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Cite as: [1992] UKSSCSC CIS_100_1989

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Chief Adjudication Office v. Dommett [1992] UKSSCSC CIS_100_1989 (12 March 1992)

R(IS) 6/93

(Chief Adjudication Officer and Anor v. Dommett)

Mr. R. A. Sanders CIS/100/1989

CA (Gibson and Butler-Sloss LJJ and Sir Stephen Brown)

Transitional addition - restoration of applicable amount to its previous level following return of child from temporary local authority care - whether an "increase" in the applicable amount

A married man with three children was in receipt of supplementary benefit before 11 April 1988. On 11 April 1988 he became entitled to income support, the amount being less than he had received by way of supplementary benefit. He accordingly was entitled to a transitional addition of £7.94 per week to make up the difference. In October 1988 one child was taken into care and the father's income support was reduced by the weekly amount applicable to that child. When in December the child returned home the weekly amount applicable to the child was again paid to the father. The adjudication officer decided that the father's applicable amount had increased for the purpose of regulation 14(1)(a) of the Income Support (Transitional) Regulations 1987 and that accordingly his transitional addition was no longer payable (the applicable amount for the child being more than £7.94). The Commissioner dismissed the adjudication officer's appeal against a social security appeal tribunal decision in the claimant's favour.

On 12 March 1992 the Court of Appeal (Gibson and Butler-Sloss LJJ, and Sir Stephen Brown) dismissed a further appeal by the adjudication officer and held that:

the Commissioner had correctly interpreted regulation 14(1)(a) in deciding that the restoration of an applicable amount of a claimant's income support for a child returned home from temporary local authority care was not an increase in his applicable amount for the purpose of that regulation.

Accordingly the claimant's transitional addition did not fall to be reduced.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal dated 11 April 1989 is not erroneous in law. Accordingly the adjudication officer's appeal does not succeed.

The claimant and his wife have, or at any rate had at the material time, three dependent children. Prior to the abolition of the supplementary benefit scheme in April 1988 the claimant was in receipt of supplementary benefit. From 11 April 1988, the date of the introduction of the income support scheme, he was switched over to income support. Because the amount he received by way of the latter benefit was less than the amount he had received by way of the former he was entitled to a so-called transitional addition, the amount being the difference between his total benefit income in the last week of the supplementary benefit scheme (the so-called first benefit week) and the amount received in the first week of the new scheme (the so-called second benefit week): see regulation 10 of the Income Support (Transitional) Regulations 1987 and regulation 2 of those regulations for the definition of the first and second benefit weeks. Because he had children at home the amount of the claimant's income support included the weekly amounts specified in accordance with regulation 17(b) of the Income Support (General) Regulations 1987 and paragraph 2 of Schedule 2 to those regulations. On 11 October 1988 one of the children, Andrew, was taken into care and the claimant's weekly amount of benefit was reduced by £16.10 pursuant to regulation 16(5)(c) of the General Regulations. It has never been in issue that benefit was rightly reduced by that amount. On 26 October 1988 and again on 3 December 1988 Andrew came home for one day on a visit and the claimant's benefit was increased by 1/7th of the weekly entitlement in respect of Andrew. The transitional addition was however correspondingly reduced. On 7 December 1988 Andrew came home for good. The £16.10 was then restored to the so-called applicable amount of the claimant's income support but the transitional addition was taken away altogether by reference to regulation 14(1)(a) of the Transitional Regulations which provides that:

" 14.-(1) The amount of a claimant's transitional addition shall be reduced-

(a) if, in respect of any benefit week subsequent to his second benefit week, he is entitled to income support as well as a transitional addition and his applicable amount under Part IV of the General Regulations increases, by the amount of that increase but this subparagraph shall not apply to an increase to which regulation 13(3) applies (increase in personal expenses);"

The claimant appealed. His main contention was that in the circumstances to which I have referred there had been no "increase" of his applicable amount, at least by reference to what he had been getting in his second benefit week and accordingly regulation 14(1)(a) did not apply. The tribunal agreed with the claimant. The adjudication officer now appeals to the Commissioner. At the oral hearing of the appeal he was represented by Mr. J. Heath of the Solicitor's Office, Departments of Health and Social Security. The claimant attended and put his case. He was not represented.

As will be apparent from what I have said above the one narrow issue in this case is whether in the circumstances in question the claimant's applicable amount had increased so as to attract the operation of regulation 14(1)(a) of the Transitional Regulations. That same issue, in a slightly different context, was recently dealt with in CSIS/30/1989. There the "increase" came about because the claimant's wife having been taken to hospital and having remained there for more than six weeks (with the result that the claimant's income support was reduced pursuant to regulation 21(1) of and paragraph 1 of Schedule 7 to the General Regulations) then returned home; the previous level of benefit was then resumed but the adjudication officer claimed an "increase" and reduced the amount of the claimant's transitional addition. In that case the Commissioner held there had been no increase. In his view and for the reasons he gave in some detail an "increase" for the purpose of regulation 14(1)(a) of the Transitional Regulations happened only when there was an increase of benefit over and above what had been payable in the second benefit week; that week, the first week of income support, was the base against which to measure whether an increase had occurred. And that, if I might say so, seems to me both logical and sensible. The whole purpose of the transitional provisions in question must have been to ensure that no one was worse off because his supplementary benefit had turned into income support. That of course was not to remain the case for all time. As income support increased, as it would e.g. at each annual uprating, so the transitional addition reduced with the consequence that eventually there was no need of a transitional addition to bridge the gap, the gap had gone. Now in this present claimant's case and in the case of the claimant in CSIS/30/1989 the gap remained notwithstanding the restoration of the applicable amount to what it had been in the second benefit week. I cannot believe that regulation 14(1)(a) was designed to operate in that situation. I agree that the reference in that provision to "any benefit week subsequent to his second benefit week" suggests that it is the second benefit week that is to be taken as the point of comparison. And I think it makes no difference that the "increase" in CSIS/30/1989 arose by virtue of the different provisions to which I have referred; the principle is the same and in my view the construction of regulation 14(1)(a) is the same in both sets of circumstances. Mr. Heath referred to regulation 14(1G) and contended that that at least suggested or even made clear that the point of comparison was not necessarily the second benefit week but any benefit week before the "increase". The first thing I would say about that is that regulation 14(1G) was introduced by amendment as from 14 December 1989 and so that provision does not apply to this case. And I do not think that a provision introduced by later amendment can be used to assist the construction of the original provision. Furthermore, I am not at all sure that regulation 14(1G) does necessarily lead to the conclusion for which Mr. Heath contended.

For the reasons to which I have referred and following CSIS/30/1989 I take the view that regulation 14(1)(a) of the Transitional Regulations does not apply to this case. The tribunal's decision was correct and accordingly the adjudication officer's appeal does not succeed.

Date: 26 February 1991 (signed) Mr. R. A Sanders

Commissioner

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

DECISION OF THE COURT OF APPEAL

Mr. W. R. Griffiths (instructed by The Solicitor, Department of Social Security) appeared for the Appellants.

Miss S. Greenham (instructed by Messrs. Ian Brill & Co. (Leeds)) appeared for the Respondent.

THE PRESIDENT: This is an appeal by the Chief Adjudication Officer and the Secretary of State for Social Security from a decision of Mr. Commissioner Sanders given on 13 May 1991. On that occasion the Commissioner heard an appeal by the Chief Adjudication Officer from a decision of the Leeds social security appeal tribunal. He dismissed the appeal of the Chief Adjudication Officer.

The appeal concerns the interpretation of the Income Support (Transitional) Regulations 1987. The facts which gave rise to the appeal can be very shortly stated.

Mr. Dommett has a wife and three dependants. Before 11 April 1988 he was in receipt of supplementary benefit. On 11 April 1988 supplementary benefit was succeeded by income support and the position was reached that as a result of the change from supplementary benefit to income support those drawing supplementary benefit found in many cases that the amount to which they were entitled under the income support scheme was less than that which they had previously been receiving under supplementary benefit. So the regulations provided for the payment of a sum to make up the difference known as a "transitional addition". That is provided for in regulation 10 of the Income Support (Transitional) Regulations 1987. So far as it is relevant regulation 10(1) reads:

"... where-

(a) a former beneficiary was entitled to supplementary benefit in respect of his first benefit week"

I should interpolate the "first benefit" week is the last week of supplementary benefit:

"and

(b) either-

(i) he is awarded income support in respect of his second benefit week ... and

(c) his total benefit income in his second benefit week is less than his total benefit income in his first benefit week,

he shall be entitled to a transitional addition".

In the case of Mr. Dommett, he became entitled under that provision to a transitional addition of £7.94 per week and that amount was paid in the weeks succeeding 11 April 1988 in addition to the relevant income support.

The next relevant event took place on 11 October 1988. One of the children was taken into the care of the local authority. Mr. Dommett's income support was then reduced by the weekly amount which was applicable to the support of that particular child. It was in fact the sum of £16.10. However, that did not affect the transitional addition to which he had been entitled since 11 April 1988 and that continued to be paid.

A few weeks after 11 October the child came home on two occasions for an overnight stay and there was an adjustment on those occasions to the amount payable for the child support, in fact one seventh of the £16.10 was restored. Subsequently on 7 December 1988 the child returned home permanently. When he returned home permanently the amount of £16.10 which had been taken from the income support payable to his father on the child being taken into care was restored. But because it was restored the social security officer interpreted that restoration as being equivalent to an increase under the provisions of regulation 14(1)(a) of the Income Support (Transitional) Regulations 1987 and he reduced and indeed did so in its entirety the amount of the transitional addition, that is to say, the £7.94 which Mr. Dommett had been receiving ever since the income support scheme came into effect on 11 April 1988.

Mr. Dommett appealed against that "reduction" of the transitional addition to the social security appeal tribunal, and the social security appeal tribunal upheld his appeal. The adjudication officer then appealed to the social security Commissioner, Mr. Commissioner Sanders, and Mr. Commissioner Sanders dismissed the adjudication officer's appeal. The adjudication officer and the Secretary of State now appeal to this court against the Commissioner's decision to dismiss the appeal from the social security appeal tribunal.

The Commissioner set out in the course of his admirably concise decision the facts of the family situation to which I have already referred. His decision is to be found in pages 22, 23 and 24 of the bundle of documents before this court. He recited the chronological sequence of events and referred to the provisions of regulation 14(1)(a). I cite them:

"The amount of a claimant's transitional addition shall be reduced-

(a) if, in respect of any benefit week subsequent to his second benefit week, he is entitled to income support as well as a transitional addition and his applicable amount under Part IV of the General Regulations increases, by the amount of that increase".

The argument of the adjudication officer was and is before this court that because during the period when the child had temporarily been in the care of the local authority the applicable amount of the income support paid to Mr. Dommett had been reduced by £16.10 and on the child's return to his home the £16.10 was restored, that, he submits, is to be considered as an "increase" because compared with the previous week when the child was "in care" the applicable amount has, he says, arithmetically increased on the child's return to home. He argues that the fact that it was simply restored to what it had been a few weeks before is nothing to the point. In the words of the regulation, he says that is to be construed as an increase. The Commissioner did not accept that argument. He said in paragraph 3 of his decision:

"As will be apparent from what I have said above the one narrow issue in this case is whether in the circumstances in question the claimant's applicable amount had increased so as to attract the operation of regulation 14(1)(a) of the Transitional Regulations."

He went on to say that it seemed both logical and sensible to take as a point of comparison the position which had obtained in the so-called second benefit week (that is the week immediately following 11 April when the income support came into operation). He said that in the present case before him (I cite his own words):

"I cannot believe that regulation 14(1)(a) was designed to operate in that situation. I agree that the reference in that provision to 'any benefit week subsequent to his second benefit week' suggests that it is the second benefit week that is to be taken as the point of comparison."

But he went on to say that he could not believe that Parliament had considered that a situation such as had obtained in this case where the amount was merely restored to what it had been previously was to be acted upon as an increase prompting the reduction and indeed the complete elimination of the transitional addition payment.

Counsel on behalf of the adjudication officer has argued strenuously for a strict interpretation of the words of the regulation. He has pointed out that in regulation 14 all the sub-paragraphs under 14(l) refer to "any benefit week subsequent to his second benefit week", and he submits that it is not permissible to go back to a base at the so-called second benefit week when one is dealing with subsequent events. He argues that there would be many anomalies if the interpretation of this provision as stated by the Commissioner were to be endorsed by this court.

Examples have been cited in his excellent skeleton argument. In particular one case has been cited, decided by the same Commissioner shortly after the instant decision, where a baby daughter had been born to a claimant in September 1988. As a result the income support was increased by the additional sum payable in respect of the additional child, and that increase was sufficient to completely extinguish the transitional addition to which that claimant had previously been entitled since the income support scheme came into operation. Sadly, some nine months later the baby died, and when that occurred the income support which she had been receiving was reduced by the amount relevant to the child, but the transitional addition was not restored. The Commissioner held that the decision to withdraw the transitional addition, or at least not to restore it, had been a correct decision.

Mr. Griffiths has submitted that that is an anomalous situation and an inconsistent approach by the Commissioner. I do not agree. I think that the factual situation is very different. The introduction of a new member of the family in the previous September had been, on the face of it, a permanent addition and had resulted in an increase in the applicable amount payable under the income support scheme. Sadly an event, which could not have been anticipated, occurred when the child died some months later and an entirely different situation had arisen. There was a cesser of the previous position and it would not have been appropriate, so the Commissioner held, at that stage to restore the transitional addition which had been extinguished on a permanent basis (as it appeared) when the child was born.

I do not believe that that is a comparable case to the present one. This case, as the notice of appeal specifically indicates, is one where the Commissioner had decided that "the restoration [and I emphasise that word] of an applicable amount of the respondent's income support for a child returned home from temporary local authority care was not an increase in his applicable amount for the purpose of regulation 14(1)(a) of the Income Support (Transitional) Regulations 1987". Mr. Griffiths invited our attention to certain amendments to those regulations which were made subsequent to the introduction of the regulations. They appear as amendments under 14(1)(A), (B), (C), (D), (E), (F) and (G) and are to be found at page 102 of the bundle before the court. In particular he invited our attention to regulation 14(1)(B) where the amendment read:

"Notwithstanding paragraph 1(a) ... where a person has entered accommodation referred to in any of sub-paragraphs (a) to (d) of the definition of residential accommodation in regulation 21(3) of the General Regulations (special cases), or a residential care home or nursing home, for a period of 8 weeks or less and as a result his applicable amount increases, his transitional addition shall not be reduced by the amount of that increase."

Mr. Griffiths submits that if it had been found necessary to introduce a specific exception in the case of the temporary absence of a member of the family in residential accommodation then that is, as it were, an endorsement of his interpretation of the true meaning and effect of regulation 14(1)(a). There has been, he submits, no amendment introducing a special exception in the case of a child going temporarily away from home into care or presumably into another family which meant that the income support had been temporarily reduced.

Despite a general similarity in the facts of such cases, I do not believe that the fact that a specific amendment was made necessarily supports Mr. Griffiths' submission. I am quite clear that Parliament should not be deemed to have intended the interpretation which Mr. Griffiths invites us to accord to regulation 14(1)(a). It would produce an unfair result. I adopt and endorse the reasoning of the Commissioner in this case when he supported the decision of the tribunal. I believe that the Commissioner has properly interpreted the application of the regulations to this particular case. I would dismiss this appeal.

LORD JUSTICE RALPH GIBSON: Mr. Griffiths has contended for a construction of regulation 14(1)(a) which, in my judgment, is a possible meaning of the words used. Nevertheless, I have no doubt that the better constriction of the words in their context is that applied by Mr. Commissioner Sanders for the reasons explained by my Lord. If it was intended to achieve the effect now contended for in the circumstances of this case, in my judgment clearer words to that effect could and should have been used.

I agree that this appeal should be dismissed.

LORD JUSTICE BUTLER-SLOSS: I also agree.