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Rider v. Chief Adjudication Officer [1996] UKSSCSC CIS_144_1993 (23 January 1996)

R(IS) 10/94

(Rider v. Chief Adjudication Officer)

Mrs. R. F. M. Heggs CIS/144/1993

CA (Nourse, McCowan and Thorpe LJJ)

Applicable amount - claimant in receipt of attendance allowance in respect of her disabled daughter - whether "in receipt of attendance allowance" for the purposes of severe disability premium

The claimant was a lone parent who received attendance allowance in respect of her disabled daughter who was aged 14. An adjudication officer decided that her applicable amount should include a disabled child premium under paragraph 14 of Schedule 2 to the Income Support (General) Regulations 1987 but decided that it should not include a severe disability premium under paragraph 13. She appealed on the ground that she was a "severely disabled person" within paragraph 13(2)(a) because she was "in receipt of attendance allowance". Her appeal was dismissed by a tribunal and a further appeal was dismissed by the Commissioner. The claimant appealed. The Court of Appeal heard her case at the same time as two appeals in which claimants advanced a similar argument under paragraph 12(1)(a) in respect of the additional condition for a disability premium.

Held, dismissing the appeals, that:

in the context of paragraphs 11 to 14 of Schedule 2, the words "in receipt of" in paragraphs 12(1)(a)(i) and 13(2)(a)(i) could not be read literally and there had to be imported an additional requirement that the attendance allowance should be payable in respect of the recipient's own needs.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 14 October 1992 is not erroneous in point of law. As a result this appeal fails.

This is the claimant's appeal against the decision of the social security appeal tribunal of 14 October 1992, leave having been granted by the tribunal chairman. I held an oral hearing of the appeal. The claimant did not attend but was represented by Mr. G. Tucker from the Newham Rights Centre. The adjudication officer was represented by Mr. J. Polland from the Central Adjudication Service.

The facts are not in dispute. The claimant was in receipt of income support from 11 April 1988. She was divorced and lived with her children. Her daughter, then aged 14, was disabled with spina bifida and the claimant was paid attendance allowance and mobility allowance in respect of her. The disabled child premium was included in the income support award. However, on 20 April 1988 the adjudication officer decided that the claimant was not entitled to a severe disability premium from 11 April 1988 because she did not satisfy the conditions for such a payment. Thereupon the claimant appealed to the tribunal.

The claimant attended and was represented by Mr. Tucker at the hearing of the appeal before the tribunal on 14 October 1992. In the event the tribunal dismissed the appeal. After recording the relevant findings of fact, the reasons for decision read:

"The only point at issue in this particular appeal is whether or not the claimant is in receipt of attendance allowance within the meaning set out in paragraph 13 of Schedule 2. She has no non-dependents aged 18 or over living with her and she is not in receipt of invalid care allowance. The tribunal take the view that a proper interpretation of paragraph 13 of Schedule 2 is that the claimant does not fall within the definition. Paragraph 2(a) wherein the definition of a severely disabled person is contained means that attendance allowance must be in payment in respect of the claimant not whereas in this case it is paid to the claimant but in respect of another person. They are fortified in this view by looking at sub-paragraph (iii) of the same subsection 2(a) where clearly it is intended that the invalid care allowance therein referred to should be in payment in respect of caring for the disabled person. The tribunal appreciate the argument that by virtue of regulation 6 of the Social Security (Attendance Allowance) (No. 2) Regulations 1975 it is provided that a person shall be entitled to an attendance allowance in respect of a child in the case of sub-paragraph (a) it shall be his mother if the child is living with her. The view of the tribunal is that this does not bring the claimant in this case within the definition of paragraph 13 of Schedule 2, but the effect of regulation 6 of the Social Security (Attendance Allowance) (No. 2) Regulations merely to provide authority to pay to another person when clearly it is not possible for the attendance allowance to be paid to the disabled person himself because of his age. The tribunal take the view that the effect of regulation 6 of the Social Security (Attendance Allowance) (No. 2) Regulations 1975 merely entitles the claimant in this case to actually receive payment of attendance allowance. It is merely a device for facilitating a cash transfer. It does not entitle her to attendance allowance in her own right. The tribunal take the view that a commonsense interpretation of the various regulations clearly means that someone such as the claimant in this case who clearly is not disabled shall not be treated as disabled for technical reasons. They take the view that Schedule 2, paragraph 13 clearly has in mind that the attendance allowance should be in payment in respect of the disabled person. It is conceded by all that the effect of the amendment made to Schedule 2 of the Income Support (General) Regulations 1987 on 9 April 1990 when paragraph 14(B) was added effectively bars this claim as from 9 April 1990. The tribunal take the view for the reasons set out above that in fact the claimant is not entitled prior to that date. Regulation 6 of the Social Security (Attendance Allowance) (No. 2) Regulations clearly states that the mother is entitled to an attendance allowance but in respect of the child. The addition of these words clearly indicate to the tribunal that the mother of the child was not intended to be able to state that the attendance allowance was payable in respect of her in order to bring her within the province of paragraph 13 of Schedule 2."

Regulation 17(d) of the Income Support (General) Regulations 1987 ("the Regulations") provides for the inclusion of the amount of any premiums which may be applicable to the claimant determined in accordance with Parts III and IV of Schedule 2 in the calculation of a claimant's applicable amount. Paragraph 13 of Part III of Schedule 2 to the regulations contains the conditions for the payment of a severe disability premium. This provides, so far as relevant:

"13.- (1) The condition is that the claimant is a severely disabled person.

(2) For the purposes of sub-paragraph (1), a claimant shall be treated as being a severely disabled person if, and only if -

(a) in the case of a single claimant or a lone parent

(i) he is in receipt of attendance allowance, and

(ii)-(iii) ..."

The sole question at issue in the present appeal is whether the claimant was "in receipt of attendance allowance" for the purposes of paragraph 13(2)(a)(i), it being accepted that she satisfied all other conditions of entitlement.

The claimant was in receipt of a disabled child premium under paragraph 14 of Schedule 2. This provides so far as relevant:

"14. The condition is that a child or young person for whom the claimant or a partner of his is responsible and who is a member of the claimant's household -

(a) has no capital or capital which, if calculated in accordance with Part V in like manner as for the claimant, except where otherwise provided, would not exceed £3,000; and

(b) is in receipt of attendance allowance or mobility allowance or both ... or

(c) is blind or treated as blind within the meaning of paragraph 12(1)(a)(iii) and (2)."

Paragraph 14B of Part III of Schedule 2 was introduced with effect from 9 April 1990 and provides:

"14B. For the purposes of this Part of this Schedule, a person shall be regarded as being in receipt of any benefit if, and only if, it is paid in respect of him and shall be so regarded only for any period in respect of which that benefit is paid."

Section 35(1) of the Social Security Act 1975 provides that a person shall be entitled to attendance allowance if he satisfies the prescribed conditions. Regulation 6 of the Social Security (Attendance Allowance) (No. 2) Regulations 1975 ("the Attendance Allowance Regulations") modified section 35(1)-(4) in its application to children. It is not in dispute that the claimant was entitled to an attendance allowance "in respect of a child who satisfies or is treated as having satisfied" the prescribed conditions under section 35(1) as modified by regulation 6(2)(a) of the Attendance Allowance Regulations and that under the provisions of regulation 6(4) the claimant was "the person who in any given case shall be entitled to an attendance allowance in respect of a child". Regulation 1(2) of the Attendance Allowance Regulations defines "a child" to mean a person who is under the age of 16.

Mr. Tucker submitted that section 22(3) of the Social Security Act 1986 provided that "the applicable amount for a severely disabled person shall include an amount in respect of his being a severely disabled person". Section 22(4) provided that "regulations may specify circumstances in which persons are to be treated as being or as not being severely disabled". Section 22(4) was a "deeming" provision and there was nothing to indicate that the person to be treated as severely disabled had in fact to be so. There were many instances in social security legislation where a claimant could be treated as satisfying conditions of entitlement because of "deeming" provisions, for example under regulation 5(3) of the regulations a person was treated as engaged in remunerative work during any period when he was absent from work "either without good cause or by reason of a recognised, customary or other holiday". Mr. Tucker then turned to paragraph 13(2)(a)(i) of Schedule 2 to the regulations which specifically provided that "a claimant shall be treated as being a severely disabled person if .. in the case of .. a lone parent he is in receipt of attendance allowance and ..". This provision gave effect to the provisions of section 22(4). In the present case the claimant was treated as being the severely disabled person because she satisfied the condition that she was "in receipt of attendance allowance". As the words "in receipt" were not defined they fell to be given their ordinary everyday meaning. On that basis the person who was "in receipt" of an attendance allowance could reasonably be interpreted as being the person who was actually receiving the payment of the award. The introduction of paragraph 14B supported this interpretation as it specifically changed the law in this respect. As a result the claimant was entitled to a severe disability allowance during the inclusive period from 11 April 1988 to 8 April 1990.

Mr. Tucker then referred me to decision R(SB) 12/87 in support of his argument that "in receipt" fell to be defined as "entitlement to receipt". In that case the adjudication officer had given a decision to the effect that the claimant was entitled to supplementary benefit although it had not actually been paid. In that context the Commissioner held at paragraph 7 "I do not see any reason why it would have been intended to distinguish between receipt of benefit in the sense of actual payment and entitlement to receipt of it".

Mr. Tucker submitted that his interpretation of "in receipt of" for the purposes of paragraph 13 to Schedule 2 was not inconsistent with the interpretation of the same words in paragraph 14. That paragraph concerned the award of a disabled child premium for a child or young person. The award of a severe disability premium under paragraph 13(2) clearly excluded the award of a disabled child premium if the parent was in receipt of attendance allowance in respect of the child. The paragraph was still operative so far as a young person was concerned or a child who was in receipt of mobility allowance or was blind.

Mr. Polland submitted that the House of Lords judgment referred to at paragraph 19 of R(SB) 6/86 established the principle that the literal meaning of a statute could be disregarded if "the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake. If words "have been inadvertently used", it is legitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated .." He noted that section 35(1) of the Social Security Act 1975, as amended, stressed the entitlement of attendance allowance "in respect of a child". The payment of attendance allowance in the present case was not for the claimant but in respect of her child. The contention that "in receipt of" applied to the claimant and not to the child created an absurdity. It confused payment with entitlement. The claimant was merely the payee of an award in respect of the child's needs. Mr. Tucker's interpretation would have far reaching results e.g. an appointee appointed by the Secretary of State on behalf of a person incapable of administering his affairs would be entitled to receive a premium in his own right. Such an interpretation defeated the intention of Parliament to assist the person with a specific need. Paragraph 14 of Schedule 2 referred to a child being "in receipt of" attendance allowance as a condition for the disabled child premium. Consequently if "in receipt of" was not given the plain meaning in paragraph 13 there was nothing to support the view that it should be given the plain meaning in paragraph 14. Attendance allowance was not paid to the child but to the person responsible for the child, in this case the parent. If the meaning of "in receipt of" applied to paragraph 13 it also applied to paragraph 14, with the result that no disabled child premium could ever be awarded for a disabled child because the parent and not the child would be "in receipt of" attendance allowance. To make "in receipt of" apply to the parent for the purposes of paragraph 13 would contradict the meaning of the same phrase in paragraph 14. Further, the intention of paragraph 13 was to award a premium to a person who was severely disabled. To consider awarding the premium to a person who was manifestly not a disabled person but a parent, receiving attendance allowance in respect of a child, was clearly absurd. In his view paragraph 14B was introduced to clarify the position and not to affect a change in the law.

I reject Mr. Tucker's submission and accept the submission of Mr. Polland. I can find no support for the argument that the claimant should be deemed to be a severely disabled person for the purposes of paragraph 13(2) of the Schedule 2. Mr. Tucker's interpretation of the words "in receipt of attendance allowance" in paragraph 14(b) is unrealistic and misconceived. Regulation 43(1) of the Social Security (Claims and Payments) Regulations 1987 has similar provisions for the payment of mobility allowance to a parent in respect of a child. The result of Mr. Tucker's interpretation would be that a child could never satisfy the conditions contained in paragraph 14(b) and I reject as absurd the contention that the intention of Parliament was to limit the application of this sub-paragraph to a young person or to a child who was blind or treated as blind in any case where the parent was in receipt of severe disability premium in respect of that child.

Under the provisions relating to attendance allowance set out above a child cannot be in receipt of attendance allowance in the sense of receiving the payment of the award. The child's parent is entitled to the benefit in respect of the child and receives payment of it. Accordingly I take it for the purposes of paragraph 14 that "in receipt of attendance of attendance allowance" must mean that the child satisfies the conditions of entitlement. To construe those words otherwise would mean that no disabled child premium could ever be awarded because the parent and not the child would be "in receipt of attendance allowance". Paragraph 13 contains the additional conditions for the payment of severe disability premium and uses the same words "in receipt of attendance allowance" but in relation to the claimant. The conditions for premiums laid down in the various paragraphs of Schedule 2 must be construed as a whole. The claimant cannot "blow hot and cold" by seeking in effect to rely on one meaning of the words "in receipt of attendance allowance" in paragraph 14 and a wholly different and contradictory meaning in paragraph 13. Either the child is in receipt of attendance allowance and the claimant satisfies paragraph 14 or the claimant is in receipt of attendance allowance and satisfies paragraph 13. Both cannot be the case. I hold that the words "the claimant .. is in receipt of .. attendance allowance .. in paragraph 13 are to be construed in the same sense which provides paragraph 14 with the meaning, that the claimant satisfies the condition of entitlement.

Finally in my view the purpose of paragraph 14B of Schedule 2 is to make it clear that a person is only in receipt of a benefit when he is, the same person "in respect" of whom that benefit is paid.

The tribunal decision fully complied the requirements of regulation 25(2)(b) of the Social Security (Adjudication) Regulations 1986. The tribunal recorded full findings of fact based on the evidence before them and applied the law correctly to those findings.

For the reasons set out above the tribunal's decision was not erroneous in law. The claimant's appeal is dismissed.

Date: 2 August 1993 (signed) Mrs. R. F. M. Heggs

Commissioner

The claimant appealed to the Court of Appeal and her case was heard together with the appeals of two other claimants. The decision of the Court of Appeal follows.

DECISION OF THE COURT OF APPEAL

Mr. R. Drabble QC (instructed by Newham Rights Centre, London E7) appeared on behalf of the Appellant.

Mr. J. R. McManus (instructed by the Office of the Solicitor to the Department of Social Security, London WC2A 2LS) appeared on behalf of the Respondent.

LORD JUSTICE NOURSE: These three appeals from social security Commissioners raise an identical question of construction on paragraphs 12 and 13 of Schedule 2 to the Income Support (General) Regulations 1987 ("the 1987 Regulations"), which make provision for the payment of disability premiums and severe disability premiums respectively as elements of income support. Shortly stated, the question is whether the words "in receipt of attendance allowance", where they appear in those paragraphs, are to be read just as they stand or as importing the additional requirement that the allowance should be payable in respect of the recipient's own needs. The question was only capable of arising up to 8 April 1990, after which date the regulations were amended so as to eliminate it.

The appellant claimants are Daphne Florence Rider, Carole Doyle and Anthony Palmer. Each of them was, at the material time, a lone parent in receipt of income support who had living with him or her a severely disabled child under the age of 16 in respect of whom he or she was paid attendance allowance and, in the case of Mrs. Rider, mobility allowance as well. In each case there was included in the award of income support a disabled child premium payable under paragraph 14 of Schedule 2 to the 1987 Regulations, but not a disability premium or severe disability premium as well.

At the material time entitlement to attendance allowance was governed by section 35 of the Social Security Act 1975, which awarded it to severely disabled persons who satisfied the statutory requirements. Subsection (5) of that section enabled regulations to provide for the modification of subsections (1) to (4) in relation to any severely disabled person who was under the age of 16. That power was exercised by regulation 6 of the Social Security (Attendance Allowance) (No. 2) Regulations 1975, so as to provide that a person should be entitled to attendance allowance in respect of a child who satisfied or was treated as having satisfied the statutory requirements. So far as material, regulation 6(4) provided:

"The person who in any given case shall be entitled to an attendance allowance in respect of a child shall be -

(a) in the case of a child living with his mother, his mother;

(b) in the case of a child to whom sub-paragraph (a) does not apply, if the child is living with his father, his father; ..."

Thus there is no doubt that in each of these cases it was the parent, and not the child, who was entitled to the attendance allowance in respect of the child. In regard to mobility allowance, on the other hand, the entitlement, in the case of a child aged five years or more, was the child's and not the parent's.

It is convenient to deal first with the case of Mrs. Rider, who was paid both attendance and mobility allowances in respect of her child. She claims that, in addition to a disabled child premium under paragraph 14 of Schedule 2 to the 1987 Regulations, her income support ought also to have included a severe disability premium under paragraph 13, which, so far as material, provides:

"Severe disability premium

(1) The condition is that the claimant is a severely disabled person.

(2) For the purposes of sub-paragraph (1), a claimant shall be treated as being a severely disabled person if, and only if -

(a) in the case of a single claimant or a lone parent -

(i) he is in receipt of attendance allowance, ..."

Both the social security appeal tribunal and the learned Commissioner, Mrs. R.F.M. Heggs, rejected Mrs. Rider's claim.

Mr. Drabble QC, for Mrs. Rider, submits that since she not only was paid, but was paid in her own right, the attendance allowance in respect of her child, she was "in receipt of" the allowance within paragraph 13 (2) (a)(i) and was thus to be treated, fictionally, as a severely disabled person who satisfied the condition specified in paragraph 13(1) in respect of severe disability premium; see also paragraph 4 of Schedule 2. Mr. McManus, for the Chief Adjudication Officer, submits that in the context of paragraphs 11, 12, 13 and 14 of Schedule 2 the words "in receipt of" cannot be read thus literally; that they do not include receipt of attendance allowance payable in respect of the needs of another person; and that where a parent receives the allowance in respect of a child the regulations assume that it is received by the child and not by the parent.

Both sides are agreed that the terms of paragraph 14 are of crucial importance, though each relies on them for the opposite construction to the others. So far as material, it provides:

"Disabled Child Premium

The condition is that a child or young person for whom the claimant or a partner of his is responsible and who is a member of the claimant's household -

(a) has no capital or capital [not exceeding £3,000] and

(b) is in receipt of attendance allowance or mobility allowance or both or is no longer in receipt of that allowance because he is a patient provided that the child or young person continues to be a member of the family; or

(c) is blind or treated as blind ..."

In evaluating the rival submissions of Mr. Drabble and Mr. McManus, I start by making an overall comparison of paragraphs 13 and 14. Paragraph 13 is expressed to be concerned only with single claimants, lone parents and their partners; paragraph 14 only with children and young persons. There seems to be no reason for importing the needs of either class into a paragraph which is concerned with the needs of the other. As Mr. McManus has submitted, since paragraph 14 was clearly intended to provide for additional income support to meet the needs of disabled children and young persons there is no warrant for supposing that those needs are also to be provided for under paragraph 13.

I find that submission compelling in itself, but it is supported by a closer consideration of the wording of paragraph 14(b), which refers, amongst others, to a child or young person "who is in receipt of attendance allowance". Mr. McManus points out, correctly, that on Mr. Drabble's construction a child can never fulfil that description because he has no right to be paid the allowance; the right is the parent's. Mr. Drabble seeks to meet that difficulty by saying that those words relate only to a young person, who does have a right to be paid the allowance, or to a child in respect of mobility allowance, where, as I have said, if the child is aged five years or more, the entitlement is the child's and not the parent's. On general principles of construction, I decline to read paragraph 14 in that fragmented or distributive manner. I think it clear that sub-paragraph (b) was intended to refer, amongst others, to a child who was in receipt of attendance allowance, and that can only mean a child in respect of whose needs the allowance is payable; similarly in regard to the lone parent referred to in paragraph 13(2)(a)(i).

This indeed was the approach of Mrs. Commissioner Heggs, whose decision contains an admirable summary of the interplay between paragraphs 14 and 13:

"I take it for the purposes of paragraph 14 that 'in receipt of attendance allowance' must mean that the child satisfies the conditions of entitlement. To construe those words otherwise would mean that no disabled child premium could ever be awarded because the parent and not the child would be 'in receipt of attendance allowance'. Paragraph 13 contains the additional conditions for the payment of severe disability premium and uses the same words 'in receipt of attendance allowance' but in relation to the claimant. The conditions for premiums laid down in the various paragraphs of Schedule 2 must be construed as a whole."

Whether on the narrower or on the broader ground, I think it clear that the submissions of Mr. McManus are to be preferred to those of Mr. Drabble. Each of them referred us to observations in the House of Lords in Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231, which bear on the limited circumstances in which the court may depart from the plain words of a statute. In my view this is not such a case. When paragraphs 13 and 14 are read together the meaning of "in receipt of" in paragraph 13(2)(a)(i) is not plain. It can only be ascertained on an overall comparison of the two paragraphs and a particular consideration of the same words in paragraph 14(b) . When that exercise has been carried out, it is seen that the words are not to be read just as they stand but as importing the additional requirement that the attendance allowance should be payable in respect of the recipient's own needs.

I turn briefly to the cases of Miss Doyle and Mr. Palmer, each of whom was paid attendance allowance, but not mobility allowance, in respect of his or her child. At any rate by the time that the cases reached the commissioners (Mr. J. B. Morcom in Miss Doyle's case and Mrs. Heggs in Mr. Palmer's), each of them was claiming that, in addition to a disabled child premium under paragraph 14, his or her income support ought also to have included, not a severe disability premium under paragraph 13, but a disability premium under paragraphs 11 and 12 of Schedule 2 to the 1987 regulations. Miss Lieven, for Miss Doyle and Mr. Palmer, has taken us through the material provisions of those two paragraphs. Although they are in certain respects different from those of paragraph 13, both the question and the answer in these two cases are substantially the same as those in Mrs. Rider's case. That was the view of the Commissioners in these two cases, each of whom followed and applied the decision in Mrs. Rider's.

So far as material, paragraphs 11 and 12 provide:

"Disability Premium

The condition is that -

(a) where the claimant is a single claimant or a lone parent, he is aged less than 60 and the additional condition specified in paragraph 12 is satisfied; or

(b) where the claimant has a partner ...

Additional condition for the Higher Pensioner and Disability Premiums

(1) Subject to sub-paragraph (2) and paragraph 7 the additional condition referred to in paragraphs 10 and 11 is that either -

(a) the claimant or, as the case may be, his partner-

(i) is in receipt of one or more of the following benefits: attendance allowance, mobility allowance, mobility supplement, invalidity pension under section 15 of the Social Security Act, or severe disablement allowance under section 36 of that Act; (but, in the case of invalidity pension or severe disablement allowance only where it is paid in respect of him) ..."

Those final words, effectively a proviso to paragraph 12(1)(a)(i), were added by an amendment which came into force at the same time as the other provisions of paragraphs 11 and 12.

It will be seen that, apart from that proviso, the material words of paragraph 12(1)(a)(i) are the same as those of paragraph 13(2)(a)(i). The additional condition is satisfied if the claimant is "in receipt of" attendance allowance. Thus, the proviso apart, a comparison of paragraphs 12 and 14 produces the same result as a comparison of paragraphs 13 and 14. There has been some debate as to the effect of the proviso, the purpose of which is unclear, in particular of the words "only where it is paid in respect of him". What is clear to my mind is that, on a reading of paragraphs 11 and 12 together, the "him" referred to in the proviso is the claimant as distinct from his partner. It goes no further than that. So the proviso has no effect on the result in either of these two cases.

For these reasons I think that the decisions of the commissioners in Miss Doyle's and Mr. Palmer's cases were, like that in Mrs. Rider's, correct. I would therefore dismiss the appeals in all three cases.

LORD JUSTICE McCOWAN: I agree.

LORD JUSTICE THORPE: I also agree.

Order: appeals dismissed; legal aid taxation of the appellant's costs in each case.