Murdoch v. Chief Adjudication Officer [1993] UKSSCSC CSIS_55

CSIS_55_1991 Murdoch v. Chief Adjudication Officer [1993] UKSSCSC CSIS_55_1991 (22 April 1993)

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UK Social Security and Child Support Commissioners' Decisions

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Cite as: [1993] UKSSCSC CSIS_55_1991

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Murdoch v. Chief Adjudication Officer [1993] UKSSCSC CSIS_55_1991 (22 April 1993)

R(IS) 3/92

(Muroch v. Chief Adjudication Officer)

Mr. W. M. Walker CSIS/55/1991

CS (Murray, McCluskey and Kincraig LJJ)

Deductions for arrears of community charge - application by levying authority possibly not stating the total amount of arrears specific in the summary warrant or decree - whether adjudication officer entitled to question the validity of the application

A local authority with responsibility for collecting Community Charge applied to the Secretary of State to make deductions from the income support payable to the claimant to secure the payment of arrears of community charge. The claimant argued that the written application did not comply with a mandatory requirement to state the total amount of the arrears specified in the summary warrant or decree and the total amount which the levying authority wished to have deducted from income support. The Commissioner held that neither the adjudication officer nor the social security appeal tribunal had power to consider the validity of an application by the levying authority.

On 22 April 1993, the Court of Session (Lords Murray, McCluskey, and Kincraig), on appeal by the claimant, affirmed the decision of the Commissioner and

Held that:

the jurisdiction of the adjudication officer was limited to determining the questions whether (i) there was sufficient entitlement to income support to enable a deduction to be made and (ii) the priority of any sums to be deducted in competition with other specified sums. The adjudication officer had no jurisdiction to scrutinise the application or enquire into its validity.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I hold the decision of the Glasgow North social security appeal tribunal dated 9 January 1991 to be a nullity. It follows that the decision of an adjudication officer issued on 12 August 1990 which was appealed to the tribunal is, and always has been, in force.

This adjudication officer's appeal came before me by way of an oral hearing. At it the adjudication officer was represented by Mr. David Cassidy, solicitor of the Office of the Solicitor in Scotland to the Department of Social Security. The claimant was represented by Mr. Chris Orr of the Social Work Department of Strathclyde Regional Council. I am indebted to both for their assistance.

The adjudication officer's decision in question was that the claimant:

" . . . has sufficient entitlement to income support to enable a deduction in respect of community charge to be made."

That was a decision made under and in terms of regulation 2(4) of the Community Charges (Deductions from Income Support) (Scotland) Regulations 1989 as amended. The claimant appealed. The tribunal unanimously allowed the appeal. The ground for doing so was that the application which had set in train the procedure had been defective in a particular specified in regulation 2(2) of the regulations. In short the tribunal had held that the document was not an application i.e. was, for that purpose, null. For their decision their findings and reasons are adequate. But the adjudication officer appeals now, with leave of the chairman. Because of a number of similar cases depending or proceeding before tribunals there was a request by the acting Regional Chairman for a Commissioner's decision upon the question of principle involved. She therefore requested an expedited hearing of this appeal in particular, a hearing having been requested on behalf of the claimant. I granted these requests.

Mr. Cassidy urged two alternative arguments. The first was to the effect that the adequacy or validity of the application was a matter not for the adjudication officer but for the Secretary of State. Accordingly, he submitted, it would have been beyond the adjudication officer's jurisdiction to have considered the issue upon which the claimant succeeded before the tribunal. In the alternative he argued that the particular omission in the application was insufficient to render it a "non-application" for the purposes of the regulations.

In support of these arguments he referred to the Community Charges (Deductions from Income Support) (Scotland) Regulations 1989, as amended, as a self contained code for the operation of community charge deductions from income support. Thus it applied to all questions so far as requiring to be considered by the Secretary of State, or by the adjudication authorities officer to Commissioner. That was not disputed and in any event I am satisfied that it is correct. I cannot help observing, however, that it appears a rather cumbersome procedure to have to look to a body of regulations other than the normal procedural regulations, when in practical terms they are to the same effect.

The proper starting point, I think then, is to look at the legislation under which the regulations were made. That is the abolition of Domestic Rates etc. (Scotland) Act 1987. Since it and the regulations are, as a result, the only ones concerned I refer to them simply and respectively as "the Act" and "the Regulations" hereafter. Section 21 of the Act grants effect to Schedule 2: it governs, amongst other things, the recovery of community charges. Paragraph 7A thereof provides that regulations may provide that where a levying authority has obtained a summary warrant or a decree against a person in respect of arrears of community charges and that person is entitled to income support then the levying authority may apply to the Secretary of State asking him to deduct sums from that income support. The Secretary of State may then do so and in due course pass them on. However the paragraph also authorises regulations to be made providing, again amongst other things, for adjudication as regards any such application and as to appeals and reviews (7A(2)(a)). For completeness I should note that paragraph 1 of Schedule 2 to the Act, defines "levying authority" as that authority responsible for levying the community charge in question and, for this case, that was Strathclyde Regional Council.

Regulation 2(1) provides for a levying authority to apply to the Secretary of State "…by sending an application in respect of each debtor ... ['Debtor', in terms of regulation 1, ' … means a person against whom a summary warrant or decree has been obtained'] or where a summary warrant or decree is granted against a couple in respect of both of them, to an appropriate social security office asking the Secretary of State to deduct sums from any amount payable to a debtor by way of income support." Regulation 2(2) then states:

" An application from a levying authority shall be in writing and shall contain the following particulars -

(a) the name and address of the debtor or where the summary warrant or decree is granted against a couple, the names and addresses of both of them;

(b) the name and place of the court at which the summary warrant or decree was obtained;

(c) the date when the summary warrant or decree was obtained;

(d) the total amount of the arrears specified in the summary warrant or decree;

(e) the total amount which the levying authority wishes to have deducted from income support."

A question arose as to whether the second "shall" in that paragraph was mandatory like the first, or only directory. In the light of the view which I have reached upon the main issue I do not require to answer that question. However I think it right, out of deference to the submissions put before me, to record that I incline to a view that both are mandatory. I cannot think that either (a) or (e) could, at the least, be other than essential to the purpose of the procedure. Nor can I think that the second "shall" could be mandatory in regard to some of the five heads but only directory in regard to the others. Although the obverse in a sense of that adopted by Lord Denning MR in Howard v. Secretary of State [1974] 1 All ER 644 at 648 the logic is the same.

Regulation 2 continues at (3):

" Where it appears to the Secretary of State that an application from a levying authority gives insufficient particulars to enable the debtor to be identified he may require the levying authority to furnish such particulars as may reasonably be required."

It was not in dispute that that paragraph would allow the Secretary of State to seek further particulars where what was stated in respect of 2(2)(a) was insufficient for his purposes. There was a faint suggestion that it might be that that power could be used to obtain further particulars in respect of the other paragraphs if, again, they had been insufficiently complied with and even where one or more of them had been omitted. Again because of the view which I take about the central issue that is not a question which I have to answer but I preferred the narrower interpretation.

Mr. Cassidy submitted that it was at that point, at the end of paragraph (3), that the Secretary of State's powers and duties in regard to the application ceased for the time being. Paragraph (4), he said, then went on to set out the powers and duties of the adjudication officer. It reads:

"Subject to regulation 4(1), where the Secretary of State receives an application from a levying authority, he shall refer it to an adjudication officer who shall determine, so far as is practicable within 14 days of its submission to him, the following questions-

(a) whether there is sufficient entitlement to income support so as to enable the Secretary of State to make any deduction -

(i) [test for a single debtor]

(ii) [test for a couple]

and if the amount payable by way of income support to the debtor were to be 10p or more after any such deduction, the adjudication officer shall determine that there is sufficient entitlement; ….

(b) [not applicable]."

I have not set out the mathematics which the adjudication officer is to apply at (a) (i) or (ii). Mr. Cassidy's point was that if the Secretary of State received what he was prepared to regard as an application with sufficient particulars upon it he was to refer it to an adjudication officer who was to determine (a) whether there was a sufficient entitlement in the particular claimant to income support to enable the Secretary of State to make any deduction, and (b) as to whether there was involved any prior deduction: and these two questions only. Paragraph (5) provides that, rights of appeal or review apart, " … the decision of the adjudication officer shall be final." And then regulation 5 provides for the right to appeal to a tribunal in respect of an adjudication officer's decision made " …… under regulation 2(4) ……" 5(2) provides for an appeal to the Commissioner against any decision of a tribunal on the grounds "… that the decision of that tribunal was erroneous in point of law . . .". And there is provision for further appeal to the Court of Session, for review and for incidental procedures in a manner familiar from the more regular Adjudication and Commissioner Procedure Regulations.

Mr. Cassidy then submitted that the regulations clearly proceeded, at regulation 3, to revert to the Secretary of State's powers and duties following upon the adjudication officer having completed his duties. Thus that regulation provides that the Secretary of State is to notify the debtor in writing of the decision and of rights of appeal. Regulation 4(1), referred to at 2(4), provides for a limitation on the power to make deductions if a debtor is not entitled to income support throughout any benefit week or in respect of a situation where he is already making deductions under an earlier application. In that event the Secretary of State is to hold back the applications and proceed in terms of regulation 4(1)(b). Hence the qualification to regulation 2(4).

Mr. Cassidy emphasised then, that having regard to the limited questions which the adjudication officer is called upon to determine there was no need for him to know more, effectively, than the identity of the person or persons against whom the deduction was sought to be whereas the Secretary of State would require to know at least some of the other facts mentioned at 2(2), and especially (e) in order to know when the debt might be discharged and so when he should cease making deductions in terms of regulation 4(2)(e). If, Mr. Cassidy continued, there was any defect in the sufficiency in law of the application in terms of regulation 2(2) that was really a matter for the Secretary of State. If and in so far as necessary he could either refuse to refer it to the adjudication officer or refuse to make deductions even if the adjudication officer decided appropriately the two questions referred to him. If the Secretary of State, on the contrary, carried a defective application into effect, by deciding to make deductions, then the claimant would have the remedy of judicial review against that officer.

Mr. Cassidy's final and alternative submission in this case, was that the standard form of letter issued by Strathclyde Regional Council, document 5 in the bundle, did not make clear whether the amount mentioned as "The amount to be recovered" was the total amount to be specified under 2(2)(d) or (e) or both. I was inclined to accept his contention that the logic of the phrase meant that it was the total for (e). I agree with Mr. Orr that it is curious that the style letter did not simply replicate in effect the words of regulation 2(2) and its particular paragraphs, leaving blanks for the particulars of the individual case. But that is not a matter for me nor, in the circumstances, do I have to decide whether the omission of (d) or (e) and the total thereunder to be specified was itself fatal to the validity of either application before me. If there is a live issue in regard to that matter then it will be a matter for the Court and not for the Commissioner.

Mr. Orr sought to persuade me in an ingenious argument that the determination of the question whether a document was an application for regulation (2) was for the adjudication officer, as well as the Secretary of State. He did not shrink from accepting that the Secretary of State had power under regulation 2(2) to determine the validity of the application. He founded on decisions R(SB) 4/90, CSSB/42/1990 and, albeit in matters relating to the Attendance Allowance Board, R(A) 1/90. The first of these involved a tribunal decision which followed upon an earlier such decision dealing with the same question but which had been succeeded by a set-aside decision. The Commissioner held that although there was no right of appeal from the set aside decision he could look at its validity in order to determine whether the earlier tribunal decision did or did not exist in law as at the date of the decision that was under appeal to him in order to determine, in turn, whether that last mentioned decision was a decision or a nullity. And the Commissioner in R(SB) 4/90 found assistance from a familiar passage in the speech of Lord Reid in Anisminic v. Foreign Compensation Commission [1969] AC 147. The Commissioner founded in particular upon Lord Reid's observations about a decision which, in the case before him, the Commissioner had had "no power to make." He gave that as an example of where a decision became a nullity. Another example that he gave was where the Commission might have given its decision " … on some matter which, under the provisions setting it up, it had no right to take into account." The decision in CSSB/42/1990 was to much the same effect for the purpose of the submission as in R(SB) 4/90.

In R(A) 1/90 the Commissioner held that a determination given for and on behalf of the Board was a nullity because the Secretary of State had failed to serve a copy of an application for review as mandatorily required by regulation. Mr. Orr contended that that was very similar to the present situation: there was a procedural defect in regard to the initiating document which rendered null any subsequent apparent decision.

But in a tribunal decision, R(SB) 11/89, the Commissioners voiced some reserve as to the application of Anisminic. They were dealing with a rather different passage, where Lord Reid indicated that so long as the Commissioners decided a question without committing any errors of the sort earlier referred to "…… it is as much entitled to decide that question wrongly as it is to decide it rightly." And the tribunal went on to point out that the House of Lords were simply being slow to allow their supervisory jurisdiction to be wholly ousted in a case where there was no appeal machinery to deal with errors of law. I think those cautionary words to be applicable in general. It was because of the ouster of the supervisory jurisdiction effected by section 4(4) of the Foreign Compensation Act 1950 that Lord Reid was constrained to distinguish between wide and narrow senses of the word "jurisdiction". The narrow sense which he preferred and described as "original" was whether the Commissioners had been entitled to enter on the enquiry in question. But he pointed out that, so using the word, even where it had jurisdiction it might yet do something so as to make its decision a nullity. And it was in that context that he referred to it having:

" … based its decision on some matter which, under the provisions setting it up, it had no right to take into account."

If that is enough to render null a decision otherwise apparently valid in such a situation then, even given the cautionary words of the tribunal, if this tribunal have done the same I see no reason why not to reach a similar judgment.

In the end of the day Mr. Orr accepted that both the Secretary of State and the adjudication officer had power to determine whether the application was valid for the purpose of regulation 2. He saw no conflict in that. However there is no specific power given to either to determine the validity if the application. Such a power may, nonetheless, as I understand it, be deduced from the jurisdiction granted, in the original sense, if it is essentially necessary to the operation of that jurisdiction. I consider it to be easier to deduce such a power as requisite to the jurisdiction of the Secretary of State since he is to receive the application and, as Mr. Cassidy pointed out, most of the information required to be in it, if pertinent at all, is pertinent to his carrying the application into effect. Nothing in it apart from the identity of the debtor or debtors is pertinent to the two questions confided to the adjudication officer. That, as it seems to me, is enough to deal with the issue. In short if there is to be implied to anyone a power to consider the validity of the application at this level that power is not in the adjudication officer.

But as I see it there is a further problem about Mr. Orr's ultimate position that both officers have the power. I put the logical alternatives to him. I accept his response that if the Secretary of State holds an application invalid then there the matter will end. But the difficult question is if the Secretary of State holds an application valid and the adjudication officer holds it be invalid. To a degree the latter might be thought to then be conducting an appeal from or a review of the decision of the Secretary of State. I consider that clear power would require to have been conferred for that. No such power is conferred. Nor, in my judgment, for the reasons just stated it cannot be inferred as requisite to his function. Mr. Orr's solution to such a situation was that the Secretary of State would have to seek a judicial review of the adjudication officer's determination. That seems to me an unduly cumbersome solution and at some odds with his reluctance to accept Mr. Cassidy's contention that a judicial review at the instance of a claimant against the Secretary of State was the proper way to seek to challenge the validity of an application if that became necessary. Indeed I noted that Mr. Orr's opposition to the procedure was prompted more by practical considerations about legal aid than by any point of principle. It seems to me further that Mr. Orr's submission would mean, at the least, a clear but unnecessary breach of the careful segregation of the jurisdiction of the Secretary of State from that of the other adjudicating authorities which appears as a principle throughout the main Social Security legislation.

Finally I note that under regulation 5 an appeal to a tribunal may only lie at the instance of the debtor. If the question of the validity of an application was open to an adjudication officer then it is curious that the Secretary of State was not given an equivalent right of appeal. In the judgment of the Master of the Rolls in Adjudication Officer & Secretary of State v. Foster, Court of Appeal 21 February 1991, just such a consideration clearly weighed with him. That case on this point concerned the power of a Commissioner to decide whether a regulation was made ultra vires. It was accepted that if a Commissioner had the power so must the lower tribunal. But if a tribunal decided adversely to the Secretary of State the point was that he had no right of appeal to the Commissioner.

Mr. Orr was concerned to emphasise the need to proceed cautiously where, as here, someone is being deprived of something. The powers to consider such questions as the validity of the application should not be restricted, he contended, save so far as essential. I consider that such a restriction here is, however important, only to avoid duplication and the possible consequences. I have no doubt that the Secretary of State indeed has power to determine the validity of the application. No doubt, as Mr. Orr went on to point out, a claimant will only know about the matter once the adjudication officer's decision is issued. Indeed only then will he be able to see the application. But that I would have thought is the crucial, indeed the only relevant, time when the Secretary of State would have done something that could become the object of a judicial review. But in any case I am satisfied that that view of the procedure provides in law an adequate safeguard for a claimant's interests.

I should finally note that, as is no doubt clear, the hearing before me primarily considered the question of power although there was another related question. That was whether whoever had the power had a duty in any, or in each and every, case to scrutinise the application against the requirements of regulation 2(2). The subject was touched upon. It is clearly only live once the question of power has been decided. As I have held that the power was not in the adjudication officer I do not think it necessary or desirable that I consider duty further.

Having thus come to the view that the application officer had no power to consider the validity of the application I conclude that the tribunal, who, it was accepted, have no further or other power, sought to exercise a power which they had not. I think the appropriate description of such a decision, for the reasons given in paragraph 15 above, is that it is a nullity. Accordingly I think the right decision is simply so the find and, for the avoidance of doubt, to declare the adjudication officer's original decision to be and to have always been in force. No other challenge has been offered to it in these proceedings.

The appeal succeeds.

Date: 9 August 1991 (signed) Mr. W. M. Walker

Commissioner

The claimant appealed to the Court of Session. The opinion of the Court of Session follows.

OPINION OF THE COURT OF SESSION

22 April 1993

This appeal comes before this Court by leave of the social security Commissioner. The application for leave was made to him under section 14 of the Social Security Act 1980 and he granted leave to appeal in terms of that section and the relative regulations. Before us, however, parties were agreed that this was properly to be regarded as an appeal on a question of law in terms of regulation 5(4) of the Community Charges (Deduction from Income Support) (Scotland) Regulations 1989 as amended by the Community Charges (Deductions from Income Support) (Scotland) (Amendment) Regulations 1990, hereinafter referred to as "the Regulations". We are content to proceed on this basis.

The background to the matter is fully narrated in the decision of the Commissioner dated 9 August 1991. We refer to that summary with gratitude and do not find it necessary to repeat it. We need mention only the essentials. Paragraph 7A of Schedule 2 to the Abolition of Domestic Rates Etc. (Scotland) Act 1987, as amended by the Local Government Finance Act 1988, Schedule 12, paragraph 36(10) empowered the Secretary of State to make regulations to regulate the right of a levying authority (the authority with the responsibility for collecting the Community Charge) to apply to the Secretary of State asking him to deduct, from any amounts payable to a Community Charge debtor by way of income support, sums of money in order thereby to secure the payment of any arrears of Community Charges in respect of which a summary warrant or decree had been granted. Regulation 2 of the regulations (as amended) provided that the levying authority might apply to the Secretary of State by sending a written application in respect of each debtor. That application would invite the Secretary of State to make deductions from any amount payable to a debtor by way of income support. Regulation 2(2), as amended, provided, at the time relevant to this case:

"(2) An application from a levying authority shall be in writing and shall contain the following particulars -

(a) the name and address of the debtor or where the summary warrant or decree is granted against a couple, the names and address of both of them;

(b) the name and place of the court at which the summary warrant or decree was obtained;

(c) the date when the summary warrant or decree was obtained;

(d) the total amount of arrears specified in the summary warrant or decree;

(e) the total amount which the levying authority wishes to have deducted from income support".

Regulation 2(4) is also of importance but it is not necessary to quote it in full. It included the following:

"(4) Subject to regulation 4(1) where the Secretary of State receives an application from a levying authority, he shall refer it to an adjudication officer who shall determine so far as is practicable within 14 days of its submission to him, the following questions-

(a) whether there is sufficient entitlement to income support so as to enable the Secretary of State to make any deduction . . . and if the amount payable by way of income support to the debtor were to be ten pence or more after any such deduction, the adjudication officer shall determine that there is sufficient entitlement;

(b) the priority of any sum to be deducted as against any payments to third parties where there is sufficient entitlement to income support to meet both the deduction in respect of arrears of community charges and those payments to third parties, the following priorities shall apply -

(i) any liability mentioned in paragraph 3 (housing costs) of Schedule 9 to the Social Security (Claims and Payments) Regulation 1987;

(ii) any liability mentioned in paragraph 5 (certain service charges for fuel, and rent) of Schedule 9 to those regulations;

(iii) any liability mentioned in paragraph 6 of Schedule 9 to those regulations;

(iv) any liability for arrears in respect of community charges".

Regulation 2(5) provided:

"(5) Subject to any right of appeal or review under these regulations, the decision of the adjudication officer shall be final".

Regulation 3 required the Secretary of State to notify the debtor in writing of the adjudication officer's decision and of the debtor's right of appeal. That right of appeal was conferred by Regulation 5 in the following terms:

"5(1) Where the adjudication officer has decided a question under regulation 2(4), the debtor may appeal to a tribunal".

Regulation 5(2) provided:

"An appeal lies to a Commissioner from any decision of a tribunal on the grounds that the decision of that tribunal was erroneous in point of law and the persons who may appeal are the debtor and the adjudication officer".

Regulation 5(4) provided:

"An appeal on a question of law lies to the Court of Session from any decision of a Commissioner on a question of law with the leave of the Commissioner who gave the decision and the persons who may appeal are-

(a) the debtor;

(b) the adjudication officer; and

(c) the Secretary of State".

The grounds of appeal consist of a preamble and four specified grounds. It is not necessary in this Opinion to repeat the terms of the grounds of appeal and we are content to refer to them. It will be seen, however, that the essence of the appeal is that the regulations referred to above contained a mandatory requirement upon the levying authority to include in their written application to the Secretary of State asking him to make deductions, statements both of the total amount of the arrears specified in the summary warrant or decree and of the total amount which the levying authority wished to have deducted from income support. What was submitted was that this mandatory requirement had not been complied with and that as a result the application by the levying authority fell to be regarded as a nullity. That nullity fell to be noticed both by the tribunal and the Commissioner; each should have concluded that the application was invalidated by its deficiencies. The tribunal had properly exercised their jurisdiction in this regard and the Commissioner had erred in holding that the tribunal had no competence to consider the underlying question of the invalidity of the defective application.

The first question which has to be considered by this Court is this; if it is alleged that there has been a failure by the levying authority to comply strictly with the provisions contained in regulation 2(2), when preparing and sending to the Secretary of State the written application whose terms are governed by that regulation, does that allegation raise an issue that falls to be determined in the course of the proceedings, including the appeal proceedings, envisaged and regulated by the regulations? The arguments in relation to this matter are set out in the decision of the Commissioner and we need not repeat them in full. In essence, the appellant submitted that the requirements in regulation 2(2) were mandatory; the debtor had had no opportunity to see and comment upon the terms of such an application either when the application was sent to the Secretary of State, or when it was referred to an adjudication officer or indeed at any time until an appeal was taken to a tribunal. It had then come to his attention for the first time because the adjudication officer, in preparing for a tribunal appearance, had to inform the debtor of the necessary matters in relation to that appeal and in so doing would have sent a copy of the written application. Accordingly it was only at that stage that the debtor could have discovered whether or not there had been compliance by the levying authority with the peremptory requirements of regulation 2(2). As that was the first opportunity he had had to consider the terms of the application it was entirely appropriate that he should be able to raise before the tribunal the question as to whether or not what had been placed before the adjudication officer was truly an application as defined and regulated by regulation 2. That was a question of law integral to the matter that fell to be decided, and it was therefore a question which the tribunal and the Commissioner had to consider; the Commissioner was wrong to hold otherwise. Indeed, as submitted to the Commissioner, it was also a matter that the adjudication officer himself might consider; of course the adjudication officer was not conducting a hearing at which the debtor was present but he might ex proprio motu take notice of some deficiency in the application and could, in an appropriate case, hold that it rendered the application a nullity. The Commissioner had fallen into error by rejecting the arguments presented to him on this matter. In particular, he had erred in relying on certain observations contained in the Opinion of the Master of the Rolls in Adjudication Officer and Secretary of State v. Foster, Court of Appeal, 21 February 1991; the decision of the Court of Appeal in that case had been reversed by the House of Lords in January 1993, [1993] 2 WLR 292 and the reasoning of the Master of the Rolls was unsound. Applying the reasoning contained in the speech of Lord Bridge of Harwich it was plain that the validity of the application itself was a matter which was properly before the adjudication officer and in any event was properly before the tribunal and the Commissioner. The tribunal was right and the Commissioner was wrong on this point.

In answer to these submissions, Miss Dunlop, for the respondents, submitted that the jurisdiction of the adjudication officer was very strictly defined in the regulations. He had simply to determine the questions specified in regulation 2(4)(a) and (b), namely (i) whether or not there was sufficient entitlement to income support to enable a deduction to be made and (ii) the priority of any sum to be deducted in competition with other specified sums. Furthermore, his decision on this matter was final, subject to any right of appeal or review conferred by the regulations. What regulation 3 envisaged was that the Secretary of State would notify the debtor in writing of the adjudication officer's decision in relation to each of these strictly defined questions. That was the context in which the appeal was conferred by regulation 5(1); it specifically referred to "a question under regulation 2(4)". That clearly meant that the tribunal's jurisdiction was restricted in precisely the same way as the adjudication officer's jurisdiction was. Similarly the Commissioner's jurisdiction and indeed that of the Court of Session was restricted to the same matters. Accordingly, the question of the validity or effectiveness of a written application was not something which could be before the adjudication officer or indeed before the tribunal, the Commissioner or the Court of Session under this statutory procedure. The case of Foster was dealing with an entirely different situation. In that case the officer in question was dealing with a question of entitlement. He had to decide whether or not the claim was to succeed. If it was necessary, in order to decide that matter, to arrive at a decision as to the vires of the regulations which regulated the claim itself then that question of vires was one which properly arose within his jurisdiction. In this case, however, the equivalent of that matter of entitlement was contained not in any provision relating to the jurisdiction of the adjudication officer or the appeal from him; it was contained in regulation 4 which governed the making by the Secretary of State of deductions from income support. It was the Secretary of State alone who was empowered and indeed required to make deductions in the circumstances specified in that regulation.

In our opinion, the appeal must fail on this preliminary but basic point. The Commissioner, in our opinion, reached the correct conclusion. We have no doubt that the regulations founded upon did not confer upon the adjudication officer any broad jurisdiction in relation to the making of deductions from income support in respect of outstanding Community Charges. All that the regulations do, at least so far as the adjudication officer is concerned, is to nominate him as the person to whom the Secretary of State, after receiving an application from a levying authority, is to refer for determination the two questions of sufficient entitlement and priority. The adjudication officer has no obligation or jurisdiction to scrutinise the application or to enquire into its history. In that respect at least, this case bears a similarity to the case of Regina v. Secretary of State for Home Department [ex parte Malhi] [1990] 2 WLR 932 to which Miss Dunlop referred us. It will be observed that the matters which have to be referred to an adjudication officer are essentially technical. The question of "sufficient entitlement" ... is ultimately a matter of arithmetic. The question of "priority" is a question of ranking the various liabilities specified in regulation 2(4)(b) in a certain order in relation to the Community Charge debt. No doubt the adjudication officer must act judicially, but his jurisdiction is defined and restricted to the determination of these two matters. It is perhaps worth noting at this point that, in the course of his submissions to us, counsel for the appellant was unable to suggest that the determination by an adjudication officer on either of these matters would be affected in any way by any information of the kind which was required to be contained in the application by regulation 2(2)(d) or (e). Indeed it is quite clear that what the adjudication officer is determining is effectively the rate at which deductions may be made, not the amount of any deduction. The question of the amount of any deduction must arise under regulation 4, but that is a matter for the Secretary of State to determine. It is not for us to express views as to what remedies might be available in the event of the Secretary of State's making an error in the exercise of any of his powers under the regulations. It is sufficient to note that there is no statutory procedure under Rule 5 in relation to any such error. Similarly, in relation to the possibility of some error being made in the submitting of the application by the levying authority to the Secretary of State (including some omission from it of necessary information) it may be that the Secretary of State would have some form of remedy against the levying authority (though one would expect any deficiency in the written application to be dealt with informally rather than by any formal, forensic procedure); but we are not in this process concerned with that. The case of Foster is clearly dealing not only with an entirely different set of statutory provisions but also with an entirely different matter; the vires issue which was raised in Foster was one which had to be decided in the course of determining the entitlement of the claimant. In other words, the jurisdiction of the adjudication officer in that case included the matter which it was sought to raise. The present regulations confer no such jurisdiction upon the adjudication officer; and they define his jurisdiction in such a limited and restricted manner as to make it plain that he cannot deal with matters beyond such restricted definition. The restriction of his jurisdiction is determinative of the matters that may be the subject of the statutory appeal procedure. We do not consider that this matter needs further elaboration. The Commissioner reached the correct decision on the jurisdiction issue.

In these circumstances, it is not necessary to decide the other matters which were before us. However, as we did hear submissions, we should briefly indicate our views. It was suggested that the obligations contained in regulation 2(2) were mandatory and peremptory and accordingly imposed a duty upon the levying authority to frame the application so as to contain each item of information there specified. The consequence, it was submitted, of failure to do that was that the application became a nullity. In our view, the brief answer to that is that the application was an application not the adjudication officer but to the Secretary of State. A body such as a licensing authority or other body empowered to receive applications may, if the form of application is specified strictly by statute, decline to entertain an application which does not comply with the appropriate statutory form; although, as the Court pointed out in Johnston v. Secretary of State for Scotland [1992] SLT 387, the legal consequences of a failure to observe a provision couched in a mandatory form have to be assessed in the light of the overall purposes of the statutory scheme. The Secretary of State has certain duties of his own under the statutory scheme in relation to the making of deductions from income support in respect of outstanding Community Charges. It was for the Secretary of State to determine whether or not the application from the levying authority was adequate for his purposes. Accordingly, even assuming that the application in this case was deficient in the respects alleged, that did not automatically make the application a nullity. The Secretary of State might well have rejected the application on the ground of some important deficiency in its form; but he was entitled not to do so. Any question of the validity of such an application was for him to determine; whatever determination he makes in that regard, the regulations provide no form of statutory appeal in respect of it. Although regulation 2(4) provides that the Secretary of State "shall refer it (scil. the application) to an adjudication officer" it is plain that, on a proper construction of this regulation, all that in fact he has to refer to the adjudication officer consists of the two matters of entitlement and priority. Accordingly, we would not have held that the application was necessarily a nullity or invalid simply because it did not contain every detail envisaged by regulation 2(2). The Secretary of State was entitled to treat it as sufficient for his purposes.

In any event, we are not satisfied that the application in question omitted to give information required by regulation 2(2)(d) and (e). We refer to the terms of this regulation. Obviously it would have been better if the application letter had contained separate heads for each of the items (a), (b), (c), (d) and (e) particularised in regulation 2(2). In fact as can be seen from the application which is printed in the appendix, the part containing such information as was desiderated by regulation 2(2)(d) and (e) read as follows,

"A summary warrant was obtained on 22 January 1990 from Glasgow Sheriff Court. The amount to be recovered is £65.38".

It was suggested that the total amount of the arrears specified in the summary warrant or decree was omitted and that the £65.38 appeared to be the total amount which the levying authority wished to have deducted from income support. We do not consider that there is any ex facie omission from this document. It is plain from the terms of paragraph 7A of Schedule 2 to the 1987 Act that the total amount which the levying authority wishes to have deducted from income support will always be the same as or less than the total amount of arrears specified in the summary warrant of decree. When, as will commonly be the case, the two amounts are the same then the giving of the amount once might well satisfy the literal requirements of regulation 2(2) (d) and (e). Obviously however, it was envisaged by the regulations that the amounts should be specified separately even of the two amounts were the same. We do not doubt that the Secretary of State would have been entitled to require the levying authority to clarify this matter had there been any doubt about it. But we do not consider that on the face of the letter it was apparent that the required information had not been supplied. Indeed it appears as if the Secretary of State did not consider that he was lacking information which he was entitled to receive in the written application. Accordingly, we would have been against the submissions of the appellant in this matter as well had we required to decide this point.

In the whole circumstances, for the reasons given, the Court will affirm the decision of the Commissioner.

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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> Murdoch v. Chief Adjudication Officer [1993] UKSSCSC CSIS_55_1991 (22 April 1993) URL: http://www.bailii.org/uk/cases/UKSSCSC/1993/CSIS_55_1991.html Cite as: [1993] UKSSCSC CSIS_55_1991