R(A) 1/02
Mr. P. L. Howell QC CA/2937/1997
9.11.00 CA/2604/1998
Attendance allowance - accommodation in private residential care home - financed by local authority pending sale of a house - whether claimant is meeting cost of accommodation
Review - limitation of payment - whether limit to backdating if entitlement established retrospectively other than in cases of official error
In each of these two cases the claimant was a disabled elderly lady whose principal asset was her house. The local authority social services department had in each case made use of powers under Part III of the National Assistance Act 1948 to make "arrangements for providing residential accommodation for persons in need of care and attention" pending sale of the house so that, by virtue of section 22 of that Act (which makes the assisted person, subject to exemption by a means test, legally liable to reimburse the local authority in full) and so long as the value of the house was adequate, the local authority was in effect providing only bridging finance albeit over a substantial period. There was in fact never any doubt that the local authority would be reimbursed in full and in each case full recoupment in due course took place.
Regulation 7 of the Social Security (Attendance Allowance) Regulations 1991 provides that, subject to regulation 8, a person shall not be paid any amount in respect of attendance allowance for any period where throughout that period he is a person for whom accommodation is provided in pursuance of Part III of the National Assistance Act 1948 and regulation 8(6), on which the payability issue in these cases turned, provides (so far as applicable) that regulation 7 shall not apply "for any period during which … the whole of the cost of the accommodation is met ... out of his own resources".
The two questions which arose in each case were (i) whether regulation 7, subject to regulation 8, prevents attendance allowance being payable where the assistance given under Part III is only by way of bridging finance; and (ii) if not, whether the procedural provisions about review of benefit decisions which limit the right to back payments where entitlement is established retrospectively following a change of circumstances nevertheless had the effect of taking the allowance away for some or all of the bridging period.
Held, allowing both appeals, that:
- as to the payability question, following the decision of the Northern Ireland Court of Appeal in Chief Adjudication Officer v. Creighton and Others (15 December 1999) that in the context of regulation 8(6) the word "met" refers to the person who ultimately meets the costs, not the person or body who makes the payment when the fees are paid to the provider of the accommodation, and "during" means "for the duration of", so that the cost of the claimants' accommodation for the bridging period was met out of their own resources by virtue of the subsequent repayment;
- alternatively the claimants counted during each week of that period as meeting their own costs by virtue of their accruing liability to repay the local authority, so long as the value of their houses remained sufficient for eventual recoupment;
- accordingly attendance allowance remained payable for the bridging period;
- as to the review question, the true basis for the reinstatement of the allowance was not a "change of circumstances", but that the decision applying regulation 7 so as to suspend payment had been in error of law within regulation 57(3) of the Social Security (Adjudication) Regulations 1995 so that no restriction on retrospective payment applied;
- on the actual facts of each case, the only decision to be corrected had been a decision purporting to suspend payment under the original award of benefit, not a decision to make benefit payable or increase the rate of benefit, so regulation 59 had no application at all.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Introduction
- In each of these cases questions arise on the effect of the regulations about payment of attendance allowance when a disabled person entitled to that allowance has to go into a privately run residential or nursing home, with the help of bridging finance provided by a local authority under the National Assistance Act 1948 until the person's house can be sold to pay for the weekly cost. What happens about attendance allowance in these circumstances has been the subject of differing judicial decisions in previous cases, and up to date clarification of the law in Great Britain is needed.
- Each of the two appeals before me involved a disabled elderly lady who had to go into private residential or nursing care under arrangements of the kind described above. Because of the excessive delays in administration of the social security appeal process the benefit weeks at issue are now several years old in each case, and each of the claimants has died during the course of the proceedings. However the question of whether their attendance allowance should or should not have continued during the bridging finance period remains of interest to their respective families, the Department of Social Security, and many other people in a similar position.
- I had the advantage of full oral argument on the issues involved, at a combined hearing of the two appeals. Stewart Wright, the legal officer of the Child Poverty Action Group, appeared on behalf of the claimant in case CA/2937/1997 assisted by John Gill of the Lincoln CAB. The claimant in case CA/2604/1998 was represented by her son, Mr. Peter Fordham. Steven Kovats of Counsel, instructed by the solicitor to the Department of Social Security, appeared in both cases for the Secretary of State.
- It is a difficult and anxious time for most families when a disabled elderly relative has to go into a home. Nowadays, for everyone other than the very rich or the very poor, financial anxieties are added to all the other ones. Many people who grew up with the assumption of universal insured provision in exchange for the contributions paid during their working lives experience a steep and unpleasant learning curve at what the policies of low taxation and benefit "targeting" pursued in recent years actually mean. They find there is little or no long-term care offered by the national health service or public institutions, and even seriously disabled people such as stroke victims requiring 24-hour nursing care are expected to move out into the private sector once there is nothing more that can be done for them by way of acute treatment. The weekly cost that must suddenly be provided for comes as a further shock. Those who turn out to need care for any length of time may well have to forfeit the whole of their savings and assets to pay for their own old age.
- For most ordinary people, the principal asset is the value of their house. Clearing out and selling what will often have been the family home can be a difficult business for everyone, and at the very least it takes time to arrange. In the meantime, the bills for the private care home have got to be paid. To tide people (and for that matter the hospitals and the homes) over the gap, local authority social service departments make wide use of long-established powers to make "arrangements for providing residential accommodation for persons in need of care and attention" under Part III of the National Assistance Act 1948. Section 22 of that Act makes the person assisted legally liable to reimburse the authority for the full cost of the accommodation unless exempted by a means test. Thus so long as the value of a person's house is adequate, the local authority's role is limited to providing bridging finance. It initially pays part or all of the weekly bills to the home but recovers the full amount of its outlay from the proceeds once the house is sold, and from then on drops out of the picture leaving the resident or his or her family to pay the bills direct.
- Each of the appeals before me concerns an arrangement of this type. Each lady was provided with bridging finance by her local authority on the express terms or understanding that the full amount of its outlay would be recouped out of the proceeds of sale of the house once sold, and in each case full recoupment in due course took place. As shown in the chronologies annexed to the very helpful skeleton submission prepared by the department's solicitor, the bridging period was substantial in each case. The claimant in CA/2937/1997 became a permanent resident in her care home on 19 November 1993 but it took nearly eleven months for her house to be sold. In case CA/2604/1998 the claimant moved into her nursing home on 19 March 1995 and the local authority's outlay was repaid on completion of the sale of her house in December of that year.
- In neither case however were the values or the periods such that there was ever any doubt that the local authority would in due course receive back the full amount of its outlay once the sale had gone through. It thus was and at all times remained the case that the full cost of what was paid to each home was ultimately being borne by the claimant herself. The "assistance" provided was the value of the interest that would otherwise have had to be paid to a commercial lender on what the local authority put up for the care bills in the bridging period, not the value of those payments themselves which the claimant was always both liable and able to repay.
- There is no doubt in my judgment that these arrangements were made entirely properly under the powers in Part III of the National Assistance Act 1948 in both cases. At one point in response to a departmental enquiry in the second case a different statutory reference was given by one of the local authorities involved, but nothing turns on that.
- Most people sufficiently disabled to require permanent care meet the medical conditions for entitlement to attendance allowance. This is a non-taxable, non- means-tested weekly cash benefit payable as of right under ss. 64-67 Social Security Contributions and Benefits Act 1992 to persons severely enough disabled to need attention or supervision from another person. The present weekly rates are nothing like enough to meet the actual cost of the care needed in these cases, but they are a considerable help. For many disabled elderly people and their families they are the only concrete help the main social security system provides, and of course a bridging period when cash is likely to be short is when they are particularly needed.
- While a disabled person is in fact receiving the care and supervision they need free of charge as an in-patient in a national health service hospital or public institution, attendance allowance is, apart from an initial 28 days' grace period, not payable. That is wholly consistent with the purpose of the allowance as explained by Lord Bridge in Re Woodling [1984] 1 WLR 348 at 352E, to provide cash help for people whose care is not provided as a charge on some public institution. The same restriction applies where the cost of their care and supervision is met out of local authority public funds under Part III of the National Assistance Act 1948: for example where the person is placed and paid for by the local authority in its own or private sector residential accommodation.
- The two questions which have arisen in these and other similar cases are first, whether the regulations that stop attendance allowance being payable where the local authority bears the cost of accommodation under Part III also operate where the assistance given is only by way of bridging finance; and secondly if not, whether the procedural provisions about review of benefit decisions, which limit the right to back payments when entitlement is established retrospectively, nevertheless have the effect of taking the allowance away for some or all of the bridging period. These have been referred to in argument and in some of the other authorities as the "payability" question and the "review" question. It is common ground that apart from these two questions the underlying conditions for entitlement to attendance allowance were and continued to be met in respect of each claimant at all material times.
The facts
- A little more detail on the facts and dates of the two cases is now needed to understand how the two issues affect them.
- The claimant in case CA/2937/1997 was born on 14 April 1906. She was awarded attendance allowance by an adjudication officer's decision on 4 August 1993 and met the conditions of entitlement, apart from the payability question, at all material times from that date onwards. On 19 November 1993 she became a permanent resident in a residential care home with the help of bridging finance assistance of the kind described above, provided by the Humberside County Council under Part III of the National Assistance Act 1948. At some point after this, the actual payment of her attendance allowance was suspended by ad hoc administrative action taken by the DSS officers responsible for payments: no doubt until it could be resolved whether she fell to be treated as a "self-funding" resident or one provided for out of public funds for whom the allowance would cease to be payable. There is no dispute that this action had no effect on her legal rights: the decision on whether attendance allowance should or should not remain legally payable in accordance with the original award rested not with the officers responsible for making payments but with an adjudication officer, as a "question arising" in connection with an award of benefit under what was then s. 20(1)(b) Social Security Administration Act 1992. There is also no dispute that the matter was not then referred to an adjudication officer, and no decision altering the original award of attendance allowance had been made at the time payment was in fact stopped.
- Thus matters remained until well after the claimant's home was sold. That happened on 10 October 1994 though it was not until the spring of 1995 that the local authority was recouped the full amount of its outlay: see pages 34-36 of this file. At about the same time an attempt was made to regularise the procedural position over the claimant's attendance allowance, by an adjudication officer's decision dated 19 April 1995, reviewing what had up to then been the claimant's continuing entitlement under her original benefit award of 4 August 1993. This determined simply that as she had entered residential accommodation on 19 November 1993 the allowance under that award was not payable to her for the period from 20 December 1993 to 10 October 1994, because that was a period over 28 days in relevant accommodation "which is or may be provided from local public funds": see page 17. The decision did not purport to make any other alteration or any increase or award of benefit and it otherwise left unaffected the terms of her entitlement under the original award, including her continuing right to receive payment after 10 October 1994 when her house had been sold. Her right to continued payment on that basis after that date is not in dispute.
- On 18 January 1996, a second adjudication officer acting under s. 30(1) Social Security Administration Act 1992 reviewed the decision of 19 April 1995 and confirmed the suspension of payment for the period 28 December 1993 to 10 October 1994, on the ground that "throughout that period [the claimant] clearly did not meet the whole cost and had not always met the whole cost of the accommodation". That was the decision under appeal to the tribunal under s. 33(1)(b) Social Security Administration Act 1992. The emphasis (added) shows the legal assumption behind this and other departmental decisions stopping attendance allowance for a bridging period – that meeting the whole cost by full repayment to the local authority at a later date does not count.
- The appeal tribunal which heard this case on 15 January 1997 accepted that argument, and upheld the adjudication officer's view that payment for the bridging period had to be stopped under reg. 7, Social Security (Attendance Allowance) Regulations 1991, SI 1991 No. 2740, citing and relying on the Commissioner's decision in case CA/7126/1995 to that effect. The claimant's appeal to me is against that decision.
- In case CA/2604/1998, the claimant was born on 15 August 1912. She claimed and was awarded attendance allowance at the higher rate from 17 March 1993 and was entitled to it (apart from the question of whether it remained payable to her) at all material times after that. In February 1995 she was admitted to hospital and on 19 March 1995 she was moved to a private nursing home under arrangements made by her family in conjunction with the Berkshire County Council which included bridging finance from the council under Part III of the National Assistance Act 1948 until her house was sold.
- There is an additional complication in this case in that the claimant was also in receipt of income support for at least a part of the relevant period. As I understand it from the documents before me and what I was told at the hearing, she was on income support from 19 March 1995 to 30 August 1995 when that benefit ceased: see page 37. My decision on her case is given on that basis but if there turns out to be any doubt about this or the precise dates involved, it may be referred back to me on an application by either side for a correction to be considered.
- Here a rather speedier adverse review of the claimant's right to payment under her attendance allowance award was undertaken. By a decision dated 2 November 1995, but not notified to anyone until a letter dated 30 November 1995 was sent out (pages 19-23), an adjudication officer determined by way of review of the claimant's existing award dated 5 April 1993 that taking into account the period of her hospital admission and her transfer to residential accommodation her attendance allowance under that award was not payable from and including 13 March 1995 i.e. was indefinitely suspended.
- The same decision then went on purportedly to determine that there had been a recoverable overpayment of £322.90 attendance allowance paid after that date by reason of the claimant's alleged failure to disclose relevant information to the department. However this case has throughout been argued by both sides, before the tribunal and before me, as if the only relevant issues were those of payability and review referred to above; and I can see very considerable difficulty in the department making out a proper case for recovery against this elderly disabled claimant on the facts expressed to be relied on in the decision on page 19, given her circumstances. I deal with the case on the basis that the Secretary of State has for practical purposes elected not to pursue any question of repayment of the comparatively small sum involved, which is in my view the proper course in the circumstances.
- In late 1995 the claimant was already 83 and severely disabled, and obviously quite unable in any practical sense to deal with her own social security affairs. It appears that the adjudication officer's decision contained in the letter dated 30 November 1995 at pages 21-23 was only sent to her at the address of Mr. Peter Fordham's brother, where it was not immediately attended to. There is no evidence that this other son of the claimant was her appointee, or in any way formally authorised to deal with her social security affairs. The effectiveness of the purported issue of that decision on 30 November to start any time limits running against the claimant for applying to have it reviewed must, on this material, be open to substantial doubt.
- In the meantime on 9 December 1995 the claimant's house was sold, and the local authority was repaid the full amount of its outlay on the following day. From then on there is no dispute about her right to receive payment of her attendance allowance as a fully "self-funding" nursing home resident. The bridging period in issue in this case is therefore 13 March to 10 December 1995, for part of which down to 30 August 1995 the claimant was in receipt of income support.
- The unanswered letter of 30 November 1995 was followed up by a further letter dated 14 February 1996 making a further demand for repayment and sent to the same address: see page 24. Shortly afterwards Mr. Peter Fordham for practical purposes took on the management of his mother's affairs. As shown by his letter of 28 February 1996 (pages 25-26) on that day he telephoned the department, had a detailed discussion of his mother's case and then wrote confirming on her behalf that he was questioning the whole basis of the earlier decision letter dated 30 November 1995 and the alleged overpayment. He made clear that the grounds for this were that it was quite wrong that payment of benefit should be stopped as if his mother was "publicly funded" when in fact all she had received from the local authority was assistance by way of a loan, already repaid in full. As his letter following up the discussion said "Surely it is quite against the whole purpose of attendance allowance if she is stopped this benefit which is due to her." There is, I think, no answer to that.
- That letter has been rightly accepted and acted on by the department as an effective application for review of the decision stopping payment of the claimant's attendance allowance from 13 March 1995. The terms of the letter make quite clear that what was sought to be challenged was the entire basis on which the right to payment under that award had been purportedly stopped from that date: namely that she was in residential accommodation in a bridging period and counted as publicly funded.
- The tribunal made no finding about the date of that review application. It is variously given in the papers, as 1 March 1996 in the solicitor's chronology and the submissions on behalf of the Secretary of State, and "29.3.96" in the actual decision by the adjudication officer on the review dated 3 April 1996 at page 38. It is however accepted that the application was not in fact made on 29 March 1996, and the intervening pages 25-38 show the review requested was already under way before that date, so "29.3.96" must be a mistake. As 1996 was a leap year and Mr. Fordham wrote his letter on 28 February immediately following his conversation of the same date (a Wednesday), the most probable explanation on the material before me is that the adjudication officer's reference to "29.3.96" is a simple misprint for Thursday 29 February 1996, when a letter posted the previous day could have been expected to arrive. Taking into account also the doubt whether the original decision of 2 November 1995 was effectively issued to the claimant until after 30 November so as to start the time limit running, I find as a fact on the balance of probabilities that the application by Mr. Fordham on his mother's behalf to have the stopping of her benefit from 13 March 1995 reviewed was within the prescribed time of three months under s. 30(1) Social Security Administration Act 1992, so that she was entitled to have that decision reviewed under that section on any ground. The significance of this will appear later.
- The adjudication officer to whom the application for review was referred considered it however to be confined to the more restricted type of review under s. 30(2) by reference to a "relevant change of circumstances" taking place after the decision stopping payment, the change identified being that the claimant had become "totally self-funding" from 11 December 1995: see the decision dated 3 April 1996, at page 38. On that basis the decision given was simply that attendance allowance was once again payable to the claimant from and including 11 December 1995. No consideration was given to whether payment should ever have been stopped in the first place for the period from 13 March, which was the question Mr. Fordham had asked to be looked at again.
- The decision dated 3 April 1996 was only issued to the claimant in the form of a letter dated 22 April 1996, again sent to the address of the wrong brother: pages 39-40. Mr. Peter Fordham replied on 25 April 1996 reiterating the basis on which the claim for repayment was disputed and asking again for the matter to be reconsidered. This led to an adjudication officer conducting a full review of the case and giving the decision dated 24 July 1996 at page 43: the one under appeal to the tribunal.
- That decision, though initially expressed to be only by way of a review "on any ground" (that is a second-tier review under s. 30(1)) of the decision dated 3 April 1996 reinstating payment for change of circumstances after 10 December 1995, did in fact go a good deal wider. It incorporated a substantive review of the whole issue of payability of attendance allowance over the entire period back to 13 March 1995, and an express redetermination that the allowance was not payable from that date to 10 December. The ground given was that the claimant had been receiving free in-patient treatment in a hospital and then become resident in accommodation "which is or may be provided from local or public funds"; that this had been arranged under Part III of the National Assistance Act 1948; and that as stated in the decision (embodying the same assumption of law as in the other case) the later reimbursement to the council of the whole cost
" … cannot … make someone self-financing for the period in question, since throughout this period [she] was not ... meeting the whole cost of the accommodation from her own resources. Benefit is therefore not payable during the period local authority funded even though the customer refunds the money later".
- The social security appeal tribunal upheld that decision on 24 March 1997 for the same reasons, as appears from the chairman's admirably clear and well set out decision notice and statement at pages 58-63, citing CA/7216/1995 and holding that:
"Attendance allowance is not payable for a retrospective period in residential care accommodation which has been funded by a local authority, even where the funds provided have been repaid."
The appeal to me on behalf of Mr. Fordham's late mother is against that decision.
The law
- The legislative provisions in point on the payability issue are in the Social Security (Attendance Allowance) Regulations 1991, SI 1991 No. 2740. Regulation 7, made in exercise of powers now in s. 67(2), Social Security Contributions and Benefits Act 1992, provides so far as material that subject to regulation 8, a person shall not be paid any amount in respect of an attendance allowance for any period where throughout that period he is a person for whom accommodation is provided in pursuance of Part III of the National Assistance Act 1948, or in circumstances where the cost of the accommodation is or may be borne wholly or partly out of public or local funds in pursuance of that or of any other enactment relating to persons under disability.
- Regulation 8 is headed "Exemption from regulations 6 and 7", regulation 6 being the provision stopping the allowance for a person maintained free of charge while undergoing medical or other treatment as an in-patient in a hospital or similar institution under the National Health Service Acts. Regulation 8(1) provides that:
"8 - (1) Regulation 6, or as the case may be, regulation 7, shall not … apply to a person in respect of the first 28 days of any period during which he-
(a) is undergoing medical or other treatment in a hospital or other institution in any of the circumstances mentioned in regulation 6; or
(b) would, but for this regulation, be prevented from receiving an attendance allowance by reason of regulation 7(1)."
- Regulation 8(6), on which the payability issue in these cases turns, provides so far as material that:
" (6) Regulation 7 shall not apply ... in any particular case for any period during which-
(a) the person for whom the accommodation is provided-
(i) is not entitled to income support … and
(b) the whole of the cost of the accommodation is met-
(i) out of his own resources, or partly out of his own resources and partly with assistance from another person or a charity;
(ii) on his behalf by another person or charity."
- The relevant provisions on the review issue are in sections 30-31 of the Social Security Administration Act 1992 and in the Social Security Adjudication Regulations as in force at the time of the relevant decisions in these cases.
- Section 30 of the 1992 Act sets out the main provisions for review of decisions relating to attendance allowance, in the following terms so far as material:
"30 - (1) On an application under this section made within the prescribed period, a decision of an adjudication officer … which relates to an attendance allowance … may be reviewed on any ground …
(2) On an application under this section made after the end of the prescribed period, a decision of an adjudication officer … which relates to an attendance allowance may be reviewed if-
(a) the adjudication officer is satisfied that the decision was given in ignorance of, or was based on a mistake as to, some material fact; or
(b) there has been any relevant change of circumstances since the decision was given; or ...
(c) … or
(d) the decision was erroneous in point of law; ... "
- The prescribed period at all material times for these cases was three months. By s. 31(2), the review procedure "on any ground" under section 30(1) is also made applicable to any decision of an adjudication officer either reviewing or refusing to review an earlier benefit decision on the more limited grounds in s. 30(2). A further review of this nature carried out on an application under s. 30(1) within the prescribed time after a limited-grounds review under s. 30(2) (or refusal of such a review) is known as a "second tier review"; and the claimant's rights of appeal to a tribunal under s. 33(1) only arise after that second stage of the review process.
- Some limits on the use of this review mechanism are of course essential, or there would be no end to the reopening of past decisions. The regulations accordingly restrict the extent to which earlier decisions on benefit can be upset retrospectively in this way, and in particular limit the extent to which extra benefit can become payable to any claimant as the result of such a review. I will cite the relevant provisions from section C of the Social Security (Adjudication) Regulations 1995, SI 1991 No. 1801, as in force from 10 August 1995. Corresponding provisions in section D of the preceding Adjudication Regulations, 1986 SI No. 2218, were to the same effect so far as any period before that date is material.
- Section C of the 1995 Regulations opens with reg. 57 which provides so far as material as follows:
"Date from which revised decision has effect on a review
57 - (1) In the case of a review to which either paragraph (2) or paragraph 3 applies, the decision given shall have effect from the date from which the decision being reviewed had effect or from such earlier date as the authority giving the decision being reviewed could have awarded benefit had that authority taken account of the evidence mentioned in paragraph (2) or not overlooked or misconstrued some provision or determination as mentioned in paragraph (3).
(2) This paragraph applies to a review under sections ... 30(2)(a) ... of the Administration Act (review for error of fact) of any decision ... where the reviewing authority, that is to say the adjudication officer ... is satisfied that- ...
(c) the evidence upon which it is relying to revise the decision under review did not exist and could not have been obtained at [the time of making that decision], but was produced to an officer of [a relevant department] or to the authority which made that decision as soon as reasonably practicable after it became available to the claimant.
(3) This paragraph applies to a review under sections ... 30(2)(d) of the Administration Act (review for error of law) of any decision, ... where the adjudication officer ... is satisfied that the adjudication officer, in giving the decision under review, overlooked or misconstrued either-
(a) some provision in an Act of Parliament or in any Order or Regulations; or
(b) a determination of the Commissioner or the court, which, had he taken it properly into account, would have resulted in a higher award of benefit or, where no award was made, an award of benefit.
(4) The following provisions of this Section ... are subject to the provisions of this regulation."
- This is followed (after reg. 58 which is agreed not to be material) by reg. 59:
"Review of decisions involving payment or increase of benefit ...
59 - (1) Where on review a decision relating to benefit ... is revised so as to make benefit payable, or to increase the rate of benefit, then subject to the following provisions of this regulation, the decision given on review shall have effect from such date as may be specified in the decision, being a date not earlier than-
...
(e) in the case of an attendance allowance ... where the decision is reviewed- ...
(ii) under section 30(1) of the Administration Act as that sub-section is applied by sections 31(2) ... of that Act, 3 months before the date of the application for review made under section 30(2) ... of that Act which preceded the application for review under section 30(1) of that Act,
(iii) under section 30(2) ... of that Act, three months before the date of the application for review…
(4) In any case ... in which the review to which the foregoing provisions of this regulation relate was based on a material change of circumstances subsequent to the date from which the original decision took effect, it shall not have effect for any period before the date declared by the adjudicating authority making the review to be the date on which that change took place."
- It was contended on behalf of the Secretary of State by Mr. Kovats that the combined effect of regulations 7 and 8 of the Attendance Allowance Regulations was to prevent any allowance being payable to either claimant for the weeks of her bridging loan period even though it was acknowledged they had each met their own accommodation costs for the entire period in full. What mattered, he said, was that they were not meeting the full cost of their accommodation week by week in the sense of making payment at the time, and the full repayment to the local authority after the end of the weeks in question was too late to count for this purpose. He acknowledged that in Cheif Adjudication Officer v. Creighton and Others on 15 December 1999 [R1/00 (AA)] the Northern Ireland Court of Appeal had decided the exact opposite but submitted I should not follow them. Further or alternatively, I should hold that the claimants were in any case prevented from getting any benefit for the bridging period, since what gave rise to their right to payment of benefit notwithstanding the Part III arrangement was only the "change of circumstances" constituted by the actual repayment to the local authority, and reg. 59(4) cited above stopped any benefit being payable to them for the period before that date.
- Mr. Wright and Mr. Fordham submitted that the Northern Ireland Court of Appeal's answer was the right one, and any week for which full reimbursement was in fact made to the local authority was a period when the whole cost of the claimant's accommodation counted as "met out of her own resources" for the purposes of reg. 8(6)(b) even though the repayment only took place after the week in question. As regards the review point they acknowledged that there might be difficulties if the right to payment of attendance allowance for the bridging period had to depend on a "change of circumstances" that took place only when actual repayment was made, but submitted that it would be absurd if the procedural regulations about review were allowed to stultify any decision in the claimants' favour on the payability question, and such an unjust result should be rejected. Mr. Wright suggested that this could be done by treating the fact of each claimant meeting her own costs as having existed all along, even though it could only be finally established by the later evidence of repayment: that brought the case within adjudication regulation 57(2)(c) and so solved the problem.
Payability
- In my judgment the conflict of authority over the payability issue must be resolved by following the decision in Chief Adjudication Officer v. Creighton cited above, that a period for which a local authority only provides assistance by way of bridging finance and in due course is repaid the full amount of its outlay from the claimant's assets is a period for which reg. 8(6)(b) of the Attendance Allowance Regulations makes reg. 7(1) inapplicable, provided that the conditions in reg. 8(6)(a) are also satisfied, even though the repayment does not take place until after the end of the individual week or weeks in question.
- As Carswell LCJ giving the judgment of the court observed, the word "met" in this context refers to the person who ultimately meets the costs, not the person or body who makes the actual payment at the time when the fees are paid over to the provider of the accommodation. The use of the word "met" is deliberate and refers to the person on whom the liability for the payments eventually falls, not the person who in the first instance handles the mechanics of making payment to the home, doing so only on an interim or provisional basis. The contrary construction is repugnant to common sense and elementary fairness, and to be rejected in favour of the more reasonable alternative.
- I follow that decision, both because it is the practice of the Commissioners to follow decisions of the Court of Appeal in Northern Ireland on identically worded legislation in the absence of countervailing British authority (R(SB) 1/90); and also because it is, if I may respectfully say so, the only sensible way of reading the legislation and the only answer consistent with any rational intention behind it. Of course there is a difficulty, as Mr. Kovats pointed out, over how the phrase "for any period during which" is to be read together with the present tense "is met" in reg. 8(6), which at first sight might seem to require a contemporaneous look at who is actually paying the bills to the home in the particular benefit week in question. However that cannot be the right meaning of "during" here: apart from producing some anomalous results in sub-paragraph (a) with an entitlement to income support not established until after the week to which it relates, it would also make (b) operate to cut off attendance allowance (a weekly benefit) to thousands of people paying their own bills on a weekly or monthly basis, but doing so just outside the relevant benefit week itself.
- In my judgment therefore the Northern Ireland Court of Appeal were plainly and correctly reading "during" in this context as intended to mean "for the duration of": a perfectly normal sense of the word. I reject Mr. Kovats' submission that their express decision holding regulation 7 inapplicable as regards the whole duration of the bridging period at issue in each of the cases before them should be viewed as per incuriam for overlooking the temporal connotations of "during". Their conclusion that the attendance allowance was payable to each claimant for that entire period, without any qualification, was a necessary part of their decision. It was what the whole argument had been about, both in the cases before them and the Northern Ireland Commissioners, and in the other cases to which they referred. The result to the contrary reached in two of those cases, CA/7126/1995 and CA/11185/1995, was I think rightly rejected in the judgment as unjust and perverse: it is not in my view to be regarded as being, or as ever having been, good law in Great Britain. I note that the Commissioner in CA/16358/1996 declined to follow those cases, preferring to adopt the consistently applied view of the Northern Ireland Commissioners on the question which had divided their English counterparts, and in my view he was right to do so.
- If contrary to the Northern Ireland court's judgment it is necessary to read "during" in a purely literal sense and apply a week-by-week test in reg. 8(6), I would for my own part go further and hold that in this context a person receiving assistance only by way of a bridging arrangement, which under s. 22 National Assistance Act 1948 must necessarily involve an accruing and increasing week-by-week liability on that person to make full repayment of the cost to the local authority, is to be regarded even in the current week during a bridging period as a person "meeting" their own costs in the sense required to distinguish them from a person whose costs are being borne out of public funds, for so long as the assets available to the local authority for recoupment continue to exceed the accruing liability. In the two cases before me there was never any doubt about the sufficiency of the assets for that purpose and in my judgment these claimants are entitled to succeed on that alternative ground as well.
Review
- The starting point for considering this issue is that attendance allowance is payable for the period in question by virtue of reg. 8(6), and regulation 7 is not applicable. Otherwise the procedural points on review do not begin to arise.
- What is said primarily, based on some observations in case CA/11185/1995, is that payment of benefit stopped for a bridging period can only be reinstated after reimbursement to the local authority has actually taken place, as only then can the claimant be regarded as "self-funding" so as to attract the operation of reg. 8(6)(b). Moreover to reinstate payment requires a review, which can only be by reference to the "relevant change of circumstances" constituted by the fact of the reimbursement. That only comes at the end of the bridging period, not during it; and by reg. 59(4) of the adjudication regulations that is always too late for any additional payment of benefit for that period. Ergo, what is payable under reg. 8(6) can never be paid. A less extreme form also relied on was that the three-month restrictions in reg. 59(1) should be used to deprive the claimants of some or all of the benefit otherwise payable to them for the bridging period, because of what were said to be the relevant dates.
- As the Chief Commissioner for Northern Ireland observed in case NI C3/95 Chief Adjudication Officer v. Cross (one of the three cases affirmed by the Northern Ireland Court of Appeal [RI/00 (AA)]) the provisions about review for error of fact or change of circumstances give rise to difficulties of interpretation in this context. However I agree with him and with the submissions on behalf of the claimants that these procedural provisions are not to be applied in such an impractical way as to reverse the substantive decision that the allowance is payable in such circumstances. In my view leading Counsel for the department before the Northern Ireland court was right to disclaim reliance on such arguments, as recorded at page 9 of the court's judgment; and I have no doubt that the court had that and the Chief Commissioner's observations in mind when they gave their unqualified decision confirming that the allowance was payable for the bridging loan period. That is quite inconsistent with there being any tenable argument that despite their decision it was not to be payable after all by the operation of procedural provisions.
- The answer, in my view, is that the arguments focusing on reviews for changes of circumstances or factual mistake are beside the point. The true reason why any decision purportedly applying regulation 7 to a bridging period for which it is not applicable must be reviewed and corrected is that such a decision is wrong in law. It must in my judgment be an error in law to have applied the wrong regulation to such a period, even on a provisional basis. It is certainly an error in law to have done so on the basis that reg. 8(6)(b) could never apply to a bridging period because the only question was whether the weekly payments to the home were being made by the claimant or the local authority, which as noted above was the assumption consistently applied by the department and its adjudication officers in these and many other cases. For the reasons given above that was a fundamental misconstruction of the provisions of regulations 7(1) and 8(6) and it follows that the review required to revise and correct such a decision is within reg. 57(3) of the adjudication regulations. By virtue of reg. 57(4), that overrides any of the restrictions in reg. 59. Consequently I again reject Mr. Kovats' submissions that the Northern Ireland Court of Appeal overlooked a material point in holding benefit payable to the claimants in respect of the whole of the bridging periods at issue.
- In the two cases before me I also reject the Secretary of State's contentions on the "review" point on the additional ground that in neither of them could it in fact deprive the claimant of benefit otherwise payable by virtue of reg. 8(6). A quick analysis of the facts of the two cases explains why. The only relevant review decision in case CA/2937/1997 was that dated 19 April 1995, which merely purported to suspend for the limited period from 20 December 1993 to 10 October 1994 her right to payment under the original award of benefit made on 4 August 1993, continuing up to then and left unaffected from 11 October 1994 onwards. The decision of 19 April 1995 was not in any sense a revision of any earlier decision so as to make benefit payable, or increase the rate of benefit: accordingly reg. 59 of the adjudication regulations had no application to it at all. In case CA/2604/1998, the relevant review decision under appeal to the tribunal was the second-tier review decision dated 24 July 1996, which as noted above (although initially describing itself as limited to reconsidering the purported "change of circumstances review" on 3 April 1996) did in fact embody a complete substantive review of the merits of the decision of 2 November 1995 stopping payment of the claimant's allowance, and an express redetermination that benefit was not payable for the limited period 13 March to 10 December 1995 (only). Since as I have held the application on behalf of the claimant to have the decision of November 1995 reviewed was made within the prescribed period for a full substantive review "on any ground" under s. 30(1) Social Security Administration Act 1992, the wider substantive review carried out by the decision of 24 July 1996 was in fact within its proper scope, even though the way of getting there was misstated. Accordingly again the review decision before the tribunal was one purporting to cut out, for a limited period only, what was otherwise a continuing right to payment under the original award of attendance allowance. Again there was no occasion for any revision so as to make benefit payable, or increase the rate of benefit, nor did the decision under appeal to the tribunal purport to do so. Accordingly again the restrictions in reg. 59 of the adjudication regulations were inapplicable, and the entire merits of the decision to suspend payment of benefit were properly in issue before the tribunal.
General
- The practical difficulties for the department in operating regulations 7 and 8 of the attendance allowance regulations during a bridging period ought not to be exaggerated. A few simple enquiries of the claimant, his or her family and the local authority should speedily reveal whether there is any real risk of the house proceeds being inadequate to make repayment in full in due course to the local authority. Unless there is such a risk or the claimant fails to meet the conditions in reg. 8(6)(a), there is no justification for stopping payment of attendance allowance under an existing award. The case will be within regulation 8(6)(b) and regulation 7 will be inapplicable. The chances of acting on incorrect information during a bridging period can be reduced most of all by the department itself phrasing its enquiries clearly and correctly, and making clear to people the nature of the disclosure required of them if, for example, intended sale arrangements fall through or are excessively prolonged. If a person's resources do begin to run out an application for income support is likely to be made in any event, and any period of genuine uncertainty over reg. 8(6) ought in practice to be short.
- For the foregoing reasons I set aside the decision of the tribunal as erroneous in point of law in each of these two cases, and exercise the power now in section 14(8)(a) Social Security Act 1998 to substitute my own decision. My decision in CA/2937/1997 is that the claimant's right to payment of her attendance allowance under her original award of 4 August 1993 continued unaffected at all material times and the purported review decision dated 19 April 1995 was wrong. In case CA/2640/1998 my decision is that the claimant's right to payment of attendance allowance under her original award dated 5 April 1993 did fall to be reviewed and suspended by virtue of regulation 7, but for part only of the period in issue: namely from 13 March 1995 by which time she had been in hospital for more than 28 days, to 30 August 1995 when she ceased to be on income support, but that otherwise her right to payment continued unaffected; and the adjudication officer's review decision of 24 July 1996 is modified to that extent.
- The two appeals are allowed and my decisions substituted accordingly.
Date: 9 November 2000 (signed) Mr. P. L. Howell QC
Commissioner
