Levy v Secretary of State for Work and Pensions

A social security claim is made when it is received in an appropriate office, not when it is posted. A regulation fixing receipt as the date of claim was within the broad supplementary power in section 189(5) of the Social Security Administration Act 1992. The narrower question whether section 5(1)(a) also authorised it did not need to be decided, although Pill LJ considered that it did. Section 7 of the Interpretation Act 1978 concerns deemed service by post. It does not alter a scheme that makes actual receipt decisive. Even if section 7 applied, regulation 6(1) showed a contrary intention. The rule could cause hardship where postal mishandling prevented receipt, but the statutory scheme had to be enforced.

The appellant posted a claim for widow’s benefit on 4 July 2000. Royal Mail, acting as the respondent’s agent, probably mishandled it before it reached the Glasgow facility and before it was opened. A later claim was received on 29 October 2001. The Secretary of State therefore awarded benefit only from 29 July 2001, applying the statutory 12-month limit.

The Fox Court Appeal Tribunal dismissed the appellant’s appeal. Commissioner Turnbull set that decision aside for an inadvertent breach of natural justice, but held that the claim was first made on 29 October 2001. The appeal concerned whether regulation 6(1) of the Social Security (Claims and Payments) Regulations 1987 was ultra vires and whether section 7 of the Interpretation Act 1978 applied.

The appeal was dismissed unanimously.

1. Preliminary appellate issue. Dyson LJ accepted, with reference to Chief Adjudication Officer v Foster [1993] AC 754, that the tribunal and Commissioner had power to determine vires questions. The caution in Secretary of State for Work and Pension v Hughes [2004] EWCA Civ 16 and Cook v Secretary of State [2001] EWCA Civ 734 did not prevent the Court of Appeal deciding this issue, because it was resolvable by established principles of construction without specialist technical analysis.
2. Vires. Dyson LJ and Hallett LJ held that section 189(5) of the Social Security Administration Act 1992 was sufficiently broad to authorise regulation 6(1). Fixing the date of a claim was a supplementary provision expedient for the operation of the statutory scheme, particularly the 12-month limit on benefit claims. Pill LJ agreed, but additionally held that section 5(1)(a) itself was broad enough to authorise the regulation.
3. Effect of postal service. Sending a claim by post was authorised by regulation 4(6)(b), but the date of sending or deemed service was irrelevant. Regulation 6(1) made actual receipt in an appropriate office the operative event. Section 7 of the Interpretation Act 1978 therefore had no application. Alternatively, if it applied, regulation 6(1) manifested a contrary intention excluding its deeming effect.
4. Application. Receipt by the Department’s agent could satisfy the appropriate-office requirement. The Commissioner’s unchallenged finding was that the original claim was probably mishandled before it was opened, so it had not been received. The later claim therefore governed entitlement.
5. Pill LJ added that applicants should be clearly informed that a claim is made only upon receipt, so as to reduce the risk of genuine claims being defeated by postal failure.

• Court of Appeal (Civil Division). Dismissed the appeal from Commissioner Turnbull’s decision dated 2 February 2005: [2006] EWCA Civ 890.
• Social Security Commission. Commissioner Turnbull set aside the tribunal’s decision for an inadvertent breach of natural justice and held that the claim was first made on 29 October 2001.
• Fox Court Appeal Tribunal. Dismissed the appellant’s appeal against the Secretary of State’s decision on the date from which widow’s benefit was payable.