable me to decide the question of whether the claimant used due care and diligence to avoid overpayment. It may be that the learned editors of Non-Mean's Tested Benefits: The Legislation (1989 edition, Sweet & Maxwell) are correct in their comment on section 53 of the 1986 Act, that it applies "a much tougher test" than section 119 of the 1975 Act; what is certain is that it is a quite different test and it would be wrong to assume that, because, in my opinion, this claimant made adequate disclosure, she necessarily used due care and diligence. As the matter proceeded throughout on the basis of misrepresentation and/or disclosure, the claimant has never been asked about her state of mind during the period in issue and, although a certain amount can be inferred from her answers to enquiries I have, with some regret, come to the conclusion that the proper course would be for this matter to be considered by another tribunal, who will decide whether or not the claimant throughout the period in issue used due care and diligence to avoid overpayment, in accordance with the provisions of section 119 of the 1975 Act.

I do not think it necessary for me to give elaborate directions to the new tribunal about a matter with which they will be only too familiar. However, I would mention that the previous tribunal's reasoning, that the title of the benefit denoted its nature, is in my view fallacious. A widowed mother, as a matter of English remains a widowed mother whatever the age of her children but it will be a question of fact for the tribunal whether there was anything which should have put the claimant on notice. In that connection the new tribunal will bear in mind the words of the Commissioner in paragraph 16 of R(U) 1/73, where he said that the expectation that the claimant should, in the particular circumstances of that case; have made further enquiries, seemed to him ". . . to go too far and to require the claimant to exercise something more than due care and diligence" (the Commissioner's emphasis). Whether the same can be said in the instant case will be one of the issues the new tribunal will have to determine.

The claimant's appeal is allowed.

Date: 24 August 1989 (signed) Mr. M. H. Johnson

Commissioner

The Secretary of State for Social Security and the Chief Adjudication Officer appealed to the Court of Appeal. The decision of the Court of Appeal follows.

DECISION OF THE COURT OF APPEAL

Mr. Michael Beloff QC and Mr. R. McManus (instructed by the Solicitor of the Department of Social Security) appeared on behalf of the Appellant.

Mr. Stephen Sedley QC and Mr. M. Rowland (instructed by the Child Poverty Action Group) appeared on behalf of the Respondent.

LORD JUSTICE MUSTILL: Mrs. Sandra Tunnicliffe is the widowed mother of two sons, now aged 21 and 19 years. In 1982 her husband died. On 14 February 1984 she made a late claim for widowed mother's allowance under section 25(1) of the Social Security Act 1975. On 23 January 1986 an adjudication officer decided, pursuant to powers conferred by section 98(1) of the Act of 1975, that she was entitled to this allowance, back-dated to 14 February 1984, and she then began to receive the allowance. On 28 July 1986 when the second of her two children left home she ceased to fulfil the requirements for the allowance, but she continued to draw it. I should make it plain that it is not suggested that in this respect she acted dishonestly. As a result of communications with the Department of Social Security an adjudication officer, acting under section 104 of the 1975 Act, reviewed the prior decision. His decision was given on 13 August 1987. The effect of the decision, which we have not seen, was that the allowance had been wrongly paid for the period between 22 July 1986 and 30 March 1987, and that the Secretary of State was entitled to recover from her the amount of the over payment.

Mrs. Tunnicliffe appealed to a social security appeal tribunal. This body upheld the decision of the second adjudication officer, except as regards one week for which it was held that the allowance was properly paid. It was subsequently agreed that both the tribunal and the second adjudication officer had made a mistake in holding that Mrs. Tunnicliffe was obliged to repay a Christmas bonus amounting to £10.

Mrs. Tunnicliffe pursued a further appeal to the social security Commissioner, who allowed the appeal and remitted the case to a new tribunal for reconsideration. The Secretary of State now appeals.

I have given the dates exactly because they lie at the heart of the appeal. There is one more crucial date, namely 6 April 1987, when section 53 of the Social Security Act 1986 was brought into force by article 2(b) and Part II of the Schedule of the Social Security, Act 1986 (Commencement No. 4) Order 1986, hereafter "the 1986 Order". This date marked the boundary between two statutory regimes for the recovery of overpaid benefit.

The first regime was that created by section 119 of the 1975 Act and section 20 of the Supplementary Benefits Act, 1976. The former applied to the recovery of overpaid non-means tested benefits, the latter to means tested benefits. So far as material section 119 read as follows:

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

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

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

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

(5) Any sum which is, by virtue of this section or regulations under subsection (3) above, required to be re-paid to the Secretary of State in pursuance of a decision made by an insurance officer, local tribunal or Commissioner shall, if the person required to repay that sum resides in England and Wales and the county court so orders, be recoverable by execution issued from the county court or otherwise as if it were payable under the order of that court . . ."

Section 20 of the 1976 Act was to a quite different effect:

"(1) If, whether fraudulently or otherwise, any person misrepresents, or fails to disclose, any material fact, and in consequence of the misrepresentation or failure -

(a) the Secretary of State incurs any expenditure under this Act, or

(b) any sum recoverable under this Act by or on behalf of the Secretary of State is not recovered,

the Secretary of State shall be entitled to recover the amount thereof from that person."

Section 20 of the 1976 Act is relevant only as part of the background. It is on section 119 of the 1975 Act that we must concentrate, since the overpayment to Mrs. Tunnicliffe was of a non-means tested benefit.

It will be seen that this section contemplated the following successive activities:

A decision that the beneficiary is entitled to benefit. I will call this "the first determination."

Payment of benefit pursuant to that decision.

A decision on appeal or review ("the second determination") which reverses, varies or revises the first determination.

An order, part of the second determination, which requires the benefit to be retrospectively re-calculated by notionally substituting the second determination for the first as from the latter's date, albeit the second may have been on events which had not happened at the time of the first.

An order that the excess of the benefit actually paid over the amount notionally re-assessed shall be re-paid, unless the beneficiary had "used due care and diligence to avoid overpayment."

It is important to note that the Secretary of State has no cause of action under the section (whatever may have been the position at common law), unless and until the adjudication officer has made an order at stage 5.

This bi-partite regime was changed on 6 April 1987 when both of the sections which established it were repealed by the 1986 Act (section 86(1) and Schedule 11). On the same date section 53 of the 1986 Act was brought into force by article 2 of the 1986 Order. As amended in 1990 this reads as follows:

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

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

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

(lA) Where any such determination as is referred to in subsection (1) above is made on an appeal or review, there shall also be determined in the course of the appeal or review the question whether any, and if so with what, amount is recoverable under that subsection by the Secretary of State.

……

(4) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or regulations under subsection (3) above unless

[(a)] the determination in pursuance of which it was paid has been reversed or varied on an appeal or revised on a review [and

(b) it has been determined on the appeal or review that the amount is so recoverable.]

……

(9) any amount recoverable under the provisions mentioned in subsection (7) above -

(a) if any person from whom it is recoverable resides in England and Wales and the county court so orders, shall be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court; . . ."

The provisions in square brackets were those added in 1990. It has not been suggested that their previous absence affects the present case. Their purpose was to supply what had no doubt previously been regarded as implicit.

This new regime, which applies both to means tested and non-means tested benefits, combines elements of both the previous statutory schemes. As regards machinery, it mirrors section 119 in many respects, although it is laid out rather differently. There is still a first determination (see subsection (4)(a) pursuant to which benefit is paid; and a second determination which reverses, varies or revises that determination (subsection (4)); and in certain circumstances a decision as part of the second determination that benefit paid will be recoverable by the Secretary of State. On matters of substance section 53 echoes the 1976 Act, and alters the position of a beneficiary who has received an overpayment of widowed mother's allowance in two important respects:

Under section 119 the Secretary of State had a prima facie right to repayment, which was abrogated upon proof by the beneficiary of the necessary facts to exculpate him, whereas under section 53 the Secretary of State's right of recovery is conditional on proof by him of the facts necessary to inculpate the beneficiary.

The facts which had to be proved are different. Section 119 was cast in terms of "due care and diligence", whereas section 53 establishes a test of misrepresentation or failure to disclose.

It is common ground that in some cases the new regime will be more favourable to the beneficiary than the old; in others the change of regime will make no difference; and in others again the new regime will be less favourable. It is however asserted by Mr. Sedley QC on behalf of Mrs. Tunnicliffe, and I see no reason to doubt, that in the majority of cases the change will prove to have been for the worse.

One more group of statutory provisions must be mentioned. Section 86(2) of the 1986 Act provided that "The enactments mentioned Schedule 11 of this Act . . . are repealed." Some of the enactments were, by section 88(5), to be repealed at once. The repeal of the remainder, including section 119 of the 1975 Act, was to take place on a day to be appointed by an order of the Secretary of State. In section 88 it was provided that, with certain immaterial exceptions, the provisions of the Act were to come into effect on a day appointed by the Secretary of State. Section 89(1) began "Regulations may make such transitional and consequential provisions (including provisions modifying any enactment contained in this or any other Act) or saving as the Secretary of State considers necessary or expedient . . ." By section 83(5) any regulations under section 89 were subject to negative resolution of either House of Parliament, but those under section 88 were not.

In the event the Secretary of State elected to employ the less circumscribed powers conferred by section 88 and did not make any transitional regulations under section 89. The 1986 Order, reciting that it was made under section 88, read, so far as material:

"Appointed days

Subject to the exceptional provisions in articles 3 and 4, the day appointed for the coming into force -

(a) of the provisions of the Social Security Act 1986 specified in Part I of the Schedule to this Order is 15 March 1987;

(b) of the provisions of that Act specified in Part II of the Schedule to this Order is 6 April 1987;

(c) of the provisions of that Act specified in Part III of the Schedule to this Order is 7 April 1987.

…

saving for the review of or appeal from, determinations before the appointed day in relation to overpayments

(1) The bringing into operation of subsections (1), (2), (4) and (5) of section 53 (overpayments) and of the repeal, in whole or in-part, of the enactments specified in paragraph 2 of this article (overpayments and set-off) and the provisions by which those enactments, have been amended shall not have effect in relation to-any review of, or appeal from, any determination, first made before 6 April 1987, of any question or repayment or recoverability under those enactments.

(2) The enactments specified for the purposes of paragraph (1) of this article are-

Section 8 of the Family Income Supplements Act 1970(a).

Sections 86 and 119 of the Social Security Act 1975(b).

Section 20 of the Supplementary Benefits Act 1976(c)."

I now turn to the history of these proceedings. They began with the first determination of 23 January 1986, to which I have already referred. It requires no further examination, since it was undeniably right when made. Next, there was the second determination, made by an adjudication officer on 13 August 1987 after the coming into force of section 53 and the repeal of section 119.

It reads as follows:

"I have reviewed the decision of adjudication officer awarding widow's mother's allowance from and including 14 February 1984.

There has been a relevant change of circumstances since the decision was given. This was that the David was taken into care of the Local Authority and child benefit ceased to be payable for him and Jennifer was no longer living with the claimant. My revised decision only for the period from 22 July 1986 to 30 March 1987 (both dates included) is as follows:

Widow's benefit is not payable from and including 22 July 1986 because the claimant does not satisfy any of the conditions set out in the appendix to this decision. As a result an overpayment of widow's benefit has been made amounting to £1350.02. Each time she signed a girocheque or an order in her widowed mother's allowance order book on or after 22 July 1986. Mrs. Sandra Tunnicliffe misrepresented the material fact that she was entitled to that benefit. Accordingly widowed mother's allowance amounting to £1350.02 from 22 July 1986 to 30 March 1987 (both dates included) is recoverable . . ."

This determination had two elements. First, a re-opening of the first determination on the ground of a "relevant change of circumstances". Secondly, an order that benefit for the stated period was repayable. The first element of the determination was made under section 104(1) of the 1975 Act. The power to make it was wholly unaffected by the repeal and new enactment in 1986. This part of the determination was by nature retrospective. Under the first determination Mrs. Tunnicliffe had since 23 January 1986 been entitled to draw widowed mother's benefit, and if anyone had questioned her right to do so she could have relied on the determination; now as a result of the second determination the justification which she had appeared to have possessed was to be treated as if it had never existed. No objection has been taken to this retrospective feature.

The second element of the determination was of a quantification of the amount due by way of repayment which, explicitly under section 119 and (as I have suggested) implicitly under section 53, was a condition precedent to the recovery by the Secretary of State of the amount which (according to the first determination as revised by the second determination) had been overpaid. Under whichever section the Secretary of State's right of recovery might have arisen, the effect was necessarily retrospective. The beneficiary had received benefit pursuant to the first determination, and no doubt had spent it. Now, years after the event, she is told that she should not have had the benefit, and that although she received it in good faith (honesty not being in issue) she now has to hand it back. Whichever section is said to produce this result, the operation of it is retrospective, in the sense that it deprived the beneficiary of benefits paid, received and spent in good faith. Nobody has said, or could have said, that there is anything anomalous in this.

In fact the adjudication officer, when making the second determination, purported to do so under section 53. So that the Secretary of State when seeking to enforce the repayment quantified by the adjudication officer was asserting a cause of action arising under section 53 and, addressing the existence and extent of that cause of action by reference to the criteria of misrepresentation and failure to disclose created by that section.

Mrs. Tunnicliffe then appealed to the social security appeal tribunal which revised the adjudication officer's decision to the extent of deciding that she qualified for benefit in the week 22 - 28 July 1986, but otherwise upheld the decision once again the question was approached in terms of section 53. The ground for the decision was that Mrs. Tunnicliffe had been under a duty to disclose on 29 July 1986 that she no longer had children living with her, and that this constituted an omission which amounted to a representation within the words of section 53.

When the matter came before the Commissioner, a new argument was advanced on behalf of the beneficiary, namely that the adjudication officer and the tribunal had erred in applying the test created by section 53, since the overpayment of benefit had occurred at a time when section 119 was still in force. The Commissioner accepted, this argument. After a discussion of the Interpretation Act, 1978 and the common law on retrospective legislation, he expressed his conclusion as follows:

"The tribunal clearly proceeded to consider the matter on the same basis as the adjudication, officer, namely that the claimant has misrepresented a material fact by failing to disclose that she had no child aged less than 19 living with her. In my judgment they thereby cast upon her a duty which did not exist, at the relevant period; when the claimant received the overpayment the law told her she must use due care and diligence to avoid overpayment. If the tribunal applied the law as it stood after 6 April 1987 then plainly the effect would, be to create a new obligation or impose a new duty on the claimant, which would prima facie be contrary to the clear intention of section 16 of the Interpretation Act."

The Commissioner therefore held that Mrs. Tunnicliffe's liability to refund the overpayment should have been considered under section 119, and since the question of due care and diligence had never been addressed by the tribunal the matter should be remitted for consideration by another tribunal.

The next event was the decision of a panel of three Commissioners in the case of Harrison (case number CA/126/1989). This related to a different type of benefit but one of the points in issue concerned the relationship between sections 119 and 53. The Commissioners were divided in their opinions: Mr. J. Mitchell and Mr. A. T. Hoolahan adopted what was essentially the same line of reasoning as that of Mr. M. H. Johnson, the Commissioner in the present case, albeit expressed in somewhat different terms and with more elaboration. The dissenting Commissioner, Mr. D. G. Rice, founded his contrary opinion on two principal grounds. First, that the opening words of section 53 were unequivocal, and showed that all determinations after the coming into force of the Act were to be made in accordance with section 53. Second, that article 4 of the 1986 Order demonstrated that in all cases, save those where the second determination had already been made by 6 April 1987, the recovery was henceforth to be governed by section 53: for otherwise the words of qualification in that article would have been useless.

That is how matters stood at the outset of this appeal. Before considering the central, and quite short, point of statutory interpretation, I must deal with two preliminary matters.

First as to the 1986 Order. Here, I confess to finding the Secretary of State's position on article 4 rather hard to make out. For much of the hearing before us I had understood Mr. Beloff to be accepting that although counsel for the Secretary of State had persuaded Mr. Commissioner Rice in Harrison that article 4 provided the key to the whole problem, those advising him had on reflection come to accept that this was unsound and no longer wished to support it. Towards the end of his argument in reply Mr. Beloff seemed to withdraw somewhat from this position, and to suggest that perhaps the argument might be right after all: or at least to keep open the possibility of saying that it was right in some other case, or at some later stage in this case. At all events, the issues raised by article 4 were only briefly touched on in the appellant's argument, and not at all in the argument for the respondent. This makes it impossible for the court to enter in any detail into these issues, as we would have wished to do in courtesy to Mr. Commissioner Rice. All I can say is that on brief acquaintance the argument based on article 4 appears unsound. The 1986 Order was made in purported extension of powers conferred by section 88 (not section 89) of the 1986 Act. If made under section 89 the Order would have been laid before Parliament, and the absence of a negative resolution might perhaps have told one something about what Parliament had meant by section 53. But the Order, made as it was under section 88, was not laid before Parliament. The most that it shows therefore is that the Secretary of State was making delegated legislation on the same assumption as to the meaning of section 53 as he is now advancing by counsel. To my mind this sheds no light on what section 53 really means.

Secondly, I must take up a question which may at first sight seem no more than an arid matter of terminology, but which I believe to be important. Although the tribunal and the Commissioner approached the matter in quite a different way and arrived at opposite conclusions, they shared one assumption, namely that what mattered were the duties of the beneficiary, as regards due care and diligence, on the one hand or, accurate representation and disclosure on the other. I cannot share this assumption. If it were valid, there would be a strong case for saying that the Secretary of State's cause of action (or absence of one) had already crystallised and become enforceable before the appointed day, by reference to a standard of care and diligence, and that it would need very clear words if the new Act were to annul this cause of action and replace it with a new cause of action (or absence of one) ascertained according to a quite different standard. In my opinion, however, the premise is unsound. Section 119 did not create a duty to use due care and diligence nor did a failure by the beneficiary as regards care or diligence give the Secretary of State any cause of action. Instead, the rights of the secretary of State had their origin in the fact of overpayment and the fact that the overpayment had not been refunded. The rights themselves however did not arise unless and until the adjudication officer on the occasion of the second determination had reversed, reviewed or varied the first determination; had ascertained the amount of repayment and had decided that the beneficiary had no answer to the claim for repayment by reference to due care and diligence. Only then did the Secretary of State have any right to avail himself of the statutory rights of direct execution created by section 119. What we have, therefore, is not a free-standing duty of care, broken when a failure of care and diligence by the beneficiary allowed an overpayment to be made, and immediately enforceable by action; but instead a special mechanism, of which an investigation of care or absence of care was only part yielding a special set of remedies available only when the mechanism had run its full course.

It follows from this, as Mr. Sedley accepted, that if the test created by section 119 continued to be material to second determination made after 6 April 1987, it did so only because the entire mechanism of that section remained in operation thereafter to generate rights of recovery in relation to overpayments made before that date: for it plainly could not be the case that the mechanism of section 53 would generate a recovery ascertained by reference not to its own test, but the test of section 119.

In these circumstances we must consider two linked questions; (a) what was the effect of the repeal of section 119; (b) what was the effect of the enactment and bringing into force of section 53?

It is convenient to begin with the second question [and to do so initially by considering what the position would have been if section 119 had never been enacted, and that (so far as concerned non-means tested benefit) the system for recoupment of overpaid benefit was entirely new.]

The two principal arguments for the Secretary of State are as follows. Others were advanced but in my view they were not strong enough to tip the scale, and I therefore pass them by. The first, and strongest, is based on the words of the statute. The scope of the new statutory mechanism, worked out in the various subsections of section 53, is determined by the opening words of section 53(1): "Where it is determined that … " These words inescapably speak to the future, but equally inescapably look to the past: to the first determination, which is being reversed, varied or revised, to the overpayment itself, and to the misrepresentation or non-disclosure of which the overpayment was a consequence. There is nothing in the statute to suggest that the retrospective functions of the adjudication officer should stop short when the inquiry has reached backwards to 6 April 1987.

Secondly, the scheme created by section 53 is in part a successor to the provision for overpaid means tested benefit in section 20 of the 1976 Act. The mechanism is different but the test is the same. It must surely have been contemplated that when section 20 was repealed on the appointed day and replaced by section 53, the new mechanism should come into force at once, irrespective of the date of first determination, misrepresentation and overpayment. This would be the obvious solution, and there could be no objection on the ground that the beneficiary's rights were being varied, since the test by which they were established was not affected.

The contrary argument for Mrs. Tunnicliffe is founded on a well established principle of statutory interpretation for which no citation is required beyond the following passage from the advice of the Privy Council in Yew Bon Tew v. Kenderaan Bas Mara [1983] AC 553, at page 558F:

"Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right of obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. There is, however, said to be an exception in the case of a statute which is purely procedural, because no person has a vested right in any particular course of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed."

In one form (the one adopted by the Commissioner in the present case) this principle was said to apply here so as to prevent the beneficiary's prior duty of due care and diligence from being altered to an obligation of accurate representation and full disclosure, and to make a liability spring up where none had been before. I cannot agree, for as previously stated the beneficiary was and is under such duty, and on 5 April 1987, was under no statutory obligation to repay the overpaid benefit, either for breach of duty or on any other ground. It was not until the second determination was made that any such obligation was due to arise. Now I quite accept that if the issue were whether section 53 could be read as applying to determinations before the appointed day the argument would be very strong, for on such a view there might be a new enforceable repayment obligation against a beneficiary who had previously been exempt. But no such question arises here.

In these circumstances one has here a section which on any view has, and must have been intended to have, some retrospective effect. As to the aspects of the regime now in controversy it is true that if the Secretary of State is right they depend to some extent on things which happened before the appoint day. But this is not fatal to the argument: see per Lord Denman CJ in R v. Inhabitants of St. Mary Whitechapel [1848]12 QB 120 at page 127. True, there may be a presumption against allowing the statute to operate on conduct of the beneficiary before the new standard of conduct was set. But the force of the presumption is not invariable, and it must in my view be fixed by reference to the, unfairness which would stem from giving the statute a retrospective effect. Bearing in mind that we are concerned here with a claim to recover money to which Mrs. Tunnicliffe was not entitled and which she wishes to keep, the presumption must be weak and, if one looks at section 53 in isolation from section 119, is in my view clearly rebutted by the opening words of the section.

I turn to section 119. The status of this section after the appointed day is linked. with that of section 53, for it is plan that whatever else the intention of the legislature it could not have been to leave both regimes, operating simultaneously, in respect of the same overpayment. Did the potential defences of due care and diligence survive past the appointed day up to the moment when they first became relevant; namely, the time when, after revising the first determination, the adjudication officer passed to consider whether the mandatory order to repay under section 119(1) was excluded by the operation of the defences under subsection (2)? Mr. Sedley presses for an alternative answer, in reliance on the principles laid down both at common law and by the Interpretation Act. Reliance is placed in particular on the following provisions of section 16(1):

"Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears -

. . .

(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under that enactment;

. . .

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

As to section (b), I feel no difficulty. As regards overpaid beneficiaries in the position of Mrs. Tunnicliffe, section 119 had not "operated" before the appointed day, nor had anything been "done" or "suffered" before that day. Nothing at all had happened under section 119, and would never have done so unless and until the re-determination mechanism had been set in train. Nor do I consider that the situation can be forced into the words of paragraph (e).

The position as regards paragraph (c) is less straightforward, for I can see that if Mrs. Tunnicliffe had exercised due care and diligence, and was thereby protected against any possible claim for the repayment of money which she should never have received, this could in a sense be regarded as a "privilege accrued" under section 119. I say "in a sense". Strictly speaking, the fact of having used due care and diligence provided Mrs. Tunnicliffe with a ground for saying that if the Secretary of State set in train the mechanism of section 119, and if the adjudication officer thereupon revised the first determination so as to create a prima facie duty to repay, the repayment should nevertheless not be ordered. In my view any presumption created by the Interpretation Act and the common law rule which lies behind it must in the circumstances be quite weak: far less strong than if, for example, the beneficiary had possessed a vested cause of action which the new Act had purported to take away.

Is this presumption rebutted here? In my view it is. The mechanism of section 119 is all of a piece. The exception or immunity created by section 119(2) could not survive after 6 April 1987 in isolation from the liability to repay, and the procedure for ascertaining and enforcing that liability, of which it formed a qualification. This means that the submissions for Mrs. Tunnicliffe can only be right if the Secretary of State was, obliged to go on using the mechanism of section 119 after that April 1987, for the purpose of re-claiming benefit overpaid before that date, even though the legislation which empowered the Secretary of State to use it had been repealed. This proves too much. The Secretary of State's right to invoke section 119 ceased on the appointed day, and the potential immunity created by section 119(2) must then have disappeared.

Any doubts on this score are in my view removed by a sideways glance at section 20 of the 1976 Act. It will be recalled that this was replaced by a different mechanism for the recovery of benefit but operating the same test. No presumption of retrospectivity could operate here, for the change of regime would involve no unfairness. There is thus no reason to doubt that the legislation was intended to abolish the mechanism of section 20 on the appointed day, and to replace it with the new mechanism, applying the same test as before to overpayments whenever occurring. If this is so, it surely cannot have been intended that the repeal of section 119 should for some reason have a different effect and allow it for continue in force.

This understanding of section 119 serves to reinforce the view of section 53 already suggested. For if the former ceased to have effect on 6 April 1987 and no longer became available to deal with overpayments before that day, there would be a void unless section 53 were capable of being operated so as to empower and delineate the recovery of such overpayments, and to govern the terms on which the recovery would be made.

One final point must be mentioned. Mr. Sedley urged us not to disturb a situation in which, before 6 April 1987, a beneficiary might have arranged his or her affairs on the basis of the law as it then stood. With due respect, I find this argument fanciful in the present context, persuasive as it might be in others. Mrs. Tunnicliffe's state, of mind in 1986 and 1987 has never been investigated, but is it really conceivable that her thought process might have been on the following lines: "I realise that I may have been overpaid, but since I have used due care and diligence to avoid the overpayment, section 119 of the Social Security Act 1975 will protect me from having to give the money back, so I can safely spend it"? Surely not. If she thought about the matter at all, she must simply have taken it for granted that since the giro books kept on coming, and nobody told her not to cash the cheques, there was no reason not to use the proceeds.

I have gone into the arguments at some length, in deference to the submissions addressed and to the experienced Commissioners who take a different view. In the end, however, it comes to this, that on its natural meaning section 53 speaks of a future determination in relation to past events. No limit of time is expressed and none in my view can be implied. The section simply means what it says.

I would therefore allow the appeal and hold that the adjudication officer and the appeal tribunal were right to apply the mechanism of section 53 and the test which it embodies. We shall wish to hear submissions on the form of order which should now be made.

LORD JUSTICE STAUGHTON: The question in this appeal is whether Mrs. Tunnicliffe's liability to repay benefit should be determined by the old test of due care and diligence in section 119 of the Social Security Act 1975, or by the new test in section 53 of the Social Security Act 1986, which turns on misrepresentation or non-disclosure. Section 53 came into force, and section 119 was repealed, for the most part on 6 April 1987. But the benefit had been received, and any lack of due care and diligence or any misrepresentation or non-disclosure had occurred, before that date.

In the proceedings before the social security Commissioner, as also in the proceedings before three Commissioners in Harrison's case, the argument for the Secretary of State appears to have proceeded at least in part on article 4 of the Social Security Act 1986 (Commencement No. 4) Order 1986. That article provides, so far as is material, that the bringing into force of section 53, and the repeal of section 119 of the 1975 Act, shall not have effect in relation to any review of, or appeal from, any determination first made before 6 April 1987. Since the relevant determination in this case was after that date, viz. on 13 August 1987, the express terms of article 4 are not relevant. But there is to my mind as plain an implication as one could wish for, whether supported by Latin maxim or common sense, that section 53 (and the repeal of section 119 of the 1975 Act) is to be effective where the relevant determination was made after 5 April 1987.

That was the view of Mr. Commissioner Rice, who dissented in Harrison's case. The implication from article 4 is, as I have said, in my opinion quite plain. But there remains the question whether the Secretary of State had power to achieve that result by delegated legislation. Section 88 of the 1986 Act confers power to appoint a day when the Act shall come into force; and different days may be appointed for different provisions or different purposes. The effect of the express terms of article 4 is that section 53 never comes into force, and section 119 of the 1975 Act is never repealed, for the purpose of cases where the relevant determination was made before 6 April 1987. I suppose that this can legitimately be classed as a commencement provision and thus validly made under section 88, although it might also have been called transitional. But the implication, which I derive from article 4, that section 53 is to apply where, the relevant determination is made after 5 April 1987 but some or all of the material facts, occurred on or before that date, is in my view a transitional provision and nothing else: see R v. Secretary of State for Social Services, ex parte Britnell, 6 February 1990, unreported.

The question would then arise whether a delegated power to make transitional provisions could authorise retrospective legislation. That point was considered by the Divisional Court in Britnell's, case, but was not taken in the Court of Appeal. But in the present case the argument on article 4 now comes to a halt. Mr. Beloff for the Secretary of State concedes that he cannot rely on it as a transitional provision. In the first place the Commencement Order is expressed, to be made under section 88 (Commencement) rather than section 89 (Transitional). That might not be an insuperable obstacle as the Order also refers to "all other powers" enabling the Secretary of, State. But what is insuperable is that regulations under section 89 are, by section 83(4), subject to annulment by a resolution of either House of Parliament. Commencement Orders under section 88 are not subject to that procedure. The Commencement No. 4 Order was not described as a regulation, and was not laid before Parliament.

Accordingly Mr. Beloff concedes, as I have said, that article 4 cannot be relied on as a transitional provision. He also concedes that, as a commencement provision, it cannot affect the interpretation of section 53 of the Act, although he referred to Hanlon v. The Law Society [1981] AC 124 and desires to keep the point open if this case goes further. For the present it is accepted that article 4 merely reflects the Secretary of State's view as to the meaning of section 53, and cannot alter that meaning.

One of the main contentions in earlier proceedings having thus been abandoned, I turn to the meaning of section 53, which was the only topic debated in this appeal. It is said that the temporal application of the section is provided by the first four words "Where it is determined. . ." Those words look to the future. In consequence it is argued that the section is not retrospective, and that the presumption against retrospective legislation does not apply.

That argument is simple, but I am unable to accept it. There can be no doubt that, if it were correct, some of the facts upon which the section operates could have occurred before it came into force: the receipt of benefit, or the representation, or the failure to disclose, could have happened before 6 April 1987. There would therefore, in some degree, be retrospective operation.

It is well established that the presumption against retrospective legislation does not necessarily apply to an enactment merely because "a part of the requisites for its action is drawn from time antecedent to its passing (The Queen v. the Inhabitants of St. Mary Whitechapel [1848] 12 QB 120 per Lord Denman CJ at page 127). See also the speech of Lord Morris of Borthy-Gest in Customs & Excise Commissioners v. Thorn Electrical Industries Ltd. [1975] 1 WLR 1661 at page 1672.

One aspect of the presumption has received statutory recognition in section 16(1) of the Interpretation Act 1978. This provides that, unless the contrary intention appears, the repeal of any enactment does not (amongst other things):

"(c) affect any rights, privilege, obligation or liability acquired or incurred under that enactment,

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that enactment."

The section is only of collateral assistance in this appeal. We are principally concerned not with whether the repeal of section 119 of the 1975 Act is effective in Mrs. Tunnicliffe's case, but with whether the enactment in section 53 applies.

In Yew Bon Tew v. Kenderaan Bas Mara [1983] 1 AC 553 at page 558 Lord Brightman, delivering the advice of the Judicial Committee, said:

"A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past."

But Lord Brightman went on to say that the expression "retrospective" was equivocal:

"A statute which is retrospective in relation to one aspect of a case (e.g. because it applies to a pre-statute cause of action) may at the same time be prospective in relation to another aspect of the same case (e.g. because it applies only to the post-statute commencement of proceedings to enforce that cause of action). . ."

A good illustration of the difficulty is afforded by In re a Solicitor's Clerk [1957] 1 WLR 1219. There the clerk had been convicted of larceny in 1953. As the property stolen had not belonged to his employer or to any client of his employer, it was only by virtue of section 11 of the Solicitors (Amendment) Act 1956 that an order could be made that no solicitor should employ him without permission of the Law Society. From the point of view of the clerk, that was in my view plainly retrospective legislation if he was caught by it: a new disability was imposed in respect of his sins in the past so far as any employer was concerned, however, I would not say that the legislation was retrospective. It regulated whom he might employ in the future. The Divisional Court upheld the order; but it will be apparent that I have doubts about the decision.

In my judgment the true principle is that Parliament is, presumably, not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.

Applying that principle to the present case, I would first observe that the new rule as to misrepresentation or non-disclosure will not in all cases be harder on the recipients of benefit than the old test of due care and diligence. That was common ground before us. Nevertheless it is likely that in many cases the new rule will prove disadvantageous to recipients, and correspondingly advantageous to the Secretary of State.

On the other hand section 53(1) did no more than apply to benefits which are not means-tested the test which had previously applied to means-tested benefits. It would be convenient for adjudicators and tribunals, and for those who advise on social security law, if only one test could arise for consideration. In a case where overpayment of benefits straddled the commencement date of 6 April 1957, there would be some degree of inconvenience if liability to repay, had in a subsequent determination to be decided in part by each of two different tests. But any change, in the law is liable to produce some degree of inconvenience for lawyers and adjudicators.

I doubt if it can be said in this case that Mrs. Tunnicliffe had arranged her affairs, as the saying is on the basis that the old law would be applicable. If she used due care and diligence to avoid overpayment, she cannot have known that she was being overpaid. I suppose that theoretically a claimant could have received payment, then realised that she had been overpaid but without any lack of due care or diligence, and so spent the money. That seems rather far-fetched.

On the whole I reach the conclusion that the retrospective aspect of section 53 is not so unfair to recipients of benefit, or some of them, as to require greater clarity than Parliament has used in the section.

There are two postscripts to that conclusion. First, we were referred to section 9(1) of the Family Allowance Act 1961, which provides:

"Where benefit is (or has before the coming into force of this section been) paid in pursuance of a decision which is reversed or varied on appeal, or is revised on a review, then, except as provided by this subsection, the decision given on the appeal or review shall require repayment to the Fund of any benefit paid in pursuance of the original decision to the extent to which it-

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

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

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

That bears a remarkable likeness to section 119 of the 1975 Act, except that the words "before the coming into force of this section" were omitted. But I do not find it helpful in construing section 53 of the 1986 Act, which is cast in quite different terms. It shows only that Parliament can achieve greater clarity if desired.

Secondly, if I had been convinced that section 53 did not apply to the receipt of benefit, or to misrepresentation or non-disclosure, occurring before 6 April 1987, it would not necessarily have followed that section 119 of the 1975 Act would apply in a determination after that date. It could be that there is a lacuna, and that no recovery can take place on either ground. I say that because section 119 has been repealed; it can now operate only by article 4 of the Commencement Order (which does not apply to this case), or by virtue of section 16 of the Interpretation Act. It is open to question whether that section would preserve the section 119 test in a determination made after 6 April 1987, if section 53 were held inapplicable. Before the Commissioner it was evidently assumed that the section 119 test did survive. I express no opinion as to whether that assumption would have been correct.

As it is, I would allow this appeal. It remains for consideration whether the case would go back to the Commissioner for him to determine whether the finding that there had been misrepresentation or non-disclosure was wrong in law. And in any event it is agreed that recovery of the Christmas bonus must be disallowed.

LORD JUSTICE McCOWAN: For the reasons given by my Lords I also would allow this appeal.

Order: Appeal allowed: no order for costs