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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Campbell v Secretary of State for Work & Pensions [2005] EWCA Civ 989 (28 July 2005) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2005/989.html Cite as: [2005] EWCA Civ 989 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
CIB/3645/2002
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE CHADWICK
and
LADY JUSTICE ARDEN
____________________
RUPERT DAWKIN CAMPBELL |
Appellant |
|
- and - |
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SECRETARY OF STATE FOR WORK AND PENSIONS |
Respondent |
____________________
Mr Philip Sales and Mr Paul Nicholls (instructed by Office of the Solicitor to the Department of Work and Pensions, 48 Carey Street, London WC2A 2LS) for the Respondent
Hearing date : 27 April 2005
____________________
Crown Copyright ©
Lord Justice Chadwick :
The statutory framework
"(1) This section applies to any decision of the Secretary of State under section 8 . . . above . . . which –
(a) is made on a claim for, or an award of, a relevant benefit, and does not fall within Schedule 2 to this Act;
(b) is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act; or
(c) . . .
(2) In the case of a decision to which this section applies –
(a) . . .
(b) . . . the claimant . . . shall have a right to [appeal to an appeal tribunal];
. . . "
"(1) For the purpose of giving effect –
(a) to any agreement with the government of a country outside the United Kingdom providing for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of legislation to which this section applies, or
(b) . . . ,
Her Majesty may by Order in Council make provision for modifying or adapting such legislation in its application to cases affected by the agreement . . .
(2) An order made by virtue of subsection (1) above may, instead of or in addition to making specific modifications or adaptations, provide generally that legislation to which this section applies shall be modified to such an extent as may be required to give effect to the provisions contained in the agreement . . .
(3) . . .
(4) This section applies –
(a) to the Contributions and Benefits Act;
. . .
(b) to this Act,
. . ."
"The Social Security Administration Act 1992 and the Social Security Contributions and Benefits Act 1992 shall be modified to such an extent as may be required to give effect to the provisions contained in the Convention and the Protocol set out in Schedules 1 and 2 respectively to this Order so far as the same relate to England, Wales and Scotland."
"Except where regulations otherwise provide, a person shall be disqualified for receiving any benefits under Parts II to V of this Act . . . for any period during which the person –
(a) is absent from Great Britain; . . ."
"(1) In this article "competent authority means, in relation to Great Britain, the Secretary of State for Social Security.
(2) Where a person is entitled to receive invalidity benefit under the legislation of the United Kingdom, he shall be entitled to receive that benefit in the territory of Jamaica provided that, at the time of leaving the United Kingdom he was considered by the competent authority of the United Kingdom likely to be permanently incapacitated for work, and that he subsequently continues to satisfy that authority that he remains incapacitated for work.
(3) Where a person would be entitled to receive for the same incapacity and for the same period invalidity benefit under the legislation of both Parties, whether by virtue of the Convention or otherwise, he shall be entitled to receive only the invalidity benefit under the legislation of the Party in whose territory the incapacity began."
The issues on this appeal
"Such other decisions as may be prescribed"
Regulations prescribing decisions (other than the decisions specifically mentioned in schedule 2 to the 1998 Act itself) against which no appeal lies are found in schedule 2 to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) ("the Decisions and Appeals Regulations"). Paragraph 22 of schedule 2 to the Decisions and Appeals Regulations is in these terms:
"A decision of the Secretary of State made in accordance with an Order made under section 179 of the Administration Act (reciprocal agreements with countries outside the United Kingdom)"
"A decision whether a relevant benefit (or a component of a relevant benefit) to which a person is entitled is not payable by reason of –
(a) any provision of the Contributions and Benefits Act by which the person is disqualified for receiving benefit; . . . "
The underlying facts
"5. The claimant was born in Jamaica on 11 June 1950. He moved to Great Britain in 1984, and was employed by a local authority as a minibus driver and helper at a care centre for the elderly. In February 2000, he became incapable of work because of depression and, from April, received statutory sick pay.
6. After his period of entitlement to sick pay expired, it was followed by an award of incapacity benefit from 10 October 2000. In the absence of any evidence to the contrary, the parties agreed that, by virtue of Regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968, as amended), this award was probably made for an indefinite period. However, the claimant's continued entitlement to this benefit was dependent upon his satisfying the all work test (now the personal capability assessment), although, in the usual way, under Regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No 311), as amended), he was initially treated as satisfying that test pending assessment. In any event, although it is not clear whether he actually underwent a medical examination, following a reference to Benefits Agency Medical Services, on 25 November the claimant was assessed as satisfying the all work test. Following that assessment, on 29 November 2000 a decision maker on behalf of the Secretary of State decided that benefit should continue, recording his decision as a 'refusal to revise the original decision awarding benefit.
7. In the meantime, at the request of his employers, the claimant had been seen by a psychiatrist, who advised that the claimant's depression could improve with support and psychiatric treatment, but that a return to work with the council would exacerbate his disorder. On the basis of that opinion, the council's occupational health physician advised that the claimant was unable to perform the duties for which he had most recently been employed, and that that situation was likely to be permanent. He recommended ill health retirement, and the claimant's employment was terminated in accordance with that advice, on 27 November 2000.
8. On 23 November (two days before his all work assessment), the claimant informed the Benefits Agency that he was going to Jamaica on 27 November for health reasons, indicating that he intended to return in September 2001. The claimant did indeed leave Great Britain for Jamaica on 27 November 2000."
"16. On 7 March 2001 the claimant's case for exception under Article 13(2) was considered by a decision maker, who referred it again to Benefits Agency Medical Services for medical advice on the question of whether, as at the date of his departure from Great Britain, the claimant was 'likely to be permanently incapacitated for work'. A letter was obtained from the claimant's general practitioner, advising that the claimant had made a partial response to antidepressant and counselling treatment, but the claimant felt he would be unable to recover fully in this country and consequently had made arrangements to go to Jamaica. Taking that into account, the approved doctor advised the decision maker on 7 July 2001 that it was not likely that the claimant would remain permanently incapable of work. On the basis of that advice, on16 August 2001, the decision maker made a 'Decision on Payment of [Incapacity Benefit Long Term] in Jamaica' purportedly superseding the awarding decision, and disqualifying the claimant from receiving benefit from 29 May 2001 to 30 December 2001. That decision was notified to the claimant by letter dated 21 August 2001. That letter indicated that the claimant could ask to have the decision reconsidered, and:
'If the decision can be changed we will send you a new decision. If we cannot change the decision we will tell you why. You will still have right of appeal against the decision'
17. On 30 August 2001 the claimant's wife applied on his behalf for the decision to be reconsidered, enclosing with her letter the medical evidence obtained by his employers and the claimant's letter of dismissal, and indicating that the claimant intended to live permanently in Jamaica, although returning for brief periods every two years to maintain his immigration status. The decision was duly reconsidered on 16 October 2001. However, the decision maker considered that the new medical evidence submitted on behalf of the claimant showed that, although the claimant was incapable of carrying out his regular occupation, it did not indicate that he was incapable of carrying out any (i.e. all forms of) employment. On that basis the decision was not revised."
The appeal to the Bradford Appeal Tribunal
"On the oral evidence heard at the Tribunal hearing [on 23 April 2002] it is doubtful whether the Secretary of State was aware of the evidence at Documents 44 and 45 of the submission when the original decision as to the Appellant's entitlement was made.
In the opinion of the Tribunal, Documents 44 and 45 provide strong evidence that the Appellant was likely to be permanently incapacitated for work prior to him leaving the UK in November 2000. These documents clearly show that the Appellant was not considered capable of undertaking the large number of different jobs which would no doubt be available with Bradford Metro Council."
". . . given the past history, I do not think returning to employment with the Bradford Council would be therapeutic. It is highly likely that this would exacerbate Mr Campbell's depressive disorder and put him at risk of future ill health and increased distress for him and his family.
. . . his depression can improve with support and psychiatric treatment. However, in my view, a return to Council employment will exacerbate the stress and would definitely cause a relapse. I do not think it is in his interest"
Dr Shaw had expressed his own view in these terms:
"From this I can conclude Mr Campbell is currently unable to perform the duties for which he was most recently employed. Furthermore this situation is regarding (sic) as being permanent, as stated by a Consultant Psychiatrist. Clearly the employee's medical condition is likely to be aggravated by returning to that post and therefore it may be perceived that the medical condition may make it unsafe for him to continue as before. . . .
Under the comparability clause [internal to the Council's employment code of practice] one has to consider whether the contents, working hours, or location of the employee's job could be changed within the terms of his contract to enable him to return to work within the organisation. . . . On the basis of the Consultant Psychiatrist's report and also my own assessment of the situation, I feel it would be unreasonable to attempt to redeploy Mr Campbell as, like the Psychiatrist, a return to Council employment would exacerbate the stress and would definitely cause relapse."
"The factual report from the doctor indicates that [Mr Campbell] has depression, partly due to being away from his native home and some negative racial experiences in the UK. In this situation I consider it is not likely that he will remain permanently incapable of work."
The decision maker had noted, on 16 October 2001, that:
"The new medical evidence shows that Mr Campbell is incapable of carrying out his regular occupation. It does not indicate that he is incapable of carrying out employment.
Mr Campbell is therefore not entitled to receive incapacity benefit under the UK/Jamaica agreement."
That was the reason given when Mr Campbell was notified, in a letter dated 24 October 2001, that the earlier decision remained unchanged.
The appeal to the Commissioners
"There is no definition of 'award' in the 1998 Act or, so far as we are aware, in its predecessor statutes or any relevant regulations. However, both parties submitted that some assistance in determining whether a decision under Article 13(2) is 'on an award' could be derived from the provisions of Schedules 2 and 3 to the Act, each party adopting the same approach (albeit to different ends). [The claimant] submitted that, if a decision under Article 13(2) fell within one of the exceptions in Schedule 3 (as he submitted it did), then the decision must be covered by section 12(1)(b) (otherwise Schedule 3 was not engaged), and therefore, by definition it cannot be a decision on an award. To the same effect [the Secretary of State] submitted that, if a decision under Article 13(2) fell within one of the exceptions in Schedule 2 (as he submitted it did), then the decisions must be covered by Section 12(1)(a) (otherwise Schedule 2 is not engaged), and it must therefore be a decision on a claim or award. Despite their different conclusions, we accept the common ground between the parties on this issue, namely that, in construing Section 12(1), regard can and should be had to Schedules 2 and 3 to the same statute "
"for theses reasons we consider that a decision made under Article 13(2) to be a decision 'on an award', and consequently it falls within the confines of Section 12(1)(a), and is the subject of the exclusion from appeal found in Paragraph 9 of Schedule 2 to the 1998 Act"
Accordingly the Commissioners allowed the appeal on the ground that the appeal tribunal had been without jurisdiction.
This appeal
"A decision of the Secretary of State made in accordance with an Order made under section 179 of the Administration Act (reciprocal agreements with countries outside the United Kingdom)."
Paragraph 3(a) of Schedule 3 to the 1998 Act includes, amongst decisions against which an appeal lies:
"A decision whether a relevant benefit (or a component of a relevant benefit) to which a person is entitled is not payable by reason of –
(a) any provision of the Contributions and Benefits Act by which the person is disqualified for receiving benefit; . . . "
"A decision whether to certify, in accordance with regulations made under . . . section 113(1) of the Contributions and Benefits Act, that it is consistent with the proper administration of the Act to treat a person as though he were present in Great Britain."
The effect of treating a person as if he were present in Great Britain at a relevant time (when he is not, in fact, in Great Britain) is that the disqualification for receiving benefit under Parts II to V of the Contributions and Benefits Act – imposed by section 113(1) of that Act – does not apply to him. An example of a regulation which provides that the disqualification imposed by that section shall not apply to a person who is temporarily abroad if the Secretary of State certifies that it is consistent with the proper administration of the Act that it should not do so is found in regulation 2(1)(a) of the Persons Abroad Regulations, to which I have already referred:
" . . . a person shall not be disqualified for receiving any benefit by reason of incapacity by reason of being temporarily absent from Great Britain for any day falling within the first twenty-six weeks beginning with the day following the day on which he left Great Britain if – (a) The Secretary of State has certified that it is consistent with the proper administration of the Act that . . . the disqualification under section [113(1)] should not apply."
Article 6 of the European Convention on Human Rights
"We should make clear that we accepted that concession for the purposes of this case, and our judgment is based upon it. As such the determinative issue in relation to this aspect of the appeal therefore turned simply on whether Article 13(2) imposes such a subjective test."
"In our judgment its purpose [that is to say, the purpose of the separate definition in article 13(1)] is clear. It was intended to reserve decisions under that particular article to the Secretary of State, rather than having the competent authority remaining as simply the relevant Government Department (which, for reasons set out above, would have meant that the decision maker would have been an adjudication officer). It was intended that the exception provided by article 13(2) should only be available if the Secretary of State considered the claimant likely to be permanently incapacitated for work when leaving great Britain. It was intended that, consequently, such decisions should not be appealable. Mr Sales [for the Secretary of State] submitted in his written argument before us that:
'The precondition . . . under Article 13(2) of the Reciprocal Agreement and the Jamaica Order is very different from the usual objective test under the Contributions and Benefits Act. The precondition . . . is expressed in terms of whether the competent authority in the UK (the Secretary of State) 'considers' a person 'likely to be permanently incapacitated for work' and is a continuing precondition depending on whether the claimant 'subsequently continues to satisfy that authority that he remains incapacitated for work'. It is therefore clearly a precondition which depends on the satisfaction of the Secretary of State that there is likely permanent incapacity for work - which is a subjective test, subject to the usual requirement of rationality on the part of the decision maker.'
With respect to the position in 1997 (when the Jamaica Order was made), having rejected [counsel for the claimant's] submission with regard to the purpose of article 13(1) (and accepting Mr Sales' submission with regard to that provision), we consider there is no compelling alternative to the construction suggested by Mr Sales."
They were not persuaded that the position changed following the enactment of the 1998 Act. As they pointed out, nothing in the 1998 Act purported to affect the provisions of the Jamaica Order: "In particular, whilst effectively transferring the functions of adjudication officers to the Secretary of State, [the 1998 Act] did nothing to affect the nature of a decision under article 13(2), i.e. as a decision in respect of a precondition of being exempted from disqualification from benefit". It followed from that finding – and from the concession – that article 6 of the Human Rights Convention had no application.
The respondent's notice
Conclusion
Lady Justice Arden:
"(1) Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulations or where the meaning of the Act is ambiguous.
(2) Regulations made under the Act provide a Parliamentary or administrative contemporanea expositio of the Act but do not decide or control its meaning: to allow this would be to substitute the rule-making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires.
(3) Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation.
(4) Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former.
(5) The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify.
(6) Clear guidance may also be obtained from regulations which are to have effect as enacted by the parent Act."
Lord Justice Judge: