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Cite as: [1991] UKSSCSC CSA_23_1989

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[1991] UKSSCSC CSA_23_1989 (30 January 1991)

R(A) 3/91

Mr. J. G. Mitchell QC CSA/23/1989
30.1.91

Watching over – whether amended night time supervision test was intended to have retrospective effect on review

The claimant suffered from severe Chron's disease. He had no day time attention or supervision needs. For twelve hours each night, he required to use certain equipment for intravenous total parenteral nutrition. His mother, with whom he lived, was trained to use the equipment as a precautionary measure. The Delegated Medical Practitioner decided that the claimant did not require attention at night. The Delegated Medical Practitioner also decided that the test for night time supervision contained in section 35(1)(b) of the Social Security Act 1975, as mentioned with effect from 15 March 1988 by section 1(2) of the Social Security Act 1988, was not satisfied. The claimant appealed to the Commissioner.

Held, dismissing the appeal, that:

the amendment to section 35 of the Social Security Act 1975 by section 1(2) of the Social Security Act 1988 was expressed to apply a different and more stringent legal test both to new claims and to any review of a past decision. In each case the amendment would necessarily have some retrospective effect (para. 11);

the amended legislation resulted from the decision of the Court of Appeal in Moran v. Secretary of State for Social Services (appendix to R(A) 1/88). The application of the amended night time supervision test to the review of the previous decision in the period prior to 15 March 1988 brought the amendment within the definitions of retrospective legislation contained in the advice of the Privy Council in the Yew Bon Tew v. Kenderaan Bas Mara [1983] AC 553;

for the reasons given in paragraphs 13 and 14 the presumption against retrospective legislation was overcome.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the determination on review dated 10 January 1989 given by the delegated medical practitioner (DMP) on behalf of the Attendance Allowance Board (the Board) is not erroneous in law.

This is an appeal by the claimant with leave on a question of law against the above mentioned determination whereby the DMP reviewed but refused to revise a prior determination of 1 March 1988 in which it was held that none of the day or night conditions of attendance allowance under section 35 of the Social Security Act 1975 were satisfied in the claimants case.

The claimant, who was born 16 February 1961, suffers from severe Chron's disease as a result of which in September 1987 he required to undergo the insertion of a long term feeding line into his body which enables intravenous total parenteral nutrition (TPN) to be received by him for twelve hours each night. The claimant received hospital training to enable him successfully to attach and detach the necessary equipment in sterile conditions. He lives with his mother who has also been trained in use of the equipment in case the claimant suffers a bout of illness or other inability to manage it himself.

The claimant made a claim for attendance allowance by form dated 7 October 1987. An examining medical officer found the claimant normally independent as regards his movements and needs by day but considers the presence in the house of another trained user of the TPN equipment was necessary as a precaution by night. After the initial adverse determination on behalf of the Board, as mentioned above, the claimant made representations to the Board which were treated as a request for review which was able to be made "on any ground" under the provisions of section 106(1)(b) of the Social Security Act 1975. Only the claimant's night time attendance needs were and are in issue.

The DMP in his determination on review dated 10 January 1989 considered the question of the claimant's night time need for attention in connection with his bodily functions but took the view for the reasons explained by him in paragraph 4 of his determination that the claimant's attention needs did not meet the statutory criterion. He accepted that there was an increase in the claimant's needs for attention when he suffered a bout of illness or infection but, viewed overall, he did not accept that the claimant required prolonged or repeated attention at night from another person in connection with his bodily functions.

As regards night time supervision the DMP applied the statutory test contained in section 35(1)(b) of the Social Security Act 1975, as amended with effect from 15 March 1988 by section 1 of the Social Security Act 1988. The condition of need for supervision at night as originally enacted was that the person required:

"…continual supervision throughout the night in order to avoid substantial danger to himself or others."

The test of needs for night time supervision, as amended, is:

"…in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him."

The DMP concluded for the reasons set out in paragraph 5 of his determination on review that the amended test was not satisfied.

The grounds of appeal to the Commissioner lodged on behalf of the claimant maintain that the decision of the DMP on the claimant's night time needs for attention was wrong or unreasonable. However the DMP assessment bears to be made with an appreciation of the equipment involved in TPN and of the claimant's night time circumstances and is adequately explained. I find no error of law in that part of this determination.

The claimant's second ground of appeal is that the DMP erred in applying the amended statutory test of night time supervision needs. It is submitted that the review decision ought to have applied the same test as the original decision and that the presumption against retrospective legislation is not overcome. In this connection section 1(1) of the Social Security Act 1988 substituted the amended terms of the night time conditions. Section 1(2) provides as follows:

"1. - (2) section 35 of the Social Security Act 1975 shall have effect as amended by subsection (1) above only for the purposes-

(a) of any determination the Attendance Allowance Board or a delegate appointed under paragraph 5 of Schedule 11 to that Act following a claim made after the passing of this Act;

(b) of any review by the Board or by such a delegate following an application made after the passing of this Act;

(c) of any review by the Board or by such a delegate under section 106(1)(a) or (bb) of the Social Security Act 1975 following a decision to conduct such a review made after the passing of this Act; and

(d) of any issue, revocation or alteration of a certificate relating to attendance allowance which takes place following a determination, review or appeal such as is mentioned in paragraph (a), (b) or (c) above."

The Secretary of State submits in observations on the appeal that as the request for review was made after 15 March 1988 the amended provision must apply to the review in the present case and that in so far as this may involve retrospective operation of the amendment a clear intention to that effect is shown by section 1(2) above.

Having considered the matter I have come to the conclusion that the Secretary of State's submission is correct. There are a number of considerations. In principle one might expect that any reconsideration of a past decision ought to proceed upon the basis of the same law as was applicable to the original decision. The corollary is that an amendment applying a different and more stringent legal test to such reconsideration must be regarded as a piece of retrospective legislation.

Section 1(2) of the 1988 Act applies the amendments contained in section 1(1) in restrictive terms ("only for the purposes…"), but in relation to the specified events occurring after the passing of the Act those purposes are expressed in unequivocal terms ("any determination", "any review", etc). In my view all of the heads of section 1(2) are capable of having some retrospective effect. Because of the requirement in section 35(2)(b) of the 1975 Act that an attendance need condition should also have been satisfied for a prior period of six months, head (a) of section 1(2), which applies to a determination of a claim made after the passing of the Act, would require some retrospective operation in the case of claims made within a six month period after 15 March 1988. It is in my judgment clear that section 1(2) distinguishes between a "claim", which leads to a "determination", and an "application", which leads to a "review". Section 1(2)(a) therefore deals only with initial determinations following post Act claims. And it is equally apparent that an "application made after the passing of this Act" as mentioned in section 1(2)(b) is an application for review and not an application for benefit. The effect of section 1(2)(b) and (c) appears to be to equiparate all reviews applied for or decided upon after 15 March 1988 and the new law is as mentioned above expressed to apply unequivocally in relation to all such reviews.

The amendment of the terms of the night time supervision test, which was made in the light of the observations of the Court of Appeal in Moran v. The Secretary of State for Social Services reported as an appendix to R(A) 1/88 upon the meaning of the old test, must be regarded as applying a more stringent test to the question of a claimant's need for night time supervision. In so far as that more stringent test would fall to be applied in the present case throughout the period prior to 15 March 1988 which was adjudicated upon on 1 March 1988 in the Board's original determination it can in my opinion be regarded as one which "… creates a new obligation, or imposes a new duty, or attaches a new disability, in regards to events already past" as stated in the advice of the Privy Council in Yew Bon Tew v. Kenderaan Bas Mara [1983] AC 553 at page 558. That suffices in my view to raise the question whether the presumption against retrospective legislation is overcome in the present case.

I accept that there is an element of unfairness in applying a more stringent test to the review in the present case. That however must be weighed against other considerations as it appears to me that there would be difficulty and a tendency to create other unfairness in any alternative operation of the amendment introduced by section 1(1) of the 1988 Act. In the present case the DMP's reconsideration by way of review "on any ground" was akin to an appeal and enabled the claimant's possible qualification for attendance allowance to be reconsidered from the date of claim up to the date of his determination in 1989. Clearly the old law could not continue to apply to the question of satisfaction of the supervision condition after 15 March 1988 without some special transitional provision which does not exist. Such a transitional provision would however probably have been criticised as perpetuating unfairness as between "old" claimants and "new" claimants by causing two different tests to apply in the same post-amendment period. Had there been no section 1(2)(b) on the other hand it would have been necessary in accordance with ordinary principles to have attempted to apply the old law up to 15 March 1988 and the new law there after, subject to the obvious complication of the six month prior qualifying period of section 35(2)(b).

The terms of section 1(2)(b) of the 1988 Act do avoid those unsatisfactory results. I have come to the conclusion that the terms of section 1(2)(b) give sufficiently clear expression to retrospective effect to the extent that in relation to any review proceedings commenced after 15 March 1988 the amended test is to apply without qualification even where determination reviewed relates to a period prior to that date and that in that regard the presumption against retrospective legislation is overcome. In my judgment therefore the DMP applied the correct test of need for night time supervision in his determination on review in the present case.

It is finally suggested on the claimant's behalf that even if the amended test was correctly considered by the DMP he erred in holding that it was not satisfied. In my judgment that case is not made out and the DMP was entitled for the reason given by him in paragraph 5 of his determination on review to conclude that the night time supervision condition was not satisfied in this case. For the foregoing reasons my decision must be that the determination on review of the DMP is not erroneous in law and the appeal of the claimant must be refused.

Immediately prior to the issue of this decision a letter dated 22 January 1991 was received by the Commissioners' office from the consultant in charge of the claimant's treatment. That letter, which contains much new and important information and which strongly supports the claimant's case of need for attention at night, was not, of course, before the DMP who gave the determination under consideration in this appeal and I am unable to take account of it in deciding this case as an appeal on a question of law. It is however evidence upon the basis of which the claimant would be well advised to seek a further review of his case by the Board.

Date: 30 January 1991 (signed) Mr. J. G. Mitchell QC
Commissioner