Cockeram v Social Security Commissioners & Anor

A legitimate expectation arising from departmental correspondence cannot secure the continuation of a social-security benefit where Parliament is legally able to amend the scheme. An assurance that payments will continue, subject to the conditions for entitlement, must be understood against that statutory possibility and the conditions in force when payment falls due. The executive does not act unlawfully merely by laying amending regulations before Parliament, even where existing recipients may lose their benefit. Nor is Parliament’s decision not to debate or challenge the regulations unlawful. The individual’s expectation must be assessed against the public interest as understood by the responsible minister and reflected in the legislative outcome. On these facts, the applicant had no real prospect of success.

Hubert Cockeram applied for permission to appeal from a decision of the Social Security Commissioners concerning his reduced earnings allowance.

He had received the allowance and, relying on departmental correspondence, took early retirement under a job release scheme. Subsequent regulations made under the negative resolution procedure removed the allowance for him and others in his position. He argued that the Secretary of State had acted unlawfully by placing the draft regulations before Parliament without considering the earlier correspondence. He sought continuation of the allowance or damages. The central issue was whether the correspondence created a legitimate expectation capable of defeating the effect of the later legislation.

Application for permission to appeal refused. Lord Justice Schiemann held that the applicant had no real prospect of success.

1. The doctrine of legitimate expectation was acknowledged to be fluid, but the expectation relied upon arose in a context where Parliament could alter the payments available under social-security schemes. A citizen must take that legislative power into account.
2. The departmental assurance that the reduced earnings allowance would continue, subject to the conditions for entitlement, had to be read against the possibility that those conditions might be changed. It did not establish an enforceable promise that Parliament would preserve the benefit for life.
3. There was nothing unlawful in the Secretary of State laying the appropriate draft regulations before Parliament. This remained so even if the Secretary of State appreciated that some people, including the applicant, would lose the benefit and might not have specifically considered the earlier letter.
4. There was likewise nothing unlawful in Parliament failing to use the negative resolution procedure to debate or challenge the regulations. The Secretary of State could only make payments authorised by the regulations then in force.
5. The individual’s expectation had to be considered against the public interest as understood by the minister and apparently confirmed by Parliament. Although the applicant’s position attracted considerable sympathy, the circumstances did not disclose a realistic basis for the relief sought.

The application for permission to appeal was refused.

1. Court of Appeal (Civil Division): Lord Justice Schiemann refused permission to appeal.
2. Social Security Commissioners: determined the applicant’s claim concerning reduced earnings allowance.