R(A) 1/97
(Regina v. Secretary of State for Social Security, ex parte Cullen Chief Adjudication Officer v. Nelson)

CA (Hirst, Swinton Thomas and Phillips LJJ)	CA/181/1993
8.5.97
Claim - claims in the alternative - whether claim for supplementary benefit can be treated as a claim for attendance allowance
Regulation 9(5) of the Social Security (Claims and Payments) Regulations 1979, which was revoked with effect from 1988, stated that a claim for supplementary benefit “may” also be treated as a claim for attendance allowance.   Both claimants, C and N, had been severely disabled since the early 1980’s.  Both had applied for supplementary benefit, but not attendance allowance, prior to the revocation of the regulations.   In the early 1990’s both claimants applied for attendance allowance and asked for their claims to be back-dated to the date of their first application for supplementary benefit.  The Secretary of State considered that, since the revocation of 1979 Regulations, he had not had power to treat claims for supplementary benefit as claims for attendance allowance.  C’s application for judicial review was dismissed by Harrison J.  The adjudication officer’s refusal to award attendance allowance to N was upheld by a tribunal but a Commissioner allowed his appeal and, holding that the Secretary of State still had power to treat N’s claim for supplementary benefit as a claim for attendance allowance, directed that the question whether that power should be exercised should be referred to the Secretary of State.  C appealed against Harrison J’s decision and the Chief Adjudication Officer appealed against the Commissioner’s decision in N’s case.
Held, dismissing C’s appeal and allowing the Chief Adjudication Officer’s appeal, that:
1. 	the power to treat a claim for supplementary benefit as a claim for attendance allowance had been only discretionary and therefore no rights that might have been preserved by section 16 of the Interpretation Act 1978 had accrued to the claimants and the power could no longer be exercised;
2.	by section 95(1)(e) of the Social Security Act 1975, adjudication under section 80 was allocated to the Secretary of State and it followed that the Commissioner had had no jurisdiction to determine the issue arising before him.

dECISION OF THE COURT OF APPEAL

Mr. J. Howell QC (instructed by Messrs Bobbetts MacKan, Bristol) appeared on behalf of the Applicant Cullen. 
Mr. Ronald Nelson did not appear and was not represented.
Mr. R. Drabble QC (instructed by the Solicitor to the Department of Social Security) appeared on behalf of the Secretary of State and the Chief Adjudication Officer.

LORD JUSTICE HIRST:
Introduction
These are two appeals which raise an identical question of principle as to the powers of the Secretary of State for Social Security in December 1994 to treat claims for supplementary benefit (SB) made between 1982 and 1988 as claims additionally or in the alternative for attendance allowance (AA).
It is common ground that regulation 9(5) of the Social Security (Claims and Payments) Regulations 1979 conferred a power on the Secretary of State to treat a claim that had been made for SB as a claim for AA.  It is also common ground that this power had not been exercised in either claimant’s favour by the time that regulation 9(5) was revoked by regulation 48 and Schedule 10 of the Social Security (Claims and Payments) Regulations 1987, nor had any request been made to the Secretary of State in either case to do so.  The revocation took place on 11 April 1988, which was the date when the 1987 regulations came into force.
	The decision turns essentially upon the proper interpretation of the legislative framework which regulated the entitlement to the relevant social security benefits, and upon the impact thereon of section 16(1) of the Interpretation Act 1978, which preserves certain rights accrued under earlier enactments notwithstanding their repeal.
In the first case Mr. Michael John Cullen appeals against a decision of Harrison J given in judicial review proceedings on 21 November 1996, in which he upheld the decision of the Secretary of State that he had no such powers.  In the second case the Secretary of State appeals against that part of the decision of Mr. Commissioner Goodman dated 15 January 1995 which came out in favour of Mr. Ronald Nelson on this particular point.  This latter appeal also raises a procedural issue which I shall consider quite separately at the end of this judgment, namely whether, even if such a power existed, the Commissioner had jurisdiction to adjudicate upon a determination by the Secretary of State in this respect.  Mr. Nelson has addressed a very courteous letter to the Court informing us that he was unable to attend owing to financial hardship, but he has suffered no disadvantage thereby, since all the relevant points on the substantive (and from his point of view critical) issue have been fully covered by Mr. John Howell QC on behalf of Mr. Cullen.
The background facts
Mr. Cullen suffered an industrial injury affecting his spine in 1968, and his degree of disablement for the purpose of industrial disablement benefit was assessed by a medical appeal tribunal in 1982 as 75% for life, and he has since required care and attention day and night.
Mr. Cullen made no claim for AA as such, for which he was potentially eligible, until 1991, but he did claim (but was refused on financial grounds) SB each year between 1982 and 1987.  When in 1991 he did claim AA specifically, backdated to 1982, backdating was refused.
Mr. Nelson, who has also been severely disabled since 1981, and who had been similarly potentially eligible for AA from that date, also claimed SB (but not AA specifically) during the period prior to the revocation of regulation 9(5).  He too applied after revocation for AA backdated to 1981, but his application for backdating was also refused.
The legislative framework
The statutory code was contained in the Social Security Act 1975, and, unless otherwise stated, all references hereafter to individual sections are references to that Act, which has now been replaced by the Social Security Contributions and Benefits Act 1992 and the Social Security Administration Act 1992.
Chapters I to V enacted a wide range of benefits both contributory and non-contributory.

Non-contributory benefits were enacted in Chapter II, starting with section 34(1)(a) which categorised AA as a non-contributory benefit, the entitlement to which was prescribed in section 35(1)(a) as follows:
“A person shall be entitled to an attendance allowance if he satisfies prescribed conditions as to residence or presence in Great Britain and either-
(a) 	he is so severely disabled physically or mentally that, by day, he requires from another person either-
(i) 	frequent attention throughout the day in connection with bodily functions, or
(ii) 	continual supervision throughout the day in order to avoid substantial danger to himself or others; or 
(b) 	he is so severely disabled physically or mentally that, at night, he requires from another person either-
(i) 	prolonged or repeated attention during the night in connection with his bodily functions, or
(ii) 	continual supervision throughout the night in order to avoid substantial danger to himself or others.”

Section 35(2) and (4) provided that the period for which AA is payable to any person shall be that specified in a certificate issued in respect of him by the Attendance Allowance Board (see below), but that AA shall not be payable to a person for any period preceding the date on which he makes a claim for it.
The next group of sections, which are critical for present purposes, were contained in Chapter VI headed “Administration of Benefit”.
Section 79(1) provided that it shall be a condition of a person’s right to any benefit that he makes a claim for it in the prescribed manner and within the prescribed time.
Section 80(1) provided:
“A claim for any one benefit under Chapters I to III of this Part may be treated as a claim in the alternative-
(a) 	for such other benefit under those Chapters as may be prescribed; or
(b) 	for such benefit under Chapter IV or V as may be prescribed,
or may be treated for the purposes of the Family Allowances Act as a claim for payment under that Act.”

Section 80(2) in its original form in 1975 provided:
“A claim-
(a)	for industrial injuries benefit; or
(b) 	for benefit under the Supplementary Benefit Act 1966; or
(c) 	for a payment under the Family Allowances Act, may be treated as a claim in the alternative for such benefit under Chapters I to III as may be prescribed.”
This was amended subsequently in the following terms:
“A claim-
(a) 	for industrial injuries benefit; or
		(b) 	for benefit under the Supplementary Benefits Act 1976
may be treated as a claim in the alternative or as a claim also for such benefit under Chapter I to III as may be prescribed.”

The prescriptions foreshadowed in section 80 were contained in regulation 9 of the 1979 regulations cited above, headed “Interchange with Claims for other Benefits”, of which regulation 9(5) provided:
“A claim for benefit under the Supplementary Benefits Act 1976 may be treated also as a claim for Attendance Allowance.”

As already noted, this regulation was revoked in 1987 with effect from 
11 April 1988.
Section 82 laid down a number of time limits,  including a requirement that no sum shall be paid to any person for inter alia AA in respect of any period more than twelve months before the date on which the claim was made.
Under the heading “Adjudications by Secretary of State”, sections 93 to 96 inclusive allocated a number of determinations to the adjudication of the Secretary of State, including in section 95(1)(e) a question arising under section 80 (i.e. interchange with claims for other benefits).  Section 117 stipulated that his decision on any question reserved to him shall be final.
Sections 97 to 105 inclusive allocated the adjudication of a number of other determinations to insurance officers, local tribunals, and Commissioners.
Section 105 continued the previous constitution of the Attendance Allowance Board, with exclusive jurisdiction as provided by that section and Schedule 11 to determine whether a person had satisfied the section 35 criteria for entitlement to AA, subject to an appeal to a Commissioner.
The provision of SB, payable to those whose resources were insufficient to meet their requirements, was enacted by the Supplementary Benefits Act 1976, but was replaced by income support under the Social Security Act 1986.
 The regulations made under the 1976 Act (SI 1980 No. 1299) enjoined the benefit officer to take into account as additional requirements for the purpose of fixing the amount of benefit various aspects of “attendance needs”, including prospective or pending claims for AA (schedule III).

Section 16(1) of the Interpretation Act 1978
This provides so far as is relevant as follows:
“... where an Act repeals an enactment, the repeal does not, unless the contrary intention appears-
 	...
	(b) 	affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c) 	affect any  right, privilege, obligation or liability acquired, accrued or incurred under that enactment;
...
(e) 	affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation [or] liability ...
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced ... as if the repealing Act had not been passed.”

This corresponds with section 38 of the Interpretation Act 1889.
The leading authority on the interpretation of this section is the Privy Council case of Director of Public Works v. Ho Po Sang [1961] AC 901, in relation to section 10 of the Interpretation Ordinance of Hong Kong which reproduced section 38 of the 1889 Act.  In that case the second appellant, who was the Crown lessee of premises in Hong Kong, in which the respondent was the tenant in occupation, claimed possession of the premises under sections 3A to E of the Landlord and Tenant Ordinance, which had provided that if the DPP (the first appellant) gave a building certificate, the Crown lessee was entitled to call on those in occupation to quit.  The Ordinance also provided the following service by the DPP of his intention to grant a rebuilding certificate, the tenant in occupation was entitled to petition the Governor in Council, and that the Crown lessee was entitled to cross petition; it also provided that every petition and cross petition lodged in due time shall be taken into consideration by the Governor in Council who may direct that a rebuilding certificate be given or be not given as he may think fit in his absolute discretion.  While the Landlord and Tenant Ordinance was still in force the DPP had notified his intention to grant a certificate, the respondent had petitioned the Governor in Council, and the appellants had cross petitioned; but on 9 April 1957, when the decision of the Governor in Council was still awaited, sections 3A to E of the Landlord and Tenant Ordinance were repealed.  The crucial question was thus whether the provisions of sub-paragraph (b), (c) and (e) of the Interpretation Ordinance were applicable, as the appellants contended, on the footing that at the time of the repeal they possessed a “right” which remained unaffected by that repeal.
Having rehearsed the arguments, Lord Morris of Borth-y-gest, giving the judgment of the Board (consisting of himself Lord Denning and The Hon. LMD da Silva) concluded as follows:
“Was the lessee therefore possessed on April 9 of a ‘right’ (or privilege) within the meaning of the Interpretation Ordinance?   In their Lordships’ view the entitlement of the lessee in the period prior to April 9 to have the petitions and cross-petition considered was not such a ‘right’.  On April 9 the lessee was quite unable to know whether or not he would be given a rebuilding certificate and until the petitions and cross-petition were taken into consideration by the Governor in Council no one could know.  The question was open and unresolved.  The issue rested in the future.  The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects.
It is to be observed that under section 10(c) a repeal is not to affect any investigation, legal proceeding or remedy “in respect of any such right”.  The right referred to is the right mentioned in section 10(c), i.e., a right acquired or accrued under a repealed enactment.  This part of the provisions in paragraph (e) of section 10 does not and cannot operate unless there is a right as contemplated in paragraph (c).  It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary.  The right is then unaffected and preserved.  It will be preserved even if a process of quantification is necessary.  But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given.  Upon a repeal the former is preserved by the Interpretation Act.  The latter is not.”

A decision the opposite way is to be found in another Privy Council case, Free Lanka Insurance Co Ltd v. Ranasinghe  [1964] AC 541 where, having cited Ho Po Sang for the  relevant principle, the Board held that on the facts of that case the claimant did fall within the equivalent of section 16, because he had an “inchoate and contingent right” which constituted more than a mere hope.
Submissions and analysis
Mr. Howell submitted that the purpose of section 80(2)(b) and regulation 9(5) was, given the complexity of the social security system, to ensure that a claimant would receive any relevant benefit to which he was entitled, once he had claimed the basic “safety net” support for those whose resources was less than their requirements.  In this particular case, the link between SB and AA was exemplified by Schedule III of regulation SI 80 No. 1299 referred to above.
Consequently, although section 80(2)(b) is expressed by the use of the word “may” to confer a power to treat a claim of SB as one for AA, the Secretary of State had no broad discretion whether or not to do so by reference to such considerations as he may have thought fit.  The judgment which he was called upon to make in order to determine whether the claim should be so treated was simply whether it appeared that the claimant for SB might be entitled to AA.  To have refused to have also treated the claim as one for AA in such a case would have been unreasonable, and repugnant to Parliament’s intention manifest in the section that payment of a relevant benefit to which a person was entitled should not be defeated by an absence of a specific claim for it when a person had claimed SB.  Consequently, the Secretary of State would have been obliged to treat that claim as one for AA, and no reasonable Secretary of State could have done otherwise consistently with Parliament’s intention.  Correspondingly the claimant had a right entitling him to have his claim so treated.
In essence, Mr. Howell submitted that under section 80(2)(b) and regulation 9(5), the Secretary of State had to operate on what Mr. Howell described as “a recognised legal basis”, in contradistinction to the Governor in Council in Ho Po Sang, who had a pure discretion based on policy considerations.
Attractively though these arguments were presented, I am unable to accept them, substantially for the reasons advanced by Mr. Richard Drabble QC on behalf of the Secretary of State.
The starting point is section 80 itself, and it is of course essential to Mr. Howell’s argument that section 80 generally and section 80(2)(b) in particular impose a duty on the Secretary of State which is properly to be categorised as embodying a recognised legal principle, and which goes beyond a mere discretionary power, thus conferring on the claimants a corresponding right.
The crucial words, repeated several times in section 80, are “... may be treated ...”.  This phraseology to my mind is wholly inapt to impose a duty, but should be construed as conferring a discretionary power on the Secretary of State to treat a claim for one kind of benefit as a claim for such other benefit as may be prescribed, thus freeing him from an unduly narrow approach which would confine any claim to one for the benefit specifically sought.
It must be borne in mind that section 80 read as a whole conferred a power to treat claims for one benefit as claims for others in the prescribed areas, not only in relation to SB and AA (and until amendment family allowances also) under section 80(2)(b), but also throughout the whole of Chapters I to V under section 80(1).
If therefore Mr. Howell’s construction were correct, the Secretary of State would be obliged in every prescribed case to consider possible entitlement to alternative or extra benefits across the whole wide spectrum of social security legislation, which in my judgment cannot have possibly been Parliament’s intention.
Such a construction also sits uneasily with the stringent stipulations already cited making a claim a prerequisite for entitlement to benefit, and imposing strict time limits.
In the course of his argument Mr. Drabble highlighted the administrative burden at local level which such a duty would impose, and referred specifically to the disparity in the scale of demand for SB and AA respectively.  Such a consideration could not of course possibly justify a conclusion against the claimants if the words in section 80 pointed the other way; but having regard to the construction which I favour, it is I think pertinent to note that in 1986 there were 6,340,000 claims for SB administered by local offices, and 238,244 claims for AA administered centrally by the Attendance Allowance Board.  Consequentially, if Mr. Howell’s construction were correct, eligibility for AA would have been potentially relevant only in a maximum of less than 4% of the SB applications.
For these reasons I have concluded that section 80 in general, and section 80(2)(b) in particular, conferred no right on the claimants, and consequently that, as in Ho Po Sang, there is nothing here for section 16 of the Interpretation Act 1978 to bite on.  It follows that once regulation 9(5) was repealed, the Secretary of State could not exercise a power which no longer existed.
 I thus conclude that the Secretary of State’s answer to the question of principle is the correct one.

The procedural issue
As already noted, sections 93 to 105 inclusive allocated the process of adjudication in specified cases between the Secretary of State on the one hand, and insurance officers, local tribunals and the Commissioner on the other.  By section 95(1)(e) adjudication under section 80 was allocated to the Secretary of State, and it follows clearly in my judgment that the Commissioner had no jurisdiction to determine this particular point in Mr. Nelson’s case.  I should however record that Mr. Drabble conceded that, had Mr. Nelson succeeded on the substantive issue, his failure on the procedural issue would not have been held against him by the Secretary of State.
Final conclusion
I would therefore dismiss Mr. Cullen’s appeal against Harrison J’s decision in his case, and would allow the Secretary of State’s appeal against the Commissioner’s decision in Mr. Nelson’s case.

LORD JUSTICE SWINTON THOMAS: I agree.

LORD JUSTICE PHILLIPS: I also agree.

Order:  Appeal against Harrison J’s decision dismissed; appeal against the Commissioner’s decision in Nelson allowed; application for leave to appeal to the House of Lords refused