M (A Minor) v Secretary of State For Social Security

The House of Lords was concerned with the construction of regulation 12(3) of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 and its effect on regulation 4 which imposed an immigration-based condition for entitlement to disability living allowance. The court held that regulation 12(3) is a saving or transitional provision intended to preserve accrued rights under an existing award made immediately before the amending regulations came into force, and does not extend entitlement beyond the amount or duration of that existing award. Regulation 12(3) therefore does not apply to new or repeat claims made after the amending regulations took effect; the protection continues only until the decision under which the original entitlement arose is reviewed under section 30 of the Social Security Administration Act 1992. The appeal was dismissed, affirming the decision in R v Chief Adjudication Officer, Ex p B [1999] 1 WLR 1695.

The appellant was a child who had received disability living allowance under an award made in 1993 for a fixed term of three years. Regulation 4 of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 introduced an additional immigration-related eligibility condition. Regulation 12(3) of those amending regulations provided a saving in favour of persons who were "receiving disability living allowance" immediately before the amendments, disapplying regulation 4 "until such time as his entitlement to that benefit is reviewed under section 30".

The appellant sought a further award after her fixed-term award had expired and relied on regulation 12(3) to require that her claim be determined under the principal (unamended) Disability Living Allowance Regulations. The issue was whether regulation 12(3) preserved only the existing accrued award or also applied to a new claim made after the amending regulations came into force.

The House framed the issues as: (i) the meaning and purpose of regulation 12(3) in context; (ii) whether its operative words disapplied regulation 4 in respect of new or repeat claims; and (iii) the effect of the cessation provision referring to review under section 30. The court analysed the statutory context, the structure of disability living allowance awards (including that fixed-term awards cease by effluxion of time and new claims are treated as fresh determinations), and the drafting of the saving provision.

The court concluded that regulation 12(3) was intended to save accrued rights under existing awards made immediately before the amending regulations and not to enlarge those rights or protect new claims. The cessation clause was read as referring to the original decision under which the entitlement arose; thus the saving operates until that decision is reviewed under section 30. The House therefore dismissed the appeal, affirming the Court of Appeal's decision in Ex p B.

Appeal dismissed. The House held that regulation 12(3) is a transitional saving that preserves accrued rights under an existing award made immediately before the amending regulations and does not extend to new or repeat claims made after the amending regulations came into force; the saving ceases on review under section 30 of the Social Security Administration Act 1992 or when the original fixed-term award expires.

Social Security Appeal Tribunal (majority allowed appellant's appeal); Social Security Commissioner (allowed Secretary of State's appeal) 21 June 1999; Court of Appeal affirming the decision in R v Chief Adjudication Officer, Ex p B [1999] 1 WLR 1695; appeal to House of Lords [2001] UKHL 35 (this judgment).