Editorial Committee of the Cambridge Law Journal

Supplementary Benefits and Judicial ReviewAuthor(s): Jeremy McBrideSource: The Cambridge Law Journal, Vol. 35, No. 2 (Nov., 1976), pp. 196-198Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505920 .

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less expensive and more informal procedures available through om- budsman avenues of complaint? Jurisdictional restrictions upon the various ombudsmen are not easy to apply in practice (see de Smith, Judicial Review of Administrative Action, 3rd ed., pp. 262-263) and it remains to be seen how generously they will be interpreted. In the meantime, however, the case of the TV licences must be regarded as an important assertion of the legitimate constitutional role of the courts in controlling the exercise of administrative power.

D. G. T. WILLIAMS.

SUPPLEMENTARY BENEFITS AND JUDICIAL REVIEW

THE case of R. v. Barnsley Supplementary Benefits Appeal Tribunal, ex parte Atkinson [1976] 2 All E.R. 686 (D.C.), concerns a student unhappy with his supplementary benefit award. The Divisional Court, in dealing with his application for certiorari to quash the tribunal's decision, sought to follow the Court of Appeal's guidelines in the case of R. v. Preston Supplementary Benefits Appeal Tribunal, ex parte Moore [1975] 1 W.L.R. 624. Those guidelines represented a recoil by the courts from applying any exacting standards of judicial review in this area. The impact of the judgment in the Barnsley case is to suggest that this attitude ought to be reconsidered and that there is in fact a need for more rather than less judicial supervision of supplementary benefit appeal tribunals.

According to the guidelines the courts should only interfere when a tribunal's decision is unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision. Tribunals should, said the Court of Appeal, be left to interpret the Supplementary Benefit Act 1966 in a broad reasonable way, according to its spirit and not to the letter. This test of reason- ableness, however, only goes to increase the discretion of those who administer the supplementary benefit system. Moreover, it would seem from the Barnsley case that the courts will be easily satisfied on the question of reasonableness.

The error alleged in this case involved the assessment of the student's resources during the vacation in which he applied for bene- fit. The tribunal had considered as his resources an amount which represented in weekly terms that part of the maximum grant attri- butable to maintenance during the vacations. This sum, in accordance with section 4 (1) of and Schedule 2 paragraph 1 to the Act, was then deducted from his requirements to determine the benefit to which he was entitled. The applicant felt aggrieved because he had only received the minimum grant of £50, and this was £8 less than the

less expensive and more informal procedures available through om- budsman avenues of complaint? Jurisdictional restrictions upon the various ombudsmen are not easy to apply in practice (see de Smith, Judicial Review of Administrative Action, 3rd ed., pp. 262-263) and it remains to be seen how generously they will be interpreted. In the meantime, however, the case of the TV licences must be regarded as an important assertion of the legitimate constitutional role of the courts in controlling the exercise of administrative power.

D. G. T. WILLIAMS.

SUPPLEMENTARY BENEFITS AND JUDICIAL REVIEW

THE case of R. v. Barnsley Supplementary Benefits Appeal Tribunal, ex parte Atkinson [1976] 2 All E.R. 686 (D.C.), concerns a student unhappy with his supplementary benefit award. The Divisional Court, in dealing with his application for certiorari to quash the tribunal's decision, sought to follow the Court of Appeal's guidelines in the case of R. v. Preston Supplementary Benefits Appeal Tribunal, ex parte Moore [1975] 1 W.L.R. 624. Those guidelines represented a recoil by the courts from applying any exacting standards of judicial review in this area. The impact of the judgment in the Barnsley case is to suggest that this attitude ought to be reconsidered and that there is in fact a need for more rather than less judicial supervision of supplementary benefit appeal tribunals.

According to the guidelines the courts should only interfere when a tribunal's decision is unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision. Tribunals should, said the Court of Appeal, be left to interpret the Supplementary Benefit Act 1966 in a broad reasonable way, according to its spirit and not to the letter. This test of reason- ableness, however, only goes to increase the discretion of those who administer the supplementary benefit system. Moreover, it would seem from the Barnsley case that the courts will be easily satisfied on the question of reasonableness.

The error alleged in this case involved the assessment of the student's resources during the vacation in which he applied for bene- fit. The tribunal had considered as his resources an amount which represented in weekly terms that part of the maximum grant attri- butable to maintenance during the vacations. This sum, in accordance with section 4 (1) of and Schedule 2 paragraph 1 to the Act, was then deducted from his requirements to determine the benefit to which he was entitled. The applicant felt aggrieved because he had only received the minimum grant of £50, and this was £8 less than the

196 196 [1976] [1976]

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Case and Comment

total vacation element of the maximum grant. Lord Widgery C.J. rightly considered that this raised a point worthy of the court's consideration.

The tribunal's approach was only justifiable if it could take into account the parental contribution which education authorities assume will be made when they award a minimum grant. There is no legally enforceable obligation to make such contributions. If the tribunal could make the same assumption as the education authorities, how- ever, the applicant's resources could be regarded as equivalent to those of a student on the maximum grant. There was no specific statutory provision authorising this approach. The tribunal relied rather on the power in paragraph 4 (1) of Schedule 2 to the Act. This enables an increase or reduction in benefit to be made where there are exceptional circumstances. In this case the tribunal claimed that the exceptional circumstances were those which led students to register for work during the vacations, whereas previously they had not been inclined to do so. Lord Widgery accepted that this justified the tribunal's assumption.

This seems to be rather mystifying. In the first place the Divisional Court has previously decided, in R. v. West London Supplementary Benefits Appeal Tribunal, ex parte Clarke [1975] 1 W.L.R. 1396, that one cannot count as resources anything which is not a legally enforce- able obligation. It is surprising that no one ascertained whether the contribution had in fact been made. If there was no contribution then a sum equivalent to the vacation element of the maximum grant should not have been regarded as his resources. On the other hand, if it had been received, it could be so treated, even if there was no right to it and even if it had already been spent (see ex parte Moore).

The court did seem to work on the assumption that the contribu- tion had been received because it hinted that otherwise it might have acted differently-presumably in accordance with the decision in ex parte Clarke. Since this was the assumption of the court it seems even stranger that it felt the need to rely on the power in paragraph 4 (1). The use of this provision is open to two criticisms. The first is that it is exercisable only after both resources and requirements have been assessed; otherwise there would be no benefit to increase or reduce. This power, therefore, has nothing to do with the initial assessment of resources. The second criticism concerns the notion that the need to apply for benefit can itself be an "exceptional circumstance." What is exceptional if the person applying meets all the criteria laid down by the Act? Should he lose some or all of his benefit because he or persons similarly placed have not applied on previous occasions? This is clearly at odds with the object of the Act and is an excessively wide interpretation of the power in paragraph 4 (1).

C.L.J. 197

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The Cambridge Law Journal The Cambridge Law Journal

Mr. Atkinson has not suffered much, if any, hardship in con-

sequence of this decision. What is disturbing, however, is the tri- bunal's reasoning and the court's acceptance of it. Lord Widgery expressed some concern about the width of the discretion claimed by the tribunal, but clearly felt obliged not to interfere because of the Court of Appeal's guidelines. Legally qualified chairmen for the tribunals might improve their standard of reasoning. Such a proposal was made by Professor Kathleen Bell after her research study on these tribunals. But whether or not that proposal is implemented, there is no reason why lower standards of judicial review should apply in the field of supplementary benefits. It ill becomes the courts to resile from the task of supervising these tribunals when it is so clearly necessary. It is to be hoped that the courts will re-examine their attitude as soon as possible.

JEREMY MCBRIDE.

A "BREEZE" OF CHANGE IN THE LAW OF SOVEREIGN IMMUNITY

IN Thai-Europe Tapioca Service Ltd. v. Government of Pakistan [1975] 1 W.L.R. 1485, the plaintiffs, a German-based company, chartered a vessel to a Polish concern. The charterparty contained an arbitration clause stating that any dispute arising under it should be settled " in London in accordance with the law and procedure pre- vailing there " and also contained a further provision to the effect that all demurrage claims should be " settled directly between the Owners/ Receivers without any responsibility of the charterers." The cargo, which was loaded in Poland, was consigned to the order of the National Bank of Pakistan and the bill of lading, endorsed to the consignees, incorporated all the terms and conditions of the charter- party. A few days after arriving at Karachi the vessel was bombed and the discharge of its cargo was completed with serious delay and considerable loss for the owners. This they sought to recover from the receivers and, consequently, applied for and obtained under R.S.C., Ord. 11, r. 1 leave to serve their writ outside the jurisdiction. But before doing so, they were informed that the defendants had ceased to exist and that their assets and liabilities had been assumed by the Government of Pakistan. The plaintiffs accordingly amended their writ and sued the relevant government department only to be confronted this time with the claim of sovereign immunity which was accepted both by the Master and the Judge in Chambers. Against this decision the plaintiffs appealed.

The court had no qualms in dismissing the appeal though in so doing it did not speak with one voice. Lawton and Scarman L.JJ.'s

Mr. Atkinson has not suffered much, if any, hardship in con-

sequence of this decision. What is disturbing, however, is the tri- bunal's reasoning and the court's acceptance of it. Lord Widgery expressed some concern about the width of the discretion claimed by the tribunal, but clearly felt obliged not to interfere because of the Court of Appeal's guidelines. Legally qualified chairmen for the tribunals might improve their standard of reasoning. Such a proposal was made by Professor Kathleen Bell after her research study on these tribunals. But whether or not that proposal is implemented, there is no reason why lower standards of judicial review should apply in the field of supplementary benefits. It ill becomes the courts to resile from the task of supervising these tribunals when it is so clearly necessary. It is to be hoped that the courts will re-examine their attitude as soon as possible.

JEREMY MCBRIDE.

A "BREEZE" OF CHANGE IN THE LAW OF SOVEREIGN IMMUNITY

IN Thai-Europe Tapioca Service Ltd. v. Government of Pakistan [1975] 1 W.L.R. 1485, the plaintiffs, a German-based company, chartered a vessel to a Polish concern. The charterparty contained an arbitration clause stating that any dispute arising under it should be settled " in London in accordance with the law and procedure pre- vailing there " and also contained a further provision to the effect that all demurrage claims should be " settled directly between the Owners/ Receivers without any responsibility of the charterers." The cargo, which was loaded in Poland, was consigned to the order of the National Bank of Pakistan and the bill of lading, endorsed to the consignees, incorporated all the terms and conditions of the charter- party. A few days after arriving at Karachi the vessel was bombed and the discharge of its cargo was completed with serious delay and considerable loss for the owners. This they sought to recover from the receivers and, consequently, applied for and obtained under R.S.C., Ord. 11, r. 1 leave to serve their writ outside the jurisdiction. But before doing so, they were informed that the defendants had ceased to exist and that their assets and liabilities had been assumed by the Government of Pakistan. The plaintiffs accordingly amended their writ and sued the relevant government department only to be confronted this time with the claim of sovereign immunity which was accepted both by the Master and the Judge in Chambers. Against this decision the plaintiffs appealed.

The court had no qualms in dismissing the appeal though in so doing it did not speak with one voice. Lawton and Scarman L.JJ.'s

[1976] [1976] 198 198

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