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Cite as: [1993] UKSSCSC CI_532_1989

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Chatterton v. Chief Adjudication Officer [1993] UKSSCSC CI_532_1989 (08 July 1993)

R(I) 1/94

(Chatterton v. Chief Adjudication Officer)

Mr. D. G. Rice CI/532/1989

CA (Dillon, Staughton and Waite LJJ)
8.7.93

Prescribed disease A10 (occupational deafness) - claim made more than 5 years after employment in prescribed occupation - whether time for claiming may be extended for "good cause"

The claimant made a claim for disablement benefit for occupational deafness in January 1989. The adjudication officer decided that the claimant was caught by regulation 25(2) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 because the claim was made more than five years after the last date on which the claimant worked in a prescribed occupation. In June 1989 a social security appeal tribunal upheld the adjudication officer's decision. On 26 October 1989 the Court of Appeal in McKiernon v. Secretary of State for Social Security, Times, 1 November 1989, decided that regulation 25 was ultra vires which rendered the tribunal decision erroneous. On 13 July 1990 the law was amended retrospectively by paragraph 4(3) of Schedule 6 to the Social Security Act 1990 which provided "regulation 25 ... shall be taken to be, and always to have been, validly made". Before the Commissioner the claimant argued that the newly validated regulation 25 had to take subject to section 165A(2) of the Social Security Act 1975 as in force on 15 July 1986, the date of claim in the McKiernon case. Section 165A(2) provided, in mandatory form, for regulations extending the time for making a claim where good cause was shown for the delay. The Commissioner rejected that contention.

On 8 July 1993 the Court of Appeal (Dillon, Staughton and Waite LJJ) dismissed an appeal by the claimant and

Held that:

the plain words of the Social Security Act 1990 validated the actual wording of regulation 25 without any "implication or alteration" in it; the validation was made by Act of Parliament and nothing further was needed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 16 June 1989 is not erroneous in point of law, and accordingly this appeal fails.

This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 16 June 1989. The claimant's representative asked for an oral hearing, a request which was acceded to. At that hearing the claimant, who was present, was represented by Mr. R. Drabble of Counsel, instructed by Mr. T. Jones a solicitor from Messrs. Bryan Thompson & Co. whilst the adjudication officer appeared by Mr. N. Butt of the solicitor's office of the Departments of Health and Social Security.

On 20 January 1989 form B100 (OD) 1988, containing a claim for disablement benefit in respect of occupational deafness, was received from the claimant at the local office of the Department. On 7 February 1989 the adjudication officer decided that disablement benefit was not payable because the period between the date of claim and the latest date prior thereto on which the claimant worked in an occupation prescribed in relation to occupational deafness, namely 25 November 1983, exceeded five years. In other words, he considered that the claimant was caught by regulation 25(2) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 which so far as was relevant read as follows:

"25(2) ... disablement benefit ... payable by virtue of section 50A of the Act, shall not be paid in pursuance of a claim in respect of occupational deafness which is made later than five years after the latest date, before the date of the claim, on which the claimant worked in an occupation prescribed in relation to occupational deafness."

In due course, the claimant appealed to the tribunal, who in the event upheld the adjudication officer.

They went into the matter with a commendable thoroughness, and gave lengthy reasons for their decision which read as follows:

"The law is contained in the Social Security (Industrial Injuries etc.) Regulations 1985, regulation 25(2). This provides that a claim in respect of occupational deafness cannot be made later than five years after the latest date before the date of the claim on which the claimant worked in an occupation prescribed in relation to occupational deafness (except in certain circumstances which do not apply here). The claimant's representative sought to argue that for the purposes of the regulation the date when the claimant last worked in the relevant occupation could be extended beyond the 25 November 1983 on the basis that his employment could not be regarded as terminating on this date due to (a) the fact that at this date he had six weeks annual leave due to him for which he received payment and (b) that during the six week period the Ford Christmas shut-down of three weeks occurred and this could also be removed from the five year limit. The representative also drew attention to the fact that the claimant was entitled to twelve weeks' notice but did not press the tribunal to accept that this period should be added presumably on the ground that the notice was waived under the voluntary redundancy terms. The tribunal could not accept the representative's argument. In following the decision of the tribunal of Commissioners R(I) 2/79 they applied the 'actual working' test i.e. the tribunal were of the opinion that the five year period had to run in effect from the last day when the claimant actually worked at his prescribed occupation. They could not accept the representative's argument regarding the linking of periods of interruption since it appeared to the tribunal that this only related to the aggregation of periods of employment in prescribed occupations to give a ten year (or appropriate) period.

The claimant's representative also argued that the tribunal should have some latitude in applying the five year limitation. He pointed out that since the claimant retired in 1983 the regulations had been amended and that prior to about 1987 (the date was not established at today's tribunal) the claimant's occupation was not regarded as a prescribed occupation under Schedule I A10 (b) of the Social Security (Industrial Injuries etc.) Regulations 1985. It was therefore inequitable that the situation should have arisen whereby at the time of retirement in 1983 the claimant was not entitled under the regulations but at a subsequent date the regulations were changed to enable the claimant to come within them and yet he still had to claim within the five year period. The tribunal again considered decision R(I) 2/79 and while they were sympathetic to the claimant's argument they took the view that had Parliament wished to extend the time for claimants in the present claimant's position it would, when amending the regulations, have also amended the time limit and the tribunal felt that it was not open to them to make a decision which appeared to run contrary to the tribunal of Commissioners' decision R(I) 2/79."

As the position was on 16 June 1989, I see nothing wrong with the tribunal's decision.

However, subsequently the Court of Appeal in McKiernon v. The Secretary of State for Social Security decided that regulation 25 was ultra vires. This, of course, rendered the tribunal's decision erroneous in point of law, but on 13 July 1990 the position was changed again, by the coming into operation of paragraph 4(3) of Schedule 6 to the Social Security Act 1990. This reads as follows:

"4(3) Regulations 6(2)(c), 25 and 36 of the Social Security (Industrial Injuries)(Prescribed Disease) Regulations 1985 (onset of occupational deafness and time for claiming in respect of occupational deafness or occupational asthma), and any former regulations which they directly or indirectly re-enact with or without amendment, shall be taken to be, and always to have been, validly made [my emphasis]."

Manifestly, paragraph 4(3) was to operate retrospectively. The draftsman could not have made the position clearer (see CI/465/1989). The result is that, although, pursuant to the judgment of the Court of Appeal, the original regulation 25 was ultra vires and therefore without effect, its invalidity was subsequently rectified and the original regulation given force by virtue of paragraph 4(3) of Schedule 6 to the Social Security Act 1990. Moreover, such rectification had retrospective effect. Accordingly, by Act of Parliament the tribunal's initial decision, which was originally valid but which, after the determination of the Court of Appeal in McKiernon v. The Secretary of State for Social Security, was rendered invalid, was, as from 13 July 1990, retrospectively transformed again into a valid determination.

However, Mr. Drabble contended that the matter was not as simple as that. He accepted that paragraph 4 (3) had a retrospective effect, but his contention was that the new validated regulation 25 had perforce to take subject to section 165A(2) of the Social Security Act 1975, in the form in which it was enacted on 15 July 1986, the date of the claim in the McKiernon case. That particular provision then read as follows:

"165A(2) Regulations shall provide for extending, subject to any prescribed conditions, the time within which a claim may be made in cases where it is not made within the prescribed time but good cause is shown for the delay."

Mr. Drabble put his case this way. He pointed out that in the McKiernon case regulation 25 had been declared ultra vires because it contravened section 165A(2). The latter provision required any regulation made pursuant to section 77(2) to contain an extension of time for good cause, and regulation 25 did not. Now, although regulation 25 was validated as from 13 July 1990 with retrospective effect, it had to take effect subject to any overriding stipulation that operated at the time it was originally enacted, and such a stipulation, contained in section 165A(2), required as a condition of the operation of regulation 25 an extension of time for the bringing of a claim where the claimant had good cause for this concession. It followed that in the present case, the claimant could lodge a claim for industrial deafness out of time, if he could show continuous good cause.

Mr. Drabble endeavoured to support his general contention by reference to paragraph 4(2) of Schedule 6 to the Social Security Act 1990 which reads as follows:

"4(2) In section 77 of that Act [ie the Social Security Act 1975], at the end of sub-section (2) (power to modify provisions relating to disablement benefit and its administration) there shall be added the words –

'and for the purposes of this subsection the provisions of this Act which relate to the administration of disablement benefit or reduced earnings allowance shall be taken to include section 165A and any provision which relates to the administration of both the benefit in question and other benefits'."

Section 77(2) originally read as follows:

"In relation to prescribed disease....., regulations may provide –

(a) for modifying provisions of this Act relating to disablement benefit, and the administration of such benefit; and

(b) ...........".

The Court of Appeal in the McKiernon case, or at the least the majority members, held that section 77(2), pursuant to which the original regulation 25 was made, did not bite on section 165A. Mr. Drabble pointed out that under paragraph 4(2) section 77(2) was not amended, so that it could bite on section 165A (and inter alia enable any newly validated regulation 25 to escape the provisions of section 165A) with retrospective effect. The amendment of section 77(2) was only prospective. He therefore contended that this omission supported his submission that the validated regulation 25 was meant to stand subject to the good cause extension provision originally contained in section 165A(2). The significance of all this, as far as concerned the present appeal, was that, if Mr. Drabble was right in his contention, then the claimant would be in a position to seek an extension of time in which to bring his claim over and above the statutory five year limitation on the ground that he had good cause.

I reject Mr. Drabble's argument. In my judgment, the effect of paragraph 4(3) is to validate retrospectively the original regulation 25 as drafted, and to remove the vice which caused it to be declared by the Court of Appeal ultra vires. The sole ground on which the Court of Appeal decided that the Secretary of State had exceeded his powers in making regulation 25 was that it failed to comply with sub-section (2) of section 165A. In the words of Russell LJ:

"The second submission made by Counsel is more fundamental. Where, as in this case, a statute enables a Secretary of State by regulations to modify any provision contained in primary legislation, the appropriate modification should be expressly stated in the statutory instrument and is not to be inferred or implied from the content of the regulation. Sub-section (2) of section 165A is a mandatory provision requiring the Secretary of State to make regulations incorporating provisions for extending the time within which a claim for benefit may be made outside the prescribed time where good cause for delay can be shown. That subsection cannot be overridden by any statutory instrument unless the instrument itself, and in specific terms, modifies sub-section (2)."

That submission of Counsel Russell LJ accepted, as did the Court as a whole.

Now, the effect of paragraph 4(3), which was contained in a Schedule to an Act, and was not contained in a mere statutory instrument, was to validate retrospectively the original regulation 25, notwithstanding its failure to incorporate, pursuant to section 165A(2), a provision for extending time where good cause could be shown. There is no reason why the validated regulation 25 should take subject to section 165A(2). By the authority of an Act of Parliament regulation 25 has been elevated retrospectively to a position where it has an independent existence uncircumscribed by the provisions of section 165A(2).

It follows from what has been said above that there is no significance in the fact that under paragraph 4(2) the extension to section 77(2) is not made retrospective. Although the legislature decided to extend section 77(2) for the future, there was no need to do so retrospectively for the purposes of enabling the validated regulation 25 to shake free of the provisions of section 165A(2).

For completeness I should say that Mr. Butt on behalf of the adjudication officer accepted the analysis that I have given above.

Accordingly, in the present case there was no power under which the tribunal could extend time, however strong a case might be made out that the claimant had good cause for his delay. Moreover, the tribunal were right to follow the decision of a tribunal of Commissioners R(I) 2/79 and to apply the "actual working" test. The five year period had to run from the last day when the claimant actually worked at his prescribed occupation, and in the present case the claim had been made outside that statutory period. The tribunal did not err in point of law.

It follows from what has been said above that I have no option but to dismiss this appeal.

Date: 20 June 1991 (signed) Mr. D. G. Rice Commissioner

The claimant appealed to the Court of Appeal. The decision of the Court of Appeal follows.

DECISION OF THE COURT OF APPEAL

Mr. R. Drabble (instructed by Messrs. Brian Thompson & Partners, London SW1) appeared on behalf of the Appellant.

Mr. D. Ouseley QC and Mr. J. R. McManus (instructed by The Solicitor, Department of Social Security, London WC2) appeared on behalf on the Respondent.

LORD JUSTICE DILLON: This is an appeal by a Mr. Thomas Chatterton against a decision of Mr. Commissioner Rice which dismissed an appeal by Mr. Chatterton against a decision of a social security appeal tribunal. Leave to appeal against Mr. Rice's decision was granted by Lord Justice Lloyd, who commented that he found the Commissioner's reasons for rejecting Mr. Drabble's argument convincing, but the point of law is arguable. I am bound to say that I also have found Mr. Rice's reasons completely convincing, but Mr. Drabble has explained his point of law which certainly marks high for ingenuity. Mr. Chatterton is claiming disablement benefit for occupational deafness and the difficulty in his way is regulation 25 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulation 1985, SI 1985, No. 967. Those regulations came into operation on 31 July 1985 and regulation 25 provides by sub-paragraph (2) that a:

".... disablement benefit .... shall not be paid in pursuance of a claim in respect of occupational deafness which is made later than five years after the latest date, before the date of the claim, on which the claimant worked in an occupation prescribed in relation to occupational deafness ...."

There were certain exceptions which are not relevant. Mr. Chatterton's difficulty was that his claim was made after the expiration of that five year period and the regulation contains no provision enabling the time to be extended. However, encouragement came to him because this court, in a case of McKiernon v. The Secretary of State for Social Security, which was decided on 26 October 1989, held that regulation 25 was ultra vires. To understand that, it is necessary to go a little further into the statutory provisions in the Social Security Act, as some of them have been, from time to time, amended.

Chapter V in Part II deals with, among other things, disablement benefit from prescribed diseases, and section 77(2)(a) provided that regulations may modify provisions of the Act relating to injury benefit and disablement.

Regulation 25 purported, by paragraph (1), to provided that regulation 14 of the Claims and Payments Regulations (time for claiming benefit) should not apply in relation to occupational deafness, with an immaterial exception.

But apart from that a new section 165A was written into the 1975 Act by section 17 of the Social Security Act 1985. This provided that no person should be entitled to any benefit unless, in addition to any other conditions, he made a claim for it in the prescribed manner and, subject to subsection (2) below, within the prescribed time. It also provided in subsection (2), in mandatory form, that:

"Regulations shall provide for extending, subject to any prescribed conditions, the time within which a claim may be made in cases where it is not made within the prescribed time but good cause is shown for the delay."

That, in fact, replaced provisions to substantially the same effect contained in section 82(1) of the 1975 Act. That section of the 1975 Act was replaced by Schedule 6 of the 1985 Act which introduced the new section 165A. The 1985 Act introducing the new section 165A came into force on 2 September 1985.

In the McKiernon case the court held that regulation 25 could not be valid, because it contained no provision for extending the time where good cause was shown for the delay and it was thus inconsistent with the mandatory requirement of section 165A(2) or its predecessor section 82(1) of the 1975 Act. The court also held it invalid because the powers of making regulations in a way which would amend provisions of the Act, conferred by section 77(2) of the 1975 Act, did not extend to amending section 165A of that Act.

As a matter of legislative history, to which I attach considerable importance, the section 165A introduced, as I have mentioned, into the 1975 Act by the 1985 Act, was itself replaced, with effect from 6 April 1987, by a new section 165A: as it were, section 165A Mark II, introduced by paragraph 87 of Schedule 10 of the Social Security Act 1986. Section 165A Mark II contains no provision whatsoever comparable to paragraph (2) in section 165A Mark I and the position has therefore been, as Mr. Drabble has accepted, that from 6 April 1987 there has been no mandatory provision in the statutory scheme in the case of, at any rate, industrial deafness, with which regulation 25 is concerned, for extending the prescribed time limit where good cause is shown for the delay.

The decision of this court in McKiernon's case did not survive unaffected by further statutory provisions because, in Schedule 6, paragraph 4, of the Social Security Act 1990, there are two relevant provisions. In paragraph (2) it is expressly provided that in section 77 of the 1975 Act, at the end of subsection (2), there is a provision added:

"and for the purposes of this subsection the provisions of this Act which relate to the administration of disablement benefit or reduced earnings allowance shall be taken to include section 165A and any provision which relates to the administration of both the benefit in question and other benefits."

The effect of that, which is not retrospective, is to enable section 165A to be amended by regulation and not merely by statute. The 165A referred to must be Mark II and not Mark I, which had been repealed.

Then in paragraph (3) it is provided that regulation 25, and certain other regulations, and any former regulations which they directly or indirectively re-enact with or without amendment, shall be taken to be, and always to have have been, validly made. Thus regulation 25 is retrospectively validated.

Parliament is of course entitled to validate it retrospectively, but Mr. Drabble submits that the effect of the validation is to deem it to include a provision that the time within which a claim may be made may be extended if good cause is shown for delay in making the claim. I cannot see how that can be a correct implication. The plain words of the 1990 Act validate the actual wording of regulation 25 without any implication or alteration in it; the validation being by Act of Parliament, no special extra validation of the vires to make the regulation, as a regulation, was necessary. There is no reason whatever to suppose an intention to resuscitate, as a continuing part of the regulation 25, even for the future, the provision for extension of time where good cause is shown, which was excised from the statutory code as from 6 April 1987 by the 1986 Act and, in any event, the provision for extension was to be dealt with by making regulations subject to prescribed conditions. There have never been any prescribed conditions and the power to make the regulations has not been resuscitated.

I agree entirely with the decision and judgement of Mr. Rice and, while grateful to Mr. Drabble for the ingenuity of his argument, I would dismiss this appeal.

LORD JUSTICE STAUGHTON: I agree. Mr. Drabble submits that the effect of paragraph 4(3) of Schedule 6 of the Social Security Act 1990 is as follows: regulation 25 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulation 1985 is to be taken to be, and always to have been, validly made. Therefore it must be treated as containing all such provisions as are now, or have been at any time during the existence of the regulation, required to be contained in it.

At one time, by section 165A(2) of the Social Security Act 1975, as inserted by the Social Security Act 1985, the regulation was required to provide for extending, subject to any prescribed conditions, the time within which a claim may be made in cases where it is not made within the prescribed time but good cause is shown for the delay. Therefore, says Mr. Drabble, regulation 25 should be treated as containing a provision to that effect.

That is not, in my judgment, the true meaning of paragraph 4(3) of Schedule 6 of the 1990 Act. I think that it means what it says in plain English: the regulation shall be treated as valid. Furthermore, it shall be treated as always having been valid. That, as it seems to me, is a reference to the regulation as it stands.

The new vires conferred by paragraph 4(3) make the regulation, as it stands, valid and declare that, as it stands, it always has been valid. Parliament can do that; Parliament can do anything, subject always to the European Community.

I would dismiss this appeal.

LORD JUSTICE WAITE: I agree.

Order: Appeal dismissed with costs.