Law Report: Social security regulation on disability premium valid: Foster v Chief Adjudication Officer and another - House of Lords (Lord Templeman, Lord Bridge of Harwich, Lord Ackner, Lord Browne-Wilkinson and Lord Slynn of Hadley), 28 January 1992

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A social security commissioner hearing an appeal under section 101 of the Social Security Act 1975 on the ground that a social security appeal tribunal's decision is 'erroneous in point of law' has jurisdiction to decide whether regulations made by the Secretary of State for Social Security were in excess of the Secretary of State's regulation-making power.

The House of Lords dismissed an appeal by Rosaleen Foster from the Court of Appeal's decision (1992) QB 31 that paragraph 13 of Schedule 2 to the Income Support (General) Regulations 1987 (SI no 1967) was within the regulation-making powers given to the Secretary of State under section 22(4) of the Social Security Act 1986.

Miss Foster, a young single woman who is severely disabled, lives at home with her parents. She receives attendance allowance, severe disability allowance and mobility allowance which are non-contributory benefits and not means-tested.

She is also entitled under the Social Security Act 1986 to income support, an income-related benefit, designed to ensure that the income of those in need does not fall below a minimum level known as the 'applicable amount'. The applicable amount is enhanced by the severe disability premium. Section 22(4) of the 1986 Act provides that regulations may specify circumstances in which persons are to be treated as being severely disabled. Paragraph 13(2) of Schedule 2 to the Income Support (General) Regulations 1987 governs the conditions of entitlement to the severe disability premium and includes conditions that the claimant has no non-dependants residing with him or her and that no one is in receipt of an invalid care allowance in respect of caring for the claimant.

An adjudication officer and Social Security Appeal Tribunal held she was not entitled to the severe disability premium. A social security commissioner allowed Miss Foster's appeal and held that the part of paragraph 13(2) which defeated Miss Foster's claim to the premium was in excess of the Secretary of State's regulation-making power and that this part was severable from the remainder of the paragraph which established her entitlement.

The Court of Appeal decided that the commissioner had no jurisdiction to question the vires of regulation made by the Secretary of State. It also decided that paragraph 13(2) was intra vires.

Richard Drabble and Mark Rowland (Hodge Jones & Allen) for Miss Foster; Michael Beloff QC and Christopher Katkowski (Department of Social Security) for the chief adjudication officer and the Secretary of State.

LORD BRIDGE said that in the first instance an adjudication officer determined any claim for benefit. The claimant then had an appeal as of right to a social security appeal tribunal: section 100 of the Social Security Act 1975. From the tribunal's decision, an appeal lay to a social security commissioner on the ground that the decision of the tribunal was 'erroneous in point of law': section 101. Provision for an appeal from a commissioner's decision to the Court of Appeal was made by section 14 of the Social Security Act 1980.

It was argued that Parliament could not have intended that adjudication officers who were normally civil servants without legal qualifications should have power to question the validity of regulations made by the Secretary of State who was not a party to an appeal to the appeal tribunal.

However, whenever a claimant sought to mount a challenge to the vires of some provision in regulations, the adjudication officer, if he thought there might be any substance in the point, would refer it an appeal tribunal. The adjudication officer then became a party to the proceedings and there seemed no reason why the arguments on which the Department of Social Security wished to rely should not be addressed.

Accordingly the commissioners had undoubted jurisdiction to determine the vires of a provision in regulations made by the Secretary of State as being beyond the scope of the enabling power whenever it was necessary to do so in determining whether a decision under appeal was erroneous in point of law.

Turning to the issue of vires, Miss Foster's contention was that the only conditions for eligibility for the severe disability premium which the Secretary of State was empowered to impose by section 22(4) must relate directly to the claimant's disablement and could take no account of other circumstances which might affect the extent of the disabled person's needs.

Without looking beyond the 1986 Act, the regulation-making power under section 22(4) could not be confined as suggested but allowed the Secretary of State in delimiting the category of persons who were to be treated as severely disabled to take account of any circumstances relevant to the disabled person's needs.

Having regard to the parliamentary history of section 22(4)in Hansard as an aid to statutory construction in accordance with Pepper v Hart (1992) 3 WLR 1032, it was made clear to both Houses that it was intended to use the regulation-making power in section 22(4) so as to provide that a person was only to be treated as severely disabled for the purposes of section 22(3) if he was in receipt of attendance allowance and living in a household with no other adult able to care for him and where no invalid care allowance was in payment to any other person to provide for his care.

That was precisely what, in principle, paragraph 13 of Schedule 2 to the 1987 Regulations set out to achieve. The appeal would be dismissed.


Ying Hui Tan, Barrister