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Neutral Citation Number:
Reported Number: R(IS)12/96
File Number: CIS 787 1991
Appellant: Chief Adjudication Officer v. Bate
Respondent:
Judge/Commissioner: Mr R. A. Sanders
Date Of Decision: 16/05/1996
Date Added: 25/07/2002
Main Category: Revisions, supersessions and reviews
Main Subcategory: supersession: general
Secondary Category: Members of a household
Secondary Subcategory: Other
Notes: Anti-test case rule - whether the only decisions whose reversal brings the rule into operation are those made consistently with a binding authority - whether the rule has effect on subsequent decisions of Commissioners or the courts Severe disability premium - meaning of the term “resides with” in the definition of “non dependant” - meaning of the term “jointly occupies” in the exception from the definition Miss Bate was a single woman with learning difficulties who lived with her parents in a house owned by them. She was in receipt of supplementary benefit until 1988 when this was converted to income support. In calculating her entitlement the adjudication officer decided that she did not satisfy the qualifying conditions for severe disability premium set out in paragraph 13(2)(a)(ii) of the Income Support (General) Regulations 1987 because her parents were non-dependants who resided with her. In May 1990 a Commissioner made decisions in two cases (Trotman/Crompton) involving claimants who lived with their parents without being joint owners with them. He held that the parents were persons who jointly occupied the claimant’s dwelling and so fell within the exception from the definition of non-dependant in regulation 3(2)(c) of the Income Support (General) Regulations 1987. The term “jointly occupies” merely meant that the occupiers enjoyed equality of access and use of the premises. Miss Bate considered that this rule applied to her case and so in August 1990 applied for a review of her entitlement. The adjudication officer refused to review on the grounds that the “anti-test case rule” set out in sections 104(7) and (8) of the Social Security Act 1975 applied. The Trotman/Crompton decision was a “relevant determination” and so Miss Bate’s entitlement for any period prior to May 1990 had to be determined as if the Commissioner had found the decision of the adjudicating authority under appeal in Trotman/Crompton not to be erroneous in law. Miss Bate appealed to a social security appeal tribunal who in November 1990 allowed her appeal. The adjudication officer appealed to a Commissioner. The arguments before the Commissioner were concerned solely with the interpretation of the anti-test case rule. The claimant contended that the only decisions of an adjudicating authority whose reversal would bring the rule into operation were those made consistently with a binding authority. In a decision of 13 January 1993, Mr. Commissioner Sanders rejected this interpretation and allowed the appeal, substituting his own decision that Miss Bate was not entitled to the severe disability premium. Miss Bate appealed to the Court of Appeal. In argument before the Court, both parties advanced fresh contentions regarding both the effect of the anti-test case rule and the qualifying conditions for severe disability premium. In its decision of 30 November 1994, the Court (Glidewell, Mann and Millett LJJ) held that: (1) the anti-test case rule had no effect on subsequent decisions made by Commissioners or the Courts because the rule only covered how “a question arising on the review” should be dealt with. In a case such as the present a Commissioner or the Court was not conducting a review but rather dealing with an appeal from a refusal to review; (2) the phrase “jointly occupies” in regulation 3(2)(c) of the General Regulations connoted that the occupation of the premises by each of the persons concerned was based on the same legal right; (3) Miss Bate’s parents were not her non-dependants as defined in regulation 3(1) of the General Regulations because they did not reside with her. A person who was not a householder could be said to reside with the householder but the reverse was not the case. The Court therefore allowed the appealed. The adjudication officer appealed to the House of Lords. Held, allowing the appeal, that: 1. the “anti-test case rule”, set out in sections 104(7) and (8) of the Social Security Act 1975, had effect on subsequent determinations made by Commissioners or the Courts. The contrary was not implied by the use of the term “question arising on the review” in section 104(8). If the adjudication process is commenced by an application for review, the subsequent stages of reconsideration at each level are part of the same process and this remains one of review, irrespective of whether the application for review is accepted or rejected (page 8); 2. there was nothing in the wording of the legislation to limit the application of the anti test case rule to cases where the decision of the adjudicating authority referred to in section 104(7) of the Social Security Act 1975 was one made consistently with a binding authority (page 8); 3. the term “resides with” in regulation 3(1) of the Income Support (General) Regulations 1987 meant no more than that the claimant and the other person live in the same residence or dwelling. The phrase applied both where the household is that of the claimant and where it is that of the other person. Who has the ownership or tenancy of the property was irrelevant for the purpose of deciding whether a person resides with the claimant (page 11); 4. the term “jointly occupies” in regulation 3(2)(c) of the Income Support (General) Regulations 1987 did not apply where there was merely co-residence of the claimant and the other person. It is a technical expression which connotes that the persons concerned have a common legal relationship either with a third party or an item of property. The decision of the Court of Appeal to the same effect in Fulwood v. Chesterfield BC [1993] 92 LGR 160, interpreting a similarly worded provision in the housing benefit regulations, approved (page 12). The decision of the Court of Appeal was set aside and the decision of the Commissioner that Miss Bate was not entitled to severe disability premium was restored.
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