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Chief Adjudication Officer v. Eggleton [1993] UKSSCSC CIS_566_1991 (28 July 1993)

R(IS) 23/95

(Chief Adjudication Officer v. Eggleton)

(Chief Adjudication Officer v. James)

(Chief Adjudication Officer v. McCoy)

(Chief Adjudication Officer v. Teasdale)

(Chief Adjudication Officer v. Bates)

CA (Stuart-Smith, Hobhouse and Pill LJJ) CIS/566/1991

28.7.93 CIS/788/1991

CIS/567/1991

CIS/568/1991

CIS/574/1991

CIS/599/1991

Review - review of benefit entitlement following a change in law whether replaces the reviewed decision so as to exclude the possibility of a late appeal against that decision

The claimants lived with their parents and were in receipt of income support and attendance allowance. On the introduction of the income support scheme adjudicating officers decided that the claimants were not entitled a severe disability premium from 11 April 1988, because they did not satisfy the condition in paragraph 13(2)(a)(ii) in Schedule 2 of the Social Security Income Support (General) Regulations 1987, of having no non-dependants residing with them, as defined in regulation 3. In May 1990 as a result of a decision of the Commissioner in CIS/180/1989 the above provisions were interpreted so that the claimants were able to qualify until regulation 3 was amended on the 9 October 1989. As a result of that decision the claimants asked for severe disability premium to be paid. In all the cases except CIS/788/1991 (James) this was done after 13 July 1990. By that date the enactment of the Social Security Act 1990 resulted in the amendment of s. 104 of the Social Security Act 1975 (now s. 68 of the Social Security Act 1992) by the addition of subsections (7) and (8) which effectively limited any backdating on a review, based on a test case, by treating any decision affected by the test case as not having been erroneous in law. In all the cases, except CIS/788/1991 (James), the adjudicating officer decided he was "unable to revise his decision" as a result of the 1990 Act , although this was expressed in different terms. In CIS/788/1991 (James) the adjudication officer backdated an award of the premium subject to a twelve month limit, pursuant to regulation 69 of the Social Security (Adjudication) Regulations 1986. In all cases the tribunals accepted late appeals under regulation 3(3) of the Adjudication Regulations, against the original decisions, and decided the claimants were entitled to severe disability premium from 11 April 1988. The adjudication officer appealed to the Commissioner arguing there could be no late appeal against the earlier decisions, because those decisions had been extinguished having been reviewed, and replaced. The Commissioner decided that a decision to refuse to revise or review does not alter a previous decision, and the statutory right to a late appeal against the earlier decision remains. The Chief Adjudication Officer appealed to the Court of Appeal.

Held, dismissing the appeals, that:

the appellants' cases depended on establishing there had been a review, the expression "unable to revise" and similar expressions, does not transform in substances what was a refusal to review into a review;

there is no reason why, where there has been a review, an earlier decision should cease to exist, so as to prevent an appeal against it provided either the appeal is in time or leave to appeal out of time is granted (Court of Appeal in Northern Ireland in Thompson v. DHSS [1993] not followed).

DECISION OF THE COURT OF APPEAL

Mr. J. Latter (instructed by Legal Department, Department of Social Security, Leeds) appeared on behalf of the Appellant.

Miss L. Findlay (instructed by Messrs. Needham and Grant, Stratford-upon-Avon, Warkshire) appeared on behalf of the Respondants.

LORD JUSTICE PILL: In these cases, the Chief Adjudication Officer appeals against decisions of a social security Commissioner R. A. Sanders Esq. made on 28 July 1993 whereby it was ordered that the several claimants' income support for the period 11 April 1988 to 8 October 1989 was to be calculated so as to include severe disability premium (SDP) pursuant to paragraph 13 of Schedule 2 to the Income Support (General) Regulation 1987, SI 1987 No. 1967 (the 1987 Regulations). The appellant seeks an order that the case to be remitted for decision on the basis that the calculation of income support should not include SDP for that period but should be confined to what Mr. Latter, for the appellant, called the basic rate.

The result of these appeals depends on whether the Commissioner erred in law in deciding that purported "review decisions" of the adjudication officer in the summer of 1990, in relation to income support, superseded, replaced and rendered of no effect decisions made by him in each case in 1988. Leave to appeal out of time had been granted in relation to the 1988 decisions but that leave cannot be exercised if the decisions to be appealed no longer exist. That being a legal point upon the construction of the legislation, it is not necessary to set out the facts in each case in detail.

It is common ground that by virtue of an amended regulation, the claimants were entitled to SDP as from 9 October 1989. Further by a decision of 17 May 1990 in a test case not subject to challenge in these proceedings (CIS/180/1989), a Commissioner construed the regulation in force from 11 April 1988 to 8 October 1989 in such a way as would have entitled the present claimants to SDP. The issue turned, in Mrs. Catherine Eggleton's case for example, on the meaning of the term "non dependant" in regulation 3 of the 1987 Regulations. However by virtue of regulation 69 of the Social Security (Adjudication) Regulations 1986 (the 1986 Regulations), an adjudication officer upon a review can generally award arrears only for a period of twelve months prior to the review. Further, section 104(7) to (10) of the Social Security Act 1975 (as amended) (now in section 69 of the Social Security Administration Act 1992 (the 1992 Act) came into force on 13 July 1990 that is after the James review (where some backdating was permitted) but before the purported review in the other cases. It provides that where as a result of a Commissioner's decision or a Court decision, a decision of the adjudicating authority is found to have been erroneous in point of law any previous decision affected by the decision of the Commissioner or the Court should be treated as not having been erroneous in point of law for the period before that decision, that is 17 May 1990 in this case. It is common ground that upon a review on or after 13 July 1990, the adjudicator did not have power in the present cases so to review the award of income support as to revise it and include SDP for the disputed period. If, on the other hand, an appeal against the 1988 decision is possible, the prohibition of backdating to the relevant period is avoided and SDP is payable.

A separate point arises by reason of a respondent's notice in each of the cases except that of Carl James. It is submitted that no review of the 1988 decision within the meaning of the word review in section 25 of the 1992 Act and earlier acts was carried out in those cases and the point raised in the Notice of Appeal does not arise. I propose to set out the statutory provisions before considering the points at issue and will deal with the legal point before considering, in the cases except James, whether there was a review. Arguments have been addressed to the Court upon the relevant sections in the 1992 Act on the basis that it is common ground that, in so far as is material, they are identical to the corresponding provisions in the 1975 Act.

Claims for income support are submitted to an adjudication officer for determination in accordance with Part II of the 1992 Act. Sections 22 to 24 of the Act deal with appeals from adjudication officers and sections 25 to 29 deal inter alia with the review of decisions of adjudication officers. Section 25 provides that the decision of an adjudication officer may, if certain conditions are satisfied, be reviewed at any time by an adjudication officer. Section 25(1) gives power to review in several situations, including an actual or anticipated relevant change of circumstances since the decision was given.

Section 25(2) (section 104(lA) of the 1975 Act) provides that:

"Any decision of an adjudication officer (other than a decision relating to an attendance allowance, a disability living allowance or a disability working allowance) may be reviewed, upon the ground that it was erroneous in point of law, by an adjudication officer or, on a reference from an adjudication officer, by a social security appeal tribunal."

(Provision for reviews of decisions of adjudication officers which relate to the categories of allowance excluded in section 25(2) and appeals from such reviews is made in sections 30 to 35 of the 1992 Act.)

Section 26 provides that:

"(1) A question may be raised with a view to review under section 25 above by means of an application in writing to an adjudication officer, starting the grounds of the application.

(2) On receipt of any such application, the adjudication officer shall proceed to deal with or refer any question arising on it in accordance with sections 21 to 23 above."

Section 28 confers a right of appeal against a decision given on a review under section 25 and a refusal to review a decision and section 29 preserves the claimant's right to appeal in certain circumstances where, unlike the situation in the present cases, the appeal has preceded the review. Section 27(1)(b) (and its predecessor) provides that regulations:

"may make provision restricting the payment of any benefit, or any increase of benefit, to which a person would, but for this subsection, be entitled by reason of a review in respect of any period before or after the review (whether that period falls wholly or partly before or after the making of the regulations)."

Regulation 69 of the Social Security (Adjudication) Regulations 1986 (the 1986 Regulations), made under those powers, provides inter alia that:

"A determination on a claim or question relating to income support shall not be reviewable on review under section 104 of the 1975 Act (section 25(1) of the 1992 Act) so as to make income support payable or to increase the amount of income support payable in respect of any period which fall more than twelve months before the date of which the review was requested, where no request is made, the date of the review."

The appellant submits that the review decisions superseded and replaced the earlier decision. He relies on the decision of the Court of Appeal in Northern Ireland in Thompson v. DHSS [1993] (unreported) on the point. Giving the leading judgment, Murray LJ, with whom Hutton LCJ agreed, stated that:

"the review decision must be regarded as having entirely superseded the original decision. The only reason for the appellant's being deprived of the arrears back the whole way to 11 April 1988 was the effect of regulation 69(1) i.e. the effect of a piece of general legislation and not the limited nature and scope of the review decision. As the Commissioner rightly points out in C7/92 the SDP is only 'one element of [the appellant's] income support' but it is a distinct and separate element which was fully considered and dealt with in the review decision."

Murray LJ added that:

"In truth and in fact the whole question of the appellant's entitlement to SDP was examined and decided by the adjudication officer in the review".

The learned Lord Justice cited with approval the Chief Commissioner's statement in another case that the review:

"dealt with the question of the claimant's entitlement to SDP as one element of her income support and accordingly it took the place of all previous decisions on that point."

The appellant also relies on the decision of a tribunal of English Commissioners in R(A) 5/89. In that case, the claim was for attendance allowance. The claimant sought leave to appeal against an earlier review decision and the Commissioners held that the later review became the effective, operative, enforceable determination and the reviewed determination ceased to have effect by reason of the later determination. It lapsed. That was so even if the review involved a decision not to revise the earlier determination. The decision R(A) 5/89 was confined to a determination on a review "on any ground", in the language of the statutory provisions dealing with attendance allowance, but it is submitted that by parity of reasoning, a review ab initio or on a specific issue superseded the original decision either in whole or in relation to the specific issue.

I regret that I have the misfortune to disagree with the conclusion of the Court of Appeal in Northern Ireland on this point. I see no reason why the 1988 decisions should not continue to exist for the purpose of being appealed. Those decisions operated to require the payment of income support during the relevant period and act as a continuing warrant for the payments which were made. I see no reason why, upon review, the earlier decisions should cease to exist so as to prevent an appeal against them provided either that the appeal is in time or that leave to appeal out of time is granted. It is the decision as reviewed, even if not revised, which operates as from the review. It does not follow that the decision which operated for the earlier period must or should cease to exist or no longer regulate payment during the period of its existence prior to the review.

There is a statutory prohibition upon reviewing the award of income support for the period disputed in these cases upon a review. In relation to that period, the right to a review, in any real sense, is illusory. The law does not permit the review to achieve the result sought by the claimant who raised the question. Whatever other effect it may have, the review does not, in the absence of express provision, have the effect of nullifying a decision as to the level of payment which in law it cannot in any real sense review. The power to revise is limited in such a way that the original decision remains operative for the period prior to review, being a period when it was not susceptible to review.

Section 28 provides administrative arrangements, which will usually be helpful to applicants, for what is to happen when there is a pending appeal against an adjudicator's decision and that decision is reviewed by him. It makes no provision for what is to happen to an appeal made against an adjudicator's decision after the decision appealed against has been reviewed. The presence of that section does not in my view have the implication that decisions are superseded and replaced upon review. It is noteworthy that in the scheme dealing with allowances, including attendance allowance, it is expressly provided in section 32(1) that an award of those allowances on a review replaces any award which is the subject of the review. Had that result been intended in the scheme for income support, an equivalent provision would have been expected.

The presence of section 32(1) is an example of the difference between the scheme for attendance allowance and that for income support. Another is that the right to appeal in the context of attendance allowance arises only upon a review. The schemes are significantly different. I do not consider that the reasoning in the decision by the tribunal of Commissioners in R(A) 5/89 leads to the result sought by the appellant in the present context.

Neither does a Parliamentary intention not to permit backdating require that result. An appeal must be brought within three months (regulation 3(1)(2) and Schedule 2 of the 1986 Regulations).

Regulation 3(3) provides that the time specified "may be extended for special reasons". That is a safeguard for public funds. I do not know what special reasons were found to exist in the present cases. It seems to me unlikely that a subsequent change in the law can ordinarily amount to a special reason having regard to the provisions of what is now section 69(2) to (4) of the 1992 Act.

I turn to the other issue. The respondents, apart from Mr. James, submit that there was no review in 1990. There was at most a refusal to review. It is common ground that the point was taken before the Commissioner and it is open to the respondents to take it upon the hearing of these appeals. The Commissioner made no express findings on the point.

The Commissioner treated Mrs. Eggleton's case as the "lead case" and gave a reasoned decision in writing. In the other cases, he attached a copy of the document recording that decision to a document stating that "the facts and issues are indistinguishable from those dealt with in [Eggleton] and the outcome is accordingly the same".

In his decision in Eggleton, the Commissioner referred to decision CIS/180/1989 decided in May 1990. He added that on the basis of it "this claimant and many others were able to satisfy the condition (entitling them to SDP) and many hundreds of claimants were, on review, awarded SDP backdated to 11 April 1988 . ... This claimant however did not request a review until 17 August 1990 by which time subsections (7) and (8) had been added by amendment to section 104 of the Social Security Act 1975." The law was changed on 13 July 1990 and Simon Teasdale, Michael Teasdale, Judith Bates and Anthony McCoy had also not applied for SDP until after that date. The appellant claims that there were requests for reviews and revision after that date.

Mr. Latter has stressed the informality of the review procedure often followed and the procedure in the present cases was certainly that.

In his decision in Eggleton, the Commissioner stated that:

"It is enough for me to say that by a decision issued on 5 September 1990 an adjudication officer decided, so it is said, that he was 'unable to revise his decision so as to allow SDP for the period 11 April 1988 to 8 October 1988' and that was said to be because of the effect of the new subsections. I should perhaps say that the actual words used by the adjudication officer when refusing to revise the original decision were eventually ascertained to be 'nil decision'."

The caution shown by the Commissioner in his terminology is well merited. The document relied on to prove a review is a form from a pad used by officers of the DSS to record information given inter alia by telephone. It bears the claimant's name and against the date 5 September 1990 it is stated "Please see request for SDP". Brief particulars of the claimant's circumstances are given and then "Do you agree SDP backdated from 16 October 1990 for 52 weeks up to 1 October 1990 cannot be paid. Thanks" followed by the officer's initials. In the margin appear the words "nil decision" above other initials.

In the submissions to the Commissioner on behalf of the adjudicating officer under the heading "Adjudication Officer's Decision", it was stated:

"A copy of the adjudication officer's decision of 5 September 1990 is attached at appendix 1. The decision is not recorded in the terms expressed in section 1 of the submission to the tribunal but is simply noted "nil decision" and is actually dated 12 September 1990. I have spoken to the local adjudication officer who has told me that the decision would have been notified to the claimant by a letter in the form of the specimen attached at appendix 2."

Appendix 1 is the document already mentioned. Appendix 2 is a standard form letter in the following terms:

"Dear

Thank you for your letter received on ..... requesting a review of your income support because of recent changes affecting the severe disability premium.

Unfortunately your request was received after the Social Security Act 1990 became law on 13 July. This Act changed the rules about review and means that we are unable to revise your benefit on this occasion.

You have the right of appeal to an independent tribunal against this decision. This means that three people who are not from the Department of Social Security will look at your claim again. If the decision that you have been given is wrong, the tribunal can change the decision. But the tribunal cannot change the law that the decision is based on, or pay more money than the law allows.

Yours faithfully"

In Simon Teasdale's case, the note on the file read "Claim received too late for review. Please write to claimant informing him his claim was received too late to review because of change in legislation and give him his right of appeal". In the submissions to the Commissioner it is said that the decision would have been notified to the claimant by a letter in the same form. Similar evidence was produced in the case of Michael Teasdale.

I have found letters in the Teasdale files not mentioned in the submissions to the Commissioner. In reply to a claim for SDP, the reply to Michael Teasdale stated:

"You recently applied for SDP. I am sorry to inform you that we cannot award it to you, as the new legislation was given the Royal Assent on 13 July 1990 and we did not receive your application until 16 July 1990."

The right of appeal was mentioned. Neither the claim for SDP nor that reply refers to a review. In the cases of Judith Bates and Anthony McCoy, the adjudicating officer's submissions to the Commissioner were:

"The adjudication officer's decision of 30 August 1990 is no longer available. It is probable that this was destroyed during a routine destruction exercise. However, I have spoken to the local adjudication officer who told me that the decision would have been notified to the claimant by a letter in the form of the [same] specimen."

Except in the Eggleton decision, the Commissioner made no reference to this point but it is implicit in his decisions that he accepted there had in each case been a review.

I accept Miss Findlay's submission that the Commissioner was not, on the evidence, entitled to hold that there had been reviews within the meaning of section 25 in these cases. The claim was simply a claim for SDP. Such evidence as there was demonstrated a refusal to review rather than a review. The expression "received too late for review" illustrates this. I do not consider that the use of the expression "unable to revise" in a standard form letter can transform what was in substance a refusal to review into a review.

In effect, the adjudicating officer was also acknowledging that the law did not permit him to review the decisions. The expression "nil decision" can best be construed as reflecting that state of mind.

I am glad to be able to reach a conclusion, on both points in this case, which means that a claimant does not lose a possible right of appeal merely by claiming SDP.

I would dismiss these appeals.

LORD JUSTICE STUART-SMITH:

Two questions arise on this appeal:

Did the adjudicating officer conduct a review within the meaning of the legislation? Or did he refuse to review the original decision? This question arises on the respondents' notices in all cases except James, where it is accepted that he did review the original decision to refuse SDP.

If he did review the original decision, is the effect of such review that the original decision ceases to exist so that no appeal can be brought in respect of it, leave to appeal out of time having been granted.

Question 1 Did the adjudicating officer review the original decision or refuse to review?

The effect of s. 104(7) & (8) of the Social Security Act 1975 ("the 1975 Act") (now s. 69(1) & (2) of the Social Security Administration Act 1992 ("the 1992 Act") is that where a result of a Commissioner's decision (in this case the decision of 17 May 1990, CIS/180/1989) (or a Court's decision) a decision of an adjudicating authority is found to have been erroneous in point of law on a review after 13 July 1990, a previous decision (in these appeals the original decisions refusing SDP to the appellants) should be treated as not having been erroneous in point of law for the period before that decision, that is 17 May 1990.

Although the language of these subsections suggests that in such a case if a review is carried out a certain determination will result, namely that it will not be revised, it does not follow, in my judgment, that the adjudicating officer has to go through the farcical process of actually conducting a review and then deciding that he cannot revise the decision because of s. 104(7) & (8). He may equally well refuse to review the decision at all. It is plain that the legislation contemplates a refusal to review, since a claimant has a right of appeal against it. (see s. 104(4) of the 1975 Act, s. 28 of the 1992 Act).

In my judgment, both the way in which the decision is recorded in the notes and the terms of the standard letter sent to each applicant, indicate that the application for a review arrived too-late for a review to be conducted. In Miss Eggleton's case the note reads "nil decision"; in S. Teasdale's it is "claim received too late for review"; in M. Teasdale's it is "write, advising him his application for SDP arrived too late". The standard letter was in these terms:

"Unfortunately your request was received after the Social Security Act 1990 became law on 13 July. This Act changed the rules about review and means that we are unable to revise your benefit on this occasion."

In my judgment, the plain meaning of this paragraph is that the application arrived too late for a review to be conducted.

Although this point was raised before the Commissioner, he did not decide it. Mr. Latter submits it involves a finding of fact which was not made by the tribunal or Commissioner. But it is fundamental to the appellants' case that there was a review and therefore the onus was on him to establish that there had been a review in each case. Not only did he not attempt to do so, but in my view the documents to which I have referred point all one way. On this ground, therefore, I would dismiss the appeals in all but the case of James. In his case the application for review was made before 13 July 1990, but because of the effect of regulation 69 of the Social Security (Adjudication) Regulations, SI 1986 No. 2218, ("the Regulations") the decision could only be reviewed for the twelve months before the request. James was paid SDP for this period, but the original decision refusing it stood for the period April 1988 to 5 July 1989. I turn then to question 2 which is determinative of the appeal in this case and is equally important, if I am wrong on question 1, in relation to the other cases.

Question 2 Is the effect of a review of the original decision, whatever the outcome, such that the original decision ceases to have effect or lapses, with the result that it cannot be appealed out of time?

Under the scheme of the legislation relating to review of, and appeals from, decisions of adjudicating officers to be found in ss. 21-34 of the 1992 Act (which re-enacts the previous law), such decisions fall into two groups. Decisions other than those relating to attendance allowance, disability living allowance and disability working allowance (which I shall refer to as Group 1 decisions) are dealt with in ss. 22-29. Those relating to attendance allowance, disability living allowance and disability working allowance (Group 2 decisions) are dealt with in ss. 30-35. S. 24, dealing with appeals from Commissioners on points of law, is common to both groups.

It is necessary to consider briefly the way in which the matter of reviews and appeals is dealt with in each Group.

Group 1

Appeals may be brought within the prescribed time to the social security appeal tribunal ("SSAT") by the claimant, and in some cases also by the employer (s.22(1)). There are other limited rights given to others under s. 22 (5). By regulation 3(1)(2) of the regulations, an appeal must be brought within three months. The time "may be extended for special reasons", regulation 3(3). Appeals lie from the SSAT to the Commissioner, s. 23.

S. 25 is concerned with reviews. A decision of adjudicating officer, SSAT or Commissioner can be reviewed at any time by an adjudicating officer or, on a reference by him, to a SSAT on certain specified grounds, the first three of which are factual, that is to say mistake of fact, change of circumstances or anticipated change of circumstances, s. 25(1)(a), (b) & (c).

A decision of an adjudicating officer can be reviewed seemingly at any time, since there is no express reference to time, by an adjudicating officer, or on a reference by him, by a SSAT, on the ground that it is erroneous in point of law, s. 25(2). Such reviews are subject to the restriction imposed by s. 69 of the 1992 Act, the effect of which I have already set out.

Reviews relating to income support, whether under s. 25(1) or (2) are subject to the limitation in regulation 69 of the regulations. That provides that a decision cannot be revised for any period which falls before twelve months from the date on which the review took place or was requested. It was this regulation that affected James' case. This regulation was made pursuant to the powers contained in s. 104(5) of the 1975 Act, as amended (now s. 27). Applications for review should be made in writing to the adjudicating officer, s. 26. A decision given on a review and a refusal to review is appealable in like manner as the original decision, s. 28.

S. 29 deals with the situation where the adjudicating officer conducts a review after an appeal has been brought but before it has been determined. If the adjudicating officer considers that the decision he has made on review is the same as the decision sought by the appellant, the appeal lapses, if not the review is of no effect and the appeal continues.

In my judgment, whether or not an original decision lapses or is superseded when it is reviewed, depends on the nature and extent of the review. If the whole of the original decision from the date on which it is made is revised or varied, there is nothing left of it and it cannot therefore be appealed. But if it is only varied as to part, or from a particular date or because revision is precluded after a certain date, in the absence of any express provision to the contrary, I can see no logical reason why the original decision should not subsist, save in so far as it has been affected by the review. A simple example in my view shows that his must be so. Suppose that a decision made on 1 January is revised from 1 February on the grounds that there has been a change of circumstances (s. 25(1)(b)), I can see no reason why an appeal against his original decision cannot be brought as of right if made within three months, otherwise with leave. The original decision stood for the period 1 January to 1 February. Equally, the original decision, subject to the limitation imposed by s. 69, can be reviewed under s. 25(2) for this period.

Mr. Latter submitted that s. 29 of the Act would be unnecessary unless his submission was correct. I do not agree. In the first place, this section is concerned with appeals lapsing or continuing, not the original decision. Secondly, it seems to me that its effect is entirely consistent with the position as I conceive it to be, namely that if on review the whole of original decision is varied or revised, there is nothing left of the original decision, if not there is and what remains can itself be appealed or reviewed within the constraints imposed by regulation 3 and s. 69.

Group 2

The scheme in relation to Group 2 decisions is in many important respects different. Decisions of an adjudicating officer can be reviewed by an adjudicating officer on any ground within the prescribed period, s. 30(1). Such a decision can be reviewed by him after the prescribed period on the basis of mistake, actual or anticipated change of circumstances, error of law or where a conditional award has been made and the condition is not fulfilled, s. 30(2). No appeal lies against the original decision. Reviews under s. 30 may themselves be subject to review, s. 31. A reviewed decision can be appealed, s. 33, s. 32(1) is important. It provides that an award on a review under s. 30 replaces any award which is subject to the review. This subsection, which was introduced into the legislation in 1991, gave effect to the decision of the tribunal of Commissioners in R(A) 5/89. That was a case of review on any ground within s. 30(1). But s. 32(1) went further than this decision and extended it to reviews under s. 30(2). This was a point that the Commissioners had expressly left open. In my judgment, it is significant that this provision relates only to Group 2 decisions and not Group 1. Had Parliament intended to effect both types, it would have done so, but it did not.

I find nothing in the reasoning of the Commissioners in R(A) 5/89 inconsistent with my conclusion. But it follows that I respectfully disagree with the conclusion of the Court of Appeal of Northern Ireland in Thompson v. DHSS [1993] unreported.

I wish only to add this: in my view, it is very doubtful whether leave to appeal out of time should have been granted in these cases. It seems to me plain that the intention of Parliament is clearly to be derived from the effect of regulation 69 (in relation to income support) and s. 69 (in relation to reviews based on errors of law as a result of subsequent inconsistent decision). To give leave to appeal, long out of time, which has the intended effect of circumventing these provisions, seems to me to be wrong. But no appeal lies from the grant of leave.

For these reasons, in my judgment, the appeals should be dismissed.

LORD JUSTICE HOBHOUSE: I agree with both judgments and have nothing to add.