Robert Strang Instructed by Charles Russell Speechlys LLP (London) for the Respondents.
LORD SALES:
In July 2018 the appellant was diagnosed with Guillain-Barré Syndrome, a debilitating illness which has had a significant impact on her life. At that time the appellant was assessed as having 90% disability, which meant that she was unable to work. This appeal concerns her application for state disability benefits. Relevant state benefits are of two kinds: disability assistance benefit and public assistance benefit. Disability assistance benefit is paid at a higher rate.
The appellant obtained a certificate dated 23 October 2018 from a government medical officer which stated that she was disabled from earning and, as to the duration of her disability, stated “1 year pending clinical reports”. On the basis of this certificate the appellant applied to the Sangre Grande Welfare Office for disability assistance benefit, but it was refused. This was on the basis that such benefit would only be paid where the medical certificate states that the individual is permanently disabled. The decision of the Welfare Office was confirmed by the Permanent Secretary of the Ministry of Social Development and Family Services (“the Permanent Secretary”), who is the first respondent. The appellant was told she should apply for public assistance benefit instead.
The primary legislation governing both these benefits is the Public Assistance Act (“the PAA”), which has been amended from time to time. According to provisions of the PAA introduced in 1996, in order to claim disability assistance benefit an individual had to be permanently disabled. Subordinate legislation promulgated pursuant to the PAA shortly afterwards, the Public Assistance (Disability Assistance) (Prescribed Forms) Regulations (“the Forms Regulations”), specified the form to be used to apply for disability assistance benefit. The prescribed form stated that certification of permanent disablement is a condition of eligibility for disability assistance benefit.
There was a further round of amendments to the PAA in 1998. The wording of the provision governing the grant of disability assistance benefit, section 11A, was changed and no longer referred to permanent disablement. Instead, the relevant condition in section 11A(1)(d) now requires in relation to the individual claiming to be entitled to disability assistance benefit that “he is in the opinion of the Local Board so disabled that he is unable to earn a livelihood and has been certified by a Medical Officer as being so disabled”. The Forms Regulations remained in force. Therefore, although the reference to permanent disablement was removed from the face of the PAA, it remained a requirement appearing on the face of the application form prescribed by the Forms Regulations that the individual had to obtain a medical certificate of permanent disablement.
The principal issue which arises in these proceedings is whether Parliament, by making the changes to the wording of section 11A in 1998, removed the requirement that an individual has to be permanently disabled in order to be eligible for disability assistance benefit, or whether that requirement remains in place, in line with what is stated in the Forms Regulations.
The legislation
(a) The 1996 version of the PAA
The PAA makes provision for payment of public assistance benefit and for payment of disability assistance benefit, as part of an integrated scheme of benefits. By virtue of the definition provision in section 2, disability assistance benefit is treated as a form of public assistance benefit unless the context otherwise requires. Public assistance benefit is a benefit with wider application than disability assistance benefit and covers a range of situations in which persons or households might find themselves in straitened financial circumstances.
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