R(G) 1/03
(Secretary of State for Work and Pensions v. Adams [2003] EWCA Civ 796)
Mr P. L. Howell QC CG/388/2002
18.6.02
CA (Butler-Sloss P, Sedley, Clarke LJJ)
18.6.03
Overlapping benefits - status of decisions on payability - whether supersession necessary to resume payment
In February 1996 the claimant received a decision that he was entitled to invalid care allowance ("ICA") from 20 June 1995 but that, by virtue of regulation 4 of the Social Security (Overlapping Benefits) Regulations 1979 ("the Overlapping Benefits Regulations"), it was not payable because he was receiving incapacity benefit at a higher rate. Incapacity benefit was terminated with effect from 12 May 2000, but the ICA section were unaware of this and did not resume payment. The claimant, who was seeking to have his incapacity benefit reinstated, did not notify the ICA section until his incapacity benefit appeal had been finally turned down, when he returned a routine enquiry form to the ICA section. Payment of the allowance was then resumed with effect from 27 March 2001, the date the enquiry form was received. The claimant appealed, seeking payment from 12 May 2000. The tribunal agreed with the Secretary of State that the decision to resume payment was a supersession decision under section 10 of the Social Security Act 1998, and therefore subject to regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, by which such a decision has effect only from the date it was applied for.
The Commissioner held that the decision to withhold payment was a decision under section 8 of the Social Security Act, but that to resume payment it was not necessary to supersede it under section 10. The Secretary of State's authority to withhold payment on the subsisting award of invalid care allowance had ceased when the claimant ceased to receive incapacity benefit at a higher rate, so that regulation 4 of the Overlapping Benefits Regulations no longer applied. The decision to resume payment fell to be made under section 8(1)(c) (a decision falling to be made under or by virtue of a relevant enactment) and should have been to the effect that invalid care allowance had been payable to the claimant from and including 12 May 2000, in accordance with his continuing entitlement. It was not subject to the restrictions applying to superseding decisions.
The Secretary of State appealed to the Court of Appeal. Before the Court of Appeal it was common ground that both the suspension and restoration of the claimant's invalid care allowance involved a decision and not merely an administrative step. The single issue before the Court of Appeal was whether the decision to resume payment was a decision under section 10 or under section 8.
Held, dismissing the appeal and affirming the decision of the Commissioner, that:
- an "award" of benefit signifies an extant decision that the claimant is entitled to it, and unless there is some legal inhibition on payment of it, payment follows as of right: here there was no such inhibition after 11 May 2000 (paragraph 17);
- it was more in conformity with the legislative scheme to regard the decision to resume payment as one under section 8 on a claim for a relevant benefit or falling to be made under the enactments which had so far created an entitlement but had inhibited payment, rather than as a decision under section 10 to supersede the decision not to pay while payment was inhibited (paragraph 18);
- to allocate a decision to resume payment to section 10 or to place upon the claimant an onus to inform the Department of its own decision which could not be found in the legislation would penalise him for the Department's own failure to readjust the payments according to law and would tend to defeat the objectives of the scheme (paragraphs 19 and 20);
- accordingly the claimant was entitled as of right to resumption of payment of his invalid care allowance with effect from 12 May 2000 because the decision to resume payment was one under section 8, and should have been given effect from that date.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- My decision is that the decision given by the appeal tribunal sitting in Cardiff on 5 September 2001 on the claimant's appeal against the refusal of payment of his invalid care allowance was erroneous in point of law. I set it aside and substitute my own decision that the Secretary of State had been wrong in deciding as he did on 6 April 2001 that payment of the invalid care allowance to which the claimant had been entitled throughout the period from 12 May 2000 to 26 March 2001 had to be withheld from him. The consequence is that the claimant is legally entitled to payment of his benefit for that period, in addition to that for the period from 27 March 2001 onwards under his continuing award of invalid care allowance which is not in dispute.
- I held an oral hearing of this appeal, at which Warren Palmer of the Speakeasy Advice Centre, Roath, appeared on behalf of the claimant and Huw James, solicitor, appeared for the Secretary of State. I am grateful to both of them for their assistance on the points of substantive and procedural law raised by the case.
- The claimant is a man now aged 51, who at all material times has been looking after his partner, a severely disabled person. Since 20 June 1995 he has been and remains continuously entitled to invalid care allowance for that reason, and that entitlement is in no way in dispute. The problem in this case has arisen because for part only of that period, namely from 20 June 1995 to 11 May 2000 inclusive, he was also entitled to incapacity benefit payable to him by reason of his own medical condition, and under the regulations about overlapping benefits where two national insurance benefits for basic subsistence are payable at once, the amount actually payable to him in respect of his invalid care allowance fell to be adjusted to zero for that period. When the incapacity benefit entitlement was terminated, the section of the department responsible for dealing with the claimant's invalid care allowance did not notice; and in consequence the "adjustment" wrongly continued to be applied, so that the invalid care allowance then payable to him by virtue of his continuing entitlement was not actually paid. The claimant did not pursue this with the department at the time, because he was seeking and expecting to get the termination of his incapacity benefit reversed by pursuing an appeal.
- This state of affairs continued from 12 May 2000 to 26 March 2001, that being just a few days after the claimant's appeal about his incapacity benefit had finally been turned down by another tribunal on 22 March 2001. He thereupon returned a routine enquiry form previously sent to him by the invalid care allowance section, and they thus learned for the first time that his incapacity benefit had ceased from 12 May 2000. Payment of his invalid care allowance was then started up on 27 March 2001. However it was refused for the earlier period for which he had been entitled to it from 12 May 2000 onwards. This was on the ground that although that had not been a period when overlapping benefits were payable so that the provision for adjustment applied, nevertheless what they were now doing was "superseding" the original decision to impose the adjustment; thus by virtue of the procedural provisions now in force under the Social Security Act 1998, any such "superseding decision" could have effect only from the date the invalid care allowance section had been notified of the change that gave rise to it, with the consequence that the claimant's right to payment for the intervening period had been lost.
- That decision, dated 6 April 2001, was communicated to the claimant on or about 17 April 2001 (the original decision appears to be recorded in note form on page 29 of the appeal file); and the claimant's appeal to the tribunal was against the part of it which decided that payment of the invalid care allowance to which he had been entitled from 12 May 2000 to 26 March 2001 should be withheld. In case it is material, I record that that part of the decision falls in my judgment squarely within the terms of section 8(1)(c) Social Security Act 1998 as being a decision by the Secretary of State "that falls to be made under or by virtue of a relevant enactment", in the same way as a corresponding decision by an adjudication officer under section 20(1)(b) Social Security Administration Act 1992 would have fallen to be made under the former legislation on this as a "question arising in connection with a claim for, or award of" the claimant's invalid care allowance benefit. Since such a decision is not one prescribed under schedule 2 to the Social Security Act 1998 as one against which no appeal lies, there is no doubt the claimant was entitled to appeal against it to the tribunal as he did, whether or not that aspect of the decision truly fell within the scope of a "superseding decision" under section 10, as the Secretary of State and the tribunal treated it.
- The claimant did not, of course, appeal against the decision to start paying him his invalid care allowance from 27 March 2001 onwards, there being no dispute as to his right to payment from then on by virtue of his subsisting and continuing award. Consequently the only question for the tribunal was whether the Secretary of State's decision that his right to payment for the preceding period had been lost for procedural reasons was correct.
- On the claimant's behalf on the appeal, Mr Palmer argued that this was not so, and the tribunal had misdirected themselves. He pointed to the fact that the original decision which had purportedly been "superseded" on 12 April 2001 was in fact two decisions, both given by an adjudication officer at the same time under the provisions then in force and recorded in the notifications sent out to the claimant at that time in February 1996 (pages 6-9 of the appeal file), in the following terms so far as material:
"[The claimant] is entitled to Invalid Care Allowance at the weekly rate of £35.25 from and including 20 June 1995.
Invalid Care Allowance is not payable from and including 20 June 1995. This is because [the claimant] is receiving Incapacity Benefit at the weekly rate of £52.50 and that rate is more than or equal to the weekly rate of Invalid Care Allowance which would otherwise be payable."
- Mr Palmer said that the first part of this decision was the decision on benefit, which was quite properly accepted on all sides as embodying a continuing award giving rise to an unbroken entitlement to invalid care allowance subsisting at all material times. The second part dealing with payment was a decision of a purely administrative nature, akin to the many thousands if not tens of thousands of decisions on minor administrative matters made every day by the Benefits Agency, such as arranging payment at one particular post office, or deciding that further information is required from a claimant on some matters. Such "administrative" decisions, as distinct from those determining questions of entitlement to benefit, failed in Mr Palmer's submission to find a place at all in the new structure of "revision and supersession" of past decisions under the Social Security Act 1998 which were necessarily, by the context, limited to the more formal determinative types of decision in order to avoid absurdity. In any event, when one looked at the overlapping benefits regulations themselves, it was plain that there was no provision for adjustment or withholding payment of invalid care allowance to which a claimant is entitled, except where regulation 4 of those regulations applied. Since that was necessarily dependent on there being two benefits payable at once, it could have no application to this case after 11 May 2000 when that had ceased to be so.
- Alternatively, Mr Palmer argued that if the decision in this case had to be constrained by the rules about superseding decisions, then the start of payment should at least be backdated to the date the invalid care allowance section had issued the enquiry form, since that must have been done for a purpose, in order to reconsider the current conditions of entitlement or payment; and that was sufficient to bring the case within regulation 7(2)(bb) Social Security (Decisions and Appeals) Regulations 1999 SI No 991, so that the new decision could take effect from the date on which the Secretary of State had "commenced action with a view to supersession". That brought it back a little earlier than the "date of notification of the relevant change of circumstances", which would otherwise be the earliest effective date for a superseding decision under reg. 7(2)(b) ibid. In the further alternative, Mr Palmer argued that the claimant's responses to the questions asked of him on the enquiry form should not have been construed as an application for a "superseding decision" to be given at all, and should have been construed as a fresh claim by him for invalid care allowance, to which a period of three months' backdating would have been applicable.
- On behalf of the Secretary of State, Mr James submitted that the Secretary of State had been right in viewing what happened in March and April 2001 as a "superseding" by the Secretary of State of the previous adjudication officer's decision on the question of payment, such as to fall squarely within the provisions for, and the time limits applicable to, such superseding decisions under section 10 Social Security Act 1998 and reg. 7(2)(b) of the Decisions and Appeals Regulations. Thus it followed that the new decision on payment could be given no backdated effect before the date on which the stopping of incapacity benefit had finally been notified by the claimant to the invalid care allowance section, accepted as having happened only on 27 March 2001. He submitted that all aspects of the adjudication officer's decision notified as having effect from and including 20 June 1995 were (by virtue of the transitional provisions in the Social Security Act 1998 (Commencement No. 11, and Savings and Consequential and Transitional Provisions) Order 1999, SI No. 2860, Schedule 16 para. 4(1)) to be treated as if they had been decisions of the Secretary of State under section 8(1) Social Security Act 1998, and thereby brought within the mandatory regime of "revision and supersession" under that Act.
- Consequently, the adjudication officer's decision that payment was to be withheld from 20 June 1995 required another decision to alter it; that other decision could only be by way of a fresh decision superseding it for "change of circumstances" under section 10 of the 1998 Act; and by virtue of that section and the Decisions and Appeals Regulations referred to above, the earliest date from which such a superseding decision could have effect was that of the notification of the change of circumstances giving rise to it; with the consequence that the claimant could not be paid the benefit to which he was entitled for the intervening period. While it was recognised that there was a distinction between decisions awarding or determining questions of entitlement to benefit, and those determining what are sometimes called questions of "payability" of benefit to which a claimant is accepted as entitled, both types of decisions in point in this case fell within those properly described as "adjudicative decisions", falling to be taken by adjudication officers under section 20 of the 1992 Act and now by the Secretary of State under section 8 of the Social Security Act 1998. So far as the procedure and the limits on effectiveness of new decisions given to replace old was concerned, there was no material difference between payability and entitlement: both fell to be dealt with in the same way, and were subject to the regime of "supersession".
- On the subsidiary points taken by Mr Palmer, Mr James disputed that the sending out of a routine enquiry form could properly be viewed as "action taken by the Secretary of State with a view to supersession": it was a preliminary stage, which might or might not indicate to the Secretary of State that the commencement of such action might be necessary. The terms of the form, which referred expressly to the claimant's existing and continuing claim at more than one point, provided a conclusive answer to any suggestion that the answers given could have been construed as the making of a distinct fresh claim for the same benefit, even if that were permissible while an existing award and entitlement continued to run.
- Dealing first with the two subsidiary points, Mr James's arguments were in my judgment entirely right on the particular facts of this case. The invalid care allowance enquiry form sent out on 24 January 2001, a copy of which is at pages 24-27 of the appeal file, was according to the evidence before the tribunal a form of a routine nature, sent out by the invalid care allowance section to people entitled to that benefit to enable their records to be updated. The sending out of such forms asking for information in a general way from time to time is not in my judgment the launching of an operation to "supersede" the existing award of benefit for every single claimant to whom such a form is sent out. It may lead to that, because as Mr Palmer rightly said, the information is being requested for a purpose: but in my view that purpose is to see whether any action is necessary and in terms of regulation 7(2)(bb) the time when the Secretary of State "commences action with a view to supersession" is when further steps are taken in the light of the responses on the form revealing that a change of circumstances or other reason to warrant superseding action may have occurred. The terms of the document itself at pages 24-27 leave in my judgment no possible scope for an argument that the claimant's answers on it can be construed as the making of a fresh claim for benefit. The form is throughout expressed in terms of an existing claim which has already been made, and the date from which that claim was accepted as effective had already been filled in by the department as 20 June 1995 before the form was sent out. In returning the form duly completed on 25 March 2001, the claimant did not purport to be lodging it as a fresh claim or doing anything other than truthfully answering the questions asked of him about his existing claim. The Secretary of State did not, of course, treat those answers as the making of a fresh claim and in my judgment (insofar as it is within the scope of the appeal to the tribunal and thus my jurisdiction to pronounce on it at all) he would have been quite wrong to do so.
- Turning therefore to the major point in the appeal, on whether the Secretary of State was right to decide that no benefit could be paid to the claimant for the period 12 May 2000 to 26 March 2001 even though the claimant was entitled to it and the overlapping benefits provisions did not apply, I would again accept Mr James's submission that the decision of the Secretary of State on such a question is a decision within the terms of section 8(1)(c) Social Security Act 1998, as a decision falling to be made under the relevant social security legislation on a question arising in relation to the claimant's subsisting award of benefit. There is therefore in my judgment no doubt that decisions on such questions of "payability", even though they are not themselves decisions determining questions of entitlement (and may or may not be made at the same time as decisions awarding the benefit concerned) are decisions which may properly be challenged by way of appeal to an independent tribunal under section 12 Social Security Act 1998, and may in proper cases be the subject of further decisions revising or superseding them under sections 9 and 10, where the circumstances prescribed for such further decisions to take effect arise.
- I accordingly reject Mr Palmer's submission that decisions taken on behalf of the Secretary of State on payment questions are of such a minor administrative nature as to fall outside the regime of Chapter II Social Security Act 1998 altogether: apart from anything else such an argument seems to me counterproductive for claimants, since it would mean that such decisions can never be challenged by way of appeal to an independent tribunal at all. That would be contrary to the position about corresponding decisions taken by adjudication officers under section 20 of the 1992 Act and also contrary in my judgment to the intention of Parliament in sections 8 and 12 of the new legislation.
- But it does not seem to me to follow from the fact that a decision on a payment question is within the scope of the new procedural provisions about decisions, appeals and revisions or supersessions, that the course taken by the Secretary of State and the tribunal in this case was necessarily right. Mr James's argument was that because a decision could have been and was issued under the terms of the new legislation superseding the earlier refusal of payment as from 27 March 2001 (the date on which the invalid care allowance section received the information about incapacity benefit having stopped and took the initiative to reinstate the claimant's payments, so that it does not matter for this purpose whether the "superseding" is treated as having been done on an application by the claimant, or by the Secretary of State on his own initiative) and regulation 7 of the Decisions and Appeals Regulations prescribes that a "superseding" decision could only be given as regards the period from that date, it necessarily followed that the claimant's substantive right to payment for the preceding period had been lost, because there was no procedural provision in section 10 or regulation 7 to reinstate it.
- That line of argument reflected the entirely understandable mindset of the department which instructs him, whose day to day preoccupation is with attempting to work within the rather ungainly set of procedural provisions they have now been given to administer under the Social Security Act 1998, and the many piecemeal amendments already made to them as deficiencies and imperfections have been recognised. But in my judgment it is back to front. It amounts to making the procedure the master of the law, when it should only ever be allowed to be the servant of the substantive provisions.
- Those provisions so far as this case is concerned are simple. This claimant, as is not disputed, has an entitlement to invalid care allowance for the period in question. That is a weekly cash benefit Parliament has said is to be provided for people looking after a severely disabled person at home, as he has been doing at all material times: section 70 Social Security Contributions and Benefits Act 1992. That undisputed entitlement arises under the adjudication officer's award of benefit, which was expressed to have effect from and including 20 June 1995 on a continuing basis and still subsists. The effectiveness of an award in such terms to give the claimant a legal entitlement to his benefit on an indefinite and continuing basis so long as the conditions of entitlement continue to be met, as they do here, is expressly provided for in regulation 17 Social Security Claims and Payments Regulations 1987 SI No. 1968.
- None of that is in dispute. Nor is it in dispute that an award of a cash benefit on a continuing basis carries with it the legal right to receive payment of the benefit awarded, also on a continuing basis, in the absence of express provision to the contrary. That is in my judgment implicit in the nature of an award of benefit under this legislation and is so as a matter of general principle, but in any event is confirmed by regulation 20 of the Claims and Payments Regulations, which lays down the general principle that:
"benefit shall be paid in accordance with an award as soon as is reasonably practicable after the award has been made, by means of an instrument of payment or by such other means as appears to the Secretary of State to be appropriate in the circumstances of any particular case."
- The right to receive payment of any particular benefit under the National Insurance scheme is, however, subject to special provisions: for example where the benefit is to provide basic subsistence and the person concerned is already having this provided at public expense in kind, by being accommodated in a National Health Service hospital or (albeit unwillingly) in prison. A similar principle is reflected in the provisions of the overlapping benefits regulations initially applied to the claimant in this case, which ensure in effect that where a claimant is entitled to draw an allowance for basic subsistence under the National Insurance scheme for two or more reasons concurrently in any particular period, only one such allowance is actually to be paid to him to provide for those same needs in that same period.
- Thus by regulation 4 Social Security (Overlapping Benefits) Regulations 1979 SI No. 597 which was the provision applied in this case:
"Adjustment of personal benefit under Parts II and III of the Contributions and Benefits Act where other personal benefit under those Parts
is payable
- (1)
an adjustment shall be made in accordance with paragraph (5) where either
(a) two or more personal benefits (whether of the same or of a different description) are, or but for this regulation would be, payable under Parts II and III of the Contributions and Benefits Act (which relate to benefits other than industrial injuries benefits) or under the Jobseekers Act for any period;
(5) Where an adjustment falls to be made in accordance with this paragraph and
(a) one of the benefits is a contributory benefit and one is a non-contributory benefit, the non-contributory benefit shall be adjusted by deducting from it the amount of the contributory benefit and only the balance, if any, shall be payable;
"
- Incapacity benefit is a contributory benefit under Part II of the Contributions and Benefits Act; invalid care allowance is a non-contributory benefit under Part III; both are personal benefits under the National Insurance scheme, providing income protection for people unable to go out and earn it for themselves by reason of incapacity for work, or having to stay at home and look after a person too severely disabled to be left on their own, respectively. There are special provisions in regulation 12 ibid about the way the actual adjustment is to be made in certain cases of invalid care allowance, but it was common ground before me that nothing turns on those.
- As already noted this claimant's weekly incapacity benefit, while it remained payable, was substantially more than the invalid care allowance otherwise payable to him, so that his invalid care allowance would be adjusted to zero under regulation 4 for so long as those two benefits would otherwise have been payable simultaneously. It was common ground before me that regulation 4 was the only relevant provision under which any adjustment fell to be made to what was otherwise payable to the claimant for invalid care allowance by virtue of his continuing award of that benefit. Moreover in my judgement it is clear beyond argument from the express terms of regulation 4 that the Secretary of State's duty to make such an adjustment continues only so long as the two benefits are payable simultaneously, and the regulation gives him no power or authority to impose an adjustment on benefit otherwise payable in any period when that is not so.
- Consequently, in my judgment, there was nothing in the substantive law that gave the Secretary of State the power to withhold payment of the invalid care allowance to which the claimant was continuously entitled from 12 May 2000 onwards; and there was nothing in either the substantive or the procedural law that entitled the adjudication officer at the time he gave the decision awarding that benefit from 20 June 1995 to make a decision that the claimant should not be paid it for any period when regulation 4 of the Overlapping Benefits Regulations did not authorise any adjustment to be made. Nor is there anything in either the substantive or the procedural law which entitles the Secretary of State to refuse payment of benefit due to a claimant for a past period merely because the Secretary of State himself has failed to notice that an adjustment wrongly still being applied under the regulations should have ceased, and the claimant has deferred pointing this out to him while pursuing to appeal a contention that the larger benefit should have gone on being paid to him, so that there would have been an overlap after all.
- Accordingly in my judgment the original adjudication officer's decision that invalid care allowance was not payable because the claimant was at that time receiving incapacity benefit at a higher rate should never have been treated as having any continuing effect beyond the time when that ceased to be so, and it would have been outside the powers conferred on the Secretary of State or the adjudication officer by the legislation had it purported to do so. The Secretary of State's decision under section 8(1)(c) of the Social Security Act 1998, when the matter came to light and was raised for decision, should have been that invalid care allowance had been payable to the claimant from and including 12 May 2000 in accordance with his subsisting award, the authority to apply any adjustment or withhold such payment having ceased. That in my judgment is the decision the tribunal should have given and that is accordingly the decision I substitute. The claimant's appeal is allowed accordingly.
Date: 18 June 2002 (Signed) P. L. Howell
Commissioner
The Secretary of State appealed to the Court of Appeal. The decision of the Court of Appeal follows.
DECISION OF THE COURT OF APPEAL
Mr Timothy Ward (instructed by Department for Work and Pensions) for the Appellant.
Mr Richard Drabble QC (instructed by Child Poverty Action Group) for the Respondent.
Judgment (Reserved)
LORD JUSTICE SEDLEY:
The issue
- This appeal is brought by permission of the Social Security Commissioner, Mr P.L. Howell, who on 18 June 2002 gave the decision now under challenge. He held that the Secretary of State was not entitled to withhold the invalid care allowance for which Mr Adams was eligible for the period from 12 May 2000, when the incapacity benefit which extinguished it ceased to be payable to him, to 26 March 2001, the day before the Department learnt from Mr Adams of the cessation of his incapacity benefit and as from which it consequently restored his invalid care allowance.
The history
- Mr Adams, now in his early fifties, has for a number of years been caring for his severely disabled partner, with the result that from 20 June 1995 he became entitled to an invalid care allowance, initially at £35.25 a week. By then, however, he was in receipt of incapacity benefit in an amount which was greater than the invalid care allowance. By virtue of Regulation 4 of the Social Security (Overlapping Benefits) Regulations 1979, such benefits have to be adjusted, period by period, by deducting the contributory benefit (here the incapacity benefit) from the non-contributory one (here the invalid care allowance). The arithmetical consequence was that the invalid care allowance ceased to be payable for as long as the incapacity benefit was being paid.
- The notification sent to Mr Adams by the Department's invalid care allowance section on 9 February 1996, written in attractively clear English, included the following:
• "The adjudication officer has decided you cannot be paid ICA at the moment even though you are entitled to it."
• "This is because you are getting [incapacity] benefit which is the same as, or more than ICA."
• "If the incapacity benefit stops you should tell us straightaway. The adjudication officer may look at your claim again because you are not getting benefit. As long as you satisfy all the other conditions you may be entitled to ICA."
"Adjudication officer's decision
Mr S. Adam [sic] is entitled to Invalid Care Allowance at the weekly rate of £35.35 from and including 20/06/95
Invalid Care Allowance is not payable from and including 20/06/95. This is because Mr S. Adams is receiving [sic] Incapacity Benefit at the weekly rate of £52.50
. And that rate is more than or equal to the weekly rate of Invalid Care Allowance which would otherwise be payable."
- Mr Adams' incapacity benefit was terminated by the Secretary of State with effect from 12 May 2000. The Department, however, failed to observe that this revived his entitlement to invalid care allowance from the same date. Mr Adams for his part was more concerned to have his incapacity benefit restored. The Department refused, and on 22 March 2001 Mr Adams' appeal against the refusal was turned down. A few days later he returned a routine inquiry form to the invalid care allowance section of the Department, who learned from it that his entitlement to incapacity benefit had terminated almost a year before. They responded promptly by restoring Mr Adams' invalid care allowance from the date when they received this information from him, 27 March 2001; but they took the view, which was upheld by an appeal tribunal in Cardiff on 5 September 2001, that there was no power to backdate the restoration to the time when Mr Adams' incapacity benefit had come to an end. It was this decision which the Commissioner overset and which the Secretary of State now seeks to restore.
- Meanwhile, commendably, the Department has paid Mr Adams the amount in dispute ex gratia. In consequence we are concerned solely with the issue of principle and can consider it in the light of the present legislation without reference back.
The law
- Section 8 of the Social Security Act 1998, shoulder-noted "Decisions by Secretary of State", provides:
(1) Subject to the provisions of this Chapter, it shall be for the Secretary of State
(a) to decide any claim for a relevant benefit;
(c)
to make any decision that falls to be made under or by virtue of a relevant enactment
- Section 9 provides for the Secretary of State to revise his own decisions with effect, ordinarily, from the date when they were originally taken.
Section 10, shoulder-noted "Decisions superseding earlier decisions", provides:
(1)
(a) any decision of the Secretary of State under section 8 above or this section, whether as originally made or as revised under section 9 above
may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative.
(5) Subject to subsection (6) and section 27 below, a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.
(6) Regulations may provide that, in prescribed cases or circumstances, a decision under this section shall take effect as from such other date as may be prescribed.
It is not necessary to follow through the backdating provisions, which were discussed in argument but not ultimately relied on for Mr Adams.
- Sections 12 to 14 provide for appeals against decisions of the Secretary of State.
- Section 17 provides:
(1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final.
- By regulation 17 of the Social Security (Claims and Payments) Regulations 1987:
(1) Subject to the provisions of this regulation
a claim for benefit shall be treated as made for an indefinite period and any award of benefit on that claim shall be made for an indefinite period.
The regulation goes on to provide for awards to be made for a definite period where appropriate. By regulation 20:
. benefit shall be paid in accordance with an award as soon as is reasonably practicable after the award has been made
.
- In the Overlapping Benefit Regulations, regulation 4 provides:
(1)
an adjustment shall be made in accordance with paragraph (5) where
(a) two or more personal benefits (whether of the same of a different description) are, or but for this regulation would be, payable
for any period
(5) Where an adjustment falls to be made in accordance with this paragraph and
(a) one of the benefits is a contributory benefit and one is a non-contributory benefit, the non-contributory benefit shall be adjusted by deducting from it the amount of the contributory benefit and only the balance, if any, shall be payable
The arguments
- It is common ground that both the suspension and the restoration of Mr Adams' invalid care allowance involved a decision, not merely (as was argued at one point below) an administrative step. It is central to the argument of Mr Richard Drabble QC for Mr Adams that it was a decision that could lawfully go only one way. This Mr Ward, for the Secretary of State, accepts; but he does not accept Mr Drabble's corollary that Mr Adams was entitled by operation of law to incapacity benefit from 12 May 2000.
- Mr Ward argues that just as a decision is the only mechanism provided by law for the award or discontinuance of benefit, so a decision is the only recognised mechanism for restoring it. The modes of restoration are themselves dictated by the 1998 Act: revision (s. 9), supersession (s. 10) and appeal (s. 12-14). The decision taken here was a decision, pursuant to s. 10, that payment of incapacity benefit was to supersede non-payment, and by virtue of regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 such a decision could not be backdated further than it was.
- Mr Drabble does not take issue with any of these propositions except the first. He contends that a decision relating to payment under an extant award is distinct from a decision on its duration, its revision or its supersession. This is because none of the three latter powers is relevant where the entitlement to invalid care allowance has been established all along and the only question is whether "for any period" (to quote regulation 4 of the Overlapping Benefits Regulations) something inhibits payment of it. While therefore he accepts that a decision is required to restore a now unblocked non-contributory benefit (to argue otherwise would be to strip such questions of the right of appeal), he contends that the decision is made under s.8 and so is not inhibited by the fetter on retroactivity which affects supersession decisions. The decision itself, he submits, could perfectly well have been phrased: "The amount of your ICA is adjusted to nil for as long as you are receiving incapacity benefit." If it had been, the decision would have been a formality and would have operated from the date of cessation of incapacity benefit.
- There is another aspect of the case which deserves attention. What triggered the restoration of Mr Adams' invalid care allowance was the Department's becoming aware, from his answer to an inquiry form, that his incapacity benefit had come to an end the previous year. But the Department had known of this ever since it stopped the benefit in May 2000, although it had clearly not acted on it. In Hinchy v. Secretary of State for Work and Pensions EWCA [2003] Civ. 138, a case unlike the present turning on the statutory obligation to notify the Department of material facts, Aldous LJ held that there was "no failure to disclose if the fact is known to a relevant official", and that maladministration could not alter this. Carnwath LJ agreed, but went further by holding that "the Secretary of State cannot disclaim knowledge of his own decisions". Sir Denis Henry agreed with both judgments.
Discussion
- The single question we have to answer is whether the decision to resume payment of Mr Adams' invalid care allowance was a supersession decision under s.10 or a decision under s.8 either on a claim for a benefit or under or by virtue of a relevant enactment.
- Everything in the phraseology of the initial decision letter cited in paragraph 3 above indicates that, if a time were to come when Mr Adams' incapacity benefit ceased, the invalid care allowance to which he was entitled would become payable. This in my judgment accurately reflects the law. An "award" of invalid care allowance signifies an extant decision that the claimant is entitled to it. Unless there is some legal inhibition on payment of it, payment follows as of right. Here there was such an inhibition until 12 May 2000. Thereafter there was none.
- What then was the nature of the decision, when it was finally made in March 2001, to restore payment of the allowance? It is not impossible to regard it as a decision to pay which superseded the decision not to pay. But it is more in conformity with the legislative scheme to regard it simply as a decision on a claim for a relevant benefit, or as a decision falling to be made under the enactments which had so far created an entitlement but had inhibited payment. The decision to restore payments after May 2000 was predetermined by the decision notified in February 1996.
- What then of the requirement in the 1996 letter that Mr Adams should notify the Department's invalid care allowance section if his incapacity benefit ceased? As good advice it cannot be faulted: in any large organisation it is understandable that from time to time its left hand does not know what its right hand is doing. It helps everybody if claimants ensure that changes in their entitlement to be paid are not missed. But, as Mr Ward accepts, nothing in this branch of social security law (in contrast to other branches, such as overpayment) entitles the Secretary of State to place on the claimant the onus of telling him what he himself has done or to proceed as if he had not stopped a claimant's incapacity benefit when he, of all people, ought to know that he has. Moreover, it is accepted that (again in contrast to other areas of social security law) there are no circumstances in which incapacity benefit can cease to be payable except at the Department's instance.
- There are two other reasons why it seems to me right to allocate the decision to resume payments of Mr Adams' invalid care allowance to s.8 rather than s.10. Regulation 4 of the Overlapping Payments Regulations is an accounting provision designed to ensure that parallel entitlements do not result in excessive payment. It does not deal with entitlement, and its operation involves no judgment or fact-finding of any description. Secondly, the result of allocating a decision to resume payment of Mr Adams' invalid care allowance to s.10 is to penalise him, by denying him the possibility of backdating the decision, for the Department's failure to readjust the payments according to law upon its decision to terminate his incapacity benefit, and places upon him an onus which cannot be found in the legislation. To do this would tend to defeat the objectives which Parliament and the rule-maker can be seen to have had in mind when assembling the present scheme.
- The Commissioner's impressively reasoned decision is focused on regulation 4 of the Overlapping Benefits Regulations. He took the view that the Secretary of State's power to make an adjustment continued only for as long as the two benefits were payable simultaneously. The view I have come to is not inconsistent with this, but it derives from statutory construction rather than from the public law approach taken by the Commissioner, and by doing so recognises as the Commissioner pointed out was wise the need for a decision at each stage.
Conclusion
- Mr Adams was entitled to resumption of payment of his invalid care allowance with effect from 12 May 2000 because the decision to resume payment was made under s.8. Mr Commissioner Howell accordingly came to the right decision and the Secretary of State's appeal against it fails. It follows that the payment already made ex gratia is to be regarded as made as of right.
LORD JUSTICE CLARKE:
- I agree.
DAME ELIZABETH BUTLER-SLOSS P:
- I agree.
Order: Appeal dismissed; order for consequential matters as agreed between the parties; the Secretary of State to pay the respondent's costs.
(Order does not form part of the approved judgment)
