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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Blakey, R (on the application of) v Secretary of State for Work & Pensions [2009] EWHC 172 (Admin) (13 January 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/172.html Cite as: [2009] EWHC 172 (Admin), [2009] PTSR 1645

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13 January 2009

1. THE DEPUTY JUDGE: In these proceedings the claimant seeks to recover Invalid Care Allowance (ICA) for the period from 18 November 1994 until 17 October 2001. The sum at stake has not been precisely quantified but it is in the region of £18,000 plus interest.

Factual background

2. In 1988 the claimant, Pamela Blakey, claimed Invalid Care Allowance for looking after her ill husband. The defendant decided that she was entitled to ICA, but as the claimant was also in receipt of Invalidity Benefit (IB), by virtue of Regulation 4 of the Social Security (Overlapping Benefits) Regulations 1979, no ICA fell to be paid to the claimant.
3. On 18 November 1994 the claimant's entitlement to IB ceased. That meant that the claimant could receive payment of ICA in full. The claimant did not inform the Secretary of State's ICA Unit that she was no longer receiving IB, with the consequence that no ICA was paid to her. On 17 October 2001, as a result of a routine review of the claimant's case carried out by the defendant, the failure on the part of the defendant to pay ICA was discovered and a decision was made to enter payment to the claimant from and including 18 October 2000.
4. On 10 December 2001 the claimant was notified by letter from the ICA Unit in the following terms:

"Dear Mrs Blakey

You asked us to look again at a decision about Invalid Care Allowance. We have looked again at the facts and the evidence we used to make our decision. As a result we have changed the decision.

We cannot change the decision from 22/11/1994 to 17/10/2000. This is because you did not tell us about the change until more than one month after the change occurred."

5. The second page of the letter had a sub-heading, "How to appeal". That part reads as follows:

"How to appeal

If you want to appeal you should fill in the form in leaflet GL24. Please send it to the address at the top of this letter within one month of the date of this letter. You can get this leaflet from your local Social Security office or by contacting the Invalid Care Allowance Unit. Your appeal will be heard by an independent appeal tribunal."

No appeal was made by the claimant.

6. In October 2002 Invalid Care Allowance became known as the Carer's Allowance. It remains a non-contributory allowance.
7. On 5 January 2005 the claimant's solicitors wrote to the Carer's Allowance Unit of the defendant seeking retrospective payment of ICA from 1994 until 2000. The solicitor referred to the case of Adams v the Secretary of State for Work and Pensions [2003] EWCA Civ 796, which had been decided in June 2003. The defendant replied on 19 May 2005 in the following terms:

"I am writing a response to your solicitors' letter that we received on 07.01.05. Please accept my apologies for the lateness of my reply.

I can confirm that the Commissioner's decision to which your solicitor refers can only be applied from 18.06.02, this being the date of the Commissioner's decision.

Therefore the decision regarding your claim which was made on 17.10.01 cannot be revised to give payment from an earlier date."

8. On the same date (5 January 2005) the claimant's solicitor also wrote to the National Insurance Contributions Office seeking a credit for National Insurance Contribution during the same period. By a series of letters (all dated the 12 October 2005) National Insurance Contributions were credited by the defendant to the account of the claimant for the period in question.
9. On 10 April 2006 the solicitor for the claimant wrote again to the defendant. He maintained that the decision on the part of the Carer's Allowance Unit to decline to pay the arrears of ICA to the claimant was wrong in law after the Court of Appeal decision in Adams. The letter pointed out that, on 18 June 2002, Mr Commissioner Howell QC had determined that, in the case of Adams, there was no need for a revision or supersession. It was argued that the decision in Adams applied by analogy to the claimant's case.
10. The letter continued:

"The Carer's Allowance Unit informed our client that the Commissioner's decision 'can only be applied from 18 June 2002, this being the date of the Commissioner's decision. Therefore the decision regarding your claim which was made on 17 October 2001 cannot be revised to give payment from an earlier date'.

The Carer's Allowance Unit appears to be explaining the effect of the anti-test-case rule applying to social security benefits. It is our respectful submission to you that the Carer's Allowance Unit is in error in doing so. Surely, the whole point of the Court of Appeal's ruling in Adams is that arrears should be paid without the need for revision or supersession decision in the usual form? The wording of the anti-test-case rules is to limit arrears that are payable on a revision or supersession. Since there is no need for a revision or supersession, it is hard to see how the anti-test-case rules have any application whatsoever. It is accordingly our submission that our client is entitled to rely upon the interpretation of the law given in the Commissioner's decision, but the department is not entitled to rely upon the anti-test-case rule to refuse to give effect to that Commissioner's decision in our client's case."

11. On 21 April 2006 the defendant wrote in reply, refusing the claim, and said:

"We note that your letter seeks to question a decision made on 10.12.2001; almost four and a half years ago. We also note that the same letter informed your client of her right to appeal against that decision. It is not clear from your recent correspondence whether appeal rights were pursued in time or at all."

12. The claimant's solicitors wrote again to the Carer's Allowance Unit on 5 July 2006 seeking to revisit the decision that arrears could be paid only from 18 June 2002. They repeated their reliance on the case of Adams, and regarded the apparent reliance on the part of the defendant on the anti-test case rule as misconceived. They set out three alternative approaches which they contended the defendant could lawfully follow. Correspondence then continued between solicitors for the claimant and solicitors for the defendant, with one seeking retrospective payment of ICA and the other refusing to give it. That continued until 7 August 2007, when the current claim for judicial review was instituted. An acknowledgment of service was filed by the defendant on 5 September 2007 accompanied by summary grounds of resistance.
13. On 21 December 2007 the matter was considered by Irwin J on the papers. He sought further information on four points. Those were: (1) the failure to appeal the decision of 10 December 2001; (2) the submission that judicial review should be permitted in such a case as this only in exceptional circumstances; (3) the submission that there are no wholly exceptional circumstances in this case; (4) the fact that the period for application for permission for judicial review here is long expired. Irwin J reserved the application to himself.
14. The claimant provided a response to the acknowledgment of service and included further information on the four points that Irwin J required further evidence to be filed upon. On 19 February 2008 Irwin J granted permission to proceed, and on 1 April 2008 detailed grounds were filed by the defendant.

The legislative framework

15. When a claim for benefit is made, Regulation 17 of the Social Security (Claims and Payments) Regulations 1987 provides that a claim for benefit shall be treated as made for an indefinite period and any award of benefit on that claim shall be made for an indefinite period. The claim for benefit is capable of adjustment in certain circumstances. Thus, Regulation 4 of the Social Security (Overlapping Benefits) Regulations says:

"4. Adjustment of personal benefit under Parts II and III of the Contributions and Benefits Act where other personal benefit under those Parts or graduated retirement benefit is payable.

(1) Subject to paragraphs (2), (3) and (4) and regulations 12, an adjustment shall be made in accordance with paragraph (5) where either–

(a) two or more personal benefits (whether of the same or a different description) are, or but for this regulation would be, payable under Parts II and III of the Contributions and Benefits Act (which relate to benefits other than industrial injuries benefits)[Part 1 of the Welfare Reform Act][or under the Jobseekers Act] for any period;

...

(5) Where an adjustment falls to be made in accordance with this paragraph and-

(a) one of the benefits is a contributory benefit and one is a noncontributory benefit, the non-contributory benefit shall be adjusted by

deducting from it the amount of the contributory benefit and only the balance, if any, shall be payable.

(b) sub-paragraph (a) above does not apply, if one of the benefits is payable on a weekly basis-

(i) where the beneficiary has made application, before the payment is made, to have the benefit payable on a weekly basis adjusted, it shall be adjusted by deducting from it the amount of the other benefit and only the balance of it, if any, shall be payable.

(ii) in any other case, the benefit not payable on a weekly basis shall be adjusted by deducting from it the amount of the other benefit and only the balance of it, if any, shall be payable.

(c) sub-paragraphs (a) and (b) above do not apply, the amount payable in respect of the benefits in question shall be an amount equal to that which would but for this provision be payable in respect of-

(i) one of them, if they would have been payable at the same rate or

(ii) the higher or highest of them, if they would have been payable at different rates,

so however that in a case where more than 2 benefits would be payable then the total amount payable shall not exceed the amount which would be ascertained

under sub-paragraph (c)."

16. The primary legislation is the Social Security Act 1998. Entitled "Social security decisions and appeals", section 8 is shoulder-noted "Decisions by Secretary of State". The relevant part of that section reads:

"(1) Subject to the provisions of this Chapter, it shall be for the Secretary of State—

(a) to decide any claim for a relevant benefit;

...

(c) subject to subsection (5) below, to make any decision that falls to be made under or by virtue of a relevant enactment ..."

17. Section 9 is not relevant. Section 10 is entitled "Decisions superseding earlier decisions" and provides as follows:

"(1) Subject to subsections (3) and (4) and section 36(3) below, the following, namely—

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

(b) any decision under this Chapter of an appeal tribunal or a Commissioner,

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

(2) In making a decision under subsection (1) above, the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative."

18. Section 27 of the Act deals with restrictions on entitlement to benefit in certain cases of error:

"(1) Subject to subsection (2) below, this section applies where—

(a) the effect of the determination, whenever made, of an appeal to a Commissioner or the court ("the relevant determination") is that the adjudicating authority's decision out of which the appeal arose was erroneous in point of law; and

(b) after the date of the relevant determination a decision falls to be made by the Secretary of State in accordance with that determination (or would, apart from this section, fall to be so made)—

(i) in relation to a claim for benefit;

(ii) as to whether to revise, under section 9 above, a decision as to a person's entitlement to benefit; or

(iii) on an application made under section 10 above for a decision as to a person's entitlement to benefit to be superseded.

...

(3) In so far as the decision relates to a person's entitlement to a benefit in respect of—

(a) a period before the date of the relevant determination; or

(b) in the case of a widow's payment, a death occurring before that date,

it shall be made as if the adjudicating authority's decision had been found by the Commissioner or court not to have been erroneous in point of law."

The claimant's case

19. The claimant's case is that, through her claim for benefit in 1988 and the decision on the part of the defendant to award it to her, she had an underlying entitlement to benefit by virtue of Regulation 17 of the Social Security (Claims and Payments) Regulations. That entitlement subsisted throughout the period in question, including the period from November 1998 until October 2000. The effect of Regulation 4 of the Social Security (Overlapping Benefits) Regulations was to operate in the claimant's case as a blocking or accounting mechanism in respect of ICA. For the period when incapacity benefit was payable, the Invalid Care Allowance was adjusted to zero so long as the two benefits were payable simultaneously. Both benefits were benefits payable under the National Insurance scheme. Incapacity benefit was a contributory benefit under Part II of the Social Security Contributions and Benefits Act, and Invalid Care Allowance was a non-contributory benefit under Part III of the Act.
20. Incapacity Benefit ceased to be paid to the claimant on 17 November 1994. The claimant obtained the restoration of ICA from 18 October 2000. In the letter which notified her of that decision, dated 10 December 2001, she was informed of her right to appeal. At no time did the claimant exercise her right to appeal to claim any further back-payment because, she submits, she did not have to do so. The claimant argues that upon cessation of Invalidity Benefit there was a reactivation of the subsisting underlying right to ICA. There was therefore no decision on the part of the defendant.
21. On 18 June 2002, the Social Security Commissioner, Mr Howell QC, decided the case of Adams. That is a case of some similarity to the present. Mr Adams was aged 51 and cared for his partner, a severely disabled person. He was entitled to ICA from 20 June 1995 for that reason. However, from June 1995 until May 2000, he was also entitled to Incapacity Benefit which was payable to him because of his own medical condition. When the Incapacity Benefit entitlement was terminated, the section of the defendant's department did not notice, so that Invalid Care Allowance was not paid to Mr Adams. Mr Adams returned a routine enquiry from the department in March 2001, which then learnt that Mr Adams's incapacity benefit had ceased from 12 May 2000. The decision was to pay ICA from 27 March 2001, but not for the earlier period to which he would have been entitled. That was said to be on the basis that what the department was doing was superseding the original decision so that, under the Social Security Act 1998, any such superseding decision could have effect only from the date the Invalid Care Allowance section had been notified of the change that gave rise to it, with the consequence that the claimant's right for the intervening period had been lost.
22. Mr Adams appealed to the Tribunal, which agreed with the Secretary of State that the decision to resume payment was a supersession decision under section 10 of the Social Security Act, and therefore subject to Regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Mr Adams appealed further to the Commissioner. The Commissioner concluded at paragraph 25 of his judgment:

"25. Accordingly in my judgment the original adjudication officer's decision that invalid care allowance was not payable because the claimant was at that time receiving incapacity benefit at a higher rate should never have been treated as having any continuing effect beyond the time when that ceased to be so, and it would have been outside the powers conferred on the Secretary of State or the adjudication officer by the legislation had it purported to do so. The Secretary of State's decision under section 8(1)(c) of the Social Security Act 1998, when the matter came to light and was raised for decision, should have been that invalid care allowance had been payable to the claimant from and including 12 May 2000 in accordance with his subsisting award, the authority to apply any adjustment or withhold such payment having ceased. That in my judgment is the decision the tribunal should have given and that is accordingly the decision I substitute. The claimant's appeal is allowed accordingly."

23. After the Commissioner's decision the department appealed the decision to the Court of Appeal. I deal with the judgment in Adams below. Before the Commissioner, Mr Adams had contended that the decision to restore benefit had been made under section 8 of the 1998 Act. Accordingly, back-payment was not inhibited by the fetter on retroactivity which affected supersession decisions.
24. When the matter came before the Court of Appeal, the leading judgment was that of Sedley LJ. Because of the importance of that decision to this case, it is worth setting out parts of that judgment in some detail:

"16. The single question we have to answer is whether the decision to resume payment of Mr Adams' invalid care allowance was a supersession decision under s.10 or a decision under s.8 either on a claim for a benefit or under or by virtue of a relevant enactment.

17. Everything in the phraseology of the initial decision letter cited in paragraph 3 above indicates that, if a time were to come when Mr Adams' incapacity benefit ceased, the invalid care allowance to which he was entitled would become payable. This in my judgment accurately reflects the law. An "award" of invalid care allowance signifies an extant decision that the claimant is entitled to it. Unless there is some legal inhibition on payment of it, payment follows as of right. Here there was such an inhibition until 12 May 2000. Thereafter there was none.

18. What then was the nature of the decision, when it was finally made in March 2001, to restore payment of the allowance? It is not impossible to regard it as a decision to pay which superseded the decision not to pay. But it is more in conformity with the legislative scheme to regard it simply as a decision on a claim for a relevant benefit, or as a decision falling to be made under the enactments which had so far created an entitlement but had inhibited payment. The decision to restore payments after May 2000 was predetermined by the decision notified in February 1996.

19. What then of the requirement in the 1996 letter that Mr Adams should notify the Department's invalid care allowance section if his incapacity benefit ceased? As good advice it cannot be faulted: in any large organisation it is understandable that from time to time its left hand does not know what its right hand is doing. It helps everybody if claimants ensure that changes in their entitlement to be paid are not missed. But, as Mr Ward accepts, nothing in this branch of social security law (in contrast to other branches, such as overpayment) entitles the Secretary of State to place on the claimant the onus of telling him what he himself has done or to proceed as if he had not stopped a claimant's incapacity benefit when he, of all people, ought to know that he has. Moreover, it is accepted that (again in contrast to other areas of social security law) there are no circumstances in which incapacity benefit can cease to be payable except at the Department's instance.

20. There are two other reasons why it seems to me right to allocate the decision to resume payments of Mr Adams' invalid care allowance to s.8 rather than s.10. Regulation 4 of the Overlapping Payments Regulations is an accounting provision designed to ensure that parallel entitlements do not result in excessive payment. It does not deal with entitlement, and its operation involves no judgment or fact-finding of any description. Secondly, the result of allocating a decision to resume payment of Mr Adams' invalid care allowance to s.10 is to penalise him, by denying him the possibility of backdating the decision, for the Department's failure to readjust the payments according to law upon its decision to terminate his incapacity benefit, and places upon him an onus which cannot be found in the legislation. To do this would tend to defeat the objectives which Parliament and the rule-maker can be seen to have had in mind when assembling the present scheme.

21. The Commissioner's impressively reasoned decision is focused on regulation 4 of the Overlapping Benefits Regulations. He took the view that the Secretary of State's power to make an adjustment continued only for as long as the two benefits were payable simultaneously. The view I have come to is not inconsistent with this, but it derives from statutory construction rather than from the public law approach taken by the Commissioner, and by doing so recognises – as the Commissioner pointed out was wise – the need for a decision at each stage."

25. Thus, the claimant argues that, on becoming aware of the claimant's entitlement to ICA, the defendant should have paid the benefit for the entire period to the claimant. Once the inhibition under Regulation 4 fell away, the underlying entitlement to benefit surfaced. Further, the claimant argued that she should be paid the sum claimed as an ex-gratia payment so as to be treated in the same way as Mr Adams. Like cases should be treated in the same manner, and reliance was placed on the case of R v MAFF ex parte Hamble Fisheries [1995] 2 All ER 174.
26. Next, the claimant argues that it is irrational not to make the payment, as the defendant has credited her with National Insurance contributions through the years in question.
27. Finally, the claimant submits that there is no prejudice as a result of the delay as she was under no obligation to notify the defendant. It was the defendant who was under an ongoing obligation to correct his error.

The defendant's case

28. The Secretary of State raised five points in oral argument. First, the defendant submits that the claimant's submission that there is no right to appeal is wrong. There was a decision entered on the form of 17 October 2001 in the terms "Pay from and including 18.10.00". That decision could and should have been appealed. The case of Adams itself proceeded on the basis that restoration of payment involved a decision that carried appeal rights. Those rights of appeal are provided for within the Social Security Act (Schedule 3, Part I, paragraph 3). Under the heading "Payability of benefit" the Regulations provide an appeal in respect of:

"3. 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 ..."

29. The fact that the claimant did not know the legal position as subsequently transpired in the case of Adams is no defence. The proper question is whether the claimant, with knowledge of the law which he is presumed to know, could have appealed in time: see Walker-Fox v Secretary of State for Work and Pensions [2005] EWCA Civ 1441 at paragraphs 47 and 48. The time limit for an appeal was one month from the date of notification of the decision, subject to a possible extension of up to a further 12 months in certain circumstances: see Regulation 32(1) and (4) of the Social Security Child Support (Decisions and Appeals) Regulations 1991.
30. Whilst the Court of Appeal decision in Adams was outside the 12-month period, within that time was the Social Security Commissioner's decision on 18 June 2002. The claimant accepted in reply that both leading counsel in the Court of Appeal in Adams proceeded on the basis that there was a right to appeal so that it was not an issue which the court had to address. In this instance, the claimant submits on this point that Irwin J had asked for reasons as to why the right of appeal had not been exercised, which reasons had been given to the claimant and permission to proceed had been granted. In the circumstances, it was submitted that the defendant was raising a standard alternative remedy point which at this stage in the proceedings went to remedy only and not to jurisdiction.
31. Secondly, the defendant submits that the claim is precluded by the anti-test case rules in section 27 of the 1998 Act, which operate so as to bar the claimant's claim for backdated payments. The anti-test case rules apply to a determination in relation to a claim for benefit: see section 27(1)(b)(1); that is, a decision under section 8(1)(a) of the 1998 Act, which is what the defendant submits this was.
32. The Court of Appeal in Adams held (in paragraph 18) that a decision not to restore payment of ICA is, "a decision on a claim for a relevant benefit, or a decision falling to be made under the enactments which had so far created an entitlement that had inhibited payment". The defendant submits that by "or" in Sedley LJ's judgment, Sedley LJ meant "and", and so the decision could be under either section 8(1)(a) or section 8(1)(c) of the Social Security Act. In the defendant's submission the claim is under section 8(1)(a) as it is a claim for benefit which subsists throughout.
33. A claim for benefit is to be given a broad meaning based on section 191 of the Social Security Administration Act 1992, which provides, so far as relevant, that "claim" is to be construed with "claimant". "Claimant" means:

"...

(b) a person who has claimed benefit;

and includes, in relation to an award or decision a beneficiary under the award or affected by the decision ..."

34. The claimant in reply argues for a narrower construction. It is submitted that the logic of Sedley LJ's words would lead to a finding under section 8(1)(c). No such finding was made because there was no need for the Court of Appeal to do so.
35. Thirdly, the defendant submits that Adams is wrongly decided and no longer to be regarded as binding authority. The basis for that submission is because the Court of Appeal's decision was premised on the principle derived from Hinchy v Secretary of State for Work and Pensions [2003] EWCA Civ 138. It was accepted that Hinchy turned on a statutory obligation to notify the department of material facts. However, it was said that here there was a generally applicable obligation to notify the relevant office about change in circumstance under Regulation 32 of the Social Security (Claims and Payments) Regulations 1987. However, it was submitted that the reasoning in Adams was premised on the Secretary of State knowing that the benefit had stopped when that knowledge lay in another part of the department. After Hinchy in the House of Lords, it could not be said that the Secretary of State was deemed to know that the claimant was no longer in receipt of Incapacity Benefit. As a result, the backdating of her payment should only be from the date upon which the ICA Unit became aware that benefit had ceased.
36. The reason that Adams was said to be no longer binding was that the court proceeded on the basis that there was a single question for its determination, as set out in paragraph 16 of the judgment. As a result, the Court of Appeal assumed that there could be no limits to the backdating provisions. Mr Coppel accepted that this was a more difficult part of his submissions. The claimant in reply made the point that Adams continued to be binding on this court, and it was plain that the claimant did not have to do anything.
37. Fourthly, in terms of ex-gratia payments, the defendant submits that there are important differences between the instant case and that of Adams, where an ex-gratia payment was made: in particular, that Mr Adams sought to challenge the decision in his case at the appropriate time and in the appropriate manner. The Secretary of State is entitled to act in accordance with the letter and spirit of section 27 by refusing to make the ex-gratia payments to people who seek to rely on test cases. The claimant maintains it would be unfair not to pay given that the purpose was to look after ill people, and that the defendant's action had deprived the claimant of the benefit to which she was entitled on a technicality.
38. The fifth point is a point which deals with discretion. I deal with it separately at the end of this judgment. In terms of dealing with the point about National Insurance Contributions, again I deal with that separately later.

The decision

39. The key matter for determination relates to the significance of the decision on the part of the defendant on 17 October 2001, and the communication of that to the claimant on 10 December 2001. Through that decision the defendant accepted that it was liable to pay the ICA, but believed that it was constrained by supersession provisions of section 10 of the Social Security Act 1998, so that it could not make any back-payments earlier than 18 October 2000. That decision left the claimant without any payment for ICA for the period between November 1994 and 18 October 2000. At no stage has the claimant made any appeal against that decision of 17 October 2001 made by the defendant.
40. Three questions then arise. First, was there a decision to restore payment of ICA to the claimant? Second, was the defendant in fact, as the defendant believed, constrained by section 10 of the Social Security Act, and if not, what was the significance of that? Third, what is the significance, if any, of the failure to appeal on the part of the claimant?
41. First, the necessity for a decision. As Sedley LJ said in the case of Adams at paragraph 17, "an award of ICA signifies an extant decision that the claimant is entitled to it". Unless there is some legal inhibition on payment of it, payment follows as of right. Here, there was an inhibition until November 1994 by virtue of Regulation 4 of the Social Security (Overlapping Benefits) Regulations. Thereafter there was none. Absent any change in circumstance as may become apparent on a review, the Secretary of State was under an obligation to pay to the claimant an allowance for caring for her ill husband. That approach is consistent with the statutory scheme and with the decision of the Court of Appeal in Adams. A review is needed, however, so that a decision can be reached on restoring payment of the allowance. Payment cannot be restored without consideration by the defendant, which will inevitably culminate in a decision.
42. Whilst I accept the claimant's submission that once the inhibition on payment falls away the underlying entitlement to benefit surfaces, that requires a decision to be made on the payability of the allowance. I note that it is recorded as common ground in paragraph 12 of the judgment of the Sedley LJ in the case of Adams.
43. Secondly, was the defendant, as he believed at the time, constrained by section 10 of the Social Security Act, and if not, what is the significance of that? After the decision of the Court of Appeal in Adams, it is clear that the Secretary of State was wrong in his belief that he was constrained by section 10. I adopt and follow the reasoning of Sedley LJ in Adams in paragraphs 19 and 20 in particular as to why that is so.
44. Sedley LJ did not have to determine whether in the case before the Court of Appeal the decision there was made under section 8(1)(a) or 8(1)(c). It is of note, though, that the Commissioner in the case of Adams found that the decision made, and Mr Adams' appeal against that part of the decision which withheld ICA to which he had been entitled from 12 May 2000 and until 26 March 2001, was squarely within section 8(1)(c) of the Social Security Act 1998 as being a decision on the part of the Secretary of State that "falls to be made under or by virtue of relevant enactment". That is clearly the case as it is a decision to be made under the relevant social security legislation on a question arising in relation to the claimant's subsisting award of benefit.
45. As a consequence, although the decision can be regarded as one on the issue of payability and not one as determining the issue of entitlement, it is a decision that may properly be challenged by way of an appeal to an independent tribunal under section 12 of the Social Security Act 1998. If such a decision was not needed (which is the claimant's submission) before restoration of payment of the allowance, then, as the Commissioner in Adams remarked at paragraph 15:

"The argument would be counterproductive for claimants, since it would mean that such decisions could never be challenged by way of appeal to an independent tribunal at all. That would be contrary ... in my judgment to the intention of Parliament in sections 8 and 12 of the new legislation."

46. I agree. Thus, the effect of the claimant's submission, which is that the determination is made under section 8(1)(c), carries with it the legal consequence that there must be an appeal route against such a decision. The defendant's submission that the determination is under section 8(1)(a) I do not accept, as the matter for decision was not a claim for benefit. That had already been determined, in my judgment, at a much earlier stage, and, as set out by virtue of regulation 17 of the Social Security (Claims and Payments) Regulations 1987, subsisted. The matter for determination here was different, namely it was one of payability.
47. What is the significance of a determination under section 8(1)(c)? A determination that the decision was under section 8(1)(c) impinges upon the defendant's second ground of resistance. I do not accept the defendant's submission that when Sedley LJ used the word "or" in paragraph 18 of his judgment in Adams, that is to mean "and". What, in my judgment, Sedley LJ was doing was setting out that each (namely section 8(1)(a) and section 8(1)(c)) were possible as sub-sections within which Mr Adams' claim could be categorised. But, in the circumstances of the case of Adams, the court did not need to go on to determine which was in fact the case for the purpose of the issue before them. For the reasons that I have set out, I do not regard the decision which has been taken here as one for a claim for benefit. That had been taken in 1988. What there was as a consequence of that was a subsisting award or entitlement to benefit and not a claim for benefit. The decision that was taken here was one as to the restoration of ICA.
48. Accordingly, the restrictions on the entitlement to benefit in certain cases of error under section 27 of the Social Security Act, known as the anti-test case rules, do not apply here. The defendant argued that the provisions of section 27(1)(b)(i) applied, as the decision was one in relation to a claim for benefit. Whilst I accept that the use of the words "in relation to" could be capable of giving a broader interpretation to the relevant part of section 27 than in section 8(1)(a), where it is for the Secretary of State to decide any claim for a relevant benefit, it is clear that the statutory intent is that a decision under section 27(1)(b)(i) is a decision related to the making of that claim. In other words, it is not one that would relate to a period after that claim had been determined.
49. Section 191 of the Social Security Administration Act 1992 was relied on by the defendant also as supporting a broad interpretation of section 27. Mr Coppel relied on that part which provides that the claim is to be construed with the claimant, as I have set out earlier. Those definitions do not assist, in my judgment, the defendant in establishing a broad interpretation of section 27(1)(b)(i), which the defendant contends is applicable in the circumstances of the claimant. Again, they relate to the decision on the claim itself, in my judgment, which is not the current circumstance. It follows that the defendant's second ground of resistance fails.
50. Alternatively, the defendant argues that the case of Adams was wrongly decided in the Court of Appeal. That is put on the two bases that I have set out above. Whatever the position, I am bound by that decision. As it is, the case of Hinchy was dealing with the recovery of overpayment of benefit in circumstances where there was a statutory obligation to make disclosure of material facts as a result of an unambiguous direction on the part of the Secretary of State to do so pursuant to Regulation 32(1) and 1A. That is in contrast to the general duty under regulation 32(1B) to notify changes of circumstance which a benefit recipient might reasonably be expected to know might affect the payment of benefit. There is nothing in the evidence in the instant case to suggest that disclosure might reasonably have been expected by the claimant. Hinchy is therefore a case unlike the present, as Sedley LJ said at paragraph 15 in Adams. As a consequence, I do not accept the submission that Adams in the Court of Appeal would have been decided differently but for the decision in Hinchy then in the Court of Appeal.
51. As for the submission that Adams was wrongly decided as the Court of Appeal proceeded on the basis of a single question and did not consider whether the benefit was subject to any time limits on backdating, Mr Coppel accepted that was a more difficult argument to make, and, as I have already set out, I am bound by the Court of Appeal decision in the case of Adams.
52. I turn then to the significance, if any, of the failure on the part of the claimant to exercise the statutory right of appeal. That is relevant to two matters: first, the substantive claim; and second, the exercise of any discretion on relief. The critical decision on the substantive claim is that taken at the permission stage. Where there is a statutory right of appeal, permission should only be granted exceptionally: see the judgment of Simon Brown LJ (as he then was) in the case of Falmouth & Truro Port Health Authority v South West Water Ltd [2001] QB 445 at page 473D.
53. Permission was granted here by Irwin J, when, on the papers, there was an issue as to whether the route of statutory appeal was in fact available. I have found that it was available and that the claimant failed to exercise it. Had she pursued that route, as Mr Adams did, the Tribunal would have been able to determine the date from which restoration of ICA was payable and order its payment. In my judgment, that is a matter which goes to the exercise of my discretion on relief, as opposed to operating as a bar to the substantive claim.
54. I deal finally on the substantive claim with the other two grounds. First, the claim for an ex-gratia payment. Although it is right, as the claimant submits, that like cases should be treated alike on the grounds of fairness, I have found that there is an important distinction to be made between the case of Adams and the claimant here, namely Mr Adams exercised his statutory right of appeal. In short, he had done everything that he could do. The claimant here has not. Accordingly, I dismiss the claim for judicial review on the basis of an ex-gratia payment because of the differences between the two cases.
55. Secondly, the claim is put on the basis of irrationality due to the fact that the defendant has credited the claimant with National Insurance Contributions for the years in question, thereby implicitly accepting the error in failing to pay ICA over the period in question. The claimant accepts that the fact of National Insurance Contributions does not inevitably mean that she is entitled to benefit. She submits, though, that it is indicative that there should be an administrative exercise which led to the unblocking of the entitlement of ICA. I have already found that the restoration of ICA requires more than an administrative step and requires a positive decision. Accordingly, I dismiss the claim for judicial review under this head also.
56. Thus, the claimant has succeeded in establishing her entitlement to an award of ICA for the period from November 1994 until 17 October 2001. But as I have adverted, there is, in the circumstances of this case, a very real issue as to whether it is right to exercise my discretion and grant the relief claimed.
57. There are two matters which are highly pertinent as to whether I grant the remedies sought. The first is delay, and the second is the existence of an alternative remedy. On delay, the decision by which the defendant refused to backdate ICA beyond 17 October 2000 was dated 17 October 2001 and communicated to the claimant on 10 December 2001. Judicial review proceedings were commenced on 7 August 2007, some five and a half years later. As I have set out, the decision letter of 10 December 2001 is one which, in my judgment, could and should have been challenged through the statutory appeal process that was available. I have examined with care the suitability of the statutory appeal process in the context of the claimant's case, and concluded that it would have provided a complete and sensible determination to the issues between the parties.
58. I have further considered whether there are exceptional circumstances here so as to allow a collateral challenge by judicial review. I am unable to find, on the evidence before me, that any such exceptional circumstances exist. Rather, it seems to me that, despite having sympathy for the claimant, to allow the claim for relief after such a passage of time, where there is a statutory appeal route available which has not been used, would be detrimental to good administration.
59. Accordingly, both on the basis of delay and on the basis of alternative remedy, I refuse the relief claimed.
60. MR COPPEL: My Lady, it seems to us therefore that your order will say that the claim for judicial review is dismissed. We would ask for costs subject to the usual proviso in relation to the claimant being legally aided. I do appreciate of course that the claimant has succeeded on a number of the issues along the way, but she has failed on two of the most significant issues which we highlighted right at the start of this case, that we were some years out of time and in a forum which was not the forum intended by the statute. So I submit that that should not affect the order for costs, which should be in the Secretary of State's favour.
61. THE DEPUTY JUDGE: Mr Wise?
62. MR WISE: With regards to costs, my Lady, as your Ladyship will see, my client has the assistance of public funding. The usual order in a case such as this would be no order for costs, save for the assessment of the claimant's publicly funded costs. The issue has been an important issue. It has raised detailed and complex matters. As your Ladyship will appreciate, it certainly has not been a frivolous application, and is one that has required the most anxious consideration. In those circumstances, it would not be appropriate, in our submission, for my client to be penalised by any costs order. So we would say that the appropriate order would be no order for costs save for an assessment.
63. THE DEPUTY JUDGE: Thank you. I think the appropriate order here is that there is no order for costs, save for assessment of the publicly funded costs, and I so order.
64. MR WISE: I am obliged for that. On the question of appeal, unfortunately, as your Ladyship sees, I do not have my solicitors with me this morning due to communication problems, and plainly one would have to consider your judgment very carefully with those instructing me, who are very experienced in these matters, as your Ladyship will have appreciated from the papers. In order to preserve my client's position, may I seek permission to appeal on two points? There seems to be two points that are pertinent to my client.
65. THE DEPUTY JUDGE: You want to make the application now, do you?
66. MR WISE: Indeed so. Firstly, whether my client was obliged to appeal the decision to reinstate her claim for benefit or whether, as we submit, the underlying entitlement to benefit was sufficient. We would say that is an important issue that it would be appropriate for the Court of Appeal to give further consideration to. That is the first issue that we seek permission to appeal on. The second issue is the discretion -- the exercise of your Ladyship's discretion, and whereas plainly one would be very slow to appeal to the Court of Appeal on an exercise of discretion exercised at that first instance, in this case when coupled with the former issue, it would be appropriate, in our submission, to take that point given the particular circumstances of my client, and bearing in mind the underlying purpose of the statutory provisions in any event, which, as your Ladyship has identified correctly, is to ensure that care for the disabled is provided for. So, in those circumstances, we would seek permission to appeal on those two points, my Lady.
67. MR COPPEL: My Lady, I support Mr Wise's application for permission to appeal. As was canvassed during the hearing, the issues in this case affect a large number of other cases, not just in relation to ICA but in relation to other benefits as well. There are three issues on which my Lady has decided against the Secretary of State which will have considerable implications for a large number of other cases. The first is on the interpretation of the anti-test case rules, which my Lady has interpreted as not applying in cases of decisions about payability. That is a significant ruling on which we would wish the Court of Appeal to give judgment.
68. The second issue is the availability of judicial review rather than the use of the statutory appeal route. I appreciate of course that my Lady has decided in favour of the Secretary of State on that question, but only as a matter of the discretion of the court. We would wish to submit to the Court of Appeal that the rule is a much firmer rule than that.
69. Thirdly, there is of course the issue as to whether Adams should be considered to be good law in the light of the Hinchy case.
70. THE DEPUTY JUDGE: As you made clear in argument, Mr Coppel, that is obviously a concern on the part of your clients.
71. MR COPPEL: Yes, so I am in the unusual position of supporting Mr Wise. If he was not making an application for permission to appeal, I would make an application for permission to appeal against my Lady's reasons, as opposed to the order which my Lady is going to make.
72. THE DEPUTY JUDGE: I am afraid I am not going to grant permission to appeal. You will have to proceed in the usual way.
73. MR WISE: I am obliged, my Lady. There are no further matters on the part of the claimant.