Campbell v Secretary of State for Work & Pensions [2005] EWCA Civ 989

[2005] EWCA Civ 989Case No C3/2004/2224
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
CIB/3645/2002
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/07/2005
Before
LORD JUSTICE JUDGELORD JUSTICE CHADWICKLADY JUSTICE ARDEN
Between
RUPERT DAWKIN CAMPBELLAppellantSECRETARY OF STATE FOR WORK AND PENSIONSRespondent
Mr Richard Drabble QC and Mr Daniel Kolinsky (instructed by Child Poverty Action Group of 94 White Lion Street, London N1 9PF) for AppellantMr Philip Sales and Mr Paul Nicholls (instructed by Office of the Solicitor to the Department of Work and Pensions, 48 Carey Street, London WC2A 2LS) for RespondentHearing Hearing date : 27 April 2005
JudgmentLord Justice Chadwick :
[1]This is an appeal from the decision of a Tribunal of Social Security Commissioners (The Chief Commissioner, Mr Commissioner May QC and Mr Commissioner Bano) on 5 April 2004 that the decision of the Bradford Appeal Tribunal issued on 15 May 2002 was made without jurisdiction and should be set aside. The appeal, for which leave was granted by the Commissioners, raises a short point on the scope and effect of section 12 of the Social Security Act 1998.

The statutory framework

[2]The Social Security Act 1998 (“the 1998 Act”), as appears from its long title, was enacted “to make provision as to the making of decisions and the determination of appeals under enactments relating to social security” and other benefits. Section 1 of the Act transferred to the Secretary of State functions formerly exercised by adjudication officers under the Social Security Administration Act 1992 (“the Administration Act”). Section 6 provided for the constitution of appeal tribunals; and section 4 transferred to those appeal tribunals functions formerly exercised by (amongst others) social security appeal tribunals.[3]Section 8(1) of the 1998 Act provides that it should be for the Secretary of State to decide any claim for a relevant benefit; and (subject to sub-section (5), which is not material in the present context) “to make any decision that falls to be made under of by virtue of a relevant enactment” – sub-section (1)(c). “Relevant benefit” includes a benefit under Parts II to V of the Social Security Contributions and Benefits Act 1992 (“the Contributions and Benefits Act”). “Relevant enactment” includes the Contributions and Benefits Act and the Administration Act (with exceptions which are not material).[4]Section 12 of the 1998 Act is in these terms (so far as material): “(1) This section applies to any decision of the Secretary of State under section 8 . . . above . . . which –(a) is made on a claim for, or an award of, a relevant benefit, and does not fall within Schedule 2 to this Act;(b) is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act; or(c) . . . (2) In the case of a decision to which this section applies – (a) . . . (b) . . . the claimant . . . shall have a right to [appeal to an appeal tribunal]; . . . ” (a) is made on a claim for, or an award of, a relevant benefit, and does not fall within Schedule 2 to this Act; (b) is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act; or (c) . . . (b) . . . the claimant . . . shall have a right to [appeal to an appeal tribunal];[5]The effect of that provision is to confer a right to appeal from a decision of the Secretary of State which is made “on a claim for, or on an award of, a relevant benefit”, save in cases which fall within schedule 2; but to confer no right of appeal from a decision not made on a claim for, or on an award of, a relevant benefit, unless the case falls within schedule 3.[6]The relevant decision of the Secretary of State, in the present case, was a decision taken on 16 August 2001 (and notified to Mr Campbell on 21 August 2001) not to make payments of incapacity benefit under article 13(2) of the Convention on Social Security (“the Convention”) between Great Britain and Jamaica signed on 12 November 1996. The text of the Convention is set out in schedule 1 to the Social Security (Jamaica) Order 1997 (SI 1997/871) (“the Jamaica Order”).[7]The Jamaica Order was made under section 179(1)(a) of the Administration Act in order to give effect, in domestic law, to the provisions of the Convention. Section 179 of the Administration Act is in these terms (so far as material): “(1) For the purpose of giving effect –(a) to any agreement with the government of a country outside the United Kingdom providing for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of legislation to which this section applies, or(b) . . . , Her Majesty may by Order in Council make provision for modifying or adapting such legislation in its application to cases affected by the agreement . . . (2) An order made by virtue of subsection (1) above may, instead of or in addition to making specific modifications or adaptations, provide generally that legislation to which this section applies shall be modified to such an extent as may be required to give effect to the provisions contained in the agreement . . . (3) . . . (4) This section applies – (a) to the Contributions and Benefits Act; . . . (b) to this Act, . . .” (a) to any agreement with the government of a country outside the United Kingdom providing for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of legislation to which this section applies, or (b) . . . , . . .[8]Paragraph 2 of the Jamaica Order requires that:
“The Social Security Administration Act 1992 and the Social Security Contributions and Benefits Act 1992 shall be modified to such an extent as may be required to give effect to the provisions contained in the Convention and the Protocol set out in Schedules 1 and 2 respectively to this Order so far as the same relate to England, Wales and Scotland.”
[9]The effect of paragraph 2 of the Jamaica Order, read with section 179 of the Administration Act, is to modify section 113(1) of the Contributions and Benefits Act. That section, as enacted, provides, so far as material, that:
“Except where regulations otherwise provide, a person shall be disqualified for receiving any benefits under Parts II to V of this Act . . . for any period during which the person – (a) is absent from Great Britain; . . .”
[10]Section 113(1) of the Contributions and Benefits Act must be read with the Social Security Benefit (Persons Abroad) Regulations 1975 (SI 1975/563, as amended from time to time) (“the Persons Abroad Regulations”). Regulation 2(1)(a) provides that a person shall not be disqualified for receiving benefit in respect of incapacity by reason of being temporarily absent from Great Britain for any day falling within the first twenty-six weeks beginning with the day following the day on which he left Great Britain if the Secretary of State has certified that it is consistent with the proper administration of the Act that, subject to the satisfaction of one of a number of specified conditions - of which the relevant condition in the present context (paragraph 2(1)(c)) is that, on the day when the absence began he was, and had for the past 6 months continuously been, incapable of work and on the day for which benefit is claimed he has remained continuously so incapable since the absence began – the disqualification under section 113(1) of the Contributions and Benefits Act (formerly imposed by section 82(5) of the Social Security Act 1975) shall not apply.[11]Subject to the twenty-six weeks extension for which regulation 2 of the Persons Abroad Regulations provides – and which applied in the present case – the effect of section 113(1) of the Contributions and Benefits Act, as enacted, is that a person who is absent from Great Britain is disqualified from receiving incapacity benefit. But, in a case where that disqualification would be inconsistent with the Convention to which the Jamaica Order gives effect, section 113(1) is modified “to such extent as may be required” to give effect to the provisions contained in the Convention. That is what section 179(2) of the Administration Act, read with paragraph 2 of the Jamaica Order requires.[12]Article 13 of the Convention embodied in the Jamaica Order is in these terms:
“(1) In this article “competent authority means, in relation to Great Britain, the Secretary of State for Social Security. (2) Where a person is entitled to receive invalidity benefit under the legislation of the United Kingdom, he shall be entitled to receive that benefit in the territory of Jamaica provided that, at the time of leaving the United Kingdom he was considered by the competent authority of the United Kingdom likely to be permanently incapacitated for work, and that he subsequently continues to satisfy that authority that he remains incapacitated for work. (3) Where a person would be entitled to receive for the same incapacity and for the same period invalidity benefit under the legislation of both Parties, whether by virtue of the Convention or otherwise, he shall be entitled to receive only the invalidity benefit under the legislation of the Party in whose territory the incapacity began.”
[13]The effect of article 13(2) – read with article 13(3) – is that where a person becomes incapacitated for work while in the United Kingdom and then leaves the United Kingdom in order to reside in Jamaica, he will be entitled to receive United Kingdom incapacity benefit in Jamaica (but not, in addition, invalidity benefit under the legislation of Jamaica) if, but only if, at the time of his leaving the United Kingdom, he was considered by the Secretary of State likely to be permanently incapacitated for work. And, in such a case, he will continue to be entitled to receive United Kingdom incapacity benefit in Jamaica for so long as he continues to satisfy the Secretary of State that he remains incapacitated for work.[14]Disqualification from receiving incapacity benefit under section 113(1) of the Contributions and Benefits Act – either on leaving Great Britain or (in a case to which regulation 2(1) of the Persons Abroad Regulations apply) at the end of twenty-six weeks after leaving Great Britain – would be inconsistent with the provisions in article 13(2) of the Convention. So section 113(1) of the Contributions and Benefits Act has effect as modified to the extent required to give effect to those provisions. If read as modified so as to give effect to article 13(2) of the Convention, section 113(1) provides that a person who is absent from Great Britain is not disqualified from receiving benefit under United Kingdom legislation if the Secretary of State has decided, in the context of article 13(2), that that person shall be entitled to receive that benefit in the territory of Jamaica.[15]It is common ground between the parties to this appeal that the decision of the Secretary of State, on 16 August 2001, not to make further payments of incapacity benefit under article 13(2) of the Convention was a decision under section 8(1)(c) of the 1998 Act. But it is not common ground why that decision is to be treated as made under that section. Section 8(1)(c) of the 1998 Act gives the Secretary of State power “to make any decision that falls to be made under or by virtue of a relevant enactment”. The Secretary of State submits that a decision not to make further payments of incapacity benefit under article 13(2) of the Convention is a decision that falls to be made “by virtue of” section 179 of the Administration Act. It is section 179 of the Administration Act which gives force, under domestic law, to decisions made in the context of giving effect to the agreement between the United Kingdom and Jamaica which is embodied in the Convention. The appellant submits that the decision is made “under” section 113(1) of the Contributions and Benefits Act. It is section 113(1) of the Contributions and Benefits Act, read as modified so as to give effect to article 13(2) of the Convention, which provides that a person who is absent from Great Britain shall not be disqualified from receiving benefit under United Kingdom legislation if the Secretary of State has decided, in the context of article 13(2), that that person shall be entitled to receive that benefit in the territory of Jamaica.[16]I shall need to return to that issue later in this judgment. It is sufficient at this stage to stress that (whichever view is correct) the relevant decision is a decision made in the context of a bipartite agreement between the United Kingdom and Jamaica. It is important to appreciate that, in a case where a person becomes incapacitated for work while in the United Kingdom and then leaves the United Kingdom in order to reside in Jamaica, the Government of Jamaica has a direct interest in both(i) the decision of the Secretary of State at the time that person left the United Kingdom that he was, or was not, likely to be permanently incapacitated for work and(ii) any decision made after that person has left the United Kingdom and is residing in Jamaica, that he remains, or does not remain, incapacitated. The reason is that a decision of the Secretary of State which leads to continued entitlement to United Kingdom benefit has the effect of relieving the Government of Jamaica of the need to pay to that person whatever invalidity benefit he would otherwise be entitled to receive under the legislation of Jamaica; whereas a negative decision by the Secretary of State may have the effect that invalidity benefit is payable by the Government of Jamaica.

The issues on this appeal

[17]The primary issue on this appeal is whether the decision not to make payments under article 13(2) of the Convention was a decision “made on . . . an award of a relevant benefit” - it is not suggested that the decision was made on a claim. If so, then the decision is one in respect of which section 12(1)(a) of the 1998 Act, read with section 12(2), provides a right of appeal to an appeal tribunal unless the decision falls within schedule 2 to the Act. If not – that is to say, if the decision was made “otherwise than on such a claim or award” - then section 12(2) provides no right of appeal unless the decision falls within schedule 3 to the Act – section 12(1)(b).[18]If the decision not to make further payments under article 13(2) of the Convention was a decision “made on . . . an award of a relevant benefit” – and so, prima facie, within section 12(1)(a) of the 1998 Act – a second question arises: does the decision fall within schedule 2 to the Act? If it does, then notwithstanding that the decision is “made on . . . an award of a relevant benefit” it is not within section 12(1)(a). In that case, section 12(2) of the 1998 Act provides no right of appeal.[19]Schedule 2 to the 1998 Act (Decisions against which no Appeal lies) includes, at paragraph 9:
“Such other decisions as may be prescribed”
Regulations prescribing decisions (other than the decisions specifically mentioned in schedule 2 to the 1998 Act itself) against which no appeal lies are found in schedule 2 to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) (“the Decisions and Appeals Regulations”). Paragraph 22 of schedule 2 to the Decisions and Appeals Regulations is in these terms:
“A decision of the Secretary of State made in accordance with an Order made under section 179 of the Administration Act (reciprocal agreements with countries outside the United Kingdom)”
[20]The Secretary of State’s position, in this Court, is that the decision not to make payments under article 13(2) of the Convention was a decision “made on . . . an award of a relevant benefit”; but that that decision is taken out of section 12(1)(a) of the 1998 Act by paragraph 9 of schedule 2 to that Act, read with paragraph 22 of schedule 2 to the Decisions and Appeals Regulations.[21]If, on the other hand, the decision not to make further payments under article 13(2) of the Convention was a decision “made otherwise than on [a claim or award of a relevant benefit]” the decision is not within section 12(1)(a) of the 1998 Act; and, in such a case, the decision is brought within section 12(1)(b) if, but only if, it falls within schedule 3 to the Act. So, in such a case, the second question is: does the decision fall within schedule 3? If it does, then section 12(2) provides a right of appeal.[22]Schedule 3 to the 1998 Act (Decisions against which an Appeal lies) includes, at paragraph 3:
“A decision whether a relevant benefit (or a component of a relevant benefit) to which a person is entitled is not payable by reason of – (a) any provision of the Contributions and Benefits Act by which the person is disqualified for receiving benefit; . . . ”
[23]The appellant’s position, in this Court, is that the decision not to make payments under article 13(2) of the Convention was a decision taken under section 113 of the Contributions Act; it was not a decision on a claim or award of a relevant benefit; and it was a decision which fell within paragraph 3(a) of schedule 3 to the 1998 Act.

The underlying facts

[24]The underlying facts are conveniently set out at paragraphs 5 to 8 of the Commissioners’ decision. They are not in dispute:
“5. The claimant was born in Jamaica on 11 June 1950. He moved to Great Britain in 1984, and was employed by a local authority as a minibus driver and helper at a care centre for the elderly. In February 2000, he became incapable of work because of depression and, from April, received statutory sick pay. 6. After his period of entitlement to sick pay expired, it was followed by an award of incapacity benefit from 10 October 2000. In the absence of any evidence to the contrary, the parties agreed that, by virtue of Regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968, as amended), this award was probably made for an indefinite period. However, the claimant’s continued entitlement to this benefit was dependent upon his satisfying the all work test (now the personal capability assessment), although, in the usual way, under Regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No 311), as amended), he was initially treated as satisfying that test pending assessment. In any event, although it is not clear whether he actually underwent a medical examination, following a reference to Benefits Agency Medical Services, on 25 November the claimant was assessed as satisfying the all work test. Following that assessment, on 29 November 2000 a decision maker on behalf of the Secretary of State decided that benefit should continue, recording his decision as a ‘refusal to revise the original decision awarding benefit. 7. In the meantime, at the request of his employers, the claimant had been seen by a psychiatrist, who advised that the claimant’s depression could improve with support and psychiatric treatment, but that a return to work with the council would exacerbate his disorder. On the basis of that opinion, the council’s occupational health physician advised that the claimant was unable to perform the duties for which he had most recently been employed, and that that situation was likely to be permanent. He recommended ill health retirement, and the claimant’s employment was terminated in accordance with that advice, on 27 November 2000. 8. On 23 November (two days before his all work assessment), the claimant informed the Benefits Agency that he was going to Jamaica on 27 November for health reasons, indicating that he intended to return in September 2001. The claimant did indeed leave Great Britain for Jamaica on 27 November 2000.”
[25]Under the general rule enacted in section 113(1) of the Contributions and Benefits Act, the claimant would have been disqualified for receiving incapacity benefit from and including 28 November 2000. But the Secretary of State accepted that the claimant’s absence for Great Britain was temporary and that paragraph 2(1)(c) of the Persons Abroad Regulations was satisfied. He gave a certificate under paragraph 2(1)(a) of those regulations that it was consistent with the proper administration of the Contributions and Benefits Act that the disqualification under section 113(1) should not apply. The effect was that the claimant continued to receive incapacity benefit for the period of twenty-six weeks from the date he left Great Britain – that is to say, until 28 May 2001.[26]Thereafter, the claimant could receive incapacity benefit (if at all) only if a decision were made by the Secretary of State, under article 13(2) of the Convention, that at the time of leaving the United Kingdom in November 2000 he was likely to remain permanently incapacitated for work. But, as the Commissioners explained at paragraphs 16 and 17 of their decision, the Secretary of State did not take that view:. “16. On 7 March 2001 the claimant’s case for exception under Article 13(2) was considered by a decision maker, who referred it again to Benefits Agency Medical Services for medical advice on the question of whether, as at the date of his departure from Great Britain, the claimant was ‘likely to be permanently incapacitated for work’. A letter was obtained from the claimant’s general practitioner, advising that the claimant had made a partial response to antidepressant and counselling treatment, but the claimant felt he would be unable to recover fully in this country and consequently had made arrangements to go to Jamaica. Taking that into account, the approved doctor advised the decision maker on 7 July 2001 that it was not likely that the claimant would remain permanently incapable of work. On the basis of that advice, on16 August 2001, the decision maker made a ‘Decision on Payment of [Incapacity Benefit Long Term] in Jamaica’ purportedly superseding the awarding decision, and disqualifying the claimant from receiving benefit from 29 May 2001 to 30 December 2001. That decision was notified to the claimant by letter dated 21 August 2001. That letter indicated that the claimant could ask to have the decision reconsidered, and:
‘If the decision can be changed we will send you a new decision. If we cannot change the decision we will tell you why. You will still have right of appeal against the decision’ 17. On 30 August 2001 the claimant’s wife applied on his behalf for the decision to be reconsidered, enclosing with her letter the medical evidence obtained by his employers and the claimant’s letter of dismissal, and indicating that the claimant intended to live permanently in Jamaica, although returning for brief periods every two years to maintain his immigration status. The decision was duly reconsidered on 16 October 2001. However, the decision maker considered that the new medical evidence submitted on behalf of the claimant showed that, although the claimant was incapable of carrying out his regular occupation, it did not indicate that he was incapable of carrying out any (i.e. all forms of) employment. On that basis the decision was not revised.” ‘If the decision can be changed we will send you a new decision. If we cannot change the decision we will tell you why. You will still have right of appeal against the decision’

The appeal to the Bradford Appeal Tribunal

[27]The claimant appealed to an appeal tribunal, as he had been told (by the letter of 21 August 2001) he had the right to do. The Secretary of State did not challenge the tribunal’s decision to entertain the appeal – that is to say, he did not take the point as to jurisdiction that was taken subsequently before the Commissioners. The appeal tribunal allowed the appeal for the reason stated in the statement of reasons for decision issued on 15 May 2002:
“On the oral evidence heard at the Tribunal hearing [on 23 April 2002] it is doubtful whether the Secretary of State was aware of the evidence at Documents 44 and 45 of the submission when the original decision as to the Appellant’s entitlement was made. In the opinion of the Tribunal, Documents 44 and 45 provide strong evidence that the Appellant was likely to be permanently incapacitated for work prior to him leaving the UK in November 2000. These documents clearly show that the Appellant was not considered capable of undertaking the large number of different jobs which would no doubt be available with Bradford Metro Council.”
[28]Documents 44 and 45 of the submission were the two pages of a single letter, dated 13 November 2000, from the occupational health physician (Dr Shaw) who had advised the claimant’s employers, Bradford Metropolitan District Council. As the Commissioners observed at paragraph 17 of their decision a copy of that letter had been sent by the claimant’s wife to the Pensions and Overseas Benefits Directorate on 30 August 2001. Whether or not the decision maker was aware of that letter on 16 August 2001 when the original decision that the claimant did not qualify under article 13(2) of the Convention was made, there can be no doubt that it was before the decision maker when the matter was reconsidered on 16 October 2001. The letter quoted from a report from a consultant psychiatrist (Dr Bhatnagar), who had assessed the claimant on 12 September 2000. Dr Bhatnagar had written in his report that:
“. . . given the past history, I do not think returning to employment with the Bradford Council would be therapeutic. It is highly likely that this would exacerbate Mr Campbell’s depressive disorder and put him at risk of future ill health and increased distress for him and his family. . . . his depression can improve with support and psychiatric treatment. However, in my view, a return to Council employment will exacerbate the stress and would definitely cause a relapse. I do not think it is in his interest”
Dr Shaw had expressed his own view in these terms:
“From this I can conclude Mr Campbell is currently unable to perform the duties for which he was most recently employed. Furthermore this situation is regarding (sic) as being permanent, as stated by a Consultant Psychiatrist. Clearly the employee’s medical condition is likely to be aggravated by returning to that post and therefore it may be perceived that the medical condition may make it unsafe for him to continue as before. . . . Under the comparability clause [internal to the Council’s employment code of practice] one has to consider whether the contents, working hours, or location of the employee’s job could be changed within the terms of his contract to enable him to return to work within the organisation. . . . On the basis of the Consultant Psychiatrist’s report and also my own assessment of the situation, I feel it would be unreasonable to attempt to redeploy Mr Campbell as, like the Psychiatrist, a return to Council employment would exacerbate the stress and would definitely cause relapse.”
[29]As I have said there can be no doubt that the letter of 13 November 2000 was before the decision maker when the matter was reconsidered on 16 October 2001. It is referred to in the reasons for the decision, made on that day, that the earlier decision should remain unchanged. As the decision maker appreciated the letter of 13 November 2000 had to be read with the letter from Mr Campbell’s general practitioner (dated 22 June 2001) – in which it is recorded that, when last seen (in October 2000), Mr Campbell had “felt that living away from his native Jamaica and a number of negative racial experiences in the UK had contributed significantly to his illness” and that “Although he made a partial response to antidepressant and counselling treatment he felt he would be unable to recover fully in this country and had made arrangements to travel to Jamaica late in 2000”- and with the report from SEMA Medical Services (dated 9 July 2001) that:
“The factual report from the doctor indicates that [Mr Campbell] has depression, partly due to being away from his native home and some negative racial experiences in the UK. In this situation I consider it is not likely that he will remain permanently incapable of work.”
The decision maker had noted, on 16 October 2001, that:
“The new medical evidence shows that Mr Campbell is incapable of carrying out his regular occupation. It does not indicate that he is incapable of carrying out employment. Mr Campbell is therefore not entitled to receive incapacity benefit under the UK/Jamaica agreement.”
That was the reason given when Mr Campbell was notified, in a letter dated 24 October 2001, that the earlier decision remained unchanged. Mr Campbell is therefore not entitled to receive incapacity benefit under the UK/Jamaica agreement.”

The appeal to the Commissioners

[30]The Secretary of State appealed to a Commissioner, under section 14 of the 1998 Act, on the ground that the decision of the appeal tribunal was erroneous in point of law. On 13 October 2003 the Chief Commissioner directed, under section 16(7) of the Act, that the appeal be heard by a tribunal consisting of three Commissioners, on the ground that the questions of law involved in the appeal were of special difficulty. The appeal came before a tribunal of Commissioners on 29 and 30 January 2004. The Commissioners’ decision is dated 5 April 2004.[31]The Commissioners noted, at paragraph 2 of their decision, that – in addition to the challenge to the jurisdiction of the appeal tribunal – the Secretary of State appealed on two other grounds:(i) that the appeal tribunal had erred in substituting its own decision as to the likelihood of permanent incapacity, rather than confining itself to deciding whether the Secretary of State’s opinion (that the likely permanent incapacity was not established) was irrational and(ii) that, even if the appeal tribunal had had jurisdiction to hear the appeal and substitute its own decision for that of the Secretary of State, the appeal tribunal’s decision (that the claimant was likely to be permanently incapable of work when he left Great Britain) was not one to which it could properly have come on the evidence. Having reached the conclusion that the appeal tribunal had had no jurisdiction to hear an appeal from the Secretary of State’s decision under article 13(2) of the Convention – that is to say, having held that the challenge to the jurisdiction of the appeal tribunal should succeed – the Commissioners did not find it necessary to express any view on those other grounds. They are raised again, in this Court, by a respondent’s notice served on behalf of the Secretary of State on 6 April 2005.[32]The Commissioners held – rejecting a submission made on behalf of the claimant – that the decision not to pay benefits under article 13(2) of the Convention was a decision as to the payability of benefit, not a decision as to entitlement to benefit. The claimant accepts, in this Court, that the Commissioners were correct to reach that conclusion (paragraph E.1 of the appellant’s skeleton argument) and I need say no more about that point. They then went on to consider whether the decision not to pay benefits under article 13(2) of the Convention was, or was not, a decision “on an award” for the purposes of section 12(1) of the 1998 Act. They recorded that the claimant accepted that, if the decision was “on an award”, then “it fell within the confines of Section 12(1)(a), and would be the subject of the exclusion from appeal found in Paragraph 9 of Schedule to the 1998 and ultimately in Regulation 27(1) of and Paragraph 22 of Schedule 2 to the Decisions and Appeals Regulations”; and that (on the other hand) the Secretary of State accepted that, if the decision was not “on an award”, it fell within Section 12(1)(b), and would be the subject of exclusion from non-appealability found in Paragraph 3(a) of Schedule 3 to the 1998 Act.” The Commissioners described each of those concessions as “properly made”.[33]At paragraph 36 of their decision the Commissioners noted that it was common ground between the parties that, in construing section 12(1) of the 1998 Act, regard could and should be had to schedules 2 and 3 to that Act. They said this:
“There is no definition of ‘award’ in the 1998 Act or, so far as we are aware, in its predecessor statutes or any relevant regulations. However, both parties submitted that some assistance in determining whether a decision under Article 13(2) is ‘on an award’ could be derived from the provisions of Schedules 2 and 3 to the Act, each party adopting the same approach (albeit to different ends). [The claimant] submitted that, if a decision under Article 13(2) fell within one of the exceptions in Schedule 3 (as he submitted it did), then the decision must be covered by section 12(1)(b) (otherwise Schedule 3 was not engaged), and therefore, by definition it cannot be a decision on an award. To the same effect [the Secretary of State] submitted that, if a decision under Article 13(2) fell within one of the exceptions in Schedule 2 (as he submitted it did), then the decisions must be covered by Section 12(1)(a) (otherwise Schedule 2 is not engaged), and it must therefore be a decision on a claim or award. Despite their different conclusions, we accept the common ground between the parties on this issue, namely that, in construing Section 12(1), regard can and should be had to Schedules 2 and 3 to the same statute ”
[34]The Commissioners accepted that the argument advanced on behalf of the claimant – that the decision not to pay benefits under article 13(2) of the Convention was “a decision whether a relevant benefit . . . to which a person is entitled is not payable by reason of . . . any provision of the Contributions and Benefits Act by which the person is disqualified for receiving benefit” – had “superficial attraction, not least in its simplicity”. But they rejected that argument. They did so for the three reasons which they set out at paragraphs 38 to 40 of their decision. First, the relevant decision was not made under section 113 of the Contributions and Benefits Act, but under article 13(2) “which derives from section 179 [of the Administration Act]”. Second, paragraph 22 of schedule 2 to the Decisions and Appeals regulations expressly covers a decision of the Secretary of State “made in accordance with an Order under Section 179”; and so had “specificity in respect of a decision under Article 13(2)” which was lacking in paragraph 3(a) of schedule 3 to the 1998 Act. Third, even if a decision under article 13(2) were properly to be regarded as a decision under section 113(1) of the Contributions and Benefits Act (as modified by article 13(2) of the Convention, read with section 179 of the Administration Act) as the claimant contended – it would, nevertheless, be a decision “on an award”.[35]The Commissioners expressed their conclusion, succinctly, at paragraph 41 of their judgment:
“for theses reasons we consider that a decision made under Article 13(2) to be a decision ‘on an award’, and consequently it falls within the confines of Section 12(1)(a), and is the subject of the exclusion from appeal found in Paragraph 9 of Schedule 2 to the 1998 Act”
Accordingly the Commissioners allowed the appeal on the ground that the appeal tribunal had been without jurisdiction.

This appeal

[36]The first ground of appeal challenges the Commissioners’ conclusion that the decision of the Secretary of State not to pay benefit under article 13(2) of the Convention was not a decision made under section 113(1) of the Contributions and Benefits Act. But it is important to recognise that success on that ground alone would not lead to success on the appeal. To succeed on the appeal the appellant must succeed, also, on his third ground: that the decision not to pay benefit under article 13(2) of the Convention was not a decision on an award. It is success on the third ground that (on the appellant’s case) takes the decision not to pay benefit under article 13(2) of the Convention out of section 12(1)(a) of the 1998 Act. And it is only if the decision is taken out of section 12(1)(a) on the third ground that the appellant can rely on paragraph 3(a) of schedule 3 to the 1998 Act – for which he needs to succeed on the first ground - to found jurisdiction under section 12(2) of the 1998 Act.[37]The second ground of appeal challenges the Commissioners’ conclusion that the decision not to pay benefit under article 13(2) of the Convention fell more specifically under the terms of paragraph 22 of schedule 2 to the Decisions and Appeals Regulations than under paragraph 3(a) of schedule 3 to the 1998 Act. In addressing that issue it is necessary to have those two paragraphs in mind. They are set out earlier in this judgment, but it may be convenient if I set them out again. Paragraph 22 of schedule 2 to the Decisions and Appeals Regulations is in these terms:
“A decision of the Secretary of State made in accordance with an Order made under section 179 of the Administration Act (reciprocal agreements with countries outside the United Kingdom).”
Paragraph 3(a) of Schedule 3 to the 1998 Act includes, amongst decisions against which an appeal lies:
“A decision whether a relevant benefit (or a component of a relevant benefit) to which a person is entitled is not payable by reason of – (a) any provision of the Contributions and Benefits Act by which the person is disqualified for receiving benefit; . . . ”
[38]If the two paragraphs are read together it is, if I may say so, easy to understand why the Commissioners took the view that the decision not to pay benefit under article 13(2) of the Convention fell more naturally within the former. But the real question, as it seems to me, is whether the Commissioners were right to read the two paragraphs together. Were they right to construe section 12(1) of the 1998 Act in the light of subordinate legislation? The ‘common ground’ which the Commissioners identified in their decision did not extend beyond agreement that it was right to construe section 12(1) with regard to the provisions in schedules 2 and 3 to the 1998 Act – that is to say, with regard to other provisions in the same statute. Paragraph 22 of schedule 2 to the Decisions and Appeals Regulations is not in the 1998 Act as enacted.[39]There seems to me to be force in the submission that the Commissioners should not have had regard to paragraph 22 of schedule 2 to the Decisions and Appeals Regulations until they had first decided whether the decision not to pay benefit under article 13(2) was a decision on an award. If it were, paragraph 22 of schedule 2 to the Decisions and Appeals Regulations, read with paragraph 9 of schedule 2 to the 1998 Act, was plainly apt to take the decision out of section 12(1)(a) of the Act – and so out of section 12(2). That was conceded. If it were not, then paragraph 22 of schedule 2 to the Decisions and Appeals Regulations was of no relevance.[40]I return, therefore, to the first and third grounds of appeal. The appellant seeks to rely upon the two grounds in combination. The argument, in substance, is this:(i) on a true analysis the decision not to pay benefit under article 13(2) of the Convention is a decision under section 113(1) of the Contributions and Benefits Act whether a relevant benefit to which a person is entitled is not payable by reason of a provision of that Act;(ii) accordingly the decision is a decision within paragraph 3(a) of schedule 3 to the 1998 Act; and(iii) because it is a decision within paragraph 3(a) of schedule 3 to the 1998 Act it must be a decision otherwise than on a claim for, or an award of, a relevant benefit; for if it were a decision on a claim or award, schedule 3 could have no application to it. As an argument in support of the third proposition, it might be described as self-fulfilling. But it depends, of course, in establishing the first two propositions. In my view the first two propositions are flawed.[41]First, is a decision not to pay benefit under article 13(2) of the Convention a decision under section 113(1) of the Contributions and Benefits Act?. The better view, I think, is that it is not. It is, and remains, a decision taken under a bipartite inter-government agreement which is given effect, in the context of English domestic law, by section 179 of the Administration Act. It may be said to be a decision which “falls to be made” by the Secretary of State, in so far as it needs to have effect under English domestic law (as it does), “by virtue of” the Administration Act. It is that link which brings the decision within section 8(1)(c) of the 1998 Act. It is, of course, a decision which, if made, affects the scope and effect of section 113(1) of the Contributions and Benefits Act; but that does not lead to the conclusion that it is a decision which falls to be made “under” or “by virtue of” that section.[42]Second, is a decision not to pay benefit under article 13(2) of the Convention a decision within paragraph 3(a) of schedule 3 to the 1998 Act? Again, the better view, I think, is that it is not.[43]In addressing that question it is important to have in mind paragraph 5 of schedule 2 to the 1998 Act (Decisions against which no Appeal lies). That paragraph is in these terms, so far as material:
“A decision whether to certify, in accordance with regulations made under . . . section 113(1) of the Contributions and Benefits Act, that it is consistent with the proper administration of the Act to treat a person as though he were present in Great Britain.”
The effect of treating a person as if he were present in Great Britain at a relevant time (when he is not, in fact, in Great Britain) is that the disqualification for receiving benefit under Parts II to V of the Contributions and Benefits Act – imposed by section 113(1) of that Act – does not apply to him. An example of a regulation which provides that the disqualification imposed by that section shall not apply to a person who is temporarily abroad if the Secretary of State certifies that it is consistent with the proper administration of the Act that it should not do so is found in regulation 2(1)(a) of the Persons Abroad Regulations, to which I have already referred:
“ . . . a person shall not be disqualified for receiving any benefit by reason of incapacity by reason of being temporarily absent from Great Britain for any day falling within the first twenty-six weeks beginning with the day following the day on which he left Great Britain if – (a) The Secretary of State has certified that it is consistent with the proper administration of the Act that . . . the disqualification under section [113(1)] should not apply.”
[44]It could not be said – and it was not so submitted on behalf of the appellant – that a decision by the Secretary of State whether or not to give a certificate under regulation 2(1)(a) of the Persons Abroad Regulations falls within paragraph 3(a) of schedule 3 to the 1998 Act. A decision whether to certify, in accordance with the Persons Abroad Regulations, that it is consistent with the proper administration of the Contributions and Benefits Act that a person who is temporarily absent from Great Britain shall (notwithstanding section 113(1) of that Act) continue to receive benefits (as though he were present in Great Britain) plainly falls within paragraph 5 of schedule 2 to the 1998 Act. And it must be accepted that decisions within paragraph 5 of schedule 2 cannot also fall within paragraph 3(a) of schedule 3. The scheme of the Act requires that paragraph 5, schedule 2 and paragraph 3(a), schedule 3 are mutually exclusive.[45]So it is necessary to inquire why Parliament (in enacting schedules 2 and 3 to the 1998 Act) must be taken to have satisfied itself that a decision by the Secretary of State whether or not to give a certificate under regulation 2(1)(a) of the Persons Abroad Regulations would not fall within paragraph 3(a) of schedule 3 to the 1998 Act. The reason, as it seems to me, is that it was thought by Parliament not to be a decision whether a relevant benefit to which a person is entitled is not payable by reason of section 113(1) of the Contributions and Benefits Act. It is a decision, taken under Regulations made under section 113 of that Act, that the person is to be treated as if he were not within section 113(1). And, because he is to be treated as if he were not within section 113 of the Act, the question whether benefit to which he is entitled is not payable by reason of the provisions of that section (which disqualify persons for receiving benefit) does not arise.[46]If that is a correct analysis, then it informs the parallel inquiry in the present appeal: does a decision not to pay benefit under article 13(2) of the Convention fall within paragraph 3(a) of schedule 3 to the 1998 Act? Or, to put the point another way: is a decision not to pay benefit under article 13(2) of the Convention a decision that a relevant benefit to which person is entitled is not payable by reason of the provisions of section 113(1) of the Contributions and Benefits Act by which a person is disqualified for receiving benefit? The answer, I think, is the same and for a similar reason. It is not a decision within paragraph 3(a) of schedule 3 to the 1998 Act. It is a decision, taken under a bipartite inter-government agreement, that the person is to be treated as if he were not within section 113(1). And, because he is to be treated as if he were not within section 113 of the Act, the question whether benefit to which he is entitled is not payable by reason of the provisions of that section (which disqualify persons for receiving benefit) does not arise.[47]Although I would accept that a decision which does fall within paragraph 3(a) of schedule 3 to the 1998 Act must be taken to be a decision otherwise than on a claim for, or an award of, a relevant benefit - for the reason that if it were a decision on a claim or award, schedule 3 could have no application to it - the third proposition does not assist the appellant in the present case. For the reasons which I have sought to explain, the decision not to pay benefit under article 13(2) of the Convention does not fall within paragraph 3(a) of schedule 3 to the 1998 Act.[48]It follows that I would hold that the Commissioners could properly have reached the conclusion that a decision of the Secretary of State not to pay benefit under article 13(2) of the Convention was a decision made on an award of relevant benefit for the purposes of section 12(1)(a) of the 1998 Act without relying on the provisions of subordinate legislation – paragraph 22 of schedule 2 to the Decisions and Appeals Regulations. It is unnecessary, therefore, to consider whether this is one of those exceptional cases – recognised by Lord Scarman in Hanlon v The Law Society [1981] AC 124, 185H-186C – in which resort may be had to subordinate legislation as an aid to construction. But I take comfort from the fact that, if it is permissible to have regard to the provisions of paragraph 22 of schedule 2 to Decisions and Appeals Regulations for the purpose of construing section 12(1) of the 1998 Act, the conclusion that a decision not to pay benefit under article 13(2) of the Convention was a decision “on an award” for the purposes of section 12(1)(a) of that Act is reinforced.[49]Once that conclusion is reached – that a decision not to pay benefit under article 13(2) of the Convention was a decision “on an award” for the purposes of section 12(1)(a) of the 1998 Act – paragraph 22 of schedule 2 to the Decisions and Appeals Regulations, read with paragraph 9 of schedule 2 to the 1998 Act, is plainly in point. The effect is that the decision was one in respect of which section 12(2) of the 1998 Act confers no right of appeal.[50]It is pertinent to note that that conclusion leaves the position as it was at the time when the Convention was agreed and the Jamaica Order was made. At that time not all benefit decisions were made by the Secretary of State: some were made by adjudication officers. There was a general distinction between decisions made by adjudication officers (in respect of which there was a statutory right of appeal) and decisions made by the Secretary of State (in respect of which there was no statutory right of appeal). Decisions made by the Secretary of State were subject to judicial review – on the familiar grounds – but were not liable to be reversed by an appeal tribunal at liberty to substitute its own view for that of the decision maker. The Commissioners noted (at paragraph 26(a) of their decision) that this was common ground.[51]The pre-1998 position is of relevance because it is most unlikely, as it seems to me, that Parliament intended, when it enacted the 1998 Act, to alter that position in relation to decisions which fell to be taken by the Secretary of State under bipartite inter-government agreements. I have already explained, earlier in this judgment, that the Government of Jamaica has a direct interest in decisions taken by the Secretary of State under article 13(2) of the Convention. It follows that the Government of Jamaica has a direct interest in how, and by whom, those decisions are taken. For Parliament to introduce a right of appeal to a tribunal which (as the claimant contends) has power to substitute its own decision for that of the Secretary of State would be to disregard the interest of the Government of Jamaica under an agreement to which the United Kingdom Government is party. Legislation should be construed on the basis that the intention of Parliament is to observe the United Kingdom’s international commitments rather than to ignore them. The Commissioners’ decision gives effect to that principle.

Article 6 of the European Convention on Human Rights

[52]There is a fourth ground of appeal in the appellant’s notice. It is said that the Commissioners erred in holding that the absence of a right of appeal from the decision not to pay benefit under article 13(2) of the Convention scheduled to the Jamaica Order did not contravene the claimant’s rights under article 6 of the European Convention on Human Rights.[53]The Commissioners set out and addressed the arguments at paragraphs 42 to 49 of their decision. They did so on the basis that the issue turned on whether the decision to be taken under article 13(2) was to be based on the Secretary of State’s subjective view – that is to say, on whether the Secretary of State considered that, when the claimant left the United Kingdom, he was likely to be permanently incapacitated for work – or required an objective test. They noted, at paragraph 43 of their decision, that counsel for the claimant accepted that, if article 13(2) (of the Jamaica Convention) did pose a subjective test, then article 6 (of the Human Rights Convention) would have no application –“because he conceded that Article 6 had no part to play in the ambit of substantive rights, as opposed to procedural rights”. They said this (ibid):
“We should make clear that we accepted that concession for the purposes of this case, and our judgment is based upon it. As such the determinative issue in relation to this aspect of the appeal therefore turned simply on whether Article 13(2) imposes such a subjective test.”
[54]The Commissioners were satisfied that the test was subjective. Their reasoning appears from paragraph 47 of their judgment. After drawing attention to the distinction between article 1 of the Convention – which defines the “competent authority” for the purposes of the Convention “except where the context otherwise requires” as “the Department of Social Security” in relation to Great Britain and article 13(1) – which provides that “In this Article the ‘competent authority’ means, in relation to Great Britain, the Secretary of State for Social Security”, they said this:
“In our judgment its purpose [that is to say, the purpose of the separate definition in article 13(1)] is clear. It was intended to reserve decisions under that particular article to the Secretary of State, rather than having the competent authority remaining as simply the relevant Government Department (which, for reasons set out above, would have meant that the decision maker would have been an adjudication officer). It was intended that the exception provided by article 13(2) should only be available if the Secretary of State considered the claimant likely to be permanently incapacitated for work when leaving great Britain. It was intended that, consequently, such decisions should not be appealable. Mr Sales [for the Secretary of State] submitted in his written argument before us that: ‘The precondition . . . under Article 13(2) of the Reciprocal Agreement and the Jamaica Order is very different from the usual objective test under the Contributions and Benefits Act. The precondition . . . is expressed in terms of whether the competent authority in the UK (the Secretary of State) ‘considers’ a person ‘likely to be permanently incapacitated for work’ and is a continuing precondition depending on whether the claimant ‘subsequently continues to satisfy that authority that he remains incapacitated for work’. It is therefore clearly a precondition which depends on the satisfaction of the Secretary of State that there is likely permanent incapacity for work - which is a subjective test, subject to the usual requirement of rationality on the part of the decision maker.’ With respect to the position in 1997 (when the Jamaica Order was made), having rejected [counsel for the claimant’s] submission with regard to the purpose of article 13(1) (and accepting Mr Sales’ submission with regard to that provision), we consider there is no compelling alternative to the construction suggested by Mr Sales.”
They were not persuaded that the position changed following the enactment of the 1998 Act. As they pointed out, nothing in the 1998 Act purported to affect the provisions of the Jamaica[55]The appellant’s notice challenges the Commissioners’ conclusion that “all that Article 13(2) of the Jamaica Order (sic) calls for is the Secretary of State’s own subjective view about likely permanent incapacity, and such a subjective view can only be challenged on a limited basis which would equally be open on a judicial review”. In my view that challenge fails. I am satisfied that the Commissioners were correct, for the reasons which they gave, to take the view that the parties to the Convention made a deliberate decision that the power to decide whether to pay benefit under article 13(2) should lie with the Secretary of State – rather than with an adjudication officer within the department – and that is a sufficiently clear indication that the test was subjective (subject to the requirement of rationality). In the light of the concession – which is not withdrawn and which I would regard as rightly made, having regard to R (Mullen) v Secretary of State for the Home Department [2002] 1 WLR 1857 – I would dismiss the fourth ground of appeal.

The respondent’s notice

[56]As I have said, the Secretary of State has raised, by way of respondent’s notice, the additional contentions raised before the Commissioners – that is to say:(i) that the appeal tribunal erred in substituting its own decision as to the likelihood of permanent incapacity, rather than confining itself to deciding whether the Secretary of State’s opinion (that the likely permanent incapacity was not established) was irrational and(ii) that, even if the appeal tribunal had had jurisdiction to hear the appeal and substitute its own decision for that of the Secretary of State, the appeal tribunal’s decision (that the claimant was likely to be permanently incapable of work when he left Great Britain) was not one to which it could properly have come on the evidence. The Commissioners found it unnecessary to address those contentions. I think they were right to take that view. They do not arise if I am correct on the construction and effect of section 12(1) of the 1998 Act.

Conclusion

[57]I would dismiss this appeal for the reasons which I have set out.

Lady Justice Arden:

[58]Save as appears below, I agree with the judgment of Chadwick LJ, and I express my gratitude to him for forging a path through what can hardly be described as the most accessible legislation. I wish only to add further observations on one aspect of this case, and in so doing I adopt Chadwick LJ’s definitions.[59]Mr Sales submits that delegated legislation, namely the Decisions and Appeals Regulations, made under schedule 2 to the 1998 Act can be used in the interpretation of section 12(1)(a) of that Act, which expressly incorporates that schedule by reference. Chadwick LJ has adopted an analysis which means that it is not essential to decide that point on this appeal. As the point was common ground and was not foreshadowed in the careful skeleton arguments which counsel produced in this case, his reluctance is understandable. But I would wish to come to a conclusion on this point, as I consider that this question is of general importance.[60]The 1998 Act is typical of much recent legislation. It covers a vast area and the detail has therefore be left to delegated legislation. In many respects, it is framework legislation, setting out the broad conditions of entitlement and not dealing with the complexities of the administration of social security of which this is one. The ability to supplement primary legislation by secondary legislation provides a valuable way of keeping primary legislation up to date, particularly with the shortage of time for bills in both Houses of Parliament. It enables the United Kingdom (for example) to implement European Union measures requiring domestic legislation timeously. For many reasons, delegated legislation, within its proper sphere, is important to the legislator and the governed alike.[61]There are special practices and procedures for statutory instruments. Statutory instruments cannot be amended in the Parliamentary process (though they can be rejected) and they are not debated in the same way as primary legislation,. However there is a measure of Parliamentary scrutiny through committees of both Houses of Parliament: see generally Statutory Instrument Practice, published by the Cabinet Office.[62]In the present case, although the Decisions and Appeals Regulations were made on the 26th March 1999, that is after the 1998 Act was passed, they came into force (as regards incapacity benefit and a number of other benefits) on the same day as sub-sections (1) and (2) of section 12 of the 1998 Act were commenced. The regulations are an integral part of the statutory scheme, since section 12 (1) (a) specifically incorporates schedule 2, and, as Chadwick LJ has explained, paragraph 9 of schedule 2 refers to “such other decisions as may be prescribed”. Schedule 2 thus does not provide that there must be further provision added by secondary legislation, but it clearly anticipates that there may be such legislation. The Decisions and Appeals Regulations are made pursuant to a number of enabling powers, but they include paragraph 9 of schedule 2 to the 1998 Act. Furthermore, schedule 2 to the Decisions and Appeals Regulations is headed “decisions and appeals against which no appeal lies”. It was suggested before the Commissioners that paragraph 22 of schedule 2 to the Decisions and Appeals Regulations was ultra vires, but that submission has not been pursued on this appeal.[63]Mr Sales cited O’Hanlon v the Law Society [1981] AC 124. In that case the issue was whether the opening clause of section 9(6) of the Legal Aid Act 1974 (“Except so far as regulations otherwise provide”) included regulations made in 1971 which were subsequently amended in 1976 and if so whether they could be used as an aid to resolving an ambiguity in section 9(6). Three members of the House dealt with this point. Lord Simon held that the 1971 regulations and the 1974 Act should be construed together and that, as the 1976 amendment did not conflict with the conclusion to be drawn about the meaning of section 9(6), regard could be had to those regulations as well. He left open the situation if the 1976 regulations had pointed to a different interpretation of the 1974 Act. Lord Scarman, who as Chairman of the Law Commission for eight years had enormous experience in the preparation of legislation, held that social welfare legislation, which called for new legislation from time to time, required in effect for a purposive approach, and that the courts would not exclude as aids to construction either regulations made pursuant to earlier legislation or the subsequent delegated legislation. He went on to hold that the 1971 regulations supported the wider view of section 9(6), and held that the combination of the Act and the 1976 regulations led him to the conclusion that that view was correct. Lord Lowry considered that the cases cited in the leading textbooks supported a number of propositions, which he expressed as follows:
“(1) Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulations or where the meaning of the Act is ambiguous. (2) Regulations made under the Act provide a Parliamentary or administrative contemporanea expositio of the Act but do not decide or control its meaning: to allow this would be to substitute the rule-making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires. (3) Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation. (4) Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former. (5) The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify. (6) Clear guidance may also be obtained from regulations which are to have effect as enacted by the parent Act.”
[64]Lord Lowry went on to illustrate proposition (5) by citing Britt v Buckinghamshire County Council [1964] 1 QB 77, per Sellers LJ at 84, per Harman LJ at 88 and per Pearson LJ at 92. This case concerned amendments to primary legislation effected by delegated legislation passed under a Henry VIII power, which in fact came into force simultaneously with the primary legislation, and this court had no difficulty in interpreting the primary legislation using the modified provisions as an aid to interpretation. This court distinguished Stephens v Cuckfield Rural District Council [1960] 2 QB 373, where delegated legislation was sought to be used to interpret the relative primary legislation without any indication by Parliament that it was intended to have that effect. It dealt with a different subject matter altogether. The present case is different because schedule 2 to the 1998 Act makes it quite clear that the regulations made pursuant to the schedule are to explicate the types of decisions from which no appeal lies.[65]Accordingly, in my judgment, the Commissioners were correct to place reliance on paragraph 22 of the Decisions and Appeals Regulations in the interpretation of section 12(1) of the 1998 Act. I would not accept that the circumstances in which regard can properly be had to delegated legislation are, as Chadwick LJ has held, today exceptional. Although Lord Scarman referred to social legislation, since he was dealing with the Legal Aid Act 1974 (not social security legislation) it is clear that he had in mind a very wide range of legislation affecting social issues. In the circumstances, I consider that paragraph 22 of the Decisions and Appeals Regulations should be used as an aid to the interpretation of section 12(1)(a), rather than excluded from the process so that the primary legislation is interpreted without regard to them. In this case, of course paragraph 22 supports the conclusion which Chadwick LJ has reached without reference to the regulations.[66]Changing Parliamentary practice means that delegated legislation has a far bigger role to play in governing this country today than even in 1981. I accept of course that vigilance is needed so that delegated legislation is not given an effect which goes beyond its proper reach and also that a degree of caution is required in case the drafter of the delegated legislation made a mistake as to the effect of the primary legislation. That said, the authoritative guidance in O’Hanlon should not, in my judgment, be treated as discouraging recourse to delegated legislation as an aid to interpretation to the principal act where the delegated legislation is an integral part of the same statutory scheme. This particular type of case is not excluded by Lord Lowry’s proposition (5) simply because there is no power to modify the primary legislation. Delegated legislation which, pursuant to express powers in the primary legislation, amplifies a particular provision in that legislation is as admissible as delegated legislation which modifies the primary legislation, at least where as here it is contemporaneously produced: see Lord Lowry’s proposition (4). I would treat regulations prepared within a short time after the passing of the Act under which they are made, and before the relevant provisions are brought into force, for this purpose as regulations which are contemporaneously produced. It may be that there will need to be a more detailed reconsideration and re-focussing of the guidelines in the O’Hanlon case at an appropriate time. However, for present purposes, I am concerned that, by not dealing with Mr Sales’ submission in this case, this court’s decision might be read as casting doubt on the role of delegated legislation in the interpretation of primary legislation in the situation in this case. It is important for those who draft delegated legislation, those who administer it, and for that much larger proportion of the population who are affected by it, to know where they stand in this regard.

Lord Justice Judge:

[67]I agree that this appeal should be dismissed. Like Arden LJ I agree with the judgment of Chadwick LJ and like him, I reach my conclusion without reference to the Decisions and Appeals Regulations. If I had been unable to do so, I should have been attracted by Arden LJ’s view of the impact of delegated legislation on the interpretation of linked primary legislation. However I shall defer expressing a concluded view until such time as it becomes necessary for this issue to be decided.

Order

“In particular, whilst effectively transferring the functions of adjudication officers to the Secretary of State, [the 1998 Act] did nothing to affect the nature of a decision under article 13(2), i.e. as a decision in respect of a precondition of being exempted from disqualification from benefit”. It followed from that finding – and from the concession – that article 6 of the Human Rights Convention had no application. ‘The precondition . . . under Article 13(2) of the Reciprocal Agreement and the Jamaica Order is very different from the usual objective test under the Contributions and Benefits Act. The precondition . . . is expressed in terms of whether the competent authority in the UK (the Secretary of State) ‘considers’ a person ‘likely to be permanently incapacitated for work’ and is a continuing precondition depending on whether the claimant ‘subsequently continues to satisfy that authority that he remains incapacitated for work’. It is therefore clearly a precondition which depends on the satisfaction of the Secretary of State that there is likely permanent incapacity for work - which is a subjective test, subject to the usual requirement of rationality on the part of the decision maker.’

Cited in 3 later judgments