BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
UK Social Security and Child Support Commissioners' Decisions |
||
|
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> Chief Adjudication Officer v. Maguire [1999] UKSSCSC CI_3013_1995 (23 March 1999) URL: http://www.bailii.org/uk/cases/UKSSCSC/1999/CI_3013_1995.html Cite as: [1999] UKSSCSC CI_3013_1995 |
||
[New search] [Printable RTF version] [Help]
Chief Adjudication Officer v. Maguire [1999] UKSSCSC CI_3013_1995 (23 March 1999)
Mr. M. Rowland CI/3013/1995
18.11.96
CA (Simon Brown, Waller and Clarke LJJ)
23.3.99
Special hardship allowance - claim made after repeal of section 60 of the Social Security Act 1975 - whether claimant had an "acquired" or "accrued" right that survived the repeal
The applicant had suffered from vibration white finger prior to it being first prescribed as an industrial disease on 1 April 1985. From 1 October 1986, section 60 of the Social Security Act 1975, making provision for special hardship allowance was repealed and reduced earnings allowance was introduced in its place. The claimant claimed disablement benefit on 1 November 1989 and was awarded a disablement gratuity based on an assessment of 8% from 1 April 1985 for life. He claimed reduced earnings allowance on 22 August 1991, apparently seeking payment from 1 November 1989. The adjudication officer awarded reduced earnings allowance from 22 May 1991. The claimant appealed, seeking reduced earnings allowance from 1 April 1985. The tribunal treated the claim as having been made in respect of the period from 1 April 1985 but allowed the appeal only to the extent of awarding reduced earnings allowance from 1 November 1989. The claimant appealed to the Commissioner. By then, the Secretary of State had decided that the claim for reduced earnings allowance could be treated as a claim for that benefit in respect of the period from 1 October 1986 but it was argued on behalf of the adjudication officer that a claim for special hardship allowance by the claimant could not succeed because section 1(2)(b) of the Social Security Administration Act 1992 provided that a person should not be entitled to any benefit "except disablement benefit or reduced earnings allowance" in respect of any period more than 12 months before the date of claim.
The Commissioner held that the tribunal had exceeded their jurisdiction in treating the claim as having been made in respect of a period before 1 November 1989 (that question being one for the Secretary of State) but also held that the term "disablement benefit" in section 1(2)(b) encompassed special hardship allowance. He allowed the appeal, finding that the claimant had good cause for the delay in claiming both special hardship allowance and reduced earnings allowance, and he directed the adjudication officer to refer to the Secretary of State the question whether the claim for reduced earnings allowance should be treated as a claim for special hardship allowance. The Chief Adjudication Officer and the Secretary of State appealed to the Court of Appeal, contending that no claim for special hardship allowance made since 1 October 1986 could succeed because section 60 of the Social Security Act 1975 had been repealed from that date and the claimant did not have an acquired or accrued right to special hardship allowance which, by virtue of section 16(1)(c) of the Interpretation Act 1978, would not be affected by the repeal.
Held, dismissing the appeal, that:
- the court was not concerned with a two stage enquiry, first deciding whether there was a right and then deciding whether it was an acquired or accrued right but was concerned with the single question: has the claimant established that at the time of repeal he had a right?;
- a mere hope or expectation of acquiring a right is insufficient but an entitlement, even if inchoate or contingent, suffices and the fact that further steps may still be necessary to prove that entitlement existed before repeal, or to prove its true extent, does not preclude it from being a right;
- whether or not there is an acquired right depends on whether at the date of the repeal the claimant has an entitlement (at least contingent) to money or other certain benefit receivable by him provided only that he takes all appropriate steps by way of notices and/or claims thereafter: Hamilton Gell v White [1922] 2 KB 422; County Council of Moray [1992] SLT 236; Convex Ltd's Patent [1980] REC 423; Plewa v. Chief Adjudication Officer [1995] 1 AC 249; Free Lanka Insurance Ltd v. Ranasinghe [1964] AC 541;
- (per Simon Brown LJ) the claimant's right to special hardship allowance accrued on 1 April 1985 when vibration white finger (a disease from which he already suffered) was first prescribed;
- (per Waller and Clarke LJJ) the claimant acquired a right to special hardship allowance before the repeal and the right accrued when he made his claim.
"4. The Secretary of State has now certified that that letter may be accepted as a claim for reduced earnings allowance for the period 1 October 1986 to 31 October 1989 and the certificate is attached to the papers.
"Where under subsection (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it
(a) if the benefit is a widow's payment, she shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim was made or treated as made and
(b) if the benefit is any other benefit except disablement benefit or reduced earnings allowance, the person shall not be entitled to it in respect of any period more than 12 months before that date,
except as provided by section 3 below."
That subsection re-enacts section 165A(2) of the Social Security Act 1975 as it was in force in 1992. That section of the 1975 Act had undergone several changes over the years since 2 September 1985 when it was first inserted into the Act but it has consistently been the law that a person has not been entitled to benefit in respect of any period more than 12 months before the date on which the claim is made, except in the cases of disablement benefit, industrial death benefit (before 6 April 1987) and, reduced earnings allowance (since 1 October 1986). Indeed, there was a similar provision, referring to payment rather than entitlement, in section 82(2)(c) of the Social Security Act 1975 as first enacted. That provision was replaced by section 165A following the decision of the House of Lords in Insurance Officer v. McCaffrey [1984] 1 WLR 1353. Mr. Heath's argument was that, as special hardship allowance was not expressly excepted from the general rule that entitlement (or payment) could not arise in any period more than 12 months before the date of claim, that general rule applied to special hardship allowance. Accordingly, he submitted, it had not been possible since 1 October 1987 for a person to claim special hardship allowance, a fact that had been overlooked by everybody since then. Indeed, as it has always been accepted special hardship allowance was not subject to the 12 month limit, Mr. Heath's argument implied that everyone concerned with claims for special hardship allowance over at least the last 21 years was acting on a mistaken understanding of the law.
"(1) The weekly rate of a disablement pension shall, subject to the following provisions of this section, be increased by an amount not exceeding the appropriate amount specified in Schedule 4, Part V paragraph 6, if as the result of the relevant loss of faculty the beneficiary —
(a) is incapable, and likely to remain permanently incapable of following his regular occupation; and
(b) is incapable of following employment of an equivalent standard which is suitable in this case, or if as the result of the relevant loss of faculty the beneficiary is, and has at all times since the end of the injury benefit period been, incapable of following that occupation or such employment.
….
(7) Regulations may make as respects a disablement gratuity provision corresponding to that made by this section as respects a disablement pension, and may include provision for payment of a pension in lieu of a gratuity."
Regulation 18 of the Social Security (General Benefit) Regulations 1982 enabled a person who had been awarded a disablement gratuity to be paid special hardship allowance. There is, on Ms. Lieven submitted, no doubt from the opening words of section 60(1) that special hardship allowance was merely an increase of disablement benefit.
"For the purposes of the provisions of these Regulations relating to the making of claims every increase of benefit in respect of a child or adult dependent under the Social Security Act 1975 or an increase of disablement benefit under sections 60 (special hardship), 61 (constant attendance), 62 (hospital treatment allowance) or 63 (exceptionally severe disablement) of the Social Security Act 1975 shall be treated as a separate benefit..."
That provision does not affect the scope of the term "disablement benefit" in the primary legislation. It is, however, the reason why a separate entry for special hardship allowance was inserted in Schedule 4 to those Regulations. Paragraph 10 of that schedule was amended by regulation 9 of the Social Security (Claims and Payments) Amendments Regulations 1988 with effect from 11 April 1988. Before then, there had been period from 1 October 1986 to 10 April 1988 when no time for claiming special hardship allowance had been prescribed at all, although whether that meant that there was no time limit or whether it was implicit that the previous time limit continued to be effective is a matter of minor controversy.
(a) in respect of the period from 1 April 1985 to 30 September 1986, I find that, if any document that is already in existence is treated by the Secretary of State as a claim for special hardship allowance, the claimant had continuous good cause for his delay in claiming special hardship allowance;
(b) in respect of the period from 1 October 1986 to 31 October 1989, I find that the claimant had good cause for his delay in claiming reduced earnings allowance;
(c) in respect of the period from 1 November 1989 to 21 May 1991, I award reduced earnings allowance at the maximum rate, although any payment made in consequence of the tribunal's decision must be treated as a payment on account of this award.
All other questions must now be considered by the adjudication officer who should refer (again, if it has already been done before) to the Secretary of State the question whether any document may be treated as a claim for special hardship allowance in respect of the period from 1 April 1985 to 30 September 1986.
Date: 18 November 1996 (signed) Mr. M. Rowland
Commissioner
The Chief Adjudication Officer and the Secretary of State appealed to the Court of Appeal. The decision of the Court of Appeal follows.
Mr. R. Drabble QC (instructed by The Solicitor for the Department of Social Security, New Court, 48 Carey Street, London WC2A) appeared on behalf of the Appellant.
Mr. J. Howell QC and Miss N. Lieven (instructed by The Solicitor for Wallsend People's Centre, 10 Frank Street, Wallsend, Tyne & Wear) appeared on behalf of the Respondent
LORD JUSTICE SIMON BROWN:
Introduction
Special hardship allowance (SHA) was a component of disablement benefit, one of the industrial injuries benefits provided for by the Social Security Act 1975 (the 1975 Act). S. 57 of the 1975 Act provides for disablement benefit if the claimant "suffers as a result of the relevant accident [or prescribed disease] from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 1%" - in certain circumstances a disablement gratuity and in others a disablement pension. S. 60 provided for an increase in the weekly rate of disablement pension if the claimant was incapable and likely to remain permanently incapable of following his regular occupation.
The legislative scheme governing all social security benefits requires that before payment of any relevant benefit is made there must first be a claim in respect of it. The prescribed time for claiming SHA was three months subject to indefinite extension if the claimant proved good cause for the delay.
With effect from 1 October 1996 SHA was repealed (by s. 39 of, and paragraph 5(2) of Schedule 3 to, the Social Security Act 1986) and replaced by reduced earnings allowance (REA), a separate benefit albeit with similar qualifying conditions.
Generally when one social security benefit is replaced by another there are elaborate transitional provisions made. But that was not the case here. Hence the important question raised by this appeal: what is the position of a claimant who before the repeal of SHA satisfied all the preconditions to entitlement to the benefit save only that of making the requisite claim, such claim then being made within the prescribed period albeit after repeal? More particularly the issue is whether such a claimant has an acquired or accrued right within the meaning of s. 16(1)(c) of the Interpretation Act 1978. This provides:
"16(1) ... 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 ..."
The Facts
We are told that the court's ruling on this issue will govern literally thousands of other cases. It is perhaps rather surprising in those circumstances to find that the particular vehicle chosen by the Secretary of State and Chief Adjudication Officer to bring the matter before the court is Mr. Commissioner Rowland's determination of 18 November 1996 allowing Mr. Maguire's appeal, a determination which records that "the crucial question in this case is whether the claim for reduced earnings allowance may be treated as a claim for special hardship allowance" (now no longer an issue), and that the adjudication officer specifically made no submission to the effect that abolition of SHA precluded any subsequent claim in respect of the pre-repeal period (now the only issue). As to that issue the Commissioner said:
"Such an argument would have been untenable in view of the presumption against retrospectivity, both at common law and by virtue of s. 16 of the Interpretation Act 1978, particularly in the light of such authorities as Hamilton Gell v. White [1922] 2 KB 422 and Free Lanka Insurance Co Ltd v. Ranasinghe [1964] AC 541 and the fact that the whole of the statutory mechanism necessary for the determination of a claim for special hardship allowance remains intact."
The argument has nonetheless now been put and we have entertained it.
Given that the effect of s. 16 is now the sole issue before the court, I can state the relevant facts really very shortly. I ignore the various complications which bedevilled earlier stages of Mr. Maguire's claim, notably (a) that he claimed initially only from October 1989, (b) that his subsequent claim as from 1 April 1985 ostensibly related to REA throughout rather than initially to SHA, and (c) the adverse findings of certain earlier tribunals as to whether there was good cause for his delay in claiming for the period 1 April 1985 to 31 October 1989, findings ultimately reversed by the Commissioner who held that he "had continuous good cause for his delay in claiming special hardship allowance."
The few relevant facts are most conveniently stated chronologically. On 1 April 1985 vibration white finger (VWF) was first prescribed as an industrial disease. An adjudicating medical authority later assessed Mr. Maguire's disablement resulting from that disease at 8% from 1 April 1985 for life. On 1 October 1986, as stated, SHA was repealed and replaced by REA. On 1 November 1989 Mr. Maguire first claimed disablement benefit for VWF and obtained his 8% assessment. On 22 August 1991 Mr. Maguire claimed REA which was awarded initially from 22 May 1991 but has now been backdated to 1 October 1986. All that still remains unpaid, therefore, is Mr. Maguire's claim for SHA for the eighteen month period between 1 April 1985 and 1 October 1986, a claim said to be worth some £1500.
The Legislation
Although we were taken in very considerable detail through the legislation (both primary and subordinate) to see precisely how the statutory benefits scheme evolved from 1975 onwards, I think it sufficient for present purposes to note (in addition to what I have already indicated) only the following:
(b) S. 60(1) provides that, if the result of the disability is as specified, "the weekly rate of a disability pension shall ... be increased" as specified.
(b) Following the decision of the House of Lords in Insurance Officer v. McCaffrey [1985] 1 AER 5 - that s. 79(1) merely went to a person's right to be paid the benefit and not to his entitlement to his benefit - that section was replaced by s. 165A (inserted into the 1975 Act with effect from 2 September 1985 by s. 17 of the Social Security Act 1985). So far as relevant s. 165A provides:
"(1) ... no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being specified -
(a) he makes a claim for it -
(i) in the prescribed manner; and
(ii) subject to sub-section (2) below within the prescribed time ..."
Subsection (2) provides for regulations to extend the time for claiming where good cause is shown for delay.
"Section 60 (increase of disablement pension for special hardship) shall cease to have effect."
(b) S. 89 of the 1986 Act contained wide powers to make transitional provisions. No saving was, however, made with regard to SHA.
(b) That would have remained the position with effect from 11 April 1988 when the 1979 Regulations as amended were to be replaced by the Social Security (Claims and Payments) Regulations 1987.
(c) The 1987 Regulations, however, were amended with effect from their commencement date (11 April 1988) by the Social Security (Claims and Payments) Amendment Regulations 1988 (made on 16 March 1988). This amendment inserted a three month prescribed time (subject to extension for good cause) for claiming an "increase of disablement benefit under section 60 of the Social Security Act 1975 on grounds of special hardship."
Mr. Drabble on behalf of the appellants accepts that the 1988 amendment to the Claims and Payments Regulations reflected a departmental view that, despite the absence of a saving provision in the legislation, it was still possible to claim SHA. That view, indeed, was reflected in the history of Mr. Maguire's own claim. The amendment was made because the Department realised that it was necessary to introduce a prescribed period for making the claim.
That notwithstanding, the appellants are clearly entitled to argue as they do that strictly no such post-repeal claims are allowable. We are told, moreover, that the Secretary of State is anxious to have an authoritative answer to the question not merely to resolve the many outstanding SHA claims but also because he considers it important for the future drafting of transitional provisions.
The Authorities
The authority on which Mr. Drabble's argument principally relies is that of the Privy Council in Abbott v. Minister for Lands [1895] AC 425. As in several of the cases put before us the facts and legislation in Abbott were somewhat complicated. Essentially, however, the question was whether someone who had purchased certain land was entitled to exercise a right to make additional purchases of adjoining land under the powers conferred by a repealed Act containing a saving clause with regard to "all rights accrued". The Privy Council held not, the Lord Chancellor stating:
"It may be, as Windeyer J observes, that the power to take advantage of an enactment may without impropriety be termed a "right". But the question is whether it is a "right accrued" within the meaning of the enactment which has to be construed.
Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words "obligations incurred or imposed." They think that the mere right (assuming it is to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a "right accrued" within the meaning of the enactment."
That decision establishes, submits Mr. Drabble, that a court under s.16 (and other equivalent saving provisions) is concerned with a two stage enquiry: it must ask first, is there a right? second, is it an accrued right? It is his essential argument that although Mr. Maguire, by dint of having become disabled to the relevant extent as a result of a prescribed disease, may be said to have had a right, it was not properly to be regarded as an accrued right. He furthermore submits that there is no example in the cases of a right being regarded as having accrued until some specific step is taken by somebody under the relevant statutory scheme before the repeal.
To deal properly with these submissions it is necessary to examine briefly the other main authorities in this field. First, even before Abbott, was the decision of the Court of Appeal in Roberts v. Potts [1894] 1 QB 213 upon which Mr. Drabble also places reliance.
That too was a complicated case but essentially it raised the question whether a rating authority, who, before the repealing legislation, would undoubtedly have been entitled to demand payment of outstanding rates from occupiers, remained so entitled after new legislation which altered the procedure for recovering rates and provided that they should thereafter be recoverable only from the landowner, the repealing section stating:
" ... and so much of any Act as authorises any rate ... to be assessed on or recovered from the occupier of any lands ... is hereby repealed."
The majority of the court (Lord Esher MR and Lopes LJ) held not:
"We think it was the intention of the legislature to create a new machinery for the recovery of ... rates ... and ... to abolish the old and then existing machinery. ... As no notice was given to the occupiers until long after the passing of the Act of 1891, there was no existing right to be preserved by the saving clause in the Interpretation Act."
The next helpful authority is this court's decision in Hamilton Gell v. White [1922] 2 KB 422 where an agricultural tenant was found to have an acquired right against his landlord. The landlord had given the tenant notice to quit. As it was given because of the landlord's wish to sell, the tenant became entitled to compensation under s. 11 of the Agricultural Holdings Act 1908. Section 11 imposed upon the tenant two conditions, first that he should within two months of the notice to quit give the landlord notice of his intention to claim compensation, second that he should make his compensation claim within three months of quitting the holding. The tenant duly complied with the first of those conditions but, before the tenancy had expired and before therefore he could satisfy the second condition, s. 11 was repealed. All three members of the court (Bankes, Scrutton and Atkin LJJ) held that the tenant had acquired a right by the fact of his landlord giving notice to quit with a view to sale. As Scrutton LJ put it:
"... what gave him the right was the fact of the landlord having given a notice to quit in view of the sale. The conditions imposed by s. 11 were conditions, not of the acquisition of the right, but of its enforcement."
Hamilton Gell v White was distinguished by the Privy Council in Director of Public Works v. Ho Po Sang [1961] AC 901. The position there was that under the relevant Hong Kong legislation prior to its repeal the lessee was entitled to call on his under-lessees to quit if the Director of Public Works gave a rebuilding certificate. The lessee applied for such a certificate and was notified by the Director that he intended to give it. Thereupon, in compliance with the legislation, the lessee served notices of that intention upon his under-lessees who, again as provided for in the legislation, appealed by way of petition to the Governor in Council, his under-lessees cross-petitioning. It was at that stage that the legislation was repealed, no decision having by then been taken by the Governor in Council with regard to the petitions. The Privy Council held that the lessee (and the Director of Public Works) had no accrued right at that stage. Giving the judgment of the Board Lord Morris of Borth-y-Gest said:
"The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects (page 922) ... he did not have any right even of a contingent nature (page 924) ... The difference between that case [Hamilton Gell v. White] and the present is that in that case a right existed and the investigation, which was unaffected, was an investigation in respect of it; whereas in the present case no right existed or had accrued, and the intended investigation which had not taken place before the time of the repeal (ie the consideration by the Governor in Council) was an investigation in order to decide whether a right should or should not be given. It was not itself a right or privilege which was preserved by the Interpretation Ordinance. [The Hong Kong legislation corresponding to s. 16(1)(c)]"
Lord Hunter in the Outer House in County Council of Moray [1962] SLT 236 was concerned with legislation which, before amendment, enabled local authorities to contribute towards the cost of improving private dwellings but provided, in a section subsequently repealed, that in the event of the owner voluntarily alienating the property within twenty years of receiving his grant the local authority could demand repayment of an appropriate proportion. The grants there were paid in May 1956. In October 1956 the owner alienated the property although that conveyance was unknown to the local authority until December 1959 and only then could they and did they intimate a claim for repayment of the appropriate proportion of the improvement grants. In the meantime, in June 1959, the provision requiring such repayment had been repealed. Lord Hunter helpfully considered the combined effect of Abbott, Hamilton Gell v. White and Ho Po Sang in the following passage:
"In the recent case in the Privy Council of Director of Public Works v. Ho Po Sang [1961] AC 901, their Lordships' Board considered the meaning and effect of portions of section 10 of the Interpretation Ordinance of Hong Kong, which corresponds with section 38 of the Act of 1889. The first proposition which I think is recognised in the advice given by the Board, is that the mere abstract right to take advantage of a statutory enactment, if 'right' it can properly be called, is not a 'right acquired' or a 'right accrued' within the meaning of section 38(2)(c) of the Act of 1889 [subsequently re-enacted as s. 16(1)(c)]. A leading authority for this proposition is Abbott v. Minister for Lands [1895] AC 425, where emphasis was placed on the conjunction of the words 'right acquired' or 'right accrued' with the words 'obligation incurred'. The second proposition which, in my opinion, emerges from Director of Public Works v. Ho Po Sang is that, even if a person has taken steps to put statutory machinery in motion, the statutory proceedings may only by the date of repeal have reached the stage when he has a hope or expectation of acquiring a right. In such a case it almost goes without saying that there is no right 'acquired' or 'accrued', and it was held that Director of Public Works v. Ho Po Sang was just such a case. The third proposition which I derive from this case cited is that, where statutory machinery has been set in motion and the statute is afterwards repealed, there may be a right 'acquired' or 'accrued' under the statute, although at the date of repeal further steps are still necessary to prove that the right did in fact exist at the date of repeal and even to prove the measure of the obligation incurred. The case in this last category from which I have obtained most assistance is Hamilton Gell v. White [1922] 2 KB 422, cf. Heston and Isleworth Urban District Council v. Grout [1897] 2 Ch 306. These cases, in my opinion, also establish that a right can at any rate in certain circumstances be a 'right acquired' although it may at the date of repeal still be of a contingent nature, and this seems also to be recognised (although it may be obiter) in Director of Public Works v. Ho Po Sang."
Applying those propositions to the case before him Lord Hunter concluded that there was indeed a "right acquired" or "accrued" (which he though bore "slightly different meanings") when voluntary alienation took place. The local authority had, he decided, "the right to demand payment of the appropriate proportion of the improvement grants plus interest upon the occurrence of a certain event, that event being either a breach of condition [that being another specified basis for repayment] or a voluntary alienation within the statutory period."
I come next to the important case of Free Lanka Insurance Co Ltd v. Ranasinghe [1964] AC 541, decided by the Privy Council the following year. Although this was one of the two authorities referred to by Mr. Commissioner Rowland when describing the adjudicating officer's argument as untenable, it is, as will appear, a decision substantially relied upon by Mr. Drabble. The essential facts there were that, prior to its repeal on 1 September 1951, a 1938 Ordinance of Ceylon had provided that if judgment in respect of injuries sustained in a road accident were obtained against anyone compulsorily insured, the insurers had to pay the damages provided only that the injured person had given them notice within seven days after the commencement of his action. Mr. Ranasinghe was injured in March 1948. In March 1950 he began his action against the insured driver, two days later giving the insurers the required notice of his claim. Judgment was obtained on 24 September 1951. The 1938 Ordinance, however, had been repealed on 21 September, just twenty-three days previously. The Privy Council upheld the judgment of the Ceylon Supreme Court, holding that the insurers had to pay. Giving the judgment of the Board, Lord Evershed said:
"The distinction between what is and what is not 'a right' must often be one of great fineness. But their Lordships agree with [the Ceylon Supreme Court] in thinking that on September 1, 1951, the respondent had as against the appellants something more than a mere hope or expectation - that he had in truth a right, within the contemplation of [the provision equivalent to s. 16(1)(c)], under ... the Ordinance of 1938 although that right might fairly be called inchoate or contingent."
Lord Evershed then cited a passage from Lord Morris' judgment in Ho Po Sang and continued:
"... the appellants cannot now be heard to say that the respondent was not immediately after the accident an injured third party entitled to recover damages against [the driver] and, as they think, his service upon the appellants of the notice of his claim (together with a copy of his plaint) pursuant to ... the 1938 Ordinance was an assertion by him of his statutory right against the appellants; and nonetheless effectively so because the quantum of his claim was dependent upon the finding of the court in a decree made in his favour in his action against [the driver]."
Those two Privy Council cases, Ho Po Sang and Free Lanka, were considered by this court in Convex Ltd's Patent [1980] REC 423, a case concerning a lapsed patent. The patent there had lapsed on 27 April 1978, just a few weeks before 1 June 1978 when the Patents Act 1977 came into force in place of the Patents Act 1949. Given that restoration of a 1949 Act patent could only be ordered under that Act and that the application to restore was not made until after its repeal, the Controller contended that there was no accrued right and thus no power to restore. In rejecting that argument Buckley LJ said this:
"... it seems to me that the right of the applicants to require their patent to be restored, provided that they made their application within the three years limited by the 1949 Act, and established that the failure to make the payment of the renewed fee had been unintentional and that there had been no undue delay in their making their application, was a right which should be recognised as a right which had accrued to them in law before the commencement of the 1977 Act. Accordingly it seems to me that this a case to which s.16 of the Interpretation Act of 1978 applies ... ."
The final authority I should briefly mention is Plewa v. Chief Adjudication Officer [1995] 1 AC 249 in which the single reasoned speech in the House of Lords was given by Lord Woolf. Yet again the circumstances were somewhat complicated but they may, I think, fairly be summarised as follows. The machinery for recovering overpaid social security benefits changed from s. 119 of the 1975 Act (under which it was a defence for the recipient to prove that he had exercised due care and diligence) to s. 53 of the 1986 Act (under which the Secretary of State could recover overpayment from anybody who, however diligently he had acted, failed to disclose or misrepresented material facts). The relevant overpayment there had been made before the legislation changed but the fact of such overpayment was not discovered until afterwards. The Secretary of State sought to contend that s. 53 was retrospective. In holding not, the House of Lords decided rather that s. 119 could still be operated to effect recovery (albeit with greater difficulty for the Secretary of State) in respect of pre-repeal overpayments. Having cited s. 16(1)(c) Lord Woolf said this:
"Inchoate rights and obligations and liabilities are covered by (c). This was established by Free Lanka Insurance Co Ltd v. Ranasinghe [1964] AC 541. In that case the Privy Council had no difficulty in construing the Ceylon Interpretation Ordinance 1900 as including an inchoate or contingent right and the same approach should be adopted to the interpretation of 'right,' 'obligation,' or 'liability' in s. 16 of the Act of 1978. The section clearly contemplates that there will be situations where an investigation, legal proceeding or remedy may have to be instituted before the right or liability can be enforced and this supports this approach."
The Argument
I have already indicated Mr. Drabble's essential argument, namely (a) that not every right can properly be characterised as an accrued right, and (b) that no right can be an accrued right unless someone takes some specific step prior to repeal.
Here, he says, no one did anything under the 1975 Act until after SHA was abolished: all that had happened before then was that Mr. Maguire had contracted his disease (and, no less importantly, that disease had been prescribed). Crucially, no claim was made before repeal. The want of such a claim, Mr. Drabble argues, is fatal to the respondent's case just as the want of a demand was held fatal to the rating authority's case in Roberts v. Potts, and just as he says a failure to have served notice of claim upon the insurers would have been fatal to the respondent's case in Free Lanka. In Free Lanka Mr. Drabble relies heavily on part of the passage already quoted from Lord Evershed's judgment and which I now repeat:
"... his [the respondent's] service upon the appellants of the notice of his claim (together with a copy of his plaint) pursuant to ... the 1938 Ordinance was an assertion by him of his statutory right against the appellants ..."
Insofar as rights were found to have accrued respectively in Hamilton Gell v. White, County Council of Moray, and Plewa, Mr. Drabble submits that in each of those cases specific steps had been taken: in Hamilton Gell v. White by the landlord giving notice to quit, and in the other two cases by events giving rise to a right of repayment under the self same statutory scheme as the original payments had been made under.
True, Mr. Drabble acknowledges, the effect of his argument here is that even had a claimant suffered a relevant accident say two months before the repeal of s.60, and claimed SHA in respect of it after repeal albeit still within the basic three month period prescribed, he would not be entitled to this benefit (nor, of course, the replacement benefit, REA). But, he says (and in this he is right), however unfortunate and unintended such a lacuna would be, that would necessarily follow unless the general saving in s. 1 6(1)(c) applies.
Mr. Drabble does not, I should observe, contend that his argument under s. 16 is in any way stronger because of the replacement of s. 79 by s. 165A in the 1975 Act. That amendment was made for purely technical reasons - as to what constitutes an 'entitlement' for social security purposes - to overcome McCaffrey. Under both regimes a claim was required before payment of benefit could be made.
Mr. Howell QC in response submits that all a claimant needs do under the 1975 Act to acquire a right capable of being saved by s. 16 is to suffer the relevant degree of disability through a specified accident or disease. At that point nothing can destroy his eventual right to be paid the benefit provided only that he comes to claim it in the prescribed (or extended) time.
Conclusion
I greatly prefer Mr. Howell's argument. Indeed I think that much of Mr. Drabble's argument proceeds on a fundamentally false premise. The court is not, in my judgment, engaged on a two stage enquiry, first deciding whether there is a right and then deciding whether it is an "acquired" or "accrued" right. (Incidentally, despite what Lord Hunter said in County Council of Moray, and perhaps what Atkin LJ hinted at in Hamilton Gell v. White, I for my part see no distinction in this context between "acquired" and "accrued". I would note, indeed, that certain of the saving legislation refers to only one of these words - the Ceylon Ordinance in Free Lanka to "any right acquired"; the relevant provision in Abbott to "all rights accrued".) Rather the court is concerned with a single question: has the claimant established that at the time of repeal he had a right? True, as Lord Evershed observed in Free Lanka: "The distinction between what is and what is not 'a right' must often be one of great fineness." But there are now to be found in the authorities helpful touchstones by which to reach the correct answer. A mere hope or expectation of acquiring a right is insufficient. An entitlement, however, even if inchoate or contingent, suffices. The fact that further steps may still be necessary to prove that the entitlement existed before repeal, or to prove its true extent, does not preclude it being regarded as a right.
So far as Mr. Drabble's detailed submissions upon the authorities are concerned, I would make merely these comments. Abbott plainly did not involve any right properly so called and really it was unhelpful for the court there to have assumed that the mere ability of some or all members of the community to take advantage of an enactment whilst it remained in force (from which they might or might not have benefitted), could properly be so described. The real hopelessness of such a proposition appears to me well expressed by Atkin LJ's judgment in Hamilton Gell v. White with regard to the position under the Agricultural Holdings Act 1908:
"It is obvious that [the equivalent of s. 16] was not intended to preserve the abstract rights conferred by the repealed Act, such for instance as the right of compensation for disturbance conferred upon tenants generally under the Act of 1908, for if it were the repealing Act would be altogether inoperative."
All that the claimant had in Abbott, given that he had taken no relevant steps whatsoever under the legislation prior to repeal, were "abstract rights".
Roberts v Potts was a special case on its facts. Liability for rates throughout was always ultimately upon the landowner. The repealed legislation gave the rating authority the option to collect payment first from the occupiers on due notice (subject to their right then to pass on the liability to the landowners). Once Parliament repealed this option the authority could not thereafter choose to make demand upon the occupiers.
The only other of Mr. Drabble's authorities with which I must deal is Free Lanka, upon which, as I have said, he places considerable reliance. In my judgment the Privy Council's decision there ought not to be read as having depended in any way upon the respondent having served notice of his claim upon the insurers. Merely to observe that such a notice "was an assertion by him of his statutory right against the appellants" is not to say that such an assertion of right was a precondition to finding the right already "acquired" in the first place.
What to my mind all these cases establish is essentially this: that whether or not there is an acquired right depends upon whether at the date of repeal the claimant has an entitlement (at least contingent) to money or other certain benefit receivable by him provided only that he takes all appropriate steps by way of notices and/or claims thereafter. The tenant had such a contingent right to compensation in Hamilton Gell v White. The County Council of Moray had such a right once the owner had voluntarily alienated his improved property there. Mr. Ranasinghe, as I believe, had that right as soon as he was injured by the insured person. Convex Ltd had that right merely through their patent having lapsed. The Secretary of State in Plewa had the right as soon as he overpaid benefits there. In none of these cases was the final claim made until later. In my judgment Mr. Maguire's right accrued on 1 April 1985 when VWF (a disease from which he already suffered) was first prescribed. It matters not that he claimed only after repeal.
I would accordingly dismiss this appeal.
LORD JUSTICE WALLER:
Subject to one minor reservation I agree. That minor reservation relates to whether there is any distinction in the context with which this case is concerned between an "acquired right" and an "accrued right". Mr. Drabble's submission founded on the dictum from Abbott quoted by Simon Brown LJ was that one could not have an accrued right "without any act done by an individual towards availing himself of that right". The answer to that submission is that that must depend whether on the wording of the statute the claimant is bound to do something in order to have a right which is "accrued", and in any event Mr. Maguire can succeed if he demonstrates that he had "acquired" a right even if it had not accrued.
In my view there is a distinction between a "right acquired" by virtue of something that has happened to the claimant (as in this case an injury at work), and a "right accrued" whereby I would understand the claimant may have had to fulfil certain further conditions in order to make that right fully enforceable. This seems to me what Atkin LJ had in mind in Hamilton Gell v. White in the passage of his judgment at 431 where he said that the tenant has "acquired" a right, which would "accrue" when he has quitted his holding.
It does not make any material difference in the context of this case, but I confess to feeling that in fact Mr. Maguire had "acquired" a right which would have "accrued" once he made the claim that provided the entitlement to it.
LORD JUSTICE CLARKE:
I agree. Mr. Maguire claims a right to special hardship allowance (SHA) under section 60 of the Social Security Act 1975. As I understand it, he does so by reason of the combined effect of section 60(7) of the Act and regulation 18(1) of the Social Security (General Benefit) Regulations 1982. It is common ground that the effect of section 60 in a case of this kind (where applicable) was to increase the disablement benefit to which the claimant is entitled under section 57(1) of the Act. Section 57(1) provided that an employed earner "shall be entitled" to disablement benefit if he suffers from loss of physical or mental faculty of more than a particular degree as a result of a specified accident. Section 60 provided in effect that that disablement benefit "shall ... be increased" if as the result of the relevant loss of faculty the beneficiary
(a) is incapable, and likely to remain permanently incapable of following his regular occupation; and
(b) is incapable of following employment of an equivalent standard which is suitable in his case.
or if as the result of the relevant loss of faculty the beneficiary is, and has at all times since the end of the injury benefit period been, incapable of following that occupation or any such employment.
As Lord Justice Simon Brown has indicated, section 79(1) provided that " ... it shall be a condition of a person's right to any benefit that he makes a claim for it in the prescribed manner and within the prescribed time".
Both section 60 and section 79 were subsequently repealed. However, it is convenient to consider what the position of Mr. Maguire would have been if section 60 had been repealed while section 79(1) remained in force, but before the expiry of the time prescribed in accordance with that section. By section 16(1)(c) of the Interpretation act 1978 a repeal does not, unless the contrary intention appears, "affect any right acquired" or "accrued" under the enactment repealed. No-one suggests that the contrary intention appears. It follows that, on the above assumption, the question would be whether Mr. Maguire had acquired a right under section 60 before it was repealed.
With one possible qualification, to which I shall return in a moment, I entirely agree with Lord Justice Simon Brown's analysis of the authorities. The question whether the claimant has acquired a right under the repealed statute in each case depends upon the true construction of the statute and, of course, upon the facts of the particular case. In the instant case it depends upon the true construction of section 60 of the 1975 Act. Mr. Howell submits that a claimant acquires a right under the section as soon as the substantive conditions set out in it have been satisfied. Thus, for example, he acquires the right once he has established that he is incapable and is likely to remain permanently incapable of following his regular occupation and that he is incapable of following employment of an equivalent standard which is suitable in his case. He submits that that is the effect of the provision that in those circumstances the benefit "shall be increased".
I accept that submission. In my judgment on the facts which I have assumed a claimant acquired a right under the section when he satisfied the substantive criteria. The existence of that right did not depend upon the making of a claim in accordance with section 79(1). In Insurance Officer v. McCaffrey [1985] 1 All ER 5 the House of Lords held that section 79 was dealing (as Lord Scarman put it at p 6) only with the business of claims and awards. The right was conferred by section 60 and, in my opinion, on the facts which I have assumed there can be no doubt that if the relevant period for making a claim had not expired when section 60 was repealed, Mr. Maguire could thereafter have made a claim in order to enforce the right which he had previously acquired under the section.
In fact, by the time section 60 was repealed, section 79 had already been repealed and replaced by section 165A of the 1975 Act which was introduced by section 17 of the Social Security Act 1985. A question might have arisen whether that Act altered the position, but, as Lord Justice Simon Brown has indicated, Mr. Drabble does not submit that it did. Section 165A was introduced to reverse the effect of the McCaffrey case, which was concerned with section 36(1) of the Social Security (Northern Ireland) Act 195, which provided for the case in which a person was "entitled to a pension". Sections 57 and 60 are not expressed in the same way and, for the reasons which I have given, in my judgment created rights as soon as the substantive criteria were met.
Thus when section 60 was repealed, the fact that by then section 79 had been replaced by section 165A does not affect the conclusion stated above. Mr. Maguire could make a claim (as long as he did so in time) in order to enforce the right which was conferred on him by section 60 as soon as he satisfied the substantive criteria under the section. The right can be analysed in more than one way. It can be said that from that time he had a right to benefit which he could enforce by making a claim in accordance with section 165A. Alternatively it can be said that from that time he had a right to make a claim, which was the way in which Lord Hunter analysed the facts in the County Council of Moray case [1962] SLT 236 at 240. As the authorities show, the fact that the right may be characterised as contingent on some future event, namely the making of a claim, is not relevant provided that it can fairly be said that Maguire had a right and not merely a hope or expectation at the date of the repeal. For the reasons which I have tried to give, in addition to those given by Lord Justice Simon Brown, in my opinion he had such a right.
I would only add two points, the first of which is referred to by Waller LJ and is the qualification to which I referred earlier. While I agree that it is not desirable to introduce narrow distinctions between "acquired" rights on the one hand and "accrued" rights on the other, it has to be recognised that the distinction is referred to in some of the cases. It is perhaps made most clearly by Atkin LJ in Hamilton Gell v. White [1922] 2 KB 422 at 431, where he said by reference to section 38 of the Interpretation Act 1889, which was the forerunner of section 16 of the 1978 Act:
"It only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute [ie the Agricultural Holdings Act 1908]. Here the necessary event has happened, because the landlord has, in view of a sale of the property, given the tenant notice to quit. Under those circumstances the tenant has "acquired a right", which would "accrue" when he has quitted his holding, to receive compensation."
It appears from that passage that it is possible to acquire a right for the purposes of what is section 16 of the 1978 Act even though the right has not yet accrued. In my opinion Mr. Maguire had acquired a right under section 60 before its repeal, even if (as Waller LJ suggests) that right would not accrue until a claim was made. It follows that I agree with Waller LJ that any distinction between an "acquired" right and an "accrued" right does not affect the outcome of this appeal.
The second point is this. Mr. Drabble told us that the Secretary of State wanted guidance for the future. It seems to me that the argument here has underlined what was in any event surely quite clear, namely the importance of including clear transitional provisions in statutes of this kind. As Lord Evershed put it in Free Lanka Insurance Co Ltd v. Ranasinghe [1964] AC 541 at p. 552, the distinction between what is or is not a right may often be one of great fineness. It is surely far better for the statute to state clearly what rights are to survive and what rights are not, so that fine distinctions and the costs of endless debate as to whether a particular alleged right has been acquired or not can be avoided.
However that may be, for the reasons which I have given in addition to those given by Lord Justice Simon Brown, I agree that the appeal should be dismissed.
Order: Appeal dismissed with costs. Leave to appeal refused.
