R(A) 2/93

Mr. A. T. Hoolahan QC	CA/424/1989
5.6.91
Payment of benefit not obtained - prescribed time reduced under new regulation - whether claimant entitled to rely on time limit in force when the right to payment arose
Prior to 11 April 1988, regulation 22 of the Social Security (Claims and Payment) Regulation 1979 provided that the right to payment of any benefit should be extinguished where payment was not obtained within twelve months; but that regulation further provided that the twelve month extinguishment  period could be extended for  “good cause”. On 11 April 1988, regulation 22 was replaced by regulation 38 of the Social Security (Claims and Payments) Regulation 1987 which contained no provision for extension of the twelve month period for “good cause”. From 9 October 1989, however, the provision for “good cause” was reintroduced by regulation 38(2A).
The claimant was the appointee for his daughter who had an award of lower rate attendance allowance. She normally lived in residential accommodation, but spent some periods at home when attendance allowance became payable. The appointee normally claimed attendance allowance in arrears for those periods on form DS104. On 1 October 1988, he signed and submitted form DS104 claiming attendance allowance for periods his daughter had spent at home since 17 April 1987. The adjudication officer decided that payment of attendance allowance was limited to periods she had spent at home since 3 October 1987 because payment for any earlier period was not obtained within twelve months of the date the claimant had a right to be paid: regulation 38 of the Social Security (Claims and Payments) Regulations 1987. That regulation came into force on 11 April 1988, which was after some of the periods he was claiming for, but before the form DS104 was received. The SSAT upheld the adjudication officer’s decision and the appointee appealed to the Commissioner. At the hearing before the Commissioner it was accepted that regulation 38(2A) was not retroactive.
Held that:
1.	the law to be applied was that in force at the date request for payment was received; at that date regulation 38 of the Social Security (Claims and Payments) Regulation 1987 was in operation and it contained no “good cause” provision (para. 14);
2.	at the date of the request for payment the claimant had no acquired or accrued right to rely on the good cause provision contained in regulation 22 of the Social Security (Claims and Payments) Regulations 1979 and his right to payment was therefore extinguished (para. 13).
The appeal was disallowed.

decision of the SOCIAL SECURITY commissioner

1.	I disallowed this appeal by the claimant. The decision of the social security appeal tribunal dated 27 February 1989 was not erroneous in law.
2.	The claimant is the appointee of his daughter Ann. Ann was awarded attendance allowance at the lower rate from 4 June 1973. On 7 July 1980 Ann was admitted to residential accommodation but spent periods at home, sometimes weekly sometimes fortnightly. Payment for any periods Ann spent at home was made by the Attendance Allowance Unit on receipt of a completed claim form DS104. On            1 October 1988 the claimant signed a form DS104 and submitted it for payment for the periods that Ann had spent at home since 17 April 1987. Payment of attendance allowance was made for the periods that Ann spent at home from 3 October 1987 until 25 September 1988 but by a decision issued on 24 November 1988 the adjudication officer decided that attendance allowance for the period from 17 April 1987 to 20 September 1987 could not be paid to the claimant “because payment of attendance allowance for that period was not obtained within twelve months from the date that [the claimant] had the right to be paid.” The claimant appealed. On             27 February 1989 the social security appeal tribunal decided that attendance allowance in respect of Ann for the period 17 Aril 1987 to 20 September 1987 “cannot be paid to her appointee because the claim was made more than twelve months after the right to payment arose.” The claimant appeals with leave of the tribunal chairman.
3.	On 30 October 1990 I held an oral hearing. The claimant was present and conducted his own appeal. The adjudication officer was represented by Mr. Osman of the Chief Adjudication Officer’s Office. After a short hearing I adjourned the appeal to await the decision of the Court of Appeal in CG/53/1988. On 13 December 1990 the Court of Appeal gave judgment in that case under the title of Secretary of State for Social Security and the Chief Adjudication Officer v. Tunnicliffe. On 13 May 1991 
I held the resumed oral hearing. The claimant was again present and conducted his appeal. The adjudication officer was represented by Mr. Hull of the Chief Adjudication Officer’s office.
The law
4.	Prior to 11 April 1988 regulation 22 of the Social Security (Claims and Payments) Regulations 1979 was in operation and provided:
“22. (1)  The right to payment of any sum by way of benefit shall, subject to paragraphs (2) and (3), be extinguished where payment thereof is not obtained within the period of 12 months from the date on which the right is to be treated as having arisen; and for the purposes of this regulation a right shall be treated as having arisen -
(a)	[not relevant];
(b)	[not relevant];
(c)	… on such date as the Secretary of State determines.
(2)	Where a question arises whether the right to payment of any sum by way of benefit has been extinguished by the operation of this regulation and the determining authority is satisfied that -
(a)	after the expiration of the said period of 12 months the Secretary of State has received written notice requesting payment of that sum; and 
(b)	throughout the period commencing within the said period of 12 months and continuing up to the day on which the said notice was given there was good cause for not giving that notice;
the said period of 12 months shall be extended to the date on which the determining authority decides that question, and for the purposes of the operation of this regulation thereafter the right to payment of that sum shall, notwithstanding the provisions of paragraph (1), be treated as having arisen on that date.”
From 11 April 1988 that regulation was replaced by regulation 38 of the Social Security (Claims and Payments) Regulations 1987. Regulation 38(1) was in substantially the same terms as regulation 22(1) but regulation 38 contained no provision for the extension of the twelve month extinguishment period where good cause for not giving written notice requesting payment has been established. From                9 October 1989, however, the provision for “good cause” was reintroduced in regulation 38(2A) of the Claims and Payments Regulations. It was accepted at the oral hearing that regulation 38(2A) was not retroactive. There was, therefore, a lacuna or gap between 11 April 1988 and 9 October 1989 when the “good cause” provision was not available to a claimant. The question for determination in the present case therefore, is whether or not the claimant is entitled to rely upon the “good cause” provision.
5.	In form DS104, which was dated 1 October 1988, the claimant gave written notice requesting payment of attendance allowance for various periods between 17 April 1987 and 25 September 1988. As appointee of Ann the claimant was entitled to give that notice: regulation 22(4) and regulation 38(4). As I have stated, the adjudication officer decided that for the period from 17 April 1987 to 20 September 1987 the claimant was not entitled to receive payment because, in relation to that period, the notice requesting payment was out of time in that it was received after the expiration of twelve months “from the date on which the right [to payment] is treated as having arisen”.
6.	On 2 November 1988 the Secretary of State issued a certificate in the following terms: 
“For the purpose of regulation 38 of the Social Security (Claims and Payments) Regulations 1987, the Secretary of State is prepared to accept that the date on which the right to payment is to be treated as having arisen … is 26 April 1987, 31 May 1987, 28 June 1987, 26 July 1987, 30 August 1987, and 27 September 1987.”
7.	The dates on which the right to payment was to be treated as having arisen were, therefore, all in 1987 at a time when regulation 22 was still in operation and the provision of “good cause” was still available. The date of receipt of the written notice requesting payment (form DS104) was in October 1988 at a time when regulation 38 was in operation and there was at that time no provision for “good cause”.
8.	In his written submission dated 27 September 1989 the adjudication officer has suggested that for the purpose of determining whether regulation 22 or regulation 38 is to be applied, there are three possible dates: 
(i)	the date when the claimant’s written notice requesting payment was received;
(ii)	the date or dates when the right to payment is treated as having arisen;
(iii)	the date of the adjudication officer’s decision.
At the oral hearing before me Mr. Hull submitted that the date of the adjudication officer’s decision was not an appropriate date for consideration and I agree with that.
9.	As a general rule, the law to be applied in any case is the law which is in force at the date when the claim is made. Form DS104 reads as follows:
“ATTENDANCE ALLOWANCE - CLAIM FOR TIME SPENT AT HOME
PLEASE RETURN THIS CLAIM FORM AFTER 21 SEPTEMBER 1987
You may lose some benefit if you delay.
CLAIM FORM FOR THE PERIOD 30 March 1987-21 September 1987
	....
DO NOT CLAIM YET FOR ANY FUTURE PERIODS.”
The form is expressly stated to be a “claim form”. However, Mr. Hull pointed out that it is not the claim form for attendance allowance; the claim for attendance allowance had already been allowed. Form DS104 is the form given written notice requesting payment of the benefit. Although that was not a claim form for attendance allowance, on the face of it the date of receipt of that form would appear to be the proper date for the law to be applied. Mr. Hull however, submitted that consideration must be given to the question whether or not the law should be applied which was in force at the date when the right to payment arose. That involves consideration of section 16 of the Interpretation Act 1978.
10.	Section 16(1) provides:
“16.(1)	Without prejudice to section 15, where an Act repeals an          enactment, the repeal does not, unless the contrary intention appears -
	…
(c)	affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment; ……”
11.	The question then is to determine whether, at the date when regulation 22 was replaced by regulation 38, any, and if so what, right or privilege had been acquired or accrued under regulation 22. It is clear that the claimant had acquired a right to payment of the benefit for the periods that Ann had been at home. But that was not a right ad infinitum. It was not a right which lasted for ever more. It was a right which would be extinguished at the end of a period of twelve months unless the claimant showed good cause for not given written notice requesting payment. His right to payment was subject to the limitation that he must give written notice requesting payment of the sum within twelve months unless he could show good cause for extending that time. That contingency had not arisen at the date when regulation 22 was replaced by regulation 38. That is to say, the period of twelve months had not expired and the question of good cause had not arisen.
12.	I have considered a number of cases on this question: Free Lanka Insurance Company Limited v. Ranasinghe [1964] AC 541; Yew Bon Tew v. Kenderaan Bas Mara [1982] 3 WLR 1026; Secretary of State for Social Security and Chief Adjudication Officer v. Tunnicliffe (Court of Appeal, 13 December 1990); R(G) 2/89. The case shows that the right must be vested or, if it is not vested, it must be inchoate or contingent, but it must be more than a mere hope or expectation. At the oral hearing Mr. Hull was unable to point to any case which helped decide the issue in the present case. In the final analysis, as it seems to me, each case depends upon the answer to the question: What was the accrued or acquired right?
13.	Clearly, at the date when regulation 22 was replaced by regulation 38, there was an accrued right to payment of benefit. The Department would at that date have a good defence or shield if more than twelve months had elapsed since the right to payment had arisen. Only in that event would the question of good cause have been considered. However, at that date the Department did not in fact need to rely upon that defence or shield and the question of good cause did not arise. It seems to me that in those circumstances the right which was acquired or which has accrued was the right to payment of the benefit. In my judgment, there was no acquired or accrued right to rely upon the provision of good cause since the twelve month period had not expired.
14.	It follows, in my judgement, that when the Secretary of State received the written notice requesting payment in form DS104 the law to be applied was the law in force at that date namely in October 1988 and the law then in force was regulation 38 without the provision of “good cause”. In other words, the claimant made his claim for payment of the benefit in the gap between the abolition of good cause and the reintroduction of good cause. I assume that Parliament did not intend to create this gap or lacuna in the regulations. Clearly, if good cause were established in the claimant’s case, I anticipate that the Secretary of State would consider making an ex gratia payment. However, the question of whether or not the claimant had shown good cause for delay has not been decided. I had no jurisdiction to decide that question since, as Commissioner, I have jurisdiction to decide questions of fact only if the decision of the appeal tribunal was erroneous in law: section 101(5) of the Social Security Act 1975. For the reasons given, I have come to the conclusion that the decision of the appeal tribunal was not erroneous in law. Accordingly, I disallow this appeal.

Date: 5 June 1991	(signed) Mr. A. T. Hoolahan QC	   Commissioner