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Chief Adjudication Officer v. Woods [1997] UKSSCSC CDLA_577_1994 (12 December 1997)

R(DLA) 5/98

(Chief Adjudication Officer and Anor v. Woods)

Mr. J. Mesher CDLA/577/1994

CA (Evans, Hobhouse and Pill LJJ)

Review - arrears payable - whether limit to backdating if application for a review of a decision for error of law on the basis of the decision of a Court or Commissioner was made before the date of the decision of the Court or Commissioner

The claimant was awarded disability living allowance at the lower rates for both the care and mobility components from 6 April 1992. On 22 March 1993, he applied for a review, but was unsuccessful.

On appeal, a tribunal increased his award of the care component to the middle rate, applying Mallinson v. Secretary of State for Social Security, decided by the House of Lords on 21 April 1994 [R(A) 3/94]. Although they found that the claimant had met the conditions of entitlement since 6 April 1992, they considered that section 69 of the Social Security Administration Act 1992 precluded them from making an award earlier than the House of Lords decision. The claimant appealed to the Commissioner.

The Commissioner found that the tribunal had erred in restricting entitlement to the date of the decision in Mallinson v. Secretary of State for Social Security. The Chief Adjudication Officer appealed to the Court of Appeal.

Held (Hobhouse LJ dissenting), dismissing the appeal, that:

the restriction on the date from which a revision of benefit entitlement on review can take effect contained in section 69 of the Social Security Administration Act 1992 applies where, in consequence of the decision of a Court or Commissioner, a decision on benefit entitlement is reviewed on the basis that it is erroneous in law;

a review is not carried out in consequence of the decision of a Court or Commissioner within the meaning of section 69 where it has already been applied for by the claimant before the date of that decision, and is therefore not subject to restriction under that section. In so deciding, the Court endorsed the approach and conclusions of the Commissioner;

as the claimant's application for a review pre-dated the decision in Mallinson v. Secretary of State for Social Security, his benefit entitlement was governed by that judgment from 6 April 1992.

The decision which the Commissioner substituted for the tribunal's, that the claimant was entitled to the middle rate of the care component of disability living allowance from 6 April 1992, was undisturbed by the Court.

[Note: Section 69 of the Social Security Administration Act 1992 has been succeeded by section 27 of the Social Security Act 1998, which is differently worded.]

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The claimant's appeal is allowed. The decision of the Huddersfield disability appeal tribunal dated 26 May 1994 is erroneous in point of law, for the reasons given below, and I set it aside. I am able to substitute my decision for that of the appeal tribunal on the basis of its findings of fact (Social Security Administration Act 1992, sections 23(7)(a)(i) and 34(4)). My decision is that the adjudication officer's decision dated 6 May 1992 falls to be reviewed in relation to the care component of disability living allowance on the ground that it is erroneous in point of law (Social Security Administration Act 1992, section 30(2)(d)) and that the revised decision on review is that the claimant is entitled to the middle rate of the care component of disability living allowance from 6 April 1992 for life.

The background

The procedural history of this case is a terrible muddle. An oral hearing of the appeal to the Commissioner was held, in order to attempt to sort that out and in particular to identify whether any issue was properly before the appeal tribunal of 26 May 1994. At the oral hearing, the claimant was represented by Mr. David Moore of Kirklees Benefit Advice Service and the adjudication officer was represented by Miss Nicola Yerrell of the Office of the Solicitor to the Department of Social Security. I am particularly grateful to both representatives for their assistance in trying to chart a course through the procedural complexity to reach a sensible result. In the end Mr. Moore and Miss Yerrell were in agreement about the proper description of what happened. My conclusion differs somewhat from that description, but is substantially based on it.

On 30 March 1992 a claim for both components of disability living allowance (DLA) was signed on the claimant's behalf. On 6 May 1992 the adjudication officer awarded the claimant the lower rate of the mobility component and the lowest rate of the component from 6 April 1992 for life, although, as no copy of that decision appears in the papers before me, the grounds on which that award was made are not known. I think that the award of mobility component must have been based on the acceptance of an inability to take advantage of the faculty of walking without guidance or supervision and that the award of care component must have been based on the acceptance of an inability to prepare a cooked main meal. On 27 October 1992 a letter was received from the claimant in which the rate of the mobility component was specifically contested. The adjudication officer treated that as a request for review made more than three months after the date of the decision under review. Therefore, review on any ground under section 30(1) of the Social Security Administration Act 1992 was not available. The adjudication officer on 18 February 1993 decided that no ground of review under section 30(2) was made out (although he expressly referred to the corresponding provisions of the Social Security Act 1975) and that the decision of 6 May 1992 stood. That is a very unsatisfactory form of decision, because it is so unspecific. However, because of the limited request for review and the effect of section 32(3) and (4) of the Social Security Administration Act 1992, I am satisfied that the decision of 18 February 1993 related only to the mobility component.

Section 32(3) provides that where a person has been awarded both components of DLA and on review alleges that he is entitled to one component at a higher rate, the adjudication officer "need not" consider the other component. Section 32(4) provides:

"(4) Where a person has been awarded a component for life, on a review under section 30 above the adjudication officer shall not consider the question of his entitlement to that component or the rate of that component or the period for which it has been awarded unless-

(a) the person awarded the component expressly applies for the consideration of that question; or

(b) information is available to the adjudication officer which gives him reasonable grounds for believing that entitlement to the component, or entitlement to it at the rate awarded or for that period, ought not to continue."

The claimant had not expressly applied for consideration of the care component of DLA and there was no information suggesting that the award of the lowest rate of the care component for life ought not to continue. Therefore, by virtue of section 32(4), the adjudication officer was not able to consider the care component in the review of 18 February 1993.

That review decision was apparently notified to the claimant on 13 March 1993. In a letter dated 18 March 1993, and received on 22 March 1993, the claimant's representative wrote asking for a review of the "decision dated March 1993". The final paragraph of the letter was as follows:

"I accept that LR mobility component is probably appropriate in this case, but I strongly feel that [the claimant] qualifies for the middle rate care component on the ground that he reasonably requires continual supervision in order to avoid danger to himself."

The adjudication officer treated that letter as an application to review the decision of 6 May 1992 related to the care component, rather than as an application for "second tier" review of the decision of 18 February 1993 under section 30(1) of the Social Security Administration Act 1992. The decision made on 24 August 1993 was to refuse to review the decision of 6 May 1992 related to the care component because no ground of review under section 30(2) had been shown.

A central question in this appeal is whether the adjudication officer on
24 August 1993 was correct in that approach to the scope of the application for review made on 22 March 1993. That turns in part on the difficult question of what consequences the application of section 32(3) or (4) has. I have concluded that in a case where either of those subsections applies the decision made on the application for review is restricted to the component considered by the adjudication officer and that the original decision related to the component which is not considered remains undisturbed. In the present case, the decision of 6 May 1992, so far as it related to the care component, was not the subject of the adjudication officer's decision of
18 February 1993 at all. Accordingly, when in the letter received on 22 March 1993 the question of the review of the level of care component was raised, the adjudication officer was correct to treat that as an application for review of the decision of
6 May 1992 under section 30(2) of the Social Security Administration Act 1992. That was Mr. Moore's and Miss Yerrell's submission. However, I have also concluded, contrary to their view, that the letter received on 22 March 1993 was also, because of its reference to the decision notified in March 1993, an application for review on any ground under section 30(1) of the decision limited to the mobility component made on 18 February 1993. The application was made within the prescribed period of three months. As will appear below, no decision has yet been given on that application.

In a letter received on 13 September 1993 Mr. Moore wrote:

"I wish to appeal against your decision [not?] to allow the higher rate mobility component of DLA and at least the middle rate care component."

The resulting decision of the adjudication officer made on 30 September 1993 is very confused and confusing. It purported to be a review on any ground of the decision of 24 August 1993 and a decision not to review the initial decision of 6 May 1992. However, it is not at all clear what components were meant to be covered by the decision and the only conditions of entitlement. mentioned are those for the higher rate of the mobility component. At any rate, I am satisfied that the decision was a decision on second tier review under section 30(1) of the Social Security Administration Act 1992 related to the care component of DLA. I am also satisfied that it was not such a decision related to the mobility component. Although Mr. Moore's letter received on 13 September 1993 specifically mentioned the mobility component, the last adjudication officer's decision related to the mobility component had been made on 18 February 1993. Therefore the application was not made within the three months prescribed for an any grounds review under section 30(1). The application was made within that period in relation to the decision made on 24 August 1993, but that decision was restricted to the care component. Although I have held above that the application for review made on 22 March 1993 was in part an application for review under section 30(1) of the decision made on 18 February 1993, the decision of 30 September 1993 was not made on that application, but expressly on the application made on 13 September 1993.

I therefore conclude that no decision has been made by an adjudication officer on the application for second tier review related to the mobility component made on 18 February 1993.

The next step in the chain is the appeal to the disability appeal tribunal from the decision dated 30 September 1993. That was treated by the adjudication officer in preparing the written submission to the appeal tribunal, and by the appeal tribunal itself, as raising the claimant's entitlement to both the care component and the mobility component. What was submitted to the appeal tribunal was that the adjudication officer's decision of 24 August 1993 was a second tier review decision relating to DLA as a whole.

The appeal tribunal's decision

The appeal tribunal considered the mobility component and decided that the claimant did not satisfy the requirements for the higher rate. It also considered the care component. It decided that the claimant did satisfy the requirements for the middle rate, on the basis of the decision in Mallinson v. Secretary of State for Social Security [R(A) 3/94]. He required frequent attention in connection with the bodily function of walking. It is clear that the appeal tribunal considered on the evidence that he had done so since before the beginning of the claim. However, it awarded the middle rate of care component only from 21 April 1994, the date of the House of Lords' decision in Mallinson, because it concluded that section 69 of the Social Security Administration Act 1992 precluded the making of an award for any earlier period.

Errors of law

That decision was based on errors of law, as agreed, at least in part, by Mr. Moore and Miss Yerrell. First, the appeal tribunal did not, for the reasons given above, have the issue of the mobility component before it at all. However, in view of the confused state of the existing decisions, it is not in the least surprising that the appeal tribunal thought otherwise. More fundamentally, in dealing with the care component, the appeal tribunal lost sight of the fact that the appeal before it stemmed from the request for review made on 22 March 1993. The appeal did not stem directly from the initial DLA decision on 6 May 1992. Before the appeal tribunal could make any decision awarding the claimant entitlement to the middle rate of care component, it had to identify a ground for review of the adjudication officer's decision dated 6 May 1992 under section 30(2) of the Social Security Administration Act 1992. It did not do so. The appeal tribunal applied section 69 of the Social Security Administration Act 1992 to limit its award of the middle rate of care component to the period from the date of the decision in Mallinson onwards. That points to the relevant ground of review having been error of law, but the failure either to identify that ground expressly or to identify with clarity the decision under review was an error of law.

There are two further errors of law related to section 69 of the Social Security Administration Act 1992. After the oral hearing, because of the way in which it seemed to me that the procedural history worked out, I directed that there should be further submissions about section 69. That has unfortunately led to a very long delay. The adjudication officer's submission dated 19 January 1996 submitted that my decision should be deferred until the House of Lords had determined the appeal from the Court of Appeal in the case of Bate v. Chief Adjudication Officer. Mr. Moore fairly reluctantly agreed to that. The House of Lords' decision was handed down on 16 May 1996 and is reported at [1996] 1 WLR 814 and [1996] 2 All ER 790 [and also at R(IS) 12/96]. In the event, apart from setting aside the convoluted approach of the Court of Appeal, Lord Slynn's speech in the House of Lords seems to offer little assistance on the points at issue in the present case. For that reason and to avoid further delay in a case which is already very long drawn out, I have not sought further submissions on Bate, but have proceeded to give my decision on the submissions already made.

Section 69(1) and (2) provides:

"(1) Subsection (2) below applies in any case where-

(a) on the determination, whenever made, of a Commissioner or the Court [i.e. the High Court or above] (the 'relevant determination'), a decision made by an adjudicating authority is or was found to have been erroneous in point of law; and

(b) in consequence of that determination, any other decision-

(i) which was made before the date of that determination; and

(ii) which is referable to a claim made or treated as made by any person for any benefit,

falls (or would, apart from subsection (2) below, fall) to be revised on a review carried out under section 25(2) above on or after 13 July 1990 (the date of the passing of the Social Security Act 1990, which added to the 1975 Act sections 104(7) to (10), corresponding to this section) or on a review under section 30 above on the ground that the decision under review was erroneous in point of law.

(2) Where this subsection applies, any question arising on the review referred to in subsection (1) (b) above, or on any subsequent review of a decision which is referable to the same claim, as to any person's entitlement to, or right to payment of, any benefit-

(a) in respect of any period before the date of the relevant determination; or

(b) in the case of widow's payment, in respect of a death occurring before that date, shall be determined as if the decision referred to in subsection (1)(a) above had been found by the Commissioner or Court in question not to have been erroneous in point of law."

The appeal tribunal was right to treat the decision in Mallinson as a determination of the type falling within section 69(1)(a). Although the House of Lords there was directly considering only the decision of the Court of Appeal below, it adopted a proposition of law inconsistent with the approach taken by the delegated medical practitioner on behalf of the Attendance Allowance Board (an adjudicating authority for the purposes of section 69(1)(a)). In Bate, Lord Slynn said that in the predecessor of section 69(1)(a) the word "found" was used "in the general sense of declared". The Commissioner in his decision in Bate (CIS/787/1991), which was endorsed on the predecessor of section 69 by the House of Lords, held that the words had to be taken in a very broad sense and applied where a Commissioner or a Court indirectly found an adjudication officer's decision to have been erroneous in point of law. In Mallinson, the DMP's decision was found, in that sense, to have been erroneous in point of law by the House of Lords.

However, the appeal tribunal erred in two ways. First, on the assumption that the start date of its award of the middle rate of care component based on the need for frequent attention in connection with bodily functions was limited by section 69(2), the appeal tribunal should have gone on to consider whether there was a ground of review based on the claimant's alleged need for continual supervision throughout the day in order to avoid substantial danger to himself. That was the argument which had been put forward by Mr. Moore. The ground of review of the initial decision awarding lower rate care component would presumably have been that the adjudication officer was ignorant or mistaken about material facts, i.e. the true extent of the claimant's need for supervision. If that ground of review was made out and the appeal tribunal had been satisfied that the revised decision from 6 April 1992 (or some other date prior to 21 April 1994) should have been that the claimant was entitled to the middle rate of care component on the basis of continual supervision, I consider that it could have given effect to that decision regardless of the limit on the start date of review on the basis of frequent attention and the ground of error of law. It seems to me that each potential ground of review must be looked at separately. When regulation 64B of the Social Security (Adjudication) Regulations 1986 provides that, in any case to which section 69(1) applies "the decision given on review shall have effect from the date of the relevant determination", it can only be referring to a review on the ground of error of law in consequence of the relevant determination. Where there is an alternative ground of review which is made out, regulation 64B cannot apply in relation to that ground. The ordinary limits imposed under regulations 65 and 64A of the Adjudication Regulations should be applied. On the assumption made at the start of this paragraph, the appeal tribunal should not have stopped on finding the apparent ground of review of error of law in consequence of Mallinson. It should have gone on to consider and determine, with the proper findings of fact and reasons, the contention on behalf of the claimant that there was a ground of review based on the need for continual supervision.

However, the second error of law relating to section 69 shows that the assumption set out at the beginning of paragraph 15 above is false. That is because the application for review on the basis of which the appeal tribunal made its decision was made before the House of Lords' decision in Mallinson. In my judgment, although the position is very far from straightforward, section 69(1) does not apply in such circumstances.

In the submission dated 19 January 1996 the adjudication officer, in response to the raising of the specific point in my direction, submitted that a case is not taken outside section 69(1)(b) by virtue of the fact that the application for review or a subsequent appeal to an appeal tribunal is made before the date of the relevant determination. She referred in support of that conclusion to the presence in section 69(1)(b) of the words "whenever made". However, I agree with Mr. Moore that those words throw no light on the particular point. In my view, all that those words do is to provide that a decision can be a relevant decision whether it was made before or after the passing of the Social Security Act 1990.

The stronger argument for the adjudication officer is that where, as in the present case, an adjudicating authority finds that the ground of review on error of law is made out because of a relevant determination and would otherwise revise the decision under review, the situation falls within the plain words of section 69(1)(b). The plain words apply whether an application for review is made before or after the relevant determination. The test, in DLA cases, is whether, in consequence of a relevant determination, an earlier decision falls to be revised on a review under section 30 of the Social Security Administration Act 1992 on the ground that the decision under review is erroneous in point of law. I think that there is some ambiguity about what has to follow in consequence of the relevant determination. And even apparently plain words in one part of a statute have to be construed in the context of the statute as a whole. So I must look wider.

I note first that a review under section 30 may only be carried out on an application in writing. The date of the application is crucial to whether the review falls under subsection (1) (an "any grounds" review) or subsection (2) (where a specified ground must be shown). And the ordinary limits on how far back a revised decision on review which would otherwise result in increased benefit can go operate from the date of the application for review (Social Security (Adjudication) Regulations 1986, regulation 65). As a matter of general principle it is accepted that the powers of review to be applied are those in force at the date of the application for review rather than at the date on which the adjudicating authority actually carries out the review.

The terms of section 68 of the Social Security Administration Act 1992 are also relevant. The predecessor of section 68 was introduced by the same provisions of the Social Security Act 1990 as introduced the predecessor of section 69. The two sections form a package. Section 68 applies to claims for benefit, rather than to reviews of previous adverse decisions. It is absolutely clear that it only applies where the claim is made after the date of a relevant determination. Then any question arising as to entitlement on the claim for a period before the date of the relevant determination is to be decided on the basis that the relevant determination had not found the adjudicating authority's decision to have been erroneous in law. Thus if a claim had been made before the date of the relevant determination and had not been decided, or had been decided and was under appeal to an appeal tribunal, section 68 does not apply. It does not matter that the decision is made after the date of the relevant determination and gives effect to it for some period before that date. If, as appears to be the case, one of the purposes of the package of sections 68 and 69 is to provide a common start date for giving effect to the results of decisions of the Courts and Commissioners in the cases of other claimants, consistency would demand that section 69 should only apply where the relevant request for review is made after the date of the relevant determination. In the present case, if the initial claim for DLA from 6 April 1992 had been completely unsuccessful, the raising of the question of entitlement to the care component on 22 March 1993 could have been taken as a new claim for DLA, as well as possibly an application for review of the initial adverse decision. The decision on the claim from 22 March 1993 onwards, whenever made, could give effect to Mallinson without any restriction being imposed by section 68. It would seem unfair if, because the claimant actually had an award of the care component of DLA at the lowest rate, so that the question raised on 22 March 1993 could only take effect as an application for review, effect could not be given to Mallinson until 21 April 1994.

I do not know of any authority which is directly relevant. In CIS/11/1991 the Commissioner considered the terms of regulation 72(2) of the Social Security (Adjudication) Regulations 1986 in an income support case. Regulation 69(1) limited backdating on a review to the twelve months preceding the date review was requested, or if there had been no request, the date of review. Regulation 72(1) allowed that limit to be lifted in certain circumstances. Regulation 72(2) provided that that was not to apply where the ground for review was "that the decision was erroneous in law by virtue of a determination" by a Commissioner or a Court. The claimant's request for review was refused by the adjudication officer, but before her appeal against that decision was heard by the appeal tribunal a Commissioner gave a decision as a result of which the law was in her favour. The Commissioner said in paragraph 6 of CIS/11/1991 that the appeal tribunal was deciding whether the adjudication officer should have found a ground of review and was entitled to use its knowledge of the law, including any new exposition of it, in doing so. But, he continued:

"the fact that a relevant Commissioner's decision has been given between the date of the request for the review and the date of the tribunal's decision does not in my view mean that 'the ground for review is that the determination was erroneous in point of law by virtue of a determination by [a] Commissioner and does not mean that regulation 72(2) applies. It could hardly have been intended that a claimant should be in a worse position than he was when he requested the review because a decision of a Commissioner which clarifies the law happens by chance to have been given between the date of the request and the date of the tribunal's decision ...

In my view the claimant is entitled to have the matter dealt with as at the date of his request for a review ... In my view regulation 72(2) applies to what I might call the test case situation where, following the decision of a Commissioner or higher authority, a claimant who has made no move before then comes forward and says the law has now been shown to be different from what it was previously thought to be, and he requests a review. That is what regulation 72(2) is aimed at."

The same Commissioner adopted that approach in a later decision, R(IS) 10/92, with the qualification that regulation 72 (2) applied where the request for review was made after the date of the relevant Commissioner's decision, but not because of knowledge of the new decision of the Commissioner or the Court. The fact that that decision was reported indicates a degree of support by Commissioners generally.

The general considerations mentioned by the Commissioner in CIS/11/1991 apply just as strongly to section 69 of the Social Security Administration Act 1992. Although section 69 formally operates not on the power to review, but on the legal basis on which a revised decision on review should be given, in substance it is concerned with the scope of the power to review. The wording is of course different, but the question is whether the words of section 69(1)(b) are clear enough to exclude the powerful arguments for restricting its application to the sort of case identified in paragraph 7 of CIS/11/1991. I think that they are not.

Finally, I mention briefly the House of Lords decision in Bate. It seems to me that Lord Slynn in his speech, with which all the other members of the House agreed, assumed that the sort of case falling within the predecessor of section 69 was one where a request for review is made following an interpretation of the law by a Commissioner or a Court. He did not need to deal with the specific problem with which I am concerned. Particular sentences could be cited from different parts of his speech which might be said to support either the position that section 69 applies whenever a review is carried out on the ground of error of law revealed by a relevant determination or the position that the aim of the legislation is to exclude applications for review made after the date of the relevant determination from having a retrospective effect before that date. To do so would not carry matters further forward. All that I take from the decision in Bate is a somewhat purposive approach to the legislation, avoiding being diverted by technical difficulties raised by the obscurity of the language.

For the reasons given above I conclude that section 69 of the Social Security Administration Act 1992 does not apply where the review and revision being carried out under section 30 (2) (d) is based on an application for review which was made before the date of the relevant determination in question. I am comforted to feel that that approach is in line with that adopted by the European Court of Justice when it applies a temporal limitation to the effect of one of its own decisions. When it does so, the Court will rule that the decision may not be relied on by others in relation to any period prior to the date of the decision, but always with the exception of those who have initiated legal proceedings or raised an equivalent claim before the date of the decision. It seems to me that in the present case the claimant had initiated the appropriate legal mechanism before the date of Mallinson and it is just that he should not be caught by the temporal limitation of section 69.

The decision on the appeal

For those reasons the appeal tribunal's decision must be set aside as erroneous in point of law. In the light of my conclusions of law I am able to substitute my decision for that of the appeal tribunal (Social Security Administration Act 1992, sections 23(7)(a)(i) and 34(4)). My decision is set out in paragraph 1 above. Of course any benefit already paid under the existing awards of care component must be offset against any benefit payable under my award.

The appeal tribunal found that the claimant had needed frequent attention in connection with the bodily function of walking for as long as he had needed guidance and supervision in order to take advantage of the faculty of walking outdoors, i.e. for at least three months prior to 6 April 1992. On those findings it is plain that the adjudication officer's decision dated 6 May 1992 restricting the award of the care component of DLA to the lowest rare falls to be reviewed under section 30(2)(d) of the Social Security Administration Act 1992. In the light of the House of Lords' decision in Mallinson v. Secretary of State for Social Security, the adjudication officer must have made the error of regarding the evidence about the guidance and supervision needed when walking outdoors as irrelevant to the question of whether there was a need for frequent attention throughout the day in connection with bodily functions. The revised decision on review, on the basis of the appeal tribunal's findings of fact, is to award the claimant the middle rate of care component of DLA from 6 April 1992 for life. Since the relevant application for review was made on 22 March 1993, before the date of the decision in Mallinson, section 69 of the Social Security Administration Act 1992 has no effect on the legal basis on which the revised decision is given. I am satisfied that the adjudication officer on 6 May 1992 misconstrued the provisions of section 37ZB(1)(b) of the Social Security Act 1975 (now section 72(1)(b) of the Social Security Contributions and Benefits Act 1992) and that if he had properly taken them into account a higher award of benefit would have been made. Thus in accordance with regulation 64A(1) and (3)(a) of the Social Security (Adjudication) Regulations 1986 the revised decision on review may take effect from 6 April 1992.

For the reason explained in paragraphs 6 to 8 above my decision is limited to the care component. So far as the mobility component is concerned, the position is that there is an outstanding application for second tier review made on 22 March 1993. The adjudication officer must now make a decision on that application. The claimant will then have a right of appeal to a disability appeal tribunal against the adjudication officer's decision if he is not satisfied with the result.

Date: 27 June 1996 (signed) Mr. J. Mesher

Commissioner

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

DECISION OF THE COURT OF APPEAL

Mr. J. R. McManus (instructed by Mr. J. Heath of the Office of the Solicitor of the Department of Social Security, London WC2) appeared on behalf of the Appellants.

Miss L. Findlay (instructed by the Child Poverty Action Group, London EC1) appeared on behalf of the Respondent.

LORD JUSTICE EVANS: The rules of precedent play an important part in the administration of our social security legislation. Decisions made by special adjudicators and appeal tribunals involve questions of law as well as fact. Properly and understandably, when a question of law arises which has already been ruled upon in an earlier case, they are pre-disposed to apply the same view of the law, in the interests of uniformity and fairness as between applicants. They are not bound to do so, but if a case goes to appeal before a Commissioner, which it can only do on a question of law, then the Commissioner's ruling, even if not strictly binding, will be acted upon in future cases.

A very few cases proceed by way of appeal to the Court of Appeal, and sometimes thence to the House of Lords. The Court's ruling establishes what the law is, meaning in most cases the correct interpretation of a statute or statutory instrument, and in principle the law as so stated must thereafter be applied at all levels.

The common law and our legal system generally subscribe to the fiction that the Court declares what the law has always been. Its ruling does not change the law, even when it is the opposite of what was previously supposed to be the correct view. It follows from this that the previous contrary view was erroneously held, and any decisions based upon it were wrong as a matter of law.

This gives rise to a practical problem. Previous decisions which are thus shown to have been wrong in law ought in theory not to stand. Therefore a large number of appeals or requests for review might be sought to be made in respect of decisions which were accepted as having been correctly decided at the time. There is nothing inherently unjust, in my view, in a statutory provision which declares that what I shall call the new view of the law shall not have retrospective effect. Such a provision is found in section 69 of the Social Security Administration Act 1992, the meaning and effect of which is the issue raised by this appeal (I shall refer to it simply as "section 69") .

The appeal lies from a decision of the social security Commissioner, Mr. J. Mesher, in case No. D/11/061/94/0074 dated 27 June 1996. He allowed an appeal from a decision of the Huddersfield disability appeal tribunal dated 26 May 1994. He held that the claimant (who is the respondent to this appeal) is entitled to recover the care component of disability living allowance at the middle rate from 6 April 1992, when his application was first made. The statutory meaning of those terms is found in section 72 of the Social Security Contributions and Benefits Act 1992.

The appeal tribunal had held that the claimant's entitlement to the middle rate began only on 21 April 1994. They felt themselves constrained by section 69 to hold that for the period before 21 April 1994 he was limited to the lower rate which was awarded to him by the adjudication officer on 6 May 1992. The significance of 21 April 1994 was that it was the date of the House of Lords' judgment in Mallinson v. Secretary of State for Social Security [1994] 1 WLR 630 [also reported as R(A) 3/94]. That judgment was favourable to the claimant because it enabled him to claim the care component at the middle rate based on the need for "frequent attention in connection with bodily functions" (those words are found here in section 72(1)(b)(i) of the Social Security Contributions and Benefits Act 1992), whereas previously it was thought, and the Court of Appeal in that case had held, that the need for assistance required while walking out of doors was not within the statutory definition.

Here the appeal tribunal found that the claimant was disabled in that respect. It follows from that finding, unless section 69 applies, that he is entitled to recover the middle rate for life from the date when the allowance began, viz 6 April 1992 (see regulation 64A and 64B of the Social Security (Adjudication) Regulations 1986, now regulation 58 of the 1995 Regulations).

The contention for the appellant is that section 69(2) requires the courts, as it required the Commissioner, to apply the law as it was said to be, by a delegated medical practitioner on behalf of the Attendance Allowance Board, in Mallinson's case, notwithstanding that that view of the law was held to be wrong by the House of Lords.

Sections 68(1) and (2) and 69(1) and (2) provide as follows:

"68 - (1) This section applies where-

(a) on the determination, whenever made, of a Commissioner or the court (the 'relevant determination'), a decision made by an adjudicating authority is or was found to have been erroneous in point of law; and

(b) after both-

(i) 13th July 1990 (the date of the coming into force of section 165D of the 1975 Act, the provision of that Act corresponding to this section); and

(ii) the date of the relevant determination,

a claim which falls, or which would apart from this section fall, to be decided in accordance with the relevant determination is made or treated under section 7(1) above as made by any person for any benefit.

(2) Where this section applies, any question which arises on, or on the review of a decision which is referable to, the claim mentioned in subsection (1)(b) above and which relates to the entitlement of the claimant or any other person to any benefit-

(a) in respect of a period before the relevant date; or

(b) in the case of a widow's payment, in respect of a death occurring before that date,

shall be determined as if the decision referred to in subsection (1)(a) above had been found by the Commissioner or court in question not to have been erroneous in point of law.

69 - (1) Subsection (2) below applies in any case where-

(a) on the determination, whenever made, of a Commissioner or the court (the 'relevant determination'), a decision made by an adjudicating authority is or was found to have been erroneous in point of law; and

(b) in consequence of that determination, any other decision-

(i) which was made before the date of that determination; and

(ii) which is referable to a claim made or treated as made by any person for any benefit,

falls (or would, apart from subsection (2) below, fall) to be revised on a review carried out under section 25(2) above on or after 13th July 1990 (the date of the passing of the Social Security Act 1990, which added to the 1975 Act sections 104(7) to (10), corresponding to this section) or on a review under section 30 above on the ground that the decision under review was erroneous in point of law.

(2) Where this subsection applies, any question arising on the review referred to in subsection (1)(b) above, or on any subsequent review of a decision which is referable to the same claim, as to any person's entitlement to, or right to payment of, any benefit-

(a) in respect of any period before the date of the relevant determination; or

(b) in the case of widow's payment, in respect of a death occurring before that date,

shall be determined as if the decision referred to in subsection (1)(a) above had been found by the Commissioner or court in question not to have been erroneous in point of law."

Those sections were formally section 104, subsections (7) and (8), of the Social Security Act 1975, as amended in 1990.

The issue raised by the present appeal is this. The appellants rely on a strictly literal construction of section 69(1) and (2). The relevant determination, they say, was Mallinson, the House of Lords' decision on 21 April 1994. The previous decision of the adjudicating authority in Mallinson was then held to be erroneous in law. If section 69(2) applies, then "any question ... as to ... entitlement ... in respect of any period before [21 April 1994] ..." has to be determined as if the adjudicating authority in Mallinson was correct i.e. disregarding the House of Lords' decision. They submit that section 69(2) does apply because the requirements of section 69(1) are satisfied. This is, they say, a case where "in consequence of" the Mallinson decision the decision of the adjudicating officer in this case "falls ... to be revised on a review ... on the ground that ...".

The contrary argument for the respondent which the Commissioner held was correct is that section 69(1) does not apply in the present case, essentially because the application for a review was pending when Mallinson was decided by the House of Lords. The review, they say, did not come about "in consequence of" that judgment. The intention of section 69, they submit, is to prevent fresh applications for review after judgment has been given in another case in favour of claimants in respect of any period before the judgment is given. They point to section 68, where it is clear from the wording that pending claims are not affected by the section. Those claims, therefore, are governed by the law as it has been declared to be.

For the appellants, Mr. McManus responds that the wording of section 68(1) is clear and different from section 69(1). This points, he submits, to a distinction in meaning which Parliament intended. He submits, therefore, that the combined effect of the two sections is as follows. A pending claim is unaffected and therefore is governed by the law as it has been declared to be. A pending application for review on the other hand, like a fresh application for a review, is governed by the law as it was erroneously thought to be. When asked why there should be this difference in the treatment of pending claims and pending applications for review, Mr. McManus was not able to suggest any reason. He also relies upon the wording of section 69(1), in particular the reference to "in any case" and in subsection (1)(a) the words "whenever made", as indicating that there is no such temporal limitation as that for which the respondent contends.

The Commissioner dealt with this issue in paragraph 16 and following of his decision. In paragraph 16 he said:

"However, the second error of law relating to section 69 shows that the assumption set out at the beginning of paragraph 15 above is false. That is because the application for review on the basis of which the appeal tribunal made its decision was made before the House of Lords' decision in Mallinson. In my judgment, although the position is very far from straightforward, section 69(1) does not apply in such circumstances."

In paragraph 17 he referred to the submission based upon the use of the words "whenever made". He continued in paragraph 18 as follows:

"The stronger argument for the adjudication officer is that where, as in the present case, an adjudicating authority finds that the ground of review on error of law is made out because of a relevant determination and would otherwise revise the decision under review, the situation falls within the plain words of section 69(1)(b). The plain words apply whether an application for review is made before or after the relevant determination. The test, in DLA cases, is whether, in consequence of a relevant determination, an earlier decision falls to be revised on a review under section 30 of the Social Security Administration Act 1992 on the ground that the decision under review is erroneous in point of law. I think that there is some ambiguity about what has to follow in consequence of the relevant determination. And even apparently plain words in one part of a statute have to be construed in the context of the statute as a whole. So I must look wider."

In paragraph 20 he drew the comparison with section 68 for which the respondent contends.

Then he expressed his conclusion in paragraph 24:

"For the reasons given above I conclude that section 69 of the Social Security Administration Act 1992 does not apply where the review and revision being carried out under section 30(2)(d) is based on an application for review which was made before the date of the relevant determination in question. I am comforted to feel that that approach is in line with that adopted by the European Court of Justice when it applies a temporal limitation to the effect of one of its own decisions. When it does so, the court will rule that the decision may not be relied on by others in relation to any period prior to the date of the decision, but always with the exception of those who have initiated legal proceedings or raised an equivalent claim before the date of the decision. It seems to me that in the present case the claimant had initiated the appropriate legal mechanism before the date of Mallinson and it is just that he should not be caught by the temporal limitation of section 69."

In view of his reference in paragraph 24 to the approach of the European Court of Justice in other cases, I should say that it has not been submitted to us that any relevant guidance is to be drawn from any decisions of that Court in the present case.

I should now summarise the relevant review and appeals procedure. This is to be found in various provisions of the Social Security Administration Act 1992. Section 20 requires claims for, inter alia, disability living allowance to be submitted to an adjudication officer. Section 30 permits a review of the adjudication officer's decision and the review may take place under either of two heads. Subsection (1) applies if the application is made "within the prescribed period" (that is a period of three months). In such a case the decision may be reviewed "on any ground". Subsection (2) applies if the application is made outside that period. Then the review may only take place on one of a number of grounds specified in subsection (2)(a) to (e). The relevant ground is subsection (2)(d):

"the decision was erroneous in point of law".

For the sake of comparison, I will also refer to subsection (2)(b):

"there has been any relevant change of circumstances since the decision was given".

There is a provision for a further review in section 31(1). Section 33(1) gives a right of appeal to a tribunal:

"Where an adjudication officer has given a decision on a review under section 30(1) above, the claimant or such other person as may be prescribed may appeal-

(a) in prescribed cases, to a disability appeal tribunal ..."

The appeal to a disability appeal tribunal is concerned with questions both of fact and law. Section 34(1) provides a right of appeal to a Commissioner in the following terms:

"Subject to the provisions of this section, an appeal lies to a Commissioner from any decision of a social security appeal tribunal or disability appeal tribunal under section 33 above on the ground that the decision of the tribunal was erroneous in point of law."

Conclusion

In my judgment, the Commissioner's approach and his conclusion were both correct. The scheme of section 69 is clear. It presupposes a ruling by a Commissioner or the court (a "judicial body") which has reversed the decision of an adjudicating authority on a question of law. When section 69(2) applies, if the same question of law arises thereafter on a review in respect of any period before the judicial body's ruling, then the law has to be applied as if the decision which was reversed had been upheld. In respect of that period, the old law rather than the new law continues to apply. The issue raised by this appeal is whether an application for review which was made before the judicial body's ruling, and which therefore was pending at the time of that ruling, has to be determined in accordance with the ruling or whether section 69(2) applies and the application has to be determined in accordance with the old law.

Referring to the old law and the new law is admittedly a solecism. The need for sections 68 and 69 only arises because the Commissioner or the court's ruling is taken to have declared the law as it is and always has been. The way in which the sections are drafted betrays their origin in the common law principles to which I have referred. The draftsman clearly thought that it was not open to him or even to Parliament simply to provide that the ruling should take effect from the date when it was made, or, alternatively, that it should not be regarded as having any retrospective effect.

Instead, there is the labyrinthine formula which is found in sections 68 and 69. The ruling is taken to represent the correct view of the law, but in certain circumstances the erroneous decision which it reversed is to be regarded as having been upheld. This could mean that a decision which was manifestly wrong in law, and which would undoubtedly have been corrected on appeal, is retrospectively validated by section 69(2) if another appeal which raises the same issue in law happens to be heard and ruled on first. Other strange consequences could follow, but it is unnecessary to explore them here. For example, if the judicial body upholds the adjudicating authority's decision in a particular case, but there were other cases where a different decision had been reached, then it seems that the claimants in those other cases would not be barred from taking advantage of the ruling if it was in their favour.

A deeming provision such as section 69(2), which provides what the law shall be in certain specified circumstances, is relatively innocuous, because it is no more than a legislative technique. It does not embark on the potentially dangerous course, from the constitutional point of view, of deeming as a matter of law that the facts of a case are otherwise than they are. Nevertheless, in my judgment, a statutory deeming provision should be strictly construed, because it requires matters, even matters of law, to be regarded differently from what they are.

It is likely, in my judgment, that if section 69 stood alone the words "in consequence of that determination" in subsection (1)(b) would properly be interpreted as referring to an application made in the light of the determination and therefore after it was published. The appellants contend that the subsection refers not to the application but to the review which takes place as a result of the application after it was made. Mr. McManus stresses the phrase "falls ... to be revised on a review". This indicates, he submits, that the relevant time when the section takes effect is the moment of revision rather than when the application is made.

This argument is probably outweighed, in my judgment, by two more general considerations. First, the whole of the relevant phrase is "in consequence of that determination [a decision] falls ... to be revised on a review", and it seems to me that these words, even on a literal construction, can be said to apply only when the review is part of a process which began with an application made "in consequence of" and therefore after the relevant ruling by a judicial body. Secondly, without section 69(2) the review would certainly be governed by the law as declared by the judicial body. For the reasons given above, a statutory provision which requires a different and, by definition, erroneous view of the law to be applied, in my view, should be strictly and narrowly construed.

There is support for adopting a practical and purposive approach to the construction of section 69, as it now is, in the House of Lords' decision in Bate v. Chief Adjudication Officer [1996] 1 WLR 814 [also reported as R(IS) 12/96].

The matter is made clear beyond doubt, in my judgment, by the reference which is legitimately made to section 68. The two sections correspond to provisions which were introduced at the same time in the 1990 legislation. They appear under the same title which, interestingly if not relevantly, is "Restrictions on entitlement to benefit following erroneous decisions". Section 68 applies when a claim for benefit is made after the relevant determination by a judicial body (subsection (1)). In other words, it does not apply to pending claims. I have been unable to think of any reason why Parliament should have intended to treat pending applications for review differently from pending claims. Counsel is unable to suggest any reason why section 69 in this respect should impose a wider restriction than does section 68. Moreover, there is a clear practical justification for the restriction imposed by section 68 on fresh claims.

Clearly, the need was foreseen to prevent fresh claims in respect of an earlier period which might be made after a favourable ruling by a judicial body in some other case. As Miss Findlay put it, this was against claimants who might seek to jump on the bandwagon. But it would be unjust to deny existing claimants their right to have their claims decided in accordance with a correct view of the law. Similarly, in my judgment, in the case of applications for review. Reviews which can be said to become necessary "in consequence of" the ruling and which are in respect of any period before the ruling should also be deterred. But if the review has already been applied for, then the applicant has asserted his right to have his entitlement to benefit decided on a correct view of the law, and the review takes place for that reason, rather than "in consequence of" the subsequent ruling which shows that he was correct.

For these reasons I would hold that the Commissioner was correct to hold that the Mallinson judgment governs the respondent's entitlement to benefit even in respect of the period before the date of that judgment, 21 April 1994.

A second ground of appeal was raised which does not arise if the Commissioner's decision is upheld. He gave a second reason why the appeal tribunal was wrong to limit the claim ("in respect of the period before 21 April 1994") by reference to section 69. This was the fact that the claimant was or may have been entitled to succeed even if the "old" pre-Mallinson interpretation of the regulations continued to apply. It was contended on behalf of the claimant that he is entitled to recover care component at the middle rate by virtue of the fact that he needs "constant supervision" as distinct from "frequent attention" with which Mallinson was concerned.

The appeal tribunal made no finding on this issue and it was unnecessary for the Commissioner to do so or to consider whether the case should be remitted to them for a finding to be made. If this appeal is dismissed, similarly it will be unnecessary for us to consider it further.

I would dismiss the appeal.

LORD JUSTICE HOBHOUSE: The question in this case arises from the remarkably tortuous and complex drafting of the Social Security Administration Act 1992. The drafting of this Act has produced a web of provisions of such opaqueness as to be impenetrable save after the expenditure of much time and thought. That it gives rise to disputes or misunderstandings, which could easily have been avoided had a different style of drafting been adopted, is scarcely surprising, but nonetheless to be deplored, particularly in view of the fact that this is a piece of social legislation which one would have hoped would have been drafted in terms which made it readily accessible to those likely to be affected by it.

Having studied the relevant statutory provisions with such understanding as I can muster, I have, with diffidence, concluded that this appeal should be allowed. My diffidence arises from the fact that I am differing not only from the opinions of the other members of this court, but also from that of the Commissioner, Mr. Mesher, who is a person with daily working knowledge of this legislation.

The application of the law to this case is not assisted by the "muddle" and "procedural complexity" which has attended it. I quote from the views expressed by the Commissioner. It has, however, now been accepted that the original adjudication by an adjudicating officer was in May 1992 and the relevant review application was made on 22 March 1993 under section 30(2) of the Act. Revision was refused by an adjudicating officer on 24 August 1993. It is to be presumed that there was a further invocation of section 30(1) which preceded the appeal to the disability appeal tribunal.

On 21 April 1994, before the disability appeal tribunal had given its decision, the House of Lords decided Mallinson v. Secretary of State for Social Security [1994] 1 WLR 630 [also reported as R(A) 3/94]. The speeches of the majority in that case showed that there had been an error of law, previously unsuspected by the applicant or anyone considering his case, in the assessment of his rights to the care component of his disability living allowance. The error had been shared by the original adjudicating officer in May 1992 and the reviewing adjudicating officer in 1993.

What was the disability appeal tribunal obliged to do about this error of law? Should it adjust his rights as from 22 April 1994, which it is agreed is the effect of regulation 64B of the Social Security Adjudication Regulations 1986 if section 69 applies, or as from 6 April 1992, which it is agreed is the effect of regulation 64A if section 69 does not apply?

The question has been stated in the skeleton argument of Miss Findlay, who appeared for the respondent on this appeal, in these terms:

"The main issue in this case is as to whether section 69 of the Social Security Administration Act 1992 applies when a claimant has already requested a review before the relevant 'test case' clarifies the law, or whether it only applies to requests for review made after the 'test case' result becomes known."

Before I come to the section itself, it is necessary to consider the scheme of the legislation. What is provided for are two tiers of decision making processes. The first tier is that which involves what is called the adjudicating authority, as defined in section 68(4). That, in the present context, means an adjudicating officer or the disability appeal tribunal. Their conclusions are described as "decisions". The second tier consists of the Commissioner or a court. Their conclusions are described as "determinations".

The scheme of the Act is that it is originally invoked by a disabled person making a claim to a disability living allowance. Having made such a claim, that claim is the subject of a decision by an adjudicating officer under sections 20 and 21 of the Act. That is the original decision of the adjudicating officer. Such a decision is subject to review under section 30(1), a late review under section 30(2) or subsequent reviews under section 31. The further reviews can, of course, take into account and treat as their subject matter the consequences of earlier reviews at any level.

By a quirk of the drafting it is necessary that any review under section 30(2) or section 31 apparently then has to be succeeded by another review under section 30(1) before there can be an appeal under section 35. The reviews can take account of any of a number of stated factors, including changes of circumstance, errors of fact or of law and, subject to the legislation, can lead to the revision of the award made as part of the original decision of the adjudicating officer. The reviews under section 30(2) and section 31 can take place at any time. That under section 30(1) is subject to a time limit.

The legislative scheme is clearly one which is designed to benefit those who are entitled to receipt of allowances and to keep the allowances to which they are entitled up to date. The principle of finality involved in what would otherwise be decisions of entitlement is impeached in this respect. The decision can, in effect, be reopened on review at later stages and in stated circumstances.

This aspect of the legislation was considered by the House of Lords in Bate v. Chief Adjudication Officer [1996] AC 814 [also reported as R(IS) 12/96], which it is interesting to note was a decision which was given on 16 May 1996, again during the period of time with which we are concerned. It involved an important clarification of the law and in particular a statement of the intention of the provisions with which we are concerned.

At p. 820 Lord Slynn said:

"The provisions allowing for decisions to be reopened on review (which go back in one form or another to the Supplementary Benefit (General) Regulations 1966 ...) are in a sense a concession since, contrary to the practice in the courts, they allow cases closed by, for example, the decision of an adjudication officer to be reopened before an adjudication officer or, on a reference by him, by a social security appeal tribunal. It is, therefore, perhaps not surprising that some limit was introduced in the regulations to the retrospective effect of subsequent decisions on the law."

At p. 821 he said:

"The intention, in my view, was that that deemed decision in the earlier case is to be treated as correct at all stages of the process and that claims for benefit arising prior to the subsequent determination should be excluded. If that means adopting in case A a fiction that the decision in case B was to the opposite effect, then that on the wording of the statute must be accepted. I am satisfied that this was what was intended; if such a result is 'unacceptable in its effect' it is for Parliament to change it."

On the same page of his speech he stressed that he was not drawing any distinction between reviews and appeals from a refusal to revise: all form part of the same review procedure.

With this guidance, I turn to consider the wording of section 69. Subsection (1)(a) identifies the other determination, in this case the Mallinson case, which resulted in the statement of the law which gives rise to the problem. The subsection is drafted in a way that requires an assumption in relation to the decision of the adjudicating officer, not of the relevant determining body. It identifies what is called the "relevant determination" and that is the determination which is dated 21 April 1994. Subsection (1)(b) identifies and relates to the decision in the instant case. Those are the words "any other decision". The other decision is that of the adjudicating officer in 1992 with which we are concerned. That must have been made before 21 April 1994 ("which was made before the date of that determination"), and in the present case any question of date gives rise to no problem because all the decisions, using that term strictly, prior to that of the disability appeal tribunal were before 21 April 1994.

Then one comes to the critical words:

"... in consequence of that determination, [the] other decision ... falls ... to be revised on a review carried out ... under section 30 ... on the ground that the decision under review was erroneous in point of law."

In the present case it can be said that in consequence of the Mallinson determination the decisions to which I have referred would fall to be revised on a review under section 30 on the ground that the decision of the adjudicating officer was erroneous in point of law.

The present situation fits precisely and accurately the situation that is described in the section. If it were not for the Mallinson case, the disability appeal tribunal would not have been faced with any allegation that there had been an error of law in any of the decisions of the adjudicating officers in this case. If it was not for section 69, they would, having been informed of the Mallinson determination, have concluded that there were such errors of law and would have revised the decision of the adjudicating officer so as to increase the award of the care component in line with the law as stated in Mallinson. It is only because section 69 applies that they would be precluded from so doing. So it is a decision which in consequence of the Mallinson determination falls to be revised on a review under section 30. The word "revised" is included in the drafting and, in my judgment, must be given effect to. The arguments to the contrary overlook that feature of the drafting.

There are no words in this section which limit its effect to review proceedings which are started after the date of the relevant determination. The wording is comprehensive and, indeed, the only time factor that is included is that the decision was made before the date of the determination, and the only causative factor is that the error of law must be one which would cause the original decision to be revised.

In my judgment the wording of the section is clearly in favour of the appellants on the present appeal. Therefore, it follows that 69(2) takes effect on any review or any subsequent review, and it is necessary then that the adjustment that takes place to the original decision (that is to say, the revision) works forward from the date of the relevant determination, as required by subsection (2) of that section.

The contrary argument derives support, it is said, from section 68. This is clearly the primary matter which influenced the Commissioner, and it has clearly weighed with my Lord, Lord Justice Evans. This is the argument which treats sections 68 and 69 as part of a "single package" to deal with test cases. The point was succinctly stated, together with what he considered to be the persuasive effect, in paragraph 20 of the reasons of the Commissioner:

"The two sections form a package. Section 68 applies to claims for benefit, rather than to reviews of previous adverse decisions. It is absolutely clear that it only applies where the claim is made after the date of a relevant determination. Then any question arising as to entitlement on the claim for a period before the date of the relevant determination is to be decided on the basis that the relevant determination had not found the adjudicating authority's decision to have been erroneous in law. Thus if a claim had been made before the date of the relevant determination and had not been decided, or had been decided and was under appeal to an appeal tribunal, section 68 does not apply. It does not matter that the decision is made after the date of the relevant determination and gives effect to it for some period before that date. If, as appears to be the case, one of the purposes of the package of sections 68 and 69 is to provide a common start date for giving effect to the results of decisions of the courts and Commissioners in the cases of other claimants, consistency would demand that section 69 should only apply where the relevant request for review is made after the date of the relevant determination."

This gives the conclusion that, because a claim to come within section 68(1)(b) must be made after the date of the relevant determination, a similar conclusion must be arrived at under section 69 mutatis mutandis. In my judgment, this is an insufficient argument to displace what I consider to be the clear meaning of section 69. The analogy between the situation under section 68 and section 69 is a weak one. The argument overstates it to say they are part of a single package. They are parallel provisions, but they are in no way, in my judgment, part of a single package.

Section 68 is dealing with a limited situation (which I suspect has been overstated by the Commissioner) of the period between the time when a claim to an allowance is made and the time when the adjudicating officer gives his decision and before any review procedure is put in place. In that relatively short window of time there is no need to apply anything other than the ordinary rule that the decision making body must take into account all statements of the law which have been made down to the date of the decision. So the original decision of the adjudicating officer, provided the claim was made before the relevant determination was made, would then have to take into account the relevant determination. I do not dwell upon the slightly more complex drafting of section 68(1) and the reference to "relevant date" as opposed to "relevant determination". Nothing turns upon that difference of drafting. Putting it at its highest, it can be said that there is no cohesive logic between the approach to section 68 and section 69. They do, at least to some extent, use different criteria.

In my judgment this argument is unpersuasive. In legislation of this kind pragmatic provisions have to be made to produce practically effective legislative results which will have, it is hoped, a reasonable simplicity of implementation and application. To detect what is considered to be a logical discrepancy between one provision and another, whilst not irrelevant, is not a decisive factor in construing legislation of this kind, and it is clearly not a decisive consideration when in truth there is no logical discrepancy at all, but merely a marginal difference of approach which is easily explicable on practical grounds.

Therefore, my conclusion is that that argument is inadequate to override the conclusion which I have arrived at on section 69. I repeat that if it had been intended that section 69 should have the effect for which the respondent contends, then the legislation could have said so. In my judgment, it used language which is clearly in favour of the appellants' argument and which leads to the conclusion that their argument is correct.

In my judgment, therefore, the appeal should be allowed.

The other point to which my Lord shortly referred, which was essentially a question of fact, was agreed by Counsel not to arise on this appeal in any event, regardless of how the main point was decided.

LORD JUSTICE PILL: The point of construction, the issue in this appeal, is to be considered against the background and in the context described by Lord Justice Evans. Both section 68 and section 69 of the Social Security Administration Act 1992 are provisions which restrict entitlement to benefit when decisions made by adjudicating authorities are subsequently found, upon a judicial determination, to have been erroneous in point of law.

Section 20 of the Act makes provision for claims for benefit for disability living allowance to be made to an adjudicating officer, and his duty to make a decision is set out in section 21. Sections 30 and 31 make provision for the review of the decisions of adjudicating authorities. A decision can be re-opened by review upon a number of specified grounds. There is also provision in the Act for appeals following such reviews.

It is common ground that section 68 of the Act deals with the effect of erroneous decisions upon claims and applies only to claims made after the judicial determination; that is, the decision of the Commissioner or the court which has rendered the decision of the adjudicating authority erroneous in point of law. Section 69 deals not with claims but with reviews. The issue is as to whether it applies only to applications for review made after the judicial determination or also to reviews initiated before that determination and pending at the date of the determination.

Mr. McManus, for the appellants, relies on the difference in wording between the two sections, only section 68 expressly referring to an act performed (that is, a claim made) "after" the date of the determination. The format of the two sections is, however, quite different. Subsections (1)(a) adopt the same terminology, but whereas section 68(1) goes on to identify the scope of the operation of the section by reference to the time of the claim, section 69(1) does so by reference to whether the erroneous decision falls to be revised upon review in consequence of the judicial determination. It is silent as to time.

Applied to the present facts, it defines the case as one where:

"The House of Lords held in 1994 that a decision of the adjudicating officer in 1992 was erroneous in point of law and in consequence of the House of Lords' decision the adjudicating officer's decision falls to be revised on review."

The 1992 date and decision are not in dispute.

That terminology appears to me to contemplate only reviews initiated, whether by an applicant or by the adjudicating officer himself, after the House of Lords' decision. The relevant act, the application, is fixed not expressly by reference to a time but to something falling to be revised in consequence of an event. The revision upon review falls to be made in consequence of the judicial determination, which I understand to mean "as a result of and following" such determination.

It appears to me to be appropriate language to cover only reviews initiated after that event. I find no support for the appellants' case in the presence of the expression "whenever made" after "determination" in section 69(1). It does not bear upon the present issue and is readily explained by the recent coming into effect of statutory provisions. The presence of "any" before "case" rather than "a" does not help either. The difference is immaterial.

Mr. McManus seeks to rely on the use of the expression "revised on a review" in section 69(1) rather than the mere use of the word "reviewed", but the expression used is apt to describe the sequence of events which will occur. It is apt because, if a review occurs, revision is inevitable. It is required in consequence of a judicial determination and is to be achieved by way of a review. I find the language of the section as a whole apt to apply to, and only to, reviews initiated after the judicial determination. The wording of section 69 does not require the word "after" to achieve that result.

In the absence of any suggested justification for treating applicants for benefit differently from applicants for review, I am glad to have been able to reach that conclusion. In the absence of a good reason for doing otherwise, and where possible, the scheme should be read as imposing no greater restriction on one category of applicant than upon the other. The result also avoids unfairness as between the applicant for review whose case is taken for judicial determination and other applicants for review who wait upon the result, either by choice or direction. We were told that objection to Mr. Mallinson receiving arrears of benefit has been withdrawn.

I agree with Lord Justice Evans that the appeal should be dismissed.

Order: appeal dismissed with costs; leave to appeal to the House of Lords refused.