[2025] UKUT 016 (AAC)

In my judgment, the Secretary of State is right as to the result in this case, but not as to legal route by which that result is reached.

The Reilly case (known as Reilly II)provides the most convenient starting point for the analysis. That case concerned among other things the effect of the Jobseekers (Back to Work Schemes) Act 2013 (the 2013 Act) which was enacted in order retrospectively to validate the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (the 2011 Regulations) which had been held by the Court of Appeal (and later the Supreme Court) in Reilly I to be ultra vires in certain respects. In Reilly II the Court of Appeal held the 2013 Act to have been unlawful insofar as it breached some claimants accrued rights to possessions under Article 1 of the First Protocol to the ECHR, or their fair trial rights under Article 6 of the ECHR, so that the declaration of incompatibility made by the High Court in Reilly II under section 4 of the HRA 1998 was upheld. However, the Court of Appeal held that the Act did otherwise have retrospective effect. The Court held that the 2013 Act applied to cases where an appeal had already been made or had already been decided before the Act came into force as it did to decisions and appeals after that date. This was because section 1(1) of the 2013 Act provided that it was to have retrospective effect “for all purposes” and could not be read down. The Court specifically considered whether section 12(8)(b) SSA 1998 (on which the Secretary of State places reliance in these proceedings) prevented Tribunals from taking account of the new law in appeals against decisions made before the 2013 Act came into force, but decided that it did not. The important paragraphs of the judgment for present purposes are as follows (emphasis added):

131 In our opinion Charles J was right that the 2013 Act cannot be read

as containing the limitation found by the majority. We base that view

principally on the phrase “for all purposes” in section 1(1), which Mr Eadie

said, essentially rightly, as we believe, should be the beginning and end of

the analysis. The effect of that phrase as a matter of ordinary domestic

construction seems to us clear beyond argument; and even if resort is had

to section 3 of the HRA, and fully acknowledging the strength of the

interpretative obligation which it imposes, its words seem to us incapable of

being read down so as to have anything less than their plain literal meaning. An exclusion for the case of those who had already brought proceedingswould have been straightforward and in our view would certainly have been included if that was the intention. …

136 Mr Jones’s fourth point depended on the effect of section 12(8)(b)

of the Social Security Act 1998. Section 12 is, it will be recalled, the

provision which gives claimants for social security benefits a right of appeal

to the FTT against decisions of the Secretary of State. Subsection (8) reads

(so far as material): “In deciding an appeal under this section, the First-tier

Tribunal; (a) . . . (b) shall not take into account any circumstances not

obtaining at the time when the decision appealed against was made.”

Mr Jones submitted that that meant that when the FTT came to consider any

of the appeals pending as at the date of the coming into force of the 2013 Act it would be obliged to disregard the effect of the Act, notwithstanding that it was expressed to be retrospective, because its enactment would constitute a “circumstance not obtaining . . . when the decision appealed against was

made”. He said that that reading of subsection (8)(b) was confirmed by the

decision of this court in McKiernon v Secretary of State for Social Security

(1989)

2 Admin LR 133, to which we return below. He made it clear that, contrary to what the tribunal (which treated it as a distinct “second issue”)

appears to have understood, he did not rely on this as a point in its own

right: rather, he submitted, it weighed in support of his construction of the

2013 Act, since Parliament, he submitted, could not have intended to apply a provision to claimants which would create a clash with the provisions of a

different statute.

137 We do not believe that this argument has any force. The effect of

section 12(8)(b) cannot be to nullify subsequent, explicitly retrospective, legislation which would otherwise govern the decision of the FTT.McKiernon v Secretary of State for Social Security is not authority to thecontrary. It was a decision about the effect of a different provision,

section 104(1)(b) of the Social Security Act 1975, which permitted the

decision of a tribunal determining benefit entitlement to be reviewed “if

there has been any relevant change of circumstances since the decision was

given”. The respondent’s claim to benefit was initially held to be out of time,

but the provision in question was then held to be ultra vires and an award of

benefit was made by the tribunal. The provision imposing the time bar was

shortly afterwards retrospectively validated by primary legislation, and the

issue was whether that constituted a “change of circumstances” permitting

the award to be reviewed. This court held that it did. But that is a wholly

different question, which sheds no light on how section 12(8)(b) would

apply in the circumstances with which we are concerned. Our analysis

corresponds, we believe, to that of Charles J at paras 161—168 of the

tribunal’s decision.

138 Finally, Mr Jones drew attention to the fact that section 3 of the

2013 Act provided that it should come into force on the day that it was passed

(i e 26 March 2013). He said that many other statutes having retrospective

effect achieved that effect by providing instead that the Act should be

“deemed to have come into force” on some date earlier than its actual

enactment. He referred us to one example where that formulation was used

in respect of the entire statute, namely the British Nationality (Falkland

Islands) Act 1983 (see section 5(2)); and to two where it was used in relation

to particular sections, namely the Finance Act 1980 (see section 118(6)) and

the Channel Tunnel Rail Link Act 1996 (see section 46(4)). This was said to

reinforce the argument that the 2013Act was not intended to be “completely

retrospective”.

139 We see nothing whatever in this argument. The fact that provision

is made for a statute to come into force on a particular date is in no way

inconsistent with a provision that some or all of its effects should be

retrospective. The fact that the draftsman has on some occasions used a

different technique to achieve the same effect is neither here nor there. We

suspect that there may have been particular reasons why that technique may

have been thought more appropriate in the case of the examples given

(particularly where only some particular provisions were retrospective), but

the point does not merit exploration. Even if it is only a matter of different

drafting styles, the difference is of no significance.

It is clear from the Court of Appeal’s decision in Reilly 2 that the key question as to the effect of retrospective legislation on decisions taken or appeals commenced before the new legislation came into force is what the effect of that legislation is when it is properly construed in accordance with ordinary principles of legislative interpretation. If, so construed, it does have retrospective effect on those decisions and appeals then that is the law that must be applied by the Secretary of State and the Tribunal when deciding cases following the coming into force of the new legislation. Sections 8(2) and 12(8) of the SSA 1998 (or other equivalent provisions in other legislation) cannot prevent retrospective legislation being applied if that is the proper effect of that legislation.

So: what is the effect of the 2023 Order, properly interpreted? In my judgment, its effect is as the Secretary of State contends, although that is not how the legislation reads at first blush.

At first blush, the terms of article 1(3) of the 2023 Order, stating that the amendments made by articles 4 to 9 of the Order “are to be treated as having had effect from 30^th August 2018”, appears to be as unequivocal as the provision of the 2013 Act that the Court of Appeal in Reilly II held gave that Act retrospective effect. Although the 2023 Order does not use the term “for all purposes”, there is nothing equivocal about article 1(3) which provides for retrospective effect of all the amendments without any qualification within that article.

However, the remainder of the Order contains provisions which, in my judgment, clearly limit the retrospective effect that would otherwise have been achieved by virtue of article 1(3).

First, article 3(4) of the 2023 Order states that sub-paragraphs (5) and (6) of that article are to apply (only) where, in addition to having made a claim, the claimant is (now) entitled to BSP as a result of the 2023 Order in relation to a death that occurred before the Order came into force on 9 February 2023. Sub-paragraphs (5) and (6) then refer back to “that entitlement”, i.e. to the entitlement newly given by the 2023 Order. Sub-paragraph (5) amends the time limit for bringing of a claim in respect of that entitlement (under regulation 19(2) of the 1987 Regulations) to “21 months beginning with the day after the day the [2023 Order] comes into force” (emphasis added). On its face, therefore, there is clear provision that a claim in respect of the new entitlement cannot be brought before the 2023 Order comes into force, only afterwards. It is this provision which, in my judgment, is the operative provision that achieves the effect that the Secretary of State believes the Order to have.

Further, this is not an isolated provision. The remainder of the Order is also consistent with it. Thus, article 3(6) and article 6 (set out above) provide for the periods during which BSP is to be paid in respect of this new (retrospective) entitlement to run from or by reference to the day that the 2023 Order comes into force (“the RO commencement day” defined in article 6(13)). Thus the Order takes a consistent approach: claims must be made after the Order comes into force, and although the entitlement may relate to a period before the Order comes into force, it is only payable for the period after the Order came into force.