Blakey, R (on the application of) v Secretary of State for Work & Pensions

An existing award of Invalid Care Allowance creates a continuing entitlement, subject to any statutory inhibition on payment. When an overlapping benefit ceases, restoration of payment requires a positive decision on payability, but it is not a new claim for benefit. Such a decision falls under section 8(1)(c) of the Social Security Act 1998. The anti-test-case restrictions in section 27 do not apply to a decision concerning payment after the original claim has been determined. A statutory appeal is available. Judicial review may nevertheless be refused where the claimant delayed substantially and failed to use an adequate alternative remedy.

The claimant had been awarded Invalid Care Allowance while receiving Invalidity Benefit. Under the overlapping-benefits rules, the allowance was adjusted to nil. Invalidity Benefit ceased in November 1994, but the defendant did not restore payment until October 2000.

The claimant sought judicial review of the refusal to pay arrears. She relied on Adams v Secretary of State for Work and Pensions [2003] EWCA Civ 796, arguing that the underlying entitlement had revived automatically and that the anti-test-case rules did not apply. The central issues were the legal character of the restoration decision, the availability of a statutory appeal, and whether relief should be granted after delay.

1. The claim was dismissed. The claimant established an entitlement to Invalid Care Allowance for the period in issue, but relief was refused because of delay and the availability of an adequate statutory appeal.

2. An award of Invalid Care Allowance signifies an extant decision that the claimant is entitled to it. Once the overlapping benefit ceased, the inhibition on payment fell away. However, restoration of payment still required consideration and a positive decision on payability.

3. That decision was made under section 8(1)(c) of the Social Security Act 1998, as a decision arising under the relevant social-security legislation in relation to a subsisting award. It was not a new claim under section 8(1)(a). The decision was therefore appealable to an independent tribunal.

4. The court adopted and followed the reasoning of Adams v Secretary of State for Work and Pensions [2003] EWCA Civ 796. The defendant had been wrong to treat restoration as a supersession decision under section 10. The anti-test-case restrictions in section 27 did not apply, because the original claim had already been determined and the later decision concerned payability.

5. Hinchy v Secretary of State for Work and Pensions [2003] EWCA Civ 138 was distinguishable. It concerned recovery of an overpayment where there was a specific statutory obligation to disclose material facts. The present case concerned a general duty to notify changes and involved no evidence that disclosure could reasonably have been expected.

6. The failure to appeal did not bar the substantive claim, but it was decisive in the exercise of discretion. Following Falmouth & Truro Port Health Authority v South West Water Ltd [2001] QB 445, judicial review was exceptional where a statutory appeal existed. The five-and-a-half-year delay and failure to use the complete and sensible statutory remedy made relief detrimental to good administration.

7. The ex-gratia and irrationality grounds also failed. The claimant was materially different from Adams because she had not exercised her statutory appeal rights. National Insurance credits did not establish entitlement or remove the need for a positive decision. There was no order for costs, save for assessment of the claimant’s publicly funded costs.