M (a Child by her Father and Litigation Friend B v. Secretary of State for Social Security

A statutory saving or transitional provision must be construed in its context and according to its evident purpose. A provision preserving accrued benefit rights does not ordinarily enlarge those rights or extend them beyond the amount and duration of the existing award.

Accordingly, protection which disapplies a new eligibility condition for recipients of disability living allowance preserves entitlement under an award already in force. It does not govern a new or repeat claim made after a fixed-term award has expired. Such a claim must be decided according to the claimant’s circumstances and the requirements in force when the fresh claim is made.

A severely disabled child received disability living allowance under a three-year award expiring in September 1996. During that award, regulation 4 of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 introduced an immigration-status condition which she did not satisfy.

A social security appeal tribunal allowed her appeal against refusal of a further award. A social security commissioner reversed that decision, being bound by R v Chief Adjudication Officer, Ex p B [1999] 1 WLR 1695. The Court of Appeal formally dismissed her subsequent appeal.

The issue before the House was whether regulation 12(3) preserved only entitlement under the award existing when the amendments commenced, or also required a fresh claim after that award expired to be determined under the unamended regulations.

1. Appeal dismissed unanimously. Lord Millett delivered the leading speech. Lord Nicholls, Lord Hobhouse and Lord Scott agreed with his reasons. Lord Bingham also agreed that the Secretary of State’s construction was somewhat more consistent with the language, although he expressed misgivings about its clarity.

2. Per Lord Millett, regulation 12(3) of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 was a saving or transitional provision. Its evident purpose was to preserve rights accrued immediately before the amendments came into force. Its general and elliptical language had to be read in that context rather than applied to every case within its literal scope.

3. The operative words disapplying regulation 4 were limited to the particular claimant’s accrued right to the particular benefit then being received. For a fixed-term award, that right comprised only the amount and period specified in the award. Regulation 12(3) neither enlarged the entitlement nor prolonged it beyond the award’s expiry. Transitional protection could therefore continue for the duration of a life award but cease when a fixed-term award expired.

4. The cessation provision reinforced that construction. Its reference to review of “his entitlement to that benefit” meant review of the decision under which the existing entitlement arose. Both the precondition and cessation provision concerned an award predating the amendments. Only a current award could be reviewed under section 30 of the Social Security Administration Act 1992.

5. A claimant seeking benefit after a fixed-term award expired had to make a fresh claim. That claim created no accrued right protected by regulation 12(3). New and repeat claims made after the amendments came into force had to be decided according to the circumstances at the time of the claim and the requirements then in force.

6. The decision in R v Chief Adjudication Officer, Ex p B [1999] 1 WLR 1695 was affirmed.

1. House of Lords: Dismissed the appeal unanimously and affirmed the construction adopted in R v Chief Adjudication Officer, Ex p B [1999] 1 WLR 1695.

2. Court of Appeal: Formally dismissed the child’s appeal from the social security commissioner. No citation for that decision is stated.

3. Social security commissioner: On 21 June 1999, allowed the adjudication officer’s appeal and restored the decision refusing a further award. The commissioner considered himself bound by the majority decision in Ex p B.

4. Social security appeal tribunal: By a majority, allowed the child’s appeal on the ground that regulation 12(3) of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 applied to her claim.