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

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.

LORD TEMPLEMAN, LORD ACKNER, LORD BROWNE- WILKINSON and LORD SLYNN agreed.

Ying Hui Tan, Barrister

Voices
A Russian hunter at the Medved bear-hunting lodge in Siberia
Save the tigerWildlife charities turn to those who kill animals to help save them
News
Davis says: 'My career has been about filling a niche - there were fewer short actors and fewer roles – but now I'm being offered all kinds of things'
PeopleWarwick Davis on Ricky Gervais, Harry Potter and his perfect role
News
i100
Sport
Frank Lampard will pass Billy Wright and equal Bobby Charton’s caps tally of 106 caps against
sportFormer Chelsea midfielder in Etihad stopgap before New York contract
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Arts and Entertainment
The first film introduced Daniel Radcliffe to our screens, pictured here as he prepares to board the train to Hogwarts for the first time.
booksHow reading Harry Potter helps children grow up to be gay-friendly
Arts and Entertainment
A scene from Aladdin is performed at the Tony Awards in New York in June
theatreBrit producer Lythgoe makes kids' musical comedy a Los Angeles hit
Sport
Usain Bolt of Jamaica smiles and shakes hands with a competitor after Jamaica won their first heat in the men's 4x100m relay
sport
News
Chancellor George Osborne, along with the Prime Minister, have been 'complacently claiming the economy is now fixed', according to shadow Chancellor Ed Balls
i100... which is awkward, because he is their boss, after all
Life and Style
A small bag of the drug Ecstasy
Health
Life and Style
Floral-print swim shorts, £26, by Topman, topman.com; sunglasses, £215, by Paul Smith, mpaulsmith.co.uk
FashionBag yourself the perfect pair
News
news
News
Netherlands' goalkeeper Tim Krul fails to make a save from Costa Rica's midfielder Celso Borges during a penalty shoot-out in the quarter-final between Netherlands and Costa Rica during the 2014 FIFA World Cup
newsGoalkeepers suffer from 'gambler’s fallacy' during shoot-outs
News
people
Arts and Entertainment
Standing the test of time: Michael J Fox and Christopher Lloyd in 'Back to the Future'
filmReview: A week late, Secret Cinema arrives as interactive screening goes Back to the Future
Extras
indybest
News
i100
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

(Senior) IT Support Engineer - 1st-3rd Line Support

£40000 per annum: Ashdown Group: A successful IT service provider that has bee...

Wind Farm Civil Design Engineer

£55000 - £65000 Per Annum: The Green Recruitment Company: The Green Recruitmen...

Principal Marine Mechanical Engineer

£60000 - £70000 Per Annum: The Green Recruitment Company: The Green Recruitmen...

Principle Geotechnical Engineer

£55000 - £65000 Per Annum: The Green Recruitment Company: The Green Recruitmen...

Day In a Page

Save the Tiger: Meet the hunters tasked with protecting Russia's rare Amur tiger

Hunters protect Russia's rare Amur tiger

In an unusual move, wildlife charities have enlisted those who kill animals to help save them. Oliver Poole travels to Siberia to investigate
Transfers: How has your club fared in summer sales?

How has your club fared in summer sales?

Who have bagged the bargain buys and who have landed the giant turkeys
Warwick Davis: The British actor on Ricky Gervais, how the Harry Potter set became his office, and why he'd like to play a spy

'I'm a realist; I know how hard this business is'

Warwick Davis on Ricky Gervais, Harry Potter and his perfect role
The best swim shorts for men: Bag yourself the perfect pair and make a splash this summer

The best swim shorts for men

Bag yourself the perfect pair and make a splash this summer
Has Ukip’s Glastonbury branch really been possessed by the devil?

Has Ukip’s Glastonbury branch really been possessed by the devil?

Meet the couple blamed for bringing Lucifer into local politics
Dress the Gaza situation up all you like, but the truth hurts

Robert Fisk on Gaza conflict

Dress the situation up all you like, but the truth hurts
Save the tiger: Tiger, tiger burning less brightly as numbers plummet

Tiger, tiger burning less brightly

When William Blake wrote his famous poem there were probably more than 100,000 tigers in the wild. These days they probably number around 3,200
5 News's Andy Bell retraces his grandfather's steps on the First World War battlefields

In grandfather's footsteps

5 News's political editor Andy Bell only knows his grandfather from the compelling diary he kept during WWI. But when he returned to the killing fields where Edwin Vaughan suffered so much, his ancestor came to life
Lifestyle guru Martha Stewart reveals she has flying robot ... to take photos of her farm

Martha Stewart has flying robot

The lifestyle guru used the drone to get a bird's eye view her 153-acre farm in Bedford, New York
Former Labour minister Meg Hillier has demanded 'pootling lanes' for women cyclists

Do women cyclists need 'pootling lanes'?

Simon Usborne (who's more of a hurtler) explains why winning the space race is key to happy riding
A tale of two presidents: George W Bush downs his paintbrush to pen father’s life story

A tale of two presidents

George W Bush downs his paintbrush to pen father’s life story
Restaurateur Mitch Tonks has given the Great Western Pullman dining car a makeover

The dining car makes a comeback

Restaurateur Mitch Tonks has given the Great Western Pullman dining car a makeover
Gallery rage: How are institutions tackling the discomfort of overcrowding this summer?

Gallery rage

How are institutions tackling the discomfort of overcrowding this summer?
Louis van Gaal has £500,000 video surveillance system installed to monitor Manchester United players

Eye on the prize

Louis van Gaal has £500,000 video surveillance system installed to monitor Manchester United players
Women's rugby: Tamara Taylor adds fuel to the ire in quest to land World Cup

Women's rugby

Tamara Taylor adds fuel to the ire in quest to land World Cup