R(I) 3/01

Mr. M. Rowland	CI/5151/1999
6.7.00
Review - application made after time limits for reviews were shortened - whether claimant had an accrued right to have the application determined under the former legislation
The claimant had received disablement benefit in respect of prescribed disease D12 for some years before his death on 12 June 1997. On a post-mortem he was discovered to also have prescribed disease D1: pneumoconiosis. A claim in respect of D1 was treated as made on the date of his death, and an adjudicating medical authority decided he had suffered from D1 since 1 January 1995. An assessment of 10% disablement was made from 16 April 1995 to 12 June 1997.  An adjudication officer decided that there was no entitlement for benefit to be backdated beyond 3 months before the date of claim, applying regulation 19 of the Social Security (Claims and Payments) Regulations 1987 as amended from 7 April 1997, and made an award from 12 March 1997 to 12 June 1997.  The claimant’s widow (and appointee) appealed. A tribunal dismissed the appeal, and she appealed further to the Commissioner. It was argued for the claimant that he had an accrued right to have the claim for backdating before 12 March 1997 considered under the unamended regulation 19 (in force throughout the period at issue), whereby indefinite backdating could be awarded if good cause for claiming late could be shown.  The Commissioner drew attention to the existing award of disablement benefit, and raised the question of whether the “claim” for D1 should have been treated as an application for a review: in which case, backdating would be considered under regulation 60 of the Social Security (Adjudication) Regulations 1995, also amended from 7 April 1997 to restrict backdating on review to one month.
Held, dismissing the appeal, that:
1.	on the facts of this case, the claimant did not have an accrued right immediately before the amendments came into force to have his claim for backdating determined under the unamended regulation 19, or his application for a review determined under the unamended regulation 60, because the unamended legislation required there to be a judgment about circumstances arising after the date of the amendment; R(F) 1/92 not followed (paras. 8 to 11);
2.	the “claim” should have been treated as an application for review, and only one month’s arrears paid.  Although the tribunal was technically in error, the resulting overpayment was not recoverable and for all practical purposes the appeal was dismissed (paras. 13 to 14).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, brought by the claimant’s widow with the leave of the tribunal chairman, against a decision of the Bargoed social security appeal tribunal dated 18 March 1999 whereby they dismissed her appeal from a decision of an adjudication officer to the effect that the claimant was not entitled to disablement benefit in respect of pneumoconiosis from 16 April 1995 to 11 March 1997.  At the oral hearing before me in Cardiff, the claimant’s widow, whose case was supported by the National Union of Mineworkers, was represented by Mr. Emyr Lewis, solicitor, of Messrs Morgan Cole, Swansea.  The Secretary of State was represented by Mr. Huw James, solicitor, acting as agent for the Solicitor to the Departments of Social Security and Health.  I am very grateful to both solicitors for their clear and helpful submissions.
2.	The facts of the case material to this appeal are not in dispute.  The claimant had been an underground worker in coal mines from 1945 to 1986 and had been in receipt of disablement benefit in respect of prescribed disease D12 (chronic bronchitis or emphysema or both) for some years before his death. He had also claimed in respect of prescribed disease D1 (pneumoconiosis) in or about 1992 but he had been found not to have been suffering from that disease at that time. On 
12 June 1997, he died and a post mortem examination was carried out which revealed that he had been suffering from pneumoconiosis at the time of his death.  His widow was appointed to make a claim on his behalf and she submitted a claim for disablement benefit in respect of pneumoconiosis which was treated as having been made on the date of his death. An adjudicating medical authority decided that the claimant had been suffering from that disease since 1 January 1995 and assessed the resulting disablement at 10% from 16 April 1995 to 12 June 1997.  However, the adjudication officer awarded disablement benefit only for the three months from 
12 March 1997 on the ground that the claim in respect of the period before then was out of time. The claimant’s widow appealed, seeking benefit in respect of the outstanding period, 16 April 1995 to 11 April 1997, covered by the assessment. The tribunal dismissed the appeal and she now appeals to me.
3.	The case has proceeded this far on the basis that the claim treated as made on 12 June 1997 in respect of pneumoconiosis was properly treated as a claim and that the time for making a claim was governed by regulation 19 of the Social Security (Claims and Payments) Regulations 1987.  The adjudication officer, now replaced by the Secretary of State, has relied upon that regulation as it has been amended by regulation 6 of the Social Security (Miscellaneous Amendments) (No. 2) Regulations 1997 and it is not in dispute that, as so amended, the time for claiming can be no greater than three months.  In the light of CI/624/1998, Mr. Lewis did not pursue the argument advanced in the written submissions that the amendments were ultra vires, but he did submit that, because the amendments came into effect only on 7 April 1997, after the period in issue, the material time for claiming was that prescribed by regulation 19 of the 1987 Regulations as it stood before the amendments were made.  By regulation 19(1) and Schedule 4, the basic time prescribed for claiming disablement benefit was three months but regulation 19(2) provided for that time to be extended to the date of claim where: 
“ ... the claimant proves that there was good cause, throughout the period from the expiry of the prescribed time for making the claim, for the failure to claim a benefit ... before the date on which the claim was made ... ”
Mr. Lewis submitted that there was a plainly arguable case that the claimant had had good cause for not claiming disablement benefit in respect of pneumoconiosis before he died and that case should have been considered.
4.	At the hearing I raised the question whether, because there was already a subsisting award of disablement benefit, the claim should have been treated as an application for review (on the ground of change of circumstances) of that award, rather than as a claim (see CI/420/1994).  Mr. Lewis and Mr. James were content that I should consider the case on that basis.  It makes no practical difference because it happens that regulation 60 of the Social Security (Adjudication) Regulations 1995 was amended by regulation 11 of the 1997 Regulations at the same time as regulation 19 of the 1987 Regulations was amended and to similar effect.  Before 7 April 1997, payment might be made on a review for such period as appeared “reasonable in the circumstances”.  After that date, benefit could be paid in respect of a period not exceeding one month before the date of the application for review.
5.	Thus, whether or not the claim is treated as a claim or as an application for review, the question that arises is whether the new legislation applies or the old legislation.  The new legislation was in force at the date of the claim or application but Mr. Lewis argued that the claimant had an accrued or acquired right to benefit before 7 April 1997 that was protected by section 16 of the Interpretation Act 1978 which provides:
“... where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, - 
(a)	... ;
(b)	... ;
(c)	affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment;
(d)	... ;
(e)	affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation [or] liability ...”
By section 23(1), that provision applies to subordinate legislation as it applies to Acts.  Mr. James argued that the claimant had no accrued or acquired right that would justify awarding benefit for any period before 12 March 1997.
6.	The one thing upon which Mr. Lewis and Mr. James did agree was that it was disappointing that the transitional provisions in regulation 20 of the 1997 Regulations did not provide a clear answer to the question as to which version of the legislation should be applied on the facts of this case.  Time and again courts have stressed the need to have proper transitional provisions to avoid the necessity of deciding how section 16 of the 1978 Act operates in individual cases and nowhere is that more important than in legislation that extends or shortens time limits.  It is inevitable that such legislation will present difficulties because there will always be people bringing claims or applications after the date the legislation comes into force in respect of periods before that date.  In Yew Bon Tew v. Kenderaan Bas Mara [1983] 1 AC 553, it was pointed out at page 558 that, even in respect of a single case, a statute which is retrospective in relation to one aspect of a case may be prospective in respect of another aspect of the same case and at page 563, that a statute might be retrospective on one set of facts and prospective on another.  Regulation 20 of the 1997 Regulations does not begin to grapple with the various situations that could arise in respect of the reductions in the time limits wrought by those regulations and does not provide any assistance as regards the present case.  I must therefore consider the present case by applying basic principles.
7.	In the light of Chief Adjudication Officer v. Maguire [1999] 1 WLR 1778 (also reported as R(I) 3/99), it is plain that, on 7 April 1997, when the 1997 Regulations came into force, the claimant had an accrued right to disablement benefit from 16 April 1995, provided only that he took the appropriate steps by way of making a claim or application for review.  The question in this case is whether he also had, on 7 April 1997, a right to have that claim or application determined as though regulation 19 of the 1987 Regulations or regulation 60 of the 1995 Regulations had not been amended by the 1997 Regulations, even though the claim or application was not to be made until 12 June 1997.
8.	Mr. Lewis relied upon R(F) 1/92.  In that case, the claimant had failed to obtain payment of child benefit within 12 months of the date when an instrument of payment was issued.  At the date that the right to payment under the instrument arose, the time for obtaining payment could be extended beyond 12 months if there was continuous good cause for the delay but the possibility of extending such an extension was removed by legislation which came into force before the request for payment was made.  The Commissioner held that, because the 12 months had expired and the question of good cause had arisen at the date the legislation was amended, the claimant had an acquired or accrued right to “the relieving provision of good cause” which was not affected by the amendments.  The adjudication officer had argued that the amendment was purely procedural and that it necessarily followed that the law to be applied was that in force at the date of the request for payment.  The Commissioner rejected that approach.  In my respectful view, she was right to do so.  In Yew Bon Tew, it was shown that the view that a person could not have a vested i.e. accrued, right in a particular course of procedure was something of an oversimplification.  However, the way the case was argued before her seems to caused the Commissioner to think that the rejection of the adjudication officer’s submission must inevitably lead to the conclusion that the law to be applied was that in force at the date the right to payment arose.  That seems to me equally to be an oversimplification.
9.	Mr. James relied upon Director of Public Works v. Ho Po Sang [1961] AC 901.  In that case, a Crown lessee in Hong Kong had applied for a rebuilding certificate which he expected to have granted by the Governor in Council under legislation that was repealed before the decision was made.  The Privy Council held that he had no right to the certificate at the date of repeal and what he had was no more than a hope that a certificate would be given.  Mr. James submitted that the question whether a person had good cause for delay in claiming involved no more than an exercise of discretion and that, until a decision was given, a claimant had no more than a hope that the discretion would be exercised in his or her favour.  I do not accept that argument.  I do not consider that the old form of regulation 19(2) of the 1987 Regulations conferred only a broad discretion.  Only certain factors can be relevant to the question whether a person has good cause for delay in making a claim and, in particular, factors arising after the date of claim are wholly irrelevant.  Therefore, I do not doubt that, if this was a case for a claim rather than an application for review, so that regulation 19 of the 1987 Regulations applied, the claimant had, immediately before the 1997 Regulations came into force, a right to have the time for claiming in respect of the period before 6 January 1997 extended to 6 April 1997 if a subsequent investigation showed that he had had good cause for the delay in claiming until the latter date.
10.	However, I do not see how the claimant could, immediately before the amendments came into force, have had a right to have the time further extended to  12 June 1997, when he had not yet had good cause for failing to claim during the period from 7 April to 12 June 1997.  Nor do I see how it can be said that he had, immediately before the amendments came into force, any right to have the time for claiming in respect of the period from 6 January 1997 to 6 April 1997 extended beyond the basic three months.  In my view, giving effect to the 1997 amendments from 7 April 1997 on the facts of this case affects the case only prospectively rather than retrospectively.  It does not take away any right that had accrued to the claimant at the date the amendments came into force.  Similarly, in R(F) 1/92, it seems to me that, at the date of the change in the legislation in that case, the claimant did not have any accrued right to have the time for requesting payment further extended beyond that date.  I respectfully disagree with the Commissioner’s conclusion in that case.
11.	If, in the present case, the claim ought to have been treated as an application for review, it can be argued that, had it been made on 6 April 1997, the claimant would have had the right to have had consideration given after that date to the making of a payment for a period exceeding one month before that date, under the old form of regulation 60 of the 1995 Regulations.  The old form of regulation 60 conferred a broader discretion than regulation 19 of the 1987 Regulations and it is necessary to show that Ho Po Sang can be distinguished, but it is arguable that, under regulation 60 as under regulation 19, the only relevant matters to be taken into consideration are those obtaining at the date of the claim whereas in Ho Po Sang the Governor in Council could have had regard to any factors appearing relevant at the time of his decision.    However, even if Ho Po Sang can be distinguished on that ground, I do not consider that any right to have his case considered under the old form of regulation 60 could possibly have accrued on 7 April 1997 to the claimant in respect of an application yet to be made on 12 June 1997, before the circumstance of the further delay from 7 April to 12 June, which would plainly have been relevant to the exercise of any discretion, had arisen.  Again, on the facts of this case, the amendments were prospective.
12.	Accordingly, I reject Mr. Lewis’ submission that the tribunal’s decision involves giving the 1997 amendments retrospective effect in the circumstances of this case.  This makes it unnecessary for me to deal with the other arguments addressed to me by both him and Mr. James.  It is also unnecessary for me to consider how section 16 of the 1978 Act applies in a case where a fixed time limit is shortened.
13.	I do take the view that the claim in this case should have been treated as an application for review and it follows that the tribunal’s decision was technically erroneous in point of law and that there has in fact been an overpayment to the claimant’s widow who was entitled to only one month’s arrears under regulation 60 of the 1995 Regulations as amended.  However, that overpayment is plainly not recoverable by the Secretary of State and nothing turns on the tribunal’s error.
14.	For practical purposes, this appeal is dismissed.

Date: 6 July 2000 						(signed) Mr. M. Rowland 									     Commissioner