UK Social Security and Child Support Commissioners' Decisions

R(DLA) 4/99
(R v. Social Security Commissioner & Anor., ex parte Snares)

Mr. J. Mesher CDLA/913/1994
26.7.96

QBD (Popplewell J)

21.3.97

Commissioner's jurisdiction – whether Commissioner able to grant interim relief pending reference to the European Court of Justice

The Commissioner had referred questions to the European Court of Justice on whether disability living allowance was still payable after the claimant had moved permanently to another European Union Member State. [See R(DLA) 5/99].

The claimant applied for interim payments pending the reference.

The Commissioner held, refusing the application, that he did not have power to order the making of interim payments of benefit and that he did not have to decide whether he had the power to make an interim or provisional award of benefit. As a matter of discretion he would not have made an interim award. Applying Factortame (No. 2) an important factor was that the claimant's case on the referred issue was "arguable" rather than "strongly arguable." This plus the fact that a significant number of other disability living allowance claimants would probably also be entitled to interim relief, outweighed the potential harm to the claimant of being denied an award pending the European Court of Justice's decision.

The claimant applied for the decision to be judicially reviewed.

Held, refusing the application for judicial review, that:

the question of the jurisdiction to make an interim award of benefit would be appropriate to refer to the European Court of Justice, but timing would render this fruitless for the application in hand;

the Commissioner could not be faulted in the way he had exercised any discretion.

____________________________________________________________________

APPLICATION FOR INTERIM RELIEF - RULING OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for interim relief in a case in which I have earlier referred preliminary questions to the European Court of Justice. I refuse the application.
2. The claimant was awarded disability living allowance (DLA) from 1 September 1993 for life. On 12 November 1993 he left this country to live in Spain. Payment of benefit was suspended and on 10 February 1994 an adjudication officer decided that the decision awarding DLA fell to be reviewed and that from 13 November 1993 the claimant was not entitled to DLA. That result followed from the terms of regulation 2(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 (the DLA Regulations). The adjudication officer also considered that the claimant could not be assisted by Council Regulation (EEC) 1408/71, as amended with effect from 1 June 1992 by Council Regulation (EEC) 1247/92. That was on the ground that DLA is a "special non-contributory benefit", which is not exportable under Article 10. Since the claimant became entitled to DLA after 1 June 1992 he was not assisted by Article 2 of Regulation 1247/92.
3. The adjudication officer's decision was upheld by a social security appeal tribunal. The claimant appealed to the Social Security Commissioner. Following an oral hearing on 26 September 1995 I stayed the proceedings in order to refer questions for a preliminary ruling from the European Court of Justice. I took the view that in order to decide the appeal before me it was necessary to determine the proper interpretation of the amendments introduced into Regulation 1408/71 by Regulation 1247/92 and that, on one possible interpretation, a further question would arise as to the validity of the amendments in the light of Article 51 of the Treaty of Rome. After considering detailed representations from the parties about the formulation of the questions, I made the reference on 15 January 1996.
4. On 6 October 1995 the claimant's solicitor wrote a letter to the Office of the Solicitor to the Department of Social Security including this request:

"In the meantime, would you please ask the Secretary of State to consider making interim payments pending the reference. You will, of course, be aware of Factortame. It appears to me that the balance of convenience is clearly in favour of making interim payments in this case. Non-payment of the two components of DLA is, I understand, causing [the claimant] considerable difficulty. He gets no cash benefits from the Spanish authorities. His mother recently had to buy him a wheelchair costing £2,400. As you know, he is completely unable to work and, his ICB apart, is dependent for his daily living and accommodation expenses, and some medical expenses, on his family which in effect means his mother and stepfather, his father having died in 1966). Some of his medical supplies his mother has to get from this country.

Clearly, his requirement for assistance with his care and mobility needs is immediate and ongoing, and he would not be adequately compensated by payment of arrears in the event of his appeal ultimately succeeding."

5. In a letter dated 26 January 1996 an officer of the Benefits Agency informed the claimant's solicitor that the Secretary of State had decided that interim payments should not be made. The letter included the following paragraph:

"Under the legislation that governs DLA [the claimant] is not entitled to receive benefit whilst living abroad. Granting payments would indicate a tacit agreement that [the claimant] may have entitlement and as previously stated this is not the case. This situation is inextricably linked to the question of granting payments on hardship grounds, as such hardship alone is not sufficient to make an award of interim payments."

6. In a letter dated 21 March 1996 the claimant's solicitor made the application to the Commissioner, with a detailed written submission in support. Since, as far as I am aware, no such application has ever been made before, and because of the importance of the issues involved, an oral hearing was directed. The hearing took place on 24 June 1996. I had the benefit of submissions from Ms. Helen Mountfield of counsel on behalf of the claimant and from Mr. Nicholas Paines of counsel on behalf of the adjudication officer and the Secretary of State. Mr. Paines had very helpfully produced a written outline submission and Ms. Mountfield a written outline submission in reply (she had drafted the written submission of 21 March 1996). I am grateful to both representatives for their detailed examination of difficult and novel questions of law.
7. There is some uncertainty about the precise nature of the relief claimed, which in my view goes to the heart of the proper legal approach. Paragraph 3.1 of the submission dated 21 March 1996 is as follows:

"In my submission, the Commissioner has jurisdiction to grant interim relief pending the resolution of the appeal. This jurisdiction is derived from section 2 European Communities Act 1972. Just as that section gives the Commissioner power indefinitely to disapply domestic law in favour of directly effective European provisions (in relation to a particular claimant), so it gives him power to disapply them as an interim measure and hence to order payment of DLA pending the outcome of the reference to the ECJ, in application of the principle of co-operation set out in Article 5 of the Treaty of Rome."

However, paragraph 5, headed "The form of interim relief", is as follows:

"I request the Commissioner to disapply the residence provisions in reg. 2 of the Social Security (Disability Living Allowance) Regulations 1991 and to direct that [the claimant] is entitled to continue to receive his DLA in Tenerife pending the outcome of the Article 177 reference as he would be if he were ordinarily resident in Great Britain."

Thus the request is that I should order that payments of benefit are actually made to the claimant on an interim basis, but it is said that I can do that by disapplying regulation 2(1), which relates to the entitlement to benefit.

8. There was no real dispute between Ms. Mountfield and Mr. Paines that the Community law principles to be applied are summed up in paragraphs 20 to 23 of the judgment of the ECJ in R v Factortame Ltd, ex parte Secretary of State for Transport (No. 2) [1991] 1 AC 603:

"20. The Court of Justice has also held that any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with those requirements, which are the very essence of Community law: see the judgment in the Simmenthal case [1978] ECR 629, 644, paras. 22 and 23.

It must be added that the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.

That interpretation is reinforced by the system established by article 177 of the EEC Treaty whose effectiveness would be impaired if a national court, having stayed proceedings pending the reply by the Court of Justice to the question referred to it for a preliminary ruling, were not able to grant interim relief until it delivered its judgment following the reply given by the Court of Justice.

Consequently, the reply to the question raised should be that Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule."

9. The first dispute is, summarising brutally, this. Ms. Mountfield says that all that I am being asked to do, in compliance with Factortame (No. 2), is to disapply a procedural barrier to exercising an existing power (ie to modify the effect of the residence requirements for DLA) on an interim basis. Mr. Paines says that what I am being asked to do is not merely to remove an obstacle, in the form of a rule of national law, to the working of some machinery, but to create a new piece of judicial machinery - a machinery for the ordering of interim payments by a Commissioner. He says that Factortame (No. 2) does not require such a result, which would involve many practical and theoretical problems. Mr. Paines relies in particular on the principle stated in paragraph 44 of Rewe v Hauptzollamt Kiel (Case 158/80) [1981] ECR 1805:

"[The Treaty of Rome] was not intended to create new remedies in the national courts to ensure observance of Community law other than those already laid down by national law. On the other hand, the system of legal protection laid down by the Treaty, as set out in article 177 in particular, implies that it must be possible for every type of action provided by national law to be available for the purpose of ensuring observance of Community provisions having direct effect, on the same conditions concerning admissibility and procedure as would apply were it a question of ensuring observance of national law."

He says that since a Commissioner has no power in a case concerning national law to order interim payments in advance of giving the final decision in an appeal, no greater power exists in a Community law case.

10. I have concluded that the argument put forward for the claimant does not work. In order to apply the principles of Factortame (No. 2) it is in my view necessary to identify the dispute with which I am seised, the dispute to which the answers to be given by the ECJ will be relevant. To do that I must outline the some elements of the British social security adjudication structure.
11. In common with claims for many other benefits, claims for DLA are to be determined initially by an adjudication officer under section 20 of the Social Security Administration Act 1992. Section 20(1) and (2) provides that:

"(1) ... there shall be submitted forthwith to an adjudication officer for determination in accordance with this Part of this Act -

(a) any claim for a benefit to which this section applies;

(b) subject to subsection (2) below, any question arising in connection with a claim for, or award of, such a benefit; and

(c) any question whether, if he otherwise had a right to it, a person would be disqualified under or by virtue of any provision of the Contributions and Benefits Act for receiving a benefit to which this section applies.

(2) Subsection (1) above does not apply to any question which falls to be determined otherwise than by an adjudication officer."

From the initial decision of an adjudication officer, through a second-tier review by another adjudication officer, appeal lies to an appeal tribunal, either a social security appeal tribunal or a disability appeal tribunal depending on the kind of issue involved. From a decision of a social security appeal tribunal, as in the present case, appeal lies to a Commissioner on the ground that its decision was erroneous in point of law (Social Security Administration Act 1992, section 23(1)). The Commissioner's jurisdiction is purely statutory. On an appeal under section 23(1), subsection (7) provides:

"(7) Where the Commissioner holds that the decision was erroneous in point of law, he shall set it aside and -

(a) he shall have power -

(i) to give the decision which he considers the tribunal should have given, if he can do so without making fresh or further findings of fact; or

(ii) if he considers it expedient, to make such findings and to give such decision as he considers appropriate in the light of them; and

(b) in any other case he shall refer the case to a tribunal with directions for its determination."

12. In decision R(IS) 7/91 the Commissioner exhaustively examined the effect of an adjudication officer's decision in favour of a claimant on a claim. Such a decision will award benefit to the claimant either for a fixed period or for an indefinite period. The Commissioner said in paragraph 14 that:

"An 'award' (of benefit) is not defined in the Social Security Acts. But its meaning is clear. It is simply a decision that benefit ... is payable. Such a decision confers a statutory right to payment; cf Morton v Chief Adjudication Officer, reported in the Appendix to decision R(U) 1/88 per Lord Justice Slade, page 22. The failure to implement an award of benefit is not a question connected with the question whether it is payable. It relates to the quite distinct obligation of the Secretary of State which is to give effect to the decision of the statutory authority. Regulation 20 of the 1987 Claims and Payments Regulations directs the Secretary of State to give effect to the award as soon as reasonably practicable by means of an instrument of payment or such other means as appear to him to be appropriate in the circumstances of the case. Failure to do so can only be enforced in the Courts."

The Commissioner went on to decide that the statutory authorities (ie adjudication officers, appeal tribunals and Commissioners) have no jurisdiction to decide whether or not the Secretary of State has honoured an award of benefit.

13. Regulation 20 of the Social Security (Claims and Payments) Regulations 1987 still provides the statutory obligation on the Secretary of State to make payment on an award. Regulations 37 and 37A allow the Secretary of State to suspend payment on an award, on carefully defined conditions. Regulation 2(1) of the Social Security (Payments on account, overpayments and Recovery) Regulations 1988 gives the Secretary of State discretion to make interim payments, ie payments on account of benefit to which a person is or may be entitled, in circumstances including where:

"(b) a claim for that benefit has been so made, but it is impracticable for it or a reference, review, application or appeal which relates to it to be determined immediately;"

14. The dispute before me in the proceedings in which I have referred the questions to the ECJ is a dispute about the claimant's entitlement to DLA. He had been awarded DLA by the adjudication officer. Section 71(6) of the Social Security Contributions and Benefits Act 1992 provides that a person shall not be entitled to DLA unless he satisfies prescribed conditions as to residence and presence in Great Britain. It was on the basis of the failure to satisfy the conditions prescribed in regulation 2 of the DLA Regulations that the adjudication officer in the decision of 10 February 1994 revised the award to the claimant. If, eventually, when the ECJ's answers to the referred questions are known, I allow the claimant's appeal against the appeal tribunal's decision, the best result which he could receive from me would be a decision that the existing award of DLA for life should not be reviewed or revised for failing to satisfy the residence conditions after 12 November 1993 down to the date of my decision. When giving that decision I would, in accordance with the principle summarised in paragraph 20 of Factortame (No. 2), have done everything necessary to set aside national provisions which might prevent Community rules having full force and effect. The result would be to confirm the existence of an award of benefit, on which the Secretary of State would have an obligation to make payment (subject to his discretion to suspend payment).
15. I conclude that the consideration of my obligation under paragraph 21 of Factortame (No. 2) to ensure the full effectiveness of the ECJ's eventual judgment and to set aside any rule of national law which is the sole obstacle to granting interim relief must operate in the context of the proceedings in which the questions were referred. The nature of those proceedings defines the dispute with which I am seised and the case which is before me. The proceedings concern a dispute about the conditions of entitlement to benefit, about whether an award of benefit should continue to have effect, not about whether payment should actually be made on an award. In that context, any interim relief which I could award cannot include any direction that benefit is actually to be paid to the claimant on an interim basis. I take some support for that conclusion from the Opinion of the Advocate General in Atlanta Fruchthandelsgesellschaft mbH v Bundesamt für Ernährung und Forstwirtschaft (Case C-465/93)[1995] ECR I-3761. There the Advocate General was considering the position where a national court had referred the question of the validity of a Community regulation to the ECJ and interim relief was in issue. He said, at [1995] ECR I-3768, that interim measures must serve to maintain the status quo and ensure that the final decision is fully effective, but that the:

"interim measures may not however go beyond the scope of the case in question. Suspension under Article 185 may be ordered only in relation to the contested measure. It is not possible for (other) interim measures under Article 186 to place any party provisionally in a legal position more favourable than that which he could obtain on the basis of a final judgment in his favour."

Thus I reject the primary argument put forward for the claimant. The matter of the making of interim payments for a period which is not covered by an award of benefit must be pursued with the Secretary of State.

16. However, that is not necessarily the end of the question of interim relief. The British social security legislation does not permit a Commissioner, any more than an adjudication officer or an appeal tribunal, to make an award of benefit on any kind of interim or provisional basis. There are some situations in which an award of benefit is conditional on the claimant satisfying the requirements of entitlement at some future date (see regulations 13, 13A, 13B and 17(4) of the Social Security (Claims and Payments) Regulations 1987). But in those situations, if the claimant does not satisfy the requirements for entitlement on a relevant date, the award has to be reviewed and revised (see, most recently, the decision of the Tribunal of Commissioners in CSIS/137/1994). The award cannot simply be adjusted by whoever made the award, under the authority of the award. The general principle is provided by section 60(1) of the Social Security Administration Act 1992:

" (1) Subject to the provisions of this Part of this Act, the decision of any claim or question in accordance with the foregoing provisions of this Part of this Act shall be final; and subject to the provisions of any regulations under section 58 above, the decision of any claim or question in accordance with those regulations shall be final."

A result of that principle is that if, in a dispute concerning purely national law, an adjudicating authority is informed that a decision is awaited from a court or a Commissioner in another case, which will provide an authoritative legal ruling on a point in issue, there is no power to make any interim award of benefit pending that decision. If the adjudicating authority decides to make an award without waiting for the decision in the other case, that is a final award. If the decision in the other case indicates that the award is wrong in law, there must be an appeal against the award or a review.

17. It must be arguable that that principle is the sort of rule of national law which Factortame (No. 2) requires to be set aside if it is the sole obstacle to the granting of interim relief. The granting of interim relief in the form of an interim or provisional award of benefit could be said not to take a Commissioner outside the context of the proceedings in the course of which questions were referred to the ECJ. There might well be difficulties in particular cases in formulating the terms of any particular award, but it could be argued, adopting Mr. Paines' terms, that the creation of completely new judicial machinery would not be necessary. I should say that the making of such an interim or provisional award of benefit might be of limited practical use to a claimant. Once an award was made, the Secretary of State would come under an obligation under regulation 20 of the Claims and Payments Regulations to pay benefit in accordance with the award. If the Secretary of State did make payment under regulation 20 I think that there would then be difficulty in requiring the claimant to repay benefit if the claimant was eventually found not to have been entitled to benefit in the light of the ruling given by the ECJ. However, it might well be open to the Secretary of State to exercise his discretion under regulation 37 of the Claims and Payments Regulations to suspend payment of benefit on the award, either under regulation 37(1)(c), if an appeal was made against the award, or under regulation 37(1)(a) on the basis that a question arose as to whether the conditions of entitlement are or were fulfilled. The advantage to a claimant of an interim or provisional award of benefit would be that it would place the onus of suspending the payment of benefit (with I think the possibility of making interim payments, which would be recoverable if overpaid, under the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988) onto the Secretary of State.
18. I do not wish to go into any further detail on this question, because I did not hear any submissions specifically directed to the granting of interim relief in the form suggested above. The argument before me proceeded on the assumption that what the claimant needed was an order for payment to be made. I do not think that I could definitely accept that a power to make interim or provisional awards of benefits exists without giving an opportunity for the parties to explore any weaknesses in the legal support for such a power and any difficulties involved. But I do not need to delay my ruling on the claimant's application to allow that to be done. I do not need to decide whether there is power to make an interim or provisional award of benefit pending a decision by the ECJ on questions referred to it for preliminary ruling. That is because, on the assumption that the power exists and adopting the test for making an award which is most favourable to the claimant, I have concluded that I would not make an interim award.
19. There was dispute between Ms. Mountfield and Mr. Paines about the test to be applied for granting interim relief, in a case in which there is jurisdiction to do so Ms. Mountfield relied on the principles adopted by the House of Lords in Factortame (No. 2) in cases where an interim injunction is sought to prevent the Crown from enforcing the terms of national legislation, as explained by Bingham MR in R v Her Majesty's Treasury, ex parte British Telecommunications plc [1994] 1 CMLR 621. Mr. Paines submitted that, since one of the questions referred to the ECJ was whether the amendments made to Regulation 1408/71 by Regulation 1247/92 was valid, a more stringent test was required. He referred to the principle applied by the ECJ in Zuckerfabrick Süderdithmarschen and Zuckerfabrick Soest (Cases C-143/88 and C-92/89) [1991] ECR I-415 and further explained in the Atlanta case, cited above. He said that where the validity of a Community act is in issue interim relief should not be considered unless the national court has serious doubts about the validity of the act, and that relief should only be granted in order to avoid serious and irreparable damage to the party seeking relief and after taking account of the interest of the Community that a Community act should not be set aside without proper guarantees. Again, I do not have to decide whether Mr. Paines is right in a case such as the present, where the question of the validity of a Community act arises only as a secondary issue in the event of one of the questions referred to the ECJ being answered in a particular way. On the assumption that the test put forward by Ms. Mountfield is the right one, I find that the claimant does not satisfy it.
20. Although the Factortame (No. 2) test relied on by Ms. Mountfield was developed in the context of an application for an interim injunction in judicial review proceedings, I do not think that any less stringent test should be applied to a case like the present, where an interim or provisional disapplication of national law is sought in relation to a particular claimant. The threshold condition of a serious case to be tried is clearly satisfied, since I considered that the questions ought to be referred to the ECJ. I do not need to consider what amounts to serious doubts about the validity of a Community act. I am also satisfied that the case cannot be determined at the first stage of the test, ie on the basis that either party will be adequately compensated by damages or other payments if the ultimate decision by the ECJ goes the other way to the decision on interim relief. I accept that the claimant's potential loss, if no interim or provisional award of benefit is made, but the ECJ rules in his favour, is not merely financial. There will of course be no difficulty in the Secretary of State's making payment on any award which is made following the ECJ's ruling, although, subject to the decision in another case currently before the ECJ, no interest will be paid to compensate for late payment. But I am prepared to accept that the claimant and his family will be put into considerable difficulties in trying to cope with the needs imposed by his disablement without having the income from DLA, and that he might even be forced to return to Great Britain and some kind of institutional care. On the other hand, if an interim or provisional award of benefit were made, the Secretary of State could not be said to be completely protected by the existence of a discretion to suspend payment or to make interim payments on the basis that they are repayable out of other benefits. It might be thought that if Community law requires an interim or provisional award of benefit to be made, then payment ought to be made. Then there could be no guarantee that, if it turned out that there was no entitlement to the award, the amount paid out would actually be recovered. If the claimant requires the DLA to meet his current needs he would be unlikely to save any up against the possibility of having to repay it.
21. Therefore, the question must be determined on the balance of convenience. Here, I find the conclusions expressed by Bingham MR in the British Telecommunications case, at [1994] 1 CMLR 647, particularly helpful. He said there that it would be inconsistent with the guiding principle enunciated by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 to apply any rule of thumb in a mechanistic way or to treat any consideration as capable of being decisive in every case. He continued:

"Where an interim injunction is sought which will have the effect of disapplying national legislation pending a reference to the Court of Justice, certain matters are almost bound (as Lord Goff [in Factortame (No. 2)] recognised) to fall for consideration: the apparent strength of the plaintiff's case, the general undesirability of disturbing enacted law, and so on. But even these are variables. In one case the plaintiff's case may raise an issue of Community law never before raised or explored; in the absence of authoritative guidance the national court may have very little idea of how the issue is likely to be resolved. In another case the national court may be all but persuaded by Court of Justice jurisprudence that the plaintiff has the Community right which he asserts, but may entertain just enough doubt to lead it to refer. In considering the balance of convenience, the apparent strength of the plaintiff's case and the need to protect putative Community rights will obviously weight less heavily in the first case than in the second. Again, in one case the law to be disapplied may be a major piece of primary legislation, on which an election has perhaps been fought. In another it may be a minor piece of subordinate legislation affecting very few parties other than the plaintiff. While the court would never disapply any legislation without great circumspection, its reluctance would obviously weight more heavily in the first case than in the second . ...

In some cases, as we have indicated, the apparent strength of a plaintiff's case may be a weighty factor. But in most cases where the court decides to refer it will be able to conclude little more than that the plaintiff's case is arguable or strongly arguable. It is not in our view sensible for a national court to consider in depth a question which, by referring, it declares itself unable to resolve, which the Court of Justice is, for familiar reasons, better placed to resolve and which the national court will never have to resolve."

That passage seems to me to reflect the import of the various statements in the House of Lords in Factortame (No. 2) about what considerations might outweigh the desirability of enforcing what on its face is the law of the land, and the need to consider all the circumstances of the case. It also points to the desirability of applications for interim relief being made and considered at the same time that the decision on the reference of questions to the ECJ is made. However, that may not always be practicable. In the present case, which so far as I know is the first social security case in which the possibility of interim relief has been raised, nothing turns on the claimant's application to the Commissioner having been made after the questions were referred to the ECJ.

22. Applying Bingham MR's approach here, I find that the claimant's case on his Community rights falls into the category of arguable, rather than strongly arguable. The issues raised before the ECJ are ones on which there is no previous authority, and I cannot make any prediction of the outcome. That does not in itself mean that no interim relief should be awarded. I must first consider the nature of the rule which it is said should be disapplied on an interim basis. The DLA Regulations are not a major piece of primary legislation, but they, and in particular the prescribed conditions on presence and residence, affect a significant number of claimants as well as the claimant in the present case. It is not at all clear how the making of an interim award in his favour would affect the position of other claimants whose awards of DLA have been withdrawn on moving to live in another Member State, but there might be at least an argument for some parity of treatment. I must also bear in mind that one of the issues potentially raised in the reference to the ECJ is the validity of a Community act, ie the validity of the amendments purportedly made by Council Regulation 1247/92. Therefore, the weight to be given to not disapplying legislation in advance of a ruling from the ECJ is substantial. In my judgment, it is clearly not outweighed by the strength of the claimant's case. Is it outweighed when I consider all the circumstances of the case, including in particular the potential personal harm to the claimant if he is denied an award for a further 12 or 15 months which it is ultimately decided he is entitled to, along with the somewhat impersonal potential harm to the Department of Social Security if an award is made which turns out to be wrong in law? My judgment, having given full weight to all that has been said by the claimant and his mother about their position in Spain, is that it is not. The balance is against disapplying regulation 2(1) of the DLA Regulations on an interim or provisional basis, on the assumption that I have power to do so in an appropriate case.
23. Accordingly, since I have already decided that I have no power to order the making of interim payments, I refuse the claimant's application.

Date: 26 July 1996 (signed) Mr. J. Mesher

Commissioner

The claimant applied for judicial review of the Commissioner's decision. The decision of the Queen's Bench Division on that application follows.


 


DECISION OF THE QUEEN'S BENCH DIVISION


Mr. M. J. Beloff QC appeared on behalf of the Applicant

Mr. N. Paines appeared on behalf of the Respondents.

The Application

Pursuant to leave granted by me on the 20 December 1996 the applicant challenges the decision of Mr. Commissioner Mesher on the 26 July 1996 not to grant interim relief pending the outcome of a reference by him of a question to the European Court of Justice under Article 177 of the Treaty of Rome.

The Facts

They are not in dispute. The applicant is a United Kingdom national. In April 1993 he suffered a serious accident at home which left him partially paralysed, partially brain damaged and unable to work. He had worked in the United Kingdom for a number of years paying national insurance contributions as an employed earner. He claimed on the 1 September 1993 and was awarded a disability living allowance (DLA). In November 1993 the applicant went to live in Tenerife where his mother had lived for a number of years.

The adjudication officer decided that the applicant was no longer entitled to DLA because he did not habitually reside in the United Kingdom. The applicant contended that that decision was wrong in law as DLA was an invalidity benefit which was portable within the European Union. The applicant appealed to a disability Appeal Tribunal and then to the first respondent. On 29 September 1995, following an oral hearing, the first respondent stayed the appeal and referred the questions to the European Court of Justice under Article 177.

Application was then made for an interim payment of the DLA. It is the decision of the first respondent on the 26 July 1996 refusing that application which is the subject of these proceedings.

The law

There is no dispute that by Section 71(6) of the Social Security Contributions and Benefits Act 1992 the applicant is not entitled to DLA allowance unless he satisfies prescribed conditions as to residence and presence in Great Britain. It was further common ground that the claimant failed to satisfy sub-paragraph 1 and 2 of Regulation 21(a) of the Social Security Disability Living Allowance Regulations 1991 because he was not ordinarily resident in Great Britain nor was he present in Great Britain.

The applicant contended firstly that regulation 21 of the DLA Regulations was inconsistent with EC Regulation 1408/71 as amended by Regulation 1247/92 and therefore entitled him to continued payment and secondly that if they did not, they themselves were invalid.

On 29 September 1995 the Commissioner without reaching a conclusion on the issues of Community Law made a reference to the European Court of Justice.

Article 4 of EC Regulation 1408/71 reads as follows:

(1) This regulation shall apply to all legislation concerning the following branches of Social Security:

(b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity;

Article 5 reads:

The Member States shall specify the legislation and schemes referred to in Article 4(1) and (2) and the special contributory benefits referred to in Article 4(2a)...

Regulation 1247/92 which came into force on 1 June 1992 inserted paragraph 2a to Article 4. reads:

"This regulation shall also apply to special non-contributory benefits which are provided under legislation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4 where such benefits are intended..."

The United Kingdom has made no declaration as to what are non-contributory benefits as required by Article 5.

Under Article 10 an entitlement to DLA on the part of a person who had been subject as an employed or self-employed person to the legislation of the United Kingdom could be exported to another member state.

A new Article 10a on Special non-contributory benefits was inserted by Regulation 1247/92 which provides:

"(i) notwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the special [non-]contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex 11a. Such benefits shall be granted by and at the expense of the institution of the place of residence."

The argument for the applicant was that these new provisions were to provide an additional regime of protection for benefits in circumstances which fell outside the existing scope of Article 4(1) and were not intended to take away any protection enjoyed under Article 4(1) prior to 1 June 1992.

It was contended that Article 10a was an enhancing provision and that Article 4(2a) provides that Regulation 1408/71 is to apply also to special [non]contributory benefits and that such benefits are those under legislation or schemes which are not referred to in Article 4(1). Since the United Kingdom had not made a declaration satisfying the legislation and schemes referred to in Article 4(2a) a question of what benefits fall into the new category must be determined by an objective analysis of the objectives and conditions of each benefit.

It was contended that for Article 10a to apply to any benefit it must first be determined that the benefits falls within the category of special [non-]contributory benefits within Article 4(2a) and Annexe 11a is not relevant to that determination. Thus if a benefit falls within Article 4(1) the existing system of co-ordination within Regulation 1408/71 applies. Articles 4(2a) and 10a provide an additional regime of protection in the requirement for the granting of special [non-]contributory benefits in the Member State in which the claimant is habitually resident.

Secondly it was contended that if Regulation 1247/92 could not be interpreted in the way suggested the provisions made in that Regulation are not within the powers granted to the Council by the Treaty of Rome. Regulation 1247/92 purported to be made under Articles 51 and 235 of the Treaty. If it were interpreted in the way contended for by the adjudication officer in the present case it would have the effect of diminishing the existing level of protection of the freedom of movement of workers.

The adjudication officer contended that the proper interpretation of Regulation 1247/92 and the amendments made to Regulation 1408/71 was that they create a new and exclusive regime or special [non-]contributory benefits. Some such benefits may formerly have fallen within Article 4(1) of Regulation 1408/71, some may have formerly been excluded as social assistance under Article 4(4) and some may simply have formerly not come within the scope of Regulation 1408/71 at all. In relation to the first two categories the benefits no longer fall under article 4(1) or 4(4) under Article 4(2a). The new Article 10a expressly provides that it applies notwithstanding Article 10. While the United Kingdom has not updated it's declaration under Article 5 of Regulation 1408/71 it is contended that such an updating is unnecessary. The purpose of the listing of the benefit is to fix responsibility for the payment on the Member States of residence and the purpose of Regulation 1247/92 was to alter the system of co-ordination applying to such a benefit.

The Commissioner determined that a reference for a preliminary ruling was appropriate and thought it proper to express no opinions on the merits on the competing arguments.

The application for interim payment.

It is not in dispute that as from 5 February 1996 Regulation 2 of the Social Security (Payment on Account Overpayments and Recovery) Regulations 1987, were amended by Regulation 10 of the Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996 which removed from the Secretary of State the power to award interim payments pending the determination of the appeal unless he was of the opinion there was a prima facie entitlement to benefit. He was not.

There was then an application to the Commissioner for interim payment. The submission dated 21 March 1996 reads:-

"A Commissioner has jurisdiction to grant interim relief pending the resolution of the appeal. This jurisdiction is derived from Section 2 of the European Communities Act 1972. Just as that section gives the Commissioner power to dis-apply domestic law in favour of directly effective European provisions in relation to a particular claimant so it gives him power to disapply them as an interim measure and hence to order payment of DLA pending the outcome of a reference to the ECJ in application of the principle of co-operation set out in Article 5 of the Treaty of Rome".

The request therefore was that he should order the payment of benefit to the applicant on an interim basis by dis-applying Regulation 2(1) which relates to the entitlement of benefit. The argument was essentially a matter of Community Law.

The Decision

At paragraph 8 of his decision the Commissioner said:

"There was no real dispute between Counsel for the applicant and Counsel for the respondent that the Community law principles to be applied are summed up in paragraphs 20-23 of the Judgment of the ECJ in the Queen v Factortame Ltd. ex parte Secretary of State for Transport No. 2 [1991] 1AC 603".

The first question I have to decide is whether the Commissioner had power to make an order for payment. He said at paragraph 18:-

"I do not need to decide whether there is power to make an interim provisional award of benefit pending a decision by the ECJ on questions referred to it for preliminary ruling. That is because on the assumption that the power exists and adopting the test for making an award which was most favourable to the claimant, I have concluded that I would not make an interim award."

He then set out his reasoning in relation to the exercise of his discretion.

Before me the parties have proceeded on the basis that assuming he did have power the question I have to determine is whether the discretion has been properly exercised and if not, the relief which I ought to grant.

However, detailed argument was put before me as to the jurisdiction of the Commissioner and in deference to those arguments I shall deal with them. The question of jurisdiction is a logically prior question which has to be answered affirmatively before any question of discretion arises.

The rivals' contentions.

It is Mr. Beloff QC's contention that the effect of Section 2 of the European Communities Act 1972 and Article 5 of the Treaty is to require a National Court to give full effect to Community Law. Section 2 reads as follows:-

"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties and all such remedies and procedures... as are without further enactment to be given legal effect in the United Kingdom shall be recognised and available in law and be enforced, allowed and followed accordingly."

Article 5 reads:

"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the Institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."

Thus it was submitted that the first respondent had power to disapply domestic law in favour of directly effective European provision in relation to a claimant both on an interlocutory as well as an indefinite basis.

I was referred to a number of authorities to which I now turn.

In Simmenthal 1978 ECR 629, the European Court said at paragraph 21:

"It follows from the foregoing that every national court must in a case within its jurisdiction, apply Community Law in its entirety and protect rights which the latter confers upon individuals and must accordingly decide any provisions of national law which may conflict with it, whether prior or subsequent to the Community rule. Accordingly any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of the Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law.

This would be the case in the event of a conflict between a provision of Community law and a subsequent national law if the solution of the conflict were to be reserved for an authority with a discretion of its own, other than the court called upon to apply Community law, even if such an impediment to the full effectiveness of Community law were only temporary."

Lord Justice Oliver as he was then in Bourgoin v Ministry of Agriculture, Fisheries and Food 1986 1QB 716 said at page 770:

"The European court has stressed over and over again that when an article of the Treaty has direct effect it is the obligation of the member states, through their national courts, to protect the right of the individual arising from any breach. But whilst the principle that the protection to be afforded is a matter to be regulated in accordance with the national law of the protecting state is one which, on the face of it, leaves room for the application of the public policy of that state, that remains nevertheless, as I understand the decisions, subject to the two qualifications that the protection offered must not be inferior to that offered in similar rights in domestic law and that it must be effective to protect them."

Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (No. 2) 1994 QB 126: was a case where the maximum sum payable as compensation pursuant to the Sex Discrimination Act 1975 was £6,250 but the industrial tribunal had made an award of £19,405 holding itself bound by Community Law. It was held by the European court that Article 6 of the Directive enabled a claimant to contest the applicability of national legislation which was intended to give effect to the directive but set limits for the compensation recoverable.

In Francovitch v The Italian Republic IRLR 84 at page 93 it was said by the European Court:

"It follows from the foregoing that the possibility of compensating an individual for damage suffered by reason of a breach of a provision of Community law with direct effect has its basis in the Community legal order itself. Certainly if there are other remedies capable of ensuring the full effect of Community law under the national legal order, they may be used. But, as the Court reminded us in its judgement in Bozzetti, 'if it is for the legal system of each Member State to determine which court has jurisdiction to hear disputes involving individual rights derived from Community law... the Member States are responsible for ensuring that those rights are effectively protected in each case.'

If the payment of damages is, therefore, the only means of ensuring effective protection, where appropriate, the Member State is under an obligation under Community law to provide parties with an adequate remedy to allow them to recover those damages."

Thus it is said that if there is to be an effective remedy, and proceedings are not brought speedily to an end, the absence of a remedy in damages or immediate interim relief, will result in breaches of the Treaty occurring prior to the decision, leaving the application uncompensated. Interim relief is an important element in effective protection.

I turn now to two other cases.

The first is Factortame Limited v The Secretary of State for Transport No. 2 1991 1AC 603 at 643 where the European Court said:-

"It is clear that the preliminary question raised by the House of Lords, seeks essentially to ascertain whether a national court which, in a case before it concerning a Community law, considers the sole obstacle which precludes it from granting interim relief is a rule of national law, must dis-apply that rule... It must be added that the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule."

It follows, says Mr. Beloff QC, that the court should not look narrowly at the dis-application and that the national law is bound to create a remedy which might not be available at all. The matter must be looked at through Community law eyes.

In Zuckerfabrik Jointed cases C-143/88 and C-92/89 the Court said at page 541:

"The interim legal protection which Community law ensures for individuals before national courts must remain the same, irrespective of whether they contest the compatibility of national legal provisions with Community law or the validity of secondary Community law, in view of the fact that the dispute in both cases is based on Community law itself."

It is the respondents contention that Community rights are to be given effect within the applicable domestic procedural framework subject to provisos. In Comet 1976 ECR 2043 at paragraph 9, at page 2052, the court said:-

"The applicant in the main action contends, on the other hand, that the primacy of Community law means that it overrules any decision which constitutes an infringement of it and that, before the national courts, which are bound to protect the rights conferred on it by Article 16, it possesses, in consequence, an independent right of action which is unaffected by limitations provided for under national law which are liable to weaken the impact of the direct effect of that article in the legal order of the Member States.

Thus, the question referred seeks to establish whether the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire as the result of the Community provision, are governed by the national law of the Member State where the action is brought or whether, on the other hand, they are independent and fall to be determined only by the Community law itself.

The prohibition laid down in Article 16 of the Treaty and that contained in Article 10 of Regulation No. 234/68 have direct effect and confer on individuals rights which the national courts must protect.

Thus, in application of the principle of cooperation laid down in Article 5 of the Treaty, the national courts are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law.

Consequently, in the absence of any relevant Community rules, it is for the national legal order of each Member State to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law, provided that such rules are not less favourable than those governing the same right of action on an internal matter...

In default of harmonisation and national remedies and procedures the rights conferred by Community law must be exercised before the national courts in accordance with the rules of procedure laid down by national law. The position would be different only if those rules and time-limits made it impossible in practice to exercise rights which the national courts have a duty to protect."

The same principle was set out in Rewe 1976 ECT 1989 and has been followed (see Fisscher 1994 ECR 458). There the Court held with regard to limitation that:

"The Court has consistently held that in the absence of Community rules on the matter, the national rules relating to time limits for bringing actions are also applicable to actions based on Community law provided they are no less favourable for such actions than for similar actions of a domestic nature and they do not render the exercise of rights conferred by community law impossible in practice, (see in particular the judgment in the case of Rewe 1976 ECR 1989.)"

It is submitted that procedures exist in domestic law for the enforcement of the claimant's rights that is to say the provisions governing appeals to the Commissioner under Section 23 of the Social Security Administration Act 1992. They make possible the enforcement of claims to benefit based on EC grounds and do so on the same terms as claims to benefit based on purely domestic law grounds. Those procedures did not however include a power in the Commissioner to make interim payments and a domestic law appellant is not entitled to interim relief from the Commissioner where for example a case is remitted for further findings of fact so that there would be a delay in the Commissioners decision and final adjudication. The machinery simply does not exist and it is submitted that EC law does not require the machinery to be created.

As was said in the case of Rewe 1981 ECR 1805 at paragraph 44:-

"The EC Treaty was not intended to create new remedies in the National court to ensure observance of Community law other than those already laid down by National law. On the other hand, the system of legal protection laid down by the Treaty, as set out in Article 177 in particular, implies it must be possible for every type of action provided by national law to be available for the purpose of ensuring observance of Community provisions having a direct effect on the same conditions concerning admissibility and procedure as it would apply were it a question of ensuring observance of National law."

It is said that on the one hand there must be machinery for removing obstacles, while on the other there is no power to create a wholly new mechanism and none of the authorities so suggest. Thus where a Court has power, the Community law will not allow that power to be obstructed. Thus in the Marshall case the obligation was to grant compensation and it must be made in full. The payment of compensation was not a new obligation. In the same way in the Factortame case interlocutory relief existed but there were obstacles in its way.

It was further submitted that the case of Francovitch reinforces the argument that the National remedies and procedures apply, even where Community law has created a new course of action. At page 88, the Court said:-

"The EEC Treaty creates rights which form part of its legal principles, these arise not only when explicit reference is made to them by the Treaty, but also by reason of the obligations which the Treaty quite clearly imposes as much on individuals as on Member States and on Community institutions.

It should also be recalled that it follows from established case law that national courts which are obliged, insofar as they have jurisdiction to do so, to apply the provisions of Community law, must ensure the full effect of those provisions and protect the rights which they confer on individuals (see Simmenthal and Factortame).

It should be stated that the full effectiveness of Community provisions would be affected and the protection of the rights they recognise undermined if individuals were not able to recover damages when their rights were infringed by a breach of Community law attributable to a Member State.

The obligation on Member States to make good the damage is also based on Article 5 of the Treaty, under which the Member States are bound to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligation to make good the unlawful consequences of a breach of Community law.

It follows from the foregoing that Community law lays down a principle according to which a Member State is obliged to make good the damage to individuals caused by a breach of Community law for which it is responsible."

This passage certainly supports Mr. Beloff QC's argument.

Mr. Paines for the respondents however relies on further passages in the same judgement.

"Although the liability of the State is thus imposed by Community law, the conditions on which that liability can give rise to damages depend on the nature of the breach of Community law which caused the damage... In the absence of Community rules on this subject it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of rights which parties enjoy under Community law (see Russo 60/75, Rewe 33/76 and Rewe 158/80).

It must also be stressed that any conditions as to both substance and form for the recovery of damages laid down by the various national laws applicable thereto may not be less favourable than those relating to similar claims under national law and they may not be so framed as to render the recovery of damages excessively difficult or virtually impossible in practice."

Thus the respondents case is a very simple one. This is not a question of an obstacle being removed but of a wholly new mechanism being created. Mr. Beloff QC contends that the decisions in 1976 have been overtaken by subsequent events and by the development of law in the community instanced by the cases which he cited. In effect it means that if there is no power to make an interim award a Community right is denied. A right postponed is a right denied.

For my part I prefer the respondent's arguments. However, there are undoubtedly arguments on both sides. The European Court is always seeking on a case by case basis, in the absence of binding precedent, to develop the law. The instant case may be such a case. The point at issue is an issue wholly concerned with Community Law. I do not regard the matter as acte claire. Accordingly this seems to me to be an appropriate case in which I would have made a reference to the European court under Article 177 of the Treaty.

Given the somewhat leisurely pace at which the European Court proceeds the effect of my decision would be that the Courts interpretation of the EC Regulations will already have been published so that the purpose of this particular application would be rendered fruitless.

Nevertheless it seems to me right that I should deal with the second part of the case, namely the exercise by the Commissioner of his discretion. The Commissioner observed that there was a dispute between the parties as to the test to be applied for granting interim relief. The applicant relied on Factortame No. 2 and the Queen v HM Treasury ex parte British Telecommunications 1994 1CMLR 621, while the respondents submitted that there was a more stringent test as set out in Zuckerfabrik and Atlanta Case 465/93 1995 ECR 1/3761. The Commissioner said he did not have to decide which was right because on the assumption that the test put forward by the applicant was the right one he found that the applicant did not satisfy him.

In the Queen v Transport Secretary ex parte Factortame (No. 2) 1991 1 AC 603 Lord Goff said at page 671:

"Guidelines for the exercise of the court's jurisdiction to grant interim injunctions were laid down by your Lordships' House in American Cyanamid Co. v Ethicon Ltd, (1975) AC396, in the speech of Lord Diplock in that case, with which the remainder of their Lordships concurred. I use the word 'guidelines' advisedly, because I do not read Lord Diplock's speech as intended to fetter the broad discretion conferred on the courts by section 37 of the Supreme Court Act 1981; on the contrary, a prime purpose of the guidelines established in the Cyanamid case was to remove a fetter which appeared to have been imposed in certain previous cases, i.e. that a party seeking an interlocutory injunction had to establish a prima facie case for substantive relief. It is now clear that it is enough if he can show that there is a serious case to be tried. If he can establish that, then he has, to so speak, crossed the threshold; and the court can then address itself to the question whether it is just or convenient to grant any injunction."

The Commissioner in the instant case has decided by his reference, that there is a serious case to be tried. Lord Goff went on:

"I must advert to the fact that Lord Diplock approached the matter in two stages. First he considered the relevance of the availability of an adequate remedy in damages, either to the plaintiff seeking the injunction or to the defendant in the event that an injunction is granted against him. As far as the plaintiff is concerned, the availability to him of such a remedy will normally preclude the grant to him of an interim injunction. If that is not so, then the court should consider whether, if an injunction is granted against the defendant, there will be an adequate remedy in damages available to him under the plaintiff's undertaking in damages; if so, there will be no reason on this ground to refuse to grant the plaintiff an interim injunction... If there is doubt as to the adequacy of either or both of the respective remedies in damages, then the court proceeds to what is usually called the balance of convenience... I do not wish to place any gloss upon what Lord Diplock said about this stage. I wish only to record his statement at p. 408 that "It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relevant weight to be attached to them. These will vary from case to case." And his further statement "there may be many other special factors to be taken into consideration in the particular circumstances of individual cases."

The Commissioner said:

"I am satisfied the case cannot be determined at the first stage of the test ie on the basis that either party will be adequately compensated by damages or other payments if the ultimate decision by the EC goes the other way to the decision on interim relief."

At paragraph 21 the Commissioner said:

"Therefore, the question must be determined on the balance of convenience. Here, I find the conclusions expressed by Bingham MR in the British Telecommunication case at 1994 1CMLR 647, particularly helpful. He said there that it would be inconsistent with the guiding principle enunciated by Lord Diplock in American Cyanamid to apply any rule of thumb in a mechanistic way or to treat any consideration as capable of being decisive in every case"... "I find", said the Commissioner, "that the claimants case on his community rights falls into the category of arguable rather than strongly arguable. The issues raised before the ECJ are one on which there is no previous authority, and I cannot make any prediction of the outcome."

Mr. Beloff QC makes six specific criticisms of the Commissioners decision, though I think on reflection there are only five. His submission was that the Commissioner failed adequately to distinguish the balance carried out in Factortame where politically important primary legislation affecting the livelihood of third parties was dis-applied in toto from the instant case where there is a dis-application of one provision of a statutory instrument in the case of one person where no third parties with private interests are adversely affected. There is no question of law enforcement being involved thus there is a qualitative difference and distinction between the instant case and a dis-application which will result in a public body being unable to enforce law.

He drew attention to what Lord Goff said at page 672 in Factortame:

"I turn to consider the impact upon these guidelines of the public interest, with particular reference to cases in which a public authority is seeking to enforce the law against some person, and either the authority seeks an interim injunction to restrain that person from acting contrary to the law, and that person claims that no such injunction should be granted on the ground that the relevant law is, for some reason, invalid; or that other person seeks an interim injunction to restrain the action of the authority, on the same ground... Turning then to the balance of convenience, it is necessary in cases in which a party is a public authority performing duties to the public that 'one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed'. So if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law, matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its face the law, and so to justify the refusal of an interim injunction in favour of the authority, or to render it just or convenient to restrain the authority for the time being from enforcing the law..."

Lord Goff cited what Lord Diplock said in Hoffman Laroche case 1975 AC 295 at 367:

"To displace this right (to an interim injunction) or to fetter it by the imposition of conditions, it is for the defendant to show a strong prima facie case that the statutory instrument is ultra vires... I am myself", said Lord Goff, "of the opinion in these cases as in others, discretion conferred upon the court cannot be fettered by a rule; I respectfully doubt whether there is any rule that in such cases as these, a party challenging the validity of a law must - to resist an application for an interim injunction against him, or to obtain an interim injunction restraining the enforcement of a law - show a strong prima facie case that the law is invalid. It is impossible to foresee what cases may yet come before the courts; I cannot dismiss from my mind a possibility (no doubt remote) that such a party may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just or convenient to restrain its enforcement by an interim injunction even though so heavy a burden has not been discharged by him. In the end the matter is one for the discretion of the court taking into account all the circumstances of the case. Even so the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge of the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken."

The Commissioner referred to the conclusions expressed in British Telecomm. He observed that it would be inconsistent with the guiding principle enunciated by Lord Diplock in American Cyanamide to apply a rule of thumb in a mechanistic way or treat any consideration as capable of being decisive in every case and said:-

"Where an interim injunction is sought which will have the effect of dis-applying national legislation pending a reference to the Court of Justice, certain matters are almost bound to fall for consideration, the apparent strength of the plaintiff's case, the general undesirability of disturbing enacted law, and so on. But even these are variables. In one case the plaintiff's case may raise an issue of Community law never before raised or explored; in the absence of authoritative guidance the national court may have very little idea of how the issue is likely to be resolved. In another case the national court may be all but persuaded by Court of Justice jurisprudence that the plaintiff has the Community right which he asserts, but may entertain just enough doubt to lead it to refer. In considering the balance of convenience, the apparent strength of the plaintiff's case and the need to protect putative Community rights will obviously weigh less heavily in the first case than in the second. Again, in one case the law to be dis-applied may be a major piece of primary legislation, on which an election has perhaps been fought. In another it may be a minor piece of subordinate legislation affecting very few parties other than the plaintiff. While the court would never dis-apply any legislation without great circumspection, its reluctance would obviously weigh more heavily in the first case than in the second. These are among the materials upon which the court's judgment has to be exercised in weighing the balance of convenience in every case. BT is correct in submitting that there is no room for a formulaic approach..."

The Commissioner said:

"Applying Bingham MR's approach here, I find that the claimant's case on his Community rights falls into the category of arguable rather than strongly arguable. The issues raised before the ECJ are ones on which there is no previous authority, and I cannot make any prediction of the outcome. That does not in itself mean that no interim relief should be awarded. I must first consider the nature of the rule which it is said should be dis-applied on an interim basis. The DLA Regulations are not a major piece of primary legislation, but they, and in particular the prescribed conditions on presence and residence, affect a significant number of claimants as well as the claimant in the present case".

I do not find anything in the Commissioner's decision to suggest that he did not appreciate the difference of fact or quality between the instant case and Factortame. Indeed he described the DLA Regulations as not being a major piece of primary legislation. Nor has he relied on the passage in Lord Goff's judgement in Factortame where he said the court should not restrain a public authority from enforcing an apparently authentic law unless it is satisfied that the challenge is so firmly based as to justify so exceptional course being taken. I am of the view that the Commissioner has perfectly and properly applied the appropriate principles laid down in Factortame and more particularly those in British Telecomm to the facts of the instant case.

The second of Mr. Beloff QC's points is not dissimilar namely that having regard to the analysis of Lord Bingham's judgment in British Telecomm. the Commissioner should have looked at the character of the law and has in his judgment misunderstood the passage which I have cited above. He submits that where there is a triable issue the plaintiffs case may be so strong that he starts off with a very considerable advantage, but that his case cannot be undermined by an estimate of its weakness.

In my judgment the Commissioner has properly applied Lord Bingham's approach about the strength of the claimant's case by saying its arguable rather than strongly arguable but he cannot make any prediction of the outcome. There is in my judgment no misreading of what the Court of Appeal said.

The third point which Mr. Beloff QC makes is that the Commissioner has made reference to the question of whether the Council Regulation 1247/92 is invalid having regard to the European Communities Act. By laying stress on that matter, which was a subsidiary point, it is argued that the applicant is worse off than by simply relying on the interpretation of the Act itself.

The Commissioner said:

"I must also bear in mind that one of the issues potentially raised in the reference to the ECJ is the validity of a Community act, ie the validity of the amendments purportedly made by Council Regulation 1247/92. Therefore, the weight to be given to not dis-applying legislation in advance of a ruling from the ECJ is substantial. In my judgment, it is clearly, not outweighed by the strength of the claimant's case."

I see nothing wrong with the Commissioner's conclusion. There were two separate challenges and the Commissioner was entitled to look at both of them. A challenge to the validity of a regulation may as Lord Goff observed:

"Be in a different category from consideration of the construction of a very minor piece of legislation."

There is nothing in my judgment in this point.

The fourth point made by Mr. Beloff QC related to the undertaking. What the Commissioner said was as follows:

"I am also satisfied the case cannot be determined at the first stage of the test, ie on the basis that either party will be adequately compensated by damages or other payments if the ultimate decision by the ECJ goes the other way to the decision on interim relief. I accept that the claimant's potential loss if no interim or provisional award of benefit is made but the ECJ rules in his favour, is not merely financial. There will of course be no difficulty in the Secretary of States making any payment on any award which is made following the ECJ's ruling, although subject to the decision in another case currently before the ECJ, no interest would be paid to compensate for late payment.

But I am, prepared to accept the claimant and his family would be put into considerable difficulties in trying to cope with the needs imposed by his disablement without having the income from DLA. He might even be forced to return to Great Britain and some kind of institutional care. On the other hand if an interim or provisional award of benefit were made, the Secretary of State could not be said to be completely protected by the existence of a discretion to extend payment or to make interim payments on the basis that they are repayable out of other benefits. It might be thought that if Community law requires an interim or provisional award of benefit to be made, payment ought to be made. Then there could be no guarantee that if it turned out that there was no entitlement to the award, the amount paid out would actually be recovered. If the claimant requires the DLA to meet his current needs he would be unlikely to save any up against the possibility of having to repay it."

There is an affidavit from the case worker who supports the applicants case which reads as follows:

"Mr. Snares and his family have offered an undertaking that if it is finally decided he is not entitled to DLA they will repay any interim payments to the Government over a period of time. This is relevant to the balance of convenience."

That affidavit was not in fact before the Commissioner. What was before the Commissioner was the submission of Miss Mountfield who has had the conduct of the applicants case as junior throughout, which said:

"I am instructed by Mr. Snares to confirm that he is willing to accede to a condition that he will repay any interim payments if he loses the case. In effect he is willing to give a cross undertaking in damages."

The Commissioner's decision is criticised in that he focused on the applicant's position and not on that of the family; that there was indeed an undertaking given by the family in the affidavit, and that the Commissioner did not appreciate what appears in the White Book, that a person who is granted legal aid may not be required to give an undertaking.

I do not think that this comparatively minor point in any way vitiates the Commissioners conclusion. I suspect that his attention was not drawn to the authority and even if it had been the weight to be attached to the undertakings was for the Commissioner. He has properly considered the question of undertakings.

Finally Mr. Beloff QC observed that the Commissioner failed to weigh properly in the balance the obvious interference with family life as a discrete right under Community law. He referred in particular to Article 48 which is the right to free movement and Article 8 of the European Convention on Human Rights. As was said in the decision of ER case 62/89:

"With regard to Article 10 of the European Convention on Human Rights referred to in the 9 and 10 questions, it must first be pointed out that as the court has consistently held, fundamental rights form an integral part of the general principle of law the observance of which it ensures... As the court has held it has no power to examine the compatibility with the European Convention on Human Rights on national rules which do not fall within the scope of Community law. On the other hand where such rules do fall within the scope of Community law and reference is made to the Court for preliminary ruling it must provide all the criteria of interpretation needed by the National court to determine whether those rules are compatible with a fundamental right the observance of which the Court ensures and which derive in particular from the European Convention on Human Rights."

Miss Mountfield made express reference in her written submissions to Article 48 of the Treaty of Rome and Article 8 of the European Convention on Human Rights but the Commissioner in his judgment made no reference to either.

However, the Commissioner clearly had in mind the position of the claimant and his family when he said:

"I am prepared to accept the claimant and his family will be put into considerable difficulties in trying to cope with the needs imposed by the disabled without having any income from DLA and that he might even be forced to return to Great Britain and some kind of institutional care... Is it outweighed when I consider all the circumstances of the case including in particular the potential personal harm to the claimant if he is denied an award for a further twelve or fifteen months which it is ultimately decided he is entitled to, along with a somewhat impersonal potential harm to the Department of Social Security if an award is made which turns out to be wrong in law. My judgment, having given full weight to all that has been said by the claimant and his mother about their position in Spain, is that it is not."

Therefore, it is clear that the position of the applicant in Spain and the question of his return to this country, and its effect on the family, were plainly matters which were considered by the Commissioner. The weight to be attached to those elements was entirely a matter for him.

I have read and re-read the Commissioner's decision. There is no dispute but that I am not entitled to interfere with the exercise of his discretion unless the Commissioner has taken into account matter which he ought not to have taken into account, or has failed to take into account matter which he should have taken into account. I look as the decision as a whole and ask myself not whether I would have come to the same decision but whether the Commissioner's decision can be impugned for proper reason. I am quite unsatisfied that the Commissioner's decision can be so impugned. I bear very much in mind what Hoffman J as he then was said in Films Rover International Ltd. v. Cannon Films Sales 1987 1WLR 670 when considering an application for an interlocutory mandatory injunction said at page 680:

"The principle dilemma about the granting of interlocutory injunctions whether prohibitory or mandatory is that there is by definition a risk the court may make the wrong decision in the sense of granting an injunction to a party who fails to establish his right at the trial or would fail if there was a trial, or alternatively failing to grant an injunction to a party who succeeds or would succeed at trial. A fundamental principle is that the court should take which ever course that appears to carry lower risk of injustice if it should turn out to have been wrong in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle."

Relief

It was suggested to me that if I found the Commissioner's decision judicially reviewable I should quash it and myself exercise my discretion as if a Court of Appeal were doing the same to a Puisne Judge. I am by no means satisfied that I do have that jurisdiction. Even if I did have it seems to me that the whole position if I were to quash this decision, would have to be reviewed in the light of the up to date information about the applicant's circumstances, about the length of time when it is anticipated the European court will give judgment and a number of other factors. Equally I accept the proposition that it would be open to the Commissioner to make a declaration upon which the Secretary of State would have to act, if the Commissioner's decision was in favour of the applicant.

For all the reasons I have set out above this application for judicial review fails.