R v Chief Adjudication Officer, Ex parte B

A transitional saving for persons already receiving disability living allowance protects the existing entitlement which was in force when the new disqualification took effect. It does not preserve entitlement to a fresh award made on a new claim after a fixed-period award has expired.

Regulation 12(3) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 had to be read in its statutory context. Although its literal wording was defective, its protection was confined to the award under which the claimant was receiving benefit before the Regulations came into force, subject to review. It did not create an enduring right to make later claims free from the immigration-status disqualification.

The respondent, an asylum seeker with chronic renal failure, had received disability living allowance under a fixed two-year award made before the 1996 Regulations came into force. Regulation 4 disqualified persons whose right to remain was subject to a limitation or condition, while regulation 12(3) saved certain existing benefit entitlements until review.

When the award expired, the respondent made a further claim. An adjudication officer refused it. Sedley J quashed that decision, holding that regulation 12(3) protected the respondent unless and until there was a review under section 30 of the Social Security Administration Act 1992. The Chief Adjudication Officer appealed.

The central issue was whether regulation 12(3) protected only the award current before 5 February 1996, or also a fresh award sought after that fixed-period award had ended.

1. Appeal allowed by a majority. Lord Justice Peter Gibson and Lord Justice Schiemann held that regulation 12(3) protected only an entitlement already in existence when the 1996 Regulations came into force. It did not disapply regulation 4 in relation to a fresh entitlement arising from a later claim after the fixed-period award expired.
2. Peter Gibson LJ held that the phrase concerning review of his entitlement to that benefit referred to the entitlement under the award by which the person was receiving disability living allowance before 5 February 1996. A later award on a new claim was irrelevant to that saving. The contrary construction would give transitional relief to new claims made at any later time, even where circumstances had changed.
3. Schiemann LJ agreed. The wholly literal reading was untenable because it would make the amended benefit regulations inoperative generally once any qualifying person had received benefit. The necessary contextual qualification confined the saving to the person concerned. In that context, transitional relief was properly read as preserving accrued entitlements, not future rights which had not existed when the measure commenced.
4. The distinction between a fixed-period award and a life award was not an anomaly requiring a different construction. A fixed-period entitlement ended by effluxion of time. A claimant who wished to receive benefit thereafter had to make a new claim, to which regulation 4 applied.
5. Simon Brown LJ dissented. He considered that the saving’s ordinary meaning protected continuous entitlement, including a renewal claim, unless there had been a statutory review. In his view, the conditions for judicially supplying the Secretary of State’s proposed limitation were not met.
6. The order of Sedley J was set aside and the application for judicial review dismissed. There was no order for costs.

• Court of Appeal (Civil Division): Allowed the Chief Adjudication Officer’s appeal by a majority and set aside the order below: [1998] EWCA Civ 1934; [1999] 1 WLR 1695.
• High Court (Sedley J): On 19 June 1998, quashed the adjudication officers’ refusal to award disability living allowance from 16 April 1997. Citation not stated in the judgment.