Levy v Secretary of State for Work and Pensions [2006] EWCA Civ 890

Case No C3/2005/1305[2006] EWCA Civ 890
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSION (MR CHARLES TURNBULL)
Venue Royal Courts of JusticeDate Wednesday, 24 th May 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL LORD JUSTICE DYSON LADY JUSTICE HALLETT
Between
LEVYAppellant- v -
Between
SECRETARY OF STATE FOR WORK AND PENSIONSRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR P STAGG (instructed by Messrs Moss Beachley Mullem & Coleman, London, W1H 1HA) appeared for Appellant.MR T BULEY & MS LIEVIN (instructed by Secretary of State for Work and Pensions) appeared on behalf of the Respondent.
J U D G M E N T

LORD JUSTICE DYSON:

This

[1]appeal raises the question whether Regulation 6(1) of the Social Security Claims and Payments Regulations1987 (“the Regulations”) is ultra vires the Social Security Administration Act 1992 (“the 1992 Act”) and if it is not, whether section 7 of the Interpretation Act 1978 (“the 1978 Act”), applies to regulation (6)(1). The appeal is from the decision of Commissioner Turnbull dated 2 February 2005.

The Facts

[2]The relevant facts can be stated quite shortly. The appellant is the widow of Mr Philip Levy, who died on 23 May 2000. On 4 July 2000 she posted in the London area a claim form for widow’s benefit. The procedures that the respondent had in place at the material time for dealing with the receipt of claims were as follows:
“All post in the London area was transported overnight to the Royal Mail post opening facility in Glasgow where it was opened and sorted and from where it was distributed to the relevant cluster at the Glasgow Benefits Centre.”
[3]It was accepted by the respondent that in opening the mail the Royal Mail acted as the agent of the Benefits Agency. The Commissioner held, therefore, that if the claim form sent by Mrs Soni Levy had been opened by the Royal Mail, it would have been received by “an appropriate office” of the respondent within the meaning of Regulation 6(1) of the Regulations. The Commissioner found however that what probably happened was that the claim was “mishandled” by the Royal Mail before it reached the Glasgow Benefit Centre. It was therefore never opened by the Royal Mail: see paragraph 22 of the Commissioner’s decision.[4]Mrs Soni Levy was very ill at the time. That is why she made no enquiries as to what had happened to her claim. It was not until October the following year that she sent a further claim for widow’s benefit. This time no problems occurred. On 29 October the respondent staff received a photocopy of her original claim. By section 1(2)(a) of the 1992 Act, a claimant is not entitled to widow’s benefit in respect of any period more than 12 months prior to the date on which the claim is made or treated as made. Regulation 6(1)(a) provides that a claim is made on the date on which it is received in an appropriate office. That is why it matters to Mrs Soni Levy whether her claim was made or treated as having been made by her original claim sent on 4 July 2000 or by her later claim, which was received on 29 October 2001.[5]By a decision of 6 November 2001 the Secretary of State decided that she was entitled to widow’s benefit only from 29 July 2001 and not from 23 May 2000. She appealed to the Fox Court Appeal Tribunal. Her application for an adjournment on the grounds that her ill health prevented her from appearing was rejected and her appeal was dismissed. On appeal to the Commissioner, the decision of the tribunal was set aside on the grounds of an inadvertent breach of the rules of natural justice. The Commissioner had to decide for himself therefore when the claim for widow’s benefit was first made. He held that it was first made when the respondent received it on 29 October 2001. Mrs Soni Levy appeals against that decision with the permission of Jonathan Parker LJ.

The Statutory Provisions

[6]Section 1(1) of the 1992 Act provides:
“Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied (a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or (b) he is treated by virtue of such regulations as making a claim for it.”
[7]Section 5(1) so far as material provides:
“Regulations may provide (a) for requiring a claim for a benefit to which this section applies to be made by such person, in such manner and within such time as may be prescribed; (b) for treating such a claim made in such circumstances as may be prescribed as having been made at such date earlier or later than that at which it is made and may be prescribed.”
[8]Section 1(8) provides:
“Without prejudice to any specific provision in this Act, a power conferred by this Act to make an order in council, regulations or an order … includes power to make thereby such incidental, supplementary, consequential or transitional provision as appears to her Majesty or the authority making the regulations or order, as the case may, to be expedient for the purposes for the order in counsel, regulations or order.”
[9]Regulation 4(6) of the Regulations provides that a person wishing to make the claim for benefit shall:
“ … (b) if it is a claim for any other benefit [including widow’s benefit] deliver or send the claim to an appropriate office.”
[10]Regulation 2(1) defines “appropriate office” as meaning: ”An office of the Department of Work and Pensions.”[11]Regulation 6(1)(a) provides that:
“ … the date on which a claim is made shall be (a) in the case of a claim which meets the requirements of regulation 4(1), the date on which it is received in an appropriate office.”
[12]Section 7 of the 1978 Act provides:
“Where an act authorises or requires any document to be served by post (whether the expression ‘serve’ or the expression ‘give’ or ’send’ or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
[13]Section 7 applies equally to subordinate legislation: see section 23(1) of the 1978 Act.

Is regulation 6(1) ultra vires?

[14]Mr Stagg submits that regulation 6(1) is ultra vires section 5 of 1992 Act. No such submission was advanced before the Commissioner. It is rightly accepted by Miss Lievin that both the tribunal and the Commissioner had power to deal with questions of vires; see Chief Adjudication Officer v Foster [1993] AC 754 (762D to 767B). She submits, however, that Mr Stagg should not be permitted to argue the vires point in this court. She does not say that she is unable to deal with it, but she submits that this court should be slow to decide points of law on an appeal from a specialist tribunal without the benefit of the views of the tribunal. We were referred to the judgment of Tuckey LJ in Secretary of State for Work and Pension v Hughes [2004] EWCA Civ 16 at paragraph 18 and his citation of a passage in the judgment of Hale LJ in Cook v Secretary of State [2001] EWCA Civ 734.[15]In both cases the question of law concerned the meaning of a particular statutory provision. If the vires issue raised by Mr Stagg involved “a technical issue of understanding and applying a complex legislation”, per Hale LJ, then I would accept that this court should be slow to decide the issue without the benefit of the views of the Commissioner. As Hale LJ said: “The Commissioners will know how that particular issue fits into the broader picture of Social Security principle as a whole. And they may be better placed than this court to apply those principles in a purpose of construction of the legislation”.[16]In my judgment, however, such considerations do not apply here. The ultra vires issue can be resolved by applying well-established principles of construction and without a need for a technical understanding of the legislation.[17]I turn therefore to the argument. Mr Stagg submits that there is no enabling power in section 5(1) permitting a regulation which purports to make provision for the date on which a claim is made.[18]Miss Lievin relies on section 5(1)(a) or alternatively section 189(5) of the 1992 Act. With regards to section 5(1)(a), she submits that regulation 6(1) prescribes the manner and/or the time within which a claim is required to be made. The manner in which a claim is required to be made is by “getting it to an appropriate office” (Miss Lievin’s phrase). The time within which it is required to be made is or includes the date on which an appropriate office receives it.[19]I am inclined to reject Miss Lievin’s submissions, but since I have no doubt that section 189(5) gave the power to make regulation 6(1), I do not feel it necessary to decide whether the regulation was authorised by section 5(1)(a). The reasons for my doubts about section 5(1)(a) are as follows. First section 5(1)(a) speaks of regulations “requiring a claim … to be made … in such manner ...” but regulation 6(1) does not purport to require anything of a claim; it merely identifies the date on which a claim is made or is treated as made. It is a descriptive rather than a prescriptive provision.[20]Secondly, “manner” is a “how” word not a “when” word. In my view it is artificial to say that a provision that a claim is made on the date on which it is received in an appropriate office prescribes that the manner in which a claim is required to be made is “by getting it to an appropriate office”.[21]As Mr Stagg points out, there are provisions in the regulations which unquestionably do prescribe the manner in which a claim is required to be made. They are to be found in regulation 4. One example will suffice. Regulation 4(1) provides that, with certain exceptions, every claim for benefit: ” … shall be made in writing on a form approved by the Secretary of State … or in such other manner, being in writing, as the Secretary of State (or the Board) may accept as sufficient in the circumstances of any particular case.”[22]I also have difficulty with Miss Lievin’s submission that regulation 6 prescribes the time within which a claim shall be made. The first objection is the one I have already mentioned at paragraph 19 above. Regulation 6(1) is a descriptive not a prescriptive provision. Secondly regulation 6(1) refers to a specific date (the date when the claim is received); it does not refer to a time within which a claim is to be made. There is a difference between(a) a specific date when an event occurs or is to occur and(b) a time within which an event occurs or is to occur. Regulation 19 contains detailed provisions which prescribe the time within which different benefits may be claimed. These are examples of regulations which obviously fall within the scope of section 5(1)(a).[23]I have no doubt, however, that Miss Lievin’s reliance on section 189(5) of the 1992 Act is well founded. The language could hardly be of wider scope. It permits the making of such supplementary regulations as appear to the authority making the regulations to be expedient for the purposes of the regulations. It is fundamental to the proper and efficient working of this legislation that the date on which a claim is made should be ascertainable with certainty. For example, the date is crucial to the application of the 12-month rule stated in section 1(2)(a) and (b) of the 1992 Act.[24]As Mr Stagg points out, section 5(1)(b) assumes that the date on which the claim is made is ascertainable. So does section 5(1)(c), which allows the making of regulations for “permitting such a claim to be made or treated as if made for a period wholly or partly after the date on which it is made”. It would have been extraordinary if Parliament had given power to make detailed regulations about claims and payments of benefit, but had intended to omit a power to make regulations prescribing the date on which a claim is made or is to be treated as made. If there is such a lacuna, it must have been through inadvertence.[25]Section 189(5) was introduced as a sweeping provision precisely to cater for the possibility that there was a lacuna in the specific rule making powers contained in section 5. Mr Stagg submits that there is no lacuna, since Parliament must have intended that section 7 of the 1978 Act would determine the date on which a claim is made. I shall assume for the purposes of the present argument that section 7 of the 1978 Act does apply. I accept the submission of Miss Lievin that, in the context of a detailed statutory scheme as complex as this scheme, it is fanciful to suppose that Parliament intended that something as fundamental as the fixing of the date of a claim should be determined by the deeming provisions of section 7 of the 1978 Act and not by regulations made pursuant to the 1992 Act.[26]In my judgment the language of section 189(5) is plain and unequivocal. It is wide enough to permit a regulation such as regulation 6(1). Regulation 6(1) is a supplementary provision, which appeared to the authority making the regulations to be expedient for the purposes of the regulations. It was not ultra vires the 1992 Act.

Does section 7 of the interpretation Act 1978 apply?

[27]The issue here is whether section 7 has any application at all. This is different from the question whether, if it has any application, its application is excluded by a “contrary intention” appearing in the 1992 Act and/or the regulations. I shall deal with that separate question in the next section of this judgment.[28]Mr Stagg submits that section 7 does apply. Regulation 4(6)(b) “authorises” a claim form to be “served” by post within the meaning of section 7 of the 1978 Act. Accordingly, section 7 applies to regulations 4(6)(b) and 6(1). I accept Mr Stagg’s submission that sending a claim form by post is “authorised” by regulation by 4(6)(b). It is true that regulation 4(6)(b) does not state in terms that sending a claim by post is permitted or authorised, but the fact that the method of sending is not prescribed by the regulation means that any effective means of sending documents is permitted or authorised; since sending by post is the obvious and most common method of sending documents and it is not prohibited by the regulation, it is a method of sending that is permitted or “authorised” by the regulation.[29]I do not, however, accept that the fact of sending a claim form by post is authorised by regulation 4(6)(b) means that section 7 of the 1978 Act applies to the scheme set out in regulations 4 and 6. The service or sending of a claim is not of itself an act which is relevant for the purposes of determining “the date on which the claim is made or treated as having been made”: see section 1(2)(a) of the 1992 Act. The Regulations contain detailed provisions as to the manner in which a claim must be made and regulation 6(1) defines the date on which a claim is made. But the Regulations contain no provisions dealing with the date of service of the claim. The date of service or sending of the claim is of no relevance to this scheme. The date which is of relevance is the date on which the claim is made. The Regulations define that date as the date on which the claim is received by an appropriate office, not the date of sending the claim. Section 7 of the 1978 Act deals with the serving of documents and the date of deemed service. In my opinion, therefore, although sending a claim form is authorised by regulation 4(6)(b), the date of service of the claim is irrelevant. For this reason section 7 of the 1978 Act has no application.[30]If, contrary to my opinion, section 7 of the 1978 Act does apply, then the question arises whether its application is excluded by the words “unless the contrary intention appears”. Mr Stagg submits that the words in the parenthesis in section 7 show that its effect is not restricted to cases concerning service but applies to all cases where one person is required to bring a document to the attention of another, whatever language is used. He then points out that regulation 6(1) does not in terms exclude the effect of section 7 of the 1978 Act. He submits that the wording “the date on which it is received in an appropriate office” is not inconsistent with that being a date on which the claim form is deemed to be received by virtue of the other legislation. Accordingly, he submits that regulation 6(1) does not show the “contrary intention” so as to exclude the effect of section 7.[31]I do not agree. I find it impossible to construe regulation 6(1) as meaning that the claim is made on the date on which, by operation of section 7 of the 1978 Act, it is deemed to be received. Mr Stagg conceded that if regulation 6(1) had stated that a claim is made on the date “on which it is actually received in an appropriate office”, his argument would be difficult to sustain.[32]In my judgment, even without the word “actually”, the regulation is referring to the date on which the date is actually received. It is plain that regulation 6(1) requires that the claim be received in fact and not merely that it be sent. I find it impossible to construe the words as having any other meaning. The difference between “send” and “receive” is plain and obvious. It is clear that the difference was understood by the draftsman of the regulations. Regulation 4(6)(b) imposes an obligation on a person wishing to make a claim to “deliver or send the claim to an appropriate office” (my emphasis), but regulation 6(1) makes it clear that the date on which a claim is made is the date on which the claim is received in an appropriate office. It follows that if section 7 applies, the contrary intention appears in regulation 6(1).

Conclusion

[33]In the result, effect must be given to the plain language of regulation 6(1) and the appeal must be dismissed. One cannot fail to have great sympathy for Mrs Soni Levy. It was not her fault that the Royal Mail mishandled her first claim. By posting the document she was not only using a method of sending the claim that was authorised by the Regulations, she was using the most common method of sending documents.[34]As against that, most claimants are able to make enquiries as to what has happened if their claims do not evoke a response. If Mrs Soni Levy had done that within a reasonable time of her sending the claim on 4 July 2000, it is likely that she would have discovered that the claim had not been received. She would have been able to send another claim in sufficient time not to be prejudiced by the 12-month rule in section 1(2)(a) of the 1992 Act. It was most unfortunate that, owing to her ill health, Mrs Soni Levy did not take that course before the expiry of the 12-month period.[35]Miss Lievin submits that there are sound policy reasons for regulation 6(1). The Department of Work and Pensions deals with a very large number of claims. It is often difficult for it to establish whether any claim has been posted or not. The only point at which the Secretary of State can establish with any degree of certainty the existence of a claim is on its receipt by the department or its agent. It follows that an interpretation by which section 7 of 1978 Act deemed claims to have been received usually on the claimant’s oral evidence as to the posting of the claim would be open to abuse and lead to evidential problems.[36]Mr Stagg submits that it easy to exaggerate these concerns. He points out that the general understanding of appeal tribunals and commissioners has for some time been that section 7 of the 1978 Act does apply to the sending of claim forms and that the contrary intention does not appear in regulations 6(1). That was the conclusion reached in two decisions by commissioners, CIS 48/1992 and CIS 758/1992. Both decisions are referred to without comment in the current editions of volume 3 of Social Security Legislation, published by Sweet & Maxwell. Mr Stagg says that despite these decisions, there has been no flood of cases in which there have been disputes as to when a claim was posted.[37]I should mention that this publication makes no reference to the decision of Miss Commissioner Fellner in CIS/306/03, which was followed by Mr Commissioner Turnbull in the present case and which, for the reasons I have given, adopted the correct approach to the section 7 issue.[38]I have no doubt that, as Miss Lievin says, there are sound policy reasons for regulation 6(1). I have reached the conclusion that I have expressed as to the proper interpretation of regulation 6(1) and the application of section 7 of the 1978 Act by giving the words used what I conceive to be their plain and ordinary meaning, but I am fortified in the conclusions that I have reached by the policy considerations relied on by Miss Lievin. As the facts of this case demonstrate, there is inherent in regulation 6(1) the possibility of injustice. Mrs Soni Levy had a genuine claim to widow’s benefit. She has been deprived of it because of a mishandling of her claim by the Royal Mail at a time when she was too ill to do anything about it. But the statutory scheme is clear and for the reasons that I have given, I would dismiss this appeal.

LADY JUSTICE HALLETT: For the reasons given by my Lord, Lord Justice Dyson, I too would dismiss the appeal.

[40]I should add this: I share some of his concerns about whether on a strict reading of section 5(1)(a) of the Social Security Administration Act 1992 there was the power to make regulation 6 of the Social Security (Claims and Payments) Regulations 1987. However, I feel that it is not necessary to decide the point because, like Dyson LJ, I have absolutely no doubt about the intention of Parliament and the effect of the very broad terms of section 189(5) of the same Act. The date upon which a claim is made is absolutely fundamental to the entire statutory benefits scheme. I cannot accept that Parliament intended to leave the determination of such a crucial issue to the deeming provisions of section 7 of the Interpretation Act 1978. Thus if there was an unintended lacuna in the scheme, upon which I express no concluded view, there is in my judgment under section 189(5) a method for filling it. I would reject the vires argument on that basis.[41]I would also like to associate myself with my Lord, Lord Justice Dyson’s remarks about the effect upon the unfortunate appellant, Mrs Soni Levy.

LORD JUSTICE PILL: I also agree that the appeal should be dismissed. I agree with Dyson LJ that section 189(5) of the Social Security Administration Act 1992 conferred the power to make regulation 6(1). However, in my view resort to that section is unnecessary because the regulation was within the powers conferred by section 5(1)(a) of the Act. Section 1(1) of the Act provides, in so far as is material: ” … no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied – “(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or “(b) he is treated by virtue of such regulations as making a claim for it.”

[43]The power to make such regulations is conferred by section 5. That states a long list of subjects for which regulations may be made.

(a) , reflecting the language of section 1(1), states:

“Regulations may provide – “(a) for requiring a claim for a benefit to which this section applies to be made by such person, in such manner and within such time as may be prescribed.”
[44]That can be and was intended to be construed generally. In my judgment, it confers the power to make regulation 6, which is appropriately headed “Date of Claim”, and defines the moment at which the claim for the purposes of section 1(1) is made. The expression requiring a claim to be made in “such manner and within such time” is sufficiently broad to cover a regulation which defines the date on which the claim is made and which brings the claim into existence. Identifying and defining that moment I regard as part of the process of defining the period within which the claim is to be made. It is not possible to define a period within which a claim is to be made without knowing what constitutes a valid claim.[45]As to the substance of the case, I agree with Lord Justice Dyson, and for the reasons he gives. Miss Lievin for the respondent has rightly stressed the importance in the present context of fixing the date on which a claim is made. Regulations made under section 5(1), for example in paragraphs (b) and (c), relate periods during which benefits are payable to the date on which the claim is made. Section 1 makes entitlement to benefit dependant upon the existence of a valid claim. Regulation 6 provides that such a claim is made on the date on which it is received in an appropriate office, as defined in regulation 22(1).[46]That being so, section 7 of the Interpretation Act 1978 is of no relevance. It has the limited effect of determining when a document permitted to be served by post is served. The document contemplated by regulation 4(6), a document prepared by a person “wishing” to make a claim for benefit, is covered by the section. That is irrelevant however to resolving when the claim is made. Regulation 6 provides in terms that the claim is made on the date on which it is received in an appropriate office. That leaves no room for the operation of the deeming provision. Deemed service is not the same as receipt within the meaning of the regulation. If it is necessary, which I do not consider it is, to resort to the expression in section 7 “unless the contrary intention appears”, I too would hold that the operation of section 7 is excluded.[47]I make two further points. The conclusion on law which this court makes, in agreement with the Commissioner, is dependent on his finding of fact. Lord Justice Dyson has referred to the sequence of events. The Commissioner held at paragraph 20 that the Secretary of State does accept that, in opening the mail, the Royal Mail acts as agent for the Benefits Authority.[48]Bereavement benefits for the claimant’s area, then Chiswick in London, are administered from Glasgow, which is where the original and subsequent claim form were addressed. The Commissioner found that if the original claim form got as far as being opened by the Royal Mail on behalf of the Benefits Agency, it had then been received in “an appropriate office”. It did not seem to him necessary that it should actually have arrived at the Benefits Agency building in Glasgow.[49]Having considered other possibilities, the Commissioner added at paragraph 21, the possibility that:
“ … it was mislaid by Royal Mail before it ever got to the building where it was opened, and so was not received in an appropriate office.”
[50]Paragraph 22:
“It is of course impossible to determine with any degree of certainty which of those possibilities actually occurred. However, it seems to me, on the evidence now available, and I so find, that it is rather more probable that it was mishandled by Royal Mail before it got to the building where (had it not been mishandled) it would have been opened.”
[51]There is no challenge, nor could there be a challenge, to those findings of fact. However, a contrary finding of fact on balance of probabilities would be possible, so that, as Mr Stagg for the appellant has submitted, the result of the court’s construction of the Regulations does not exclude the possibility of there being need for an investigation into the credibility of an applicant who claims to have posted the application.[52]Secondly, it is most unfortunate that what would have been a valid claim and a substantial claim by Mrs Soni Levy is defeated by a failure in the postal system. I agree with Lord Justice Dyson’s remarks on that subject. It is clearly important for applicants for benefits to enquire so as to confirm that their application has been received in an appropriate office and so become a claim for the purposes of the 1992 Act.[53]We have not been shown the documents supplied to applicants. I regard it as important that the respondent brings home to potential applicants, in the appropriate literature, that a claim is only made upon receipt. The department will have considerable expertise in drafting guidance to applicants and I would not presume to suggest how that should be done. But it is important that steps are taken to minimise the possibility that genuine applicants for benefit, such as Mrs Soni Levy, are defeated by a failure in the post.[54]I agree that the appeal must be dismissed.

Order

Appeal dismissed.

Cited in 2 later judgments