CIB/4051/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the claimant’s appeal against the decision of the Durham appeal tribunal, dated 26 July 2001, whereby they dismissed her appeal against a decision of the Secretary of State to the effect that she was not entitled to incapacity benefit from 24 January 2001.

REASONS

2.	There was an oral hearing of this appeal, at which the claimant was represented by Mr Philip Hanns, a welfare rights officer of the Social Services Department of Durham County Council, and the Secretary of State was represented by Miss Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.  I am grateful to both advocates for their helpful submissions.

3.	The material facts of this case are not in dispute for the purposes of this appeal.  The claimant was in receipt of incapacity benefit when she was required to attend a medical examination on 16 January 2001 for a personal capability assessment.  Applying the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 to the doctor’s findings, the Secretary of State decided that the claimant scored only 6 points on the assessment and so was not to be treated as incapable of work for the purposes of her entitlement to benefit.  He accordingly superseded the award of benefit, relying on regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999 No. 991), and terminated it.  The claimant’s appeal was dismissed.  The claimant now appeals on the ground that there were no proper grounds for supersession or, as one might now have to say in the light of R(DLA) 6/02, there were no proper grounds for giving a different decision on supersession.  What is said is that regulation 6(2)(g) was not applicable and that the tribunal had failed to identify any change of circumstances as would have been required by regulation 6(2)(a)(i) which is the only other possibly relevant provision.

4.	Section 10(1)(a) of the Social Security Act 1998 provides:

“(1)	Subject to subsection (3) and section 36(3) below, the following, namely –

(a)	any decision of the Secretary of State under section 8 above or this section, whether as originally made or as revised under section 9 above; and

(b) …..,

may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative.”

Subsection (3) provides:

“(3)	Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section.”

The drafting of that section is slightly peculiar because subsection (1) is expressed as being subject to subsection (3) when the latter, read literally, does not in fact impose any restriction on the scope of the former.  However, presumably the legislation is intended to be read as implying that a decision may be superseded only in cases and circumstances, and only in accordance with procedures, prescribed by regulations.

5.	That peculiarity in the drafting of section 10(3) is nothing by comparison with the peculiarities in the drafting of the regulations made under it.  So far as is material, regulation 6(1) and (2) of the 1999 Regulations now reads as follows:

“(1)	Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).

“(2)	A decision under section 10 may be made on the Secretary of State’s …. own initiative or on an application made for the purpose on the basis that the decision to be superseded –

(a)	is one in respect of which –

(i)	there has been a relevant change of circumstances since the decision was made; or

(ii)	….;

(b)	….;

(c)	….;

(d)	….; or

(e)	….;

(f)	….;
(g)	is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Secretary of State has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 from a doctor referred to in paragraph (1) of that regulation; and
(h)	is one in respect of a person who –

(i)	is subsequently the subject of a separate decision or determination as to whether or not he took part in a work-focused interview;
(ii)	had been held not to have taken part in a work-focused interview but who had, subsequent to the decision to be superseded, attained the age of 60 or ceased to reside in an area in which there is a requirement to take part in a work-focused interview;
(i)	….;
(j)	….;
(k)	…..”

Regulation 7 prescribes the dates from which supersessions are effective and regulation 7A defines certain terms, including “incapacity benefit decision” and “incapacity determination”.

6.	It is common ground that the present case falls within the terms of regulation 6(2)(g) but not within the terms of regulation 6(2)(h).  Mr Hanns submits that the word “and” at the end of subparagraph (g) has the effect that a decision cannot be superseded unless the case comes within the terms of both that subparagraph and subparagraph (h).  Accordingly, he submits that the claimant’s award of incapacity benefit ought not to have been superseded unless regulation 6(2)(a)(i) applied.  Miss Haywood, on the other hand, submits that the word “and” at the end of subparagraph (g) ought to be ignored, because it plainly exists as a result of a drafting error, and that the award was properly superseded by virtue of that subparagraph, it being irrelevant that the case did not fall within the terms of subparagraph (h).

7.	As originally drafted. regulation 6(2) ran only as far as subpararaph (f).  There was a semicolon at the end of each subparagraph and subparagraphs (d) and (e) were separated by the word “or”.  All six subparagraphs were plainly alternative grounds for supersession.  Why the word “or” appeared between the fourth and fifth subparagraphs I do not know, but I suspect that subparagraph (f) was added at a late stage of the drafting and the draftsman forgot to move the word “or” from the end of subparagraph (d) to the end of subparagraph (e).  However, the word was not strictly necessary because without it the subparagraphs were still obviously alternatives.  That may have been why, when subparagraph (g) was added by regulation 3 of the Social Security and Child Support (Decisions and Appeals) Amendment (No. 2) Regulations 1999 (S.I. 1999 No. 1623), no “or” was inserted at the end of the preceding subparagraph.  No change in the arrangement of the subparagraphs was made when subparagraphs (f) and (e) were substituted respectively by regulation 7 of the Social Security and Child Support (Decisions and Appeals, Vaccine Damage Payments and Jobseeker’s Allowance (Amendment) Regulations 1999 (S.I. 1999 No. 2677) and regulation 16 of the Social Security and Child Support (Miscellaneous Amendments) Regulations 2000 No. 1596).

8.	However, when subparagraph (h) was added, by paragraph 4 of Schedule 6 to the Social Security (Work-focused Interviews) Regulations 2000 (S.I. 2000 No. 897), the word “and” was deliberately inserted at the end of subparagraph (g).  That the word was deliberately chosen instead of the word “or” can be seen from the fact that, when paragraph 3(b) of Schedule 6 to those Regulations added a subparagraph to regulation 3(11) of the principal Regulations, the word “or” was inserted at the end of the previous subparagraph.  The choice of different words must have been the result of a conscious decision.

9.	Since the date on which the Secretary of State’s decision was made in the present case, subparagraph (i) has been added by the Social Security (Breach of Community Order) (Consequential Amendments) Regulations 2001 (S.I. 2001 No. 1711) and subparagraphs (j) and (k) have been added by the Social Security (Loss of Benefit) (Consequential Amendments) Regulations 2002 (S.I. 2002 No. 490).  Those subparagraphs have been added without any “or” or “and” and without deleting the existing “or” at the end of subparagraph (d) or the existing “and” at the end of subparagraph (g). 

10.	When a subparagraph is inserted at the end of a paragraph, it is unnecessary to make specific provision for the full stop to become a semicolon.  The necessary change to the punctuation happens automatically as a matter of convention.  However, as far as I am aware, no such convention operates to delete or add conjunctions.  Specific provision is required.  Regulation 6(2) must therefore be read as I have set it out above.

11.	In ordinary circumstance, I would entirely accept Mr Hanns’ submission that the existence of the word “and” between two subparagraphs means that they must be read conjunctively and not disjunctively.  That would have the effect that, in regulation 6(2), one would expect a decision within subparagraph (g) to be superseded only if it also fell within subparagraph (h).  Furthermore, I would accept that that is so where two such subparagraphs fall within a number of other subparagraphs that are to be read disjunctively, even though it would probably be better drafting to have the two conditions to be read together as separate heads of one subparagraph rather than as two separate subparagraphs.

12.	However, courts and tribunals must interpret legislation so as to give effect to the intention of the legislature.  Ordinarily, that intention is to be discerned by considering the language of the legislation itself and it is presumed that every word has been used for some purpose and so has some significance.  Miss Haywood relied on Lord Mustill’s expression of “reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same” (L’Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. [1994] A. C. 486, 524-5) and argued that, in the present case, the result of giving the word “and” between paragraphs (g) and (h) of regulation 6(2) any practical effect would be absurd and would not give effect to any conceivable Parliamentary intention.  I accept, Mr Hanns’ submission that the situation being contemplated by Lord Mustill was very different from the situation that arises here.  Nonetheless, what Lord Mustill said serves as a reminder that the primary duty of a court or tribunal is to give effect to the intention of Parliament.  The duty to give literal effect to legislation is merely a means to that end.  It is a secondary duty and must give way if it would frustrate the primary object.

13.	In the present case, the presumption that Parliament intends all words in legislation to have significance competes with the presumption that Parliament does not intend to make laws that are absurd or futile.  Subparagraph (g) of regulation 6(2) is intended to enable an award of incapacity benefit to be reconsidered following a medical examination of the claimant.  Subparagraph (h) is obscurely drafted and Miss Haywood was unable to assist me as to its precise meaning, but it is at least clear that it is concerned with the supersession of decisions in cases where a person has failed to attend a work-focused interview.   Although incapacity benefit is a “specified benefit” for the purposes of the Social Security (Work-focused Interviews) Regulations 2000,  Mr Hanns was unable to suggest any reason why it might have been intended that the scope of subparagraph (g) should be cut down by subparagraph (h) or why the scope of subparagraph (h) should be limited to incapacity benefit cases where subparagraph (g) applied.  Neither can I.  Furthermore, it seems to me that linking subparagraphs (g) and (h) so that a decision could be superseded only if both subparagraphs applied would result in neither paragraph having any practical use.

14.	Had I been able to think of any reason at all why subparagraphs (g) and (h) might have been intentionally linked, I would have accepted Mr Hanns’ submissions.  However, I cannot.  On the contrary, I have no doubt that it was intended that the two subparagraphs should operate independently.  I accept Miss Haywood’s submission that the insertion of the word “and” between them, although deliberate, was a mistake and that no effect should be given to it.  Regulations are often drafted under some pressure and in some haste and it is not surprising that mistakes are made from time to time.  I do not know how this mistake came to be made, although it is possible that the draftsman concentrated on the words of section 10(3) and regulation 6(1), which suggest that there will be a list of cases and circumstances where supersession will be permissible.  Before the last entry on such a list, the word “and” would not have had any practical effect.  If that was the draftsman’s approach, he paid insufficient attention to the structure imposed by the opening words of regulation 6(2) itself.  Be that as it may, where a mistake can properly be identified, it should not be allowed to frustrate the intention of Parliament.

15.	I am satisfied that the claimant’s award of incapacity benefit was properly superseded under regulation 6(2)(g).  Regulation 6(2)(h) was irrelevant and it was unnecessary for the tribunal to identify any change of circumstances that might have justified supersession under regulation 6(2)(a)(i).  The appeal must be dismissed.

16.	I hope that the superfluous “or” after subparagraph (d) of regulation 6(2) and the “and” after subparagraph (g) will both be removed as soon as possible.  It may be understandable that mistakes are made in the drafting of legislation but it is less understandable that these particular errors have not been removed when they should have been noticed by those drafting subsequent amendments to regulation 6(2).

(signed)	MARK ROWLAND
Commissioner
24 July 2002