THE  SOCIAL SECURITY COMMISSIONERS   

                         Commissioner’s Case no:        CIS 2107 1998  

                            SOCIAL SECURITY ACTS  1992 - 1998

   APPEAL FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL 
                                               ON A QUESTION OF LAW

         DECISION OF THE SOCIAL SECURITY COMMISSIONER

                                         Mr Commissioner David Williams

DECISION OF THE SOCIAL SECURITY COMMISSIONER 

1	I allow the claimant's appeal, brought by my leave, against the decision of the Preston social security appeal tribunal on 2 March 1998. The decision of the tribunal was that the claimant was entitled to income support from and including 29 July 1997 to 6 August 1997, but was not entitled to income support from and including 16 July 1997 to 28 July 1997.  For the reasons given below, the decision was erroneous in law.  I therefore set it aside.  I substitute for that decision my own decision which is:

	The claimant is entitled to jobseeker's allowance for the period from 25 July 1997 to 6 August 1997 by reason of regulation 55 of the Jobseeker's Allowance Regulations 1996. 

The absence of a statement of material facts and reasons

2	I granted leave to the claimant.  In doing so, I waived the requirement that the claimant produce a statement of material facts and reasons for the tribunal's decision signed by the chairman of the tribunal.  There was none on file. But in this case, it is clear that the decision of the tribunal is erroneous in law on its face, so a further statement  of facts and reasons is not necessary to decide on the issues in the appeal. In addition, no point has been taken on behalf of the adjudication officer or Secretary of State on this issue.  On the contrary, the adjudication officer has supported the claimant's appeal in two separate submissions. One error of the tribunal was in not considering at all whether the claimant had any entitlement to jobseeker's allowance.  As it did not consider the issue, any statement of material facts and reasons would add nothing to the consideration of an appeal raising that point.  Further, I have now had the benefit of considering the decision of the Commissioner in CIB 4833 1998 in granting leave in a case where there was no statement of material facts and reasons. I follow that decision and confirm my view on granting leave that this appeal should be considered notwithstanding the absence of a statement.

Background to this appeal 

3	The facts are said not to be in dispute, but several essential facts have not been determined.  It is said in the submission to the tribunal that the claimant was receiving jobseeker's allowance until 15 July 1997. It was then stopped because of sickness.  It appears from the case papers that he had been claiming jobseeker's allowance for at least nine months, so he would have been receiving income-based jobseeker's allowance. But the claimant's income support claim form in the papers states that he last signed on on 15 July 1997 (a Tuesday), that his last payment was on 18 July 1997, that he was signed off sick by his general practitioner on 24 July 1997, that he then sent in the sick note, and that he was next due to sign for jobseeker's allowance on 29 July 1997. 

4	It is not clear from the papers up to what date the payment made on 18 July applied.  It is also not clear from what date the revision of jobseeker's allowance to reflect the sickness took place.  It would appear from regulation 26A(5) of the Social Security (Claims and Payments) Regulations 1987 that (aside from regulation 55) the jobseeker's allowance should have stopped on the date when the claimant became sick.  If that was not until 24 July 1997, then the tribunal erred in starting its decision on 16 July. It seems likely that it did err, because the claimant has specifically appealed only the period from 25 July on the ground that he received no benefit then. As a result, any problem before 25 July is not an outstanding issue. Those are all matters undetermined by the tribunal.  On some unstated date a form claiming incapacity benefit was completed on official advice. Incapacity benefit was not awarded.  On 7 August 1997 a claim form for income support was issued to the claimant. He was treated as being entitled to income support from that date.  

5	The claimant appealed by letter received on 18 August 1997.  His appeal was:
	 “As per the telephone conversations of today, I hereby request an appeal of the decision to refuse payment from 25.7.97 to 5.8.97".  
He stated that he had not been “off sick” before, and it seems that he was not aware that there must have been not one decision, but at least three decisions preventing payment for that period: the decision to stop the jobseeker's allowance, the decision to refuse the incapacity benefit, and the decision to start the income support on 7 August.  In my view, the claimant's appeal is to be taken as made against all three decisions.  Neither the adjudication officer making the submission to the tribunal, nor the tribunal, saw it this way.  Both confined their attention to income support.  In doing so, they erred in law.  The adjudication officer now acting agrees with this, and supports the appeal on this ground.  

The decisions under appeal 

6	When, as here, a claimant with a clear entitlement to jobseeker's allowance reports sickness or disability causing incapacity for work (certified by the general practitioner) promptly to the local social security office, asks for and follows official advice about how to claim, and fills in all the claim forms he is asked to fill in, and yet still finds a gap in his benefit entitlement, he is in my view fully entitled to appeal, as this claimant did, against the gap in benefit. If he does so, that is, at least at first sight, an appeal against any and every decision by an adjudication officer or the Secretary of State that creates the gap in benefit.  When he does so, all the decisions relevant to that gap may need to be reconsidered on appeal, starting with the first.  

7	In this case, decisions about three benefits are, or may be, directly relevant.  This is because of the interaction of the previous claim to jobseeker's allowance and any new claim for income support or incapacity benefit.  These are regulated, for the first few days of potential overlap, by an important, but obscure and often forgotten, provision in the Jobseeker's Allowance Regulations 1996: regulation 55.  In this case, this gives rise to the following separate issues:
•	The decision to stop jobseeker's allowance is directly relevant because of the terms of regulation 55 of the Jobseeker's Allowance Regulations 1996, which may entitle the claimant to jobseeker's allowance for a period after he becomes sick. 
•	The decision about incapacity benefit is directly relevant because it may supersede the decision about jobseeker's allowance, and may displace the operation of regulation 55. 
•	The decision about income support arises when the other benefits are established not to apply, or when it operates to supersede jobseeker's allowance, where again regulation 55 is relevant. 
Further, there must be, and is, an order to that consideration, laid down in regulation 55 of the Jobseeker's Allowance Regulations 1996, the full text of which is annexed to this decision. 

The relevance of regulation 55 of the Jobseeker's Allowance Regulations 1996  

8	The key operative words in regulation 55(1) are:
	  “shall be treated ... as capable of work.” 
Where the regulation applies, incapacity for work must be ignored for a period of not more than 2 weeks.  I do not read the regulation as providing any discretion as to the application of the rule or the period for which it is to apply. That would be inconsistent with the mandatory operative words.  Subject to the exceptions in the rule itself, or to supersession by the award of another benefit, it is to be applied automatically for any period of incapacity for work of up to 2 weeks when any jobseeker's allowance claimant becomes incapable of work. It follows that the claimant was entitled to have his jobseeker's allowance paid, subject to these exceptions, for up to 2 weeks after he became incapable of work (which appears to have been 25 July 1997) so long as he remained incapable of work for at least those 2 weeks. 

9	The decision not  to continue the claimant's allowance despite regulation 55 was a decision against which he was entitled to appeal and, given the terms of the claimant's appeal, against which he did appeal.  It should have been dealt with by the tribunal, and it was not. The failure of the tribunal to deal with this is an error of law, and its decision must be set aside.

10	Having set aside the tribunal's decision, I consider this an appropriate case to take the decision that the tribunal should have taken.  The period in dispute is limited to the period from 25 July 1997 to 6 August 1997.  The appeal is fully supported by the adjudication officer, and all relevant issues can be decided on the available evidence.
   
The decision on jobseeker's allowance 

11	The first question to be determined is to what date jobseeker's allowance was paid.  The adjudication officer's submission to the tribunal,  on which the tribunal relied, stated that  the claimant was in receipt of jobseeker's allowance up to 15 July 1997.  For the reasons stated above, other evidence shows that this was wrong.  In the event it is not under appeal.  I find that jobseeker's allowance was paid to 24 July 1997. 

12	I must next consider the application of regulation 55 as authorising the continuance of jobseeker's allowance “for a period of not more than 2 weeks” from that date.  Precise determination is important.  As the adjudication officer rightly points out, “week” for the purposes of regulation 55 is any period of 7 days.  A period of 2 weeks following 24 July runs to 6 August.  Income support was paid to the claimant from 7 August.  On the facts now found, regulation 55, if it applies without exception, can cover the entire period in dispute in this appeal.  The backdating of income support, which was the matter considered by the tribunal, may therefore be irrelevant. 

The other benefits

13	With regard to any entitlement to incapacity benefit, my decision is that it is not open to appeal in this case.  This is because it has been accepted by the claimant that the decision not to award incapacity benefit was a decision based only on a failure to meet  contribution conditions.  As the decision was based only on that ground, it was not open to appeal to a tribunal: section 22(3) of the Social Security Administration Act 1992.  As the award of income support (save for the decision of the tribunal which I am setting aside) started on 7 August, and therefore after the period now under consideration, I do not need to consider income support unless it is made relevant by the proviso to regulation 55(1). 

14	I must also note regulation 55(4) as it contains an ambiguity with reference to the award of other benefits. This applies where “the first day in which he is unable to work falls within 8 weeks of” entitlement to other benefits. I take that to mean that regulation 55(4) only applies where the preceding provisions of regulation 55 would otherwise apply to a day which “falls within  8 weeks after”  a previous entitlement. As I read it, the paragraph protects the “linking” rules for other benefits. I can see no reason for reading the paragraph to apply to later entitlement to benefit. Indeed, such a reading would render the proviso to regulation 55(1) redundant and would also largely defeat the general purpose of regulation 55. 

The proviso to regulation 55(1)

15	The main part of regulation 55(1) sets out a simple rule. If someone receiving jobseeker's allowance becomes incapable of work (and therefore stops looking for work or being available for it), but otherwise meets the conditions for jobseeker's allowance, then he or she remains entitled to jobseeker's allowance  for up to 2 weeks notwithstanding the incapacity for work. This is subject to the proviso. Regulation 55(1) stops, or purports to stop, entitlement to jobseeker's allowance:
	“where the claimant states in writing that for the period of his disease or disablement he proposes to claim or has claimed incapacity benefit, severe disablement allowance or income support.”  

16	I agree with the submission of the adjudication officer  that the claimant is within the conditions of regulation 55(1) . But I also agree that a problem appears to arise because at some unspecified date he filled in a claim for incapacity benefit on official advice. I note that the adjudication officer accepts that he should not have done so as he had no realistic chance of obtaining that benefit.  The form is not in the appeal papers. 

17	Nonetheless, the fact that a claim form was filled in raises a question about the proviso to regulation 55. While the rule is straightforward, the proviso is complex and obscure. It appears to turn the rule into one which is either potentially impracticable to operate without disproportionate administrative effort, or which if not considered fully at all stages may prove to be unfair.  This is because there is a potential overlap in a case such as this between three benefits (jobseeker's allowance, incapacity benefit, income support).  If regulation 55 requires all the aspects of the benefits covered by the proviso to be examined before it is operated, it will require informed input from several sets of officials.  As it is supposed to bridge a gap of not more than 2 weeks between claims, it is unlikely to succeed if, before it can be considered whether it operates to continue jobseeker's allowance, it has to be determined whether there is anything known to the officials responsible for incapacity benefit, income support, and possibly severe disablement allowance, that stops its operation. This would also appear to undermine the mandatory nature of the main rule. It is against the background of this clash between simplicity and complexity that I must attempt to interpret the proviso to regulation 55(1). 

18	Read literally, the proviso contains interpretation problems as well as practical problems.   It is clearer if it is viewed as two separate rules entwined together.  The first is where the claimant states in writing that he proposes to claim another benefit for the period of his disease or disablement.  The second is where the claimant states in writing that he has claimed (italics mine) another benefit for that period. 

19	Isolated in this way, the first of those tests operates if there is a statement in writing made by the claimant other than a claim, but which shows that the claimant proposes to make a claim. What is not clear is whether that written statement may be any statement made for any purpose, or whether it has to be specific to this rule in regulation 55. This is unclear because of the requirement that the proposed claim is for “the period of his disease or disablement”. In particular, it is not clear if the proviso can operate when a request or  claim or request is made late, so that it does not start at the beginning of the period of sickness or disablement.  As there was no separate written statement in this case, this rule does not apply and I can leave these issues on one side.

20	The second of those tests is stated to operate when a statement in writing is made about a claim for another benefit, that other claim having already been made for the whole period of sickness or disablement. My view is that the claim must have been made before the written statement is made, because I can see no other explanation for the change of tense in the verbs used in the phrase.  The drafter of the proviso has, it seems to me, deliberately avoided reference to a person making a claim and has used a longer and more indirect form of words. Had the reference been to a claim, the wording could have been shorter and simpler. I can also see no reason for the statement referring to the whole period of illness if reference were to a claim itself.  Again, the issue about a late claim arises. It was assumed by the adjudication officer in the submission that the claimant could have triggered the operation of the proviso when he filled in the incapacity benefit claim form. On the view I have taken, filling in the incapacity benefit claim form would not trigger the proviso because some other, later, written statement would be needed to do this, and there was no such statement.

21	The interpretation of the proviso in the last two paragraphs is consistent with its grammatical structure. It also reinforces the primacy of the main rule in regulation 55 by limiting the scope of the proviso to statements that specifically bring it into play. But this has the effective of leaving out of account any properly completed claim form. It might therefore be argued that this interpretation is too restrictive, and that the aim of the provision was to trigger the proviso when a claimant had made a claim for another benefit, rather than waiting for a decision on the claim or asking for some other written statement. I therefore test the interpretation by two further considerations: the legislative context within which the rules operate and the policy behind the rules.

22	The relevant primary legislation is in framework form only. Regulation 55 is entitled “Short periods of sickness”.  It is found in Part III of the Jobseeker's Allowance Regulations 1996 under the heading “Other conditions of entitlement”, but that part contains no other provisions of direct relevance to the current situation.  It is therefore a “stand-alone” provision, and there is no context within which to interpret it other than the primary legislation.  Its effect is to make an overriding provision to the conditions for jobseeker's allowance laid down in sections 1, 2 and 3 of the Jobseekers Act 1995, and also to those for income support.  In so doing, it deals both with the contribution-based conditions in section 2 of that Act, and the income-based conditions in section 3.  Both section 2 and section 3 provide that, to be entitled to jobseeker's allowance, it is a condition that the claimant “is not entitled to income support” (section 2(1)(d) and section 3(1)(b)).  

23	The equivalent provision providing for entitlement to income support, section 124 of the Social Security Contributions and Benefits Act 1992 (as amended by Schedule 2,  paragraph 30, to the Jobseekers Act 1995), provides that a person is entitled to income support if “he is not entitled to a jobseeker's allowance”.  In other words, the two benefits are mutually exclusive but in terms of the primary legislation there is no inherent ranking order between them.  Regulation 55 provides that ranking. But it does not permit a claim for both benefits together. Equally, it seems to me, it does not authorise a regulation creating a gap between entitlements as has occurred in this case. 

24	The issue of gaps in benefit that might arise for people on jobseeker's allowance who had disabilities or illnesses was discussed in the Committee of the Whole House of the House of Lords in considering the Jobseekers Bill. The debate was in the context of a discussion of proposed amendments to the Bill about the application of the Bill to the working disabled and sick. Reference to parliamentary materials has now been accepted by the courts in order to assist resolving obscurity and ambiguity in legislation. It was accepted in considering a ministerial statement in presenting subordinate legislation to the Parliament in Pickstone v Freemans plc [1989] AC 66, and by reference to statements on Bills in the decision of the House of Lords in Pepper v Hart [1993] AC 593.  The approach adopted in the debates on the Jobseekers Bill was to announce the outlines of the subordinate legislation while considering the draft primary legislation. Given that the wording of the proviso is far from clear and appears to create a result not contemplated in the primary legislation, this case seems to fall well within the scope of these authorities and I have therefore considered the relevant Parliamentary record. 

25	The Minister of State responsible for the Jobseekers Bill (Lord Mackay of Ardbrecknish), in dealing with several points from members of the House on opposition amendments to the Bill dealing with the disabled and ill, stated as follows (Hansard, House of Lords Debates, 11 May 1995, cols 251 - 2):

	“I turn to Amendment No 16 [dealing with people with disability].   I reassure the Committee that we are fully aware of the important role that disabled people can play in the labour market ...
	However, we prefer not to use the terminology in this amendment for two reasons.  First, disability is not a term defined in the Bill and, secondly, people who are ill will be deemed available for work only for limited periods.  There is however a difference between the two categories since a person with a disability claiming JSA will be capable of and available for some work, but a person who is ill may not be capable of or available for work.  Under jobseeker's allowance , we will introduce a specific easement in the treating provisions which will give people who are sick the chance to stay on jobseeker's allowance and be treated as available for work for up to two weeks.  That will avoid the need for people to terminate and start claims within short periods of time, while ensuring the jobseeker's allowance is focused on the labour market.
	...
	Those points aside, I acknowledge the anxieties of members of the Committee about the balance between primary and secondary legislation.  The regulations to which I have referred, and which are included in the new clauses that I have been discussion, will be dealt with by the affirmative procedure.  Therefore, Parliament will be in a position to give a view on what we bring forward.  However, I have made it crystal clear, and I know that words from Ministers at the Dispatch Box have gained slightly more importance as regards courts of law and so forth.  I hope that the fact that I have been prepared to try to outline in detail the way in which we will envisage the system will work as regards disabled people and those found to be insufficiently disabled to qualify for incapacity benefit will reassure the Committee.
	[The Minister then invited the withdrawal of Amendment 16, and it was withdrawn].

26	This, in my view, makes it clear that the government had in mind the problem of the need to avoid terminating and restarting claims for benefit, and the gaps that would create, and intended the provisions in the Act and regulations, including what became regulation 55, to deal with them. Elsewhere in the debate the Minister referred expressly to what he termed “the two stools problem” (namely that a claimant would fall between two benefits without getting either).  It is precisely that problem that has arisen here, and I therefore take it that the better interpretation is the one that avoids the problem.  More specifically, there is a clear statement of the intention behind regulation 55 which reinforces the view that regulation 55 is intended to avoid short intervals of separate claim for incapacity benefit or income support. What should have happened here, therefore, was that the claimant’s claim for jobseeker's allowance should have been continued and he should not have been issued with new claim forms until it became clear that he would not be capable of work when the 2 weeks ran out. 

The meaning of the proviso

27	Putting these considerations together, I am satisfied that regulation 55 provides a mandatory, practical rule for those on jobseeker's allowance who suffer short periods of sickness not linked to earlier periods of sickness.  It prevents them needing to make a new claim for incapacity benefit or income support in order to keep benefit being paid at least for a short period.  The exception at the end of regulation 55(1) has to be interpreted in this context.  The aim of the proviso is in my view twofold: to protect the right of a claimant to claim incapacity benefit or income support where that claim might be more beneficial to the claimant than jobseeker's allowance, and to protect the Secretary of State from paying two benefits to claimants.  I do not read it as providing authority for taking away both jobseeker's allowance and income support from a claimant because someone is confused or misadvised, or for introducing excessive complexity where simplicity should rule. 

28	I therefore adopt the narrow reading I gave to the proviso in paragraphs 19 and 20.  There must be some written statement by the claimant other than a claim form for the proviso to operate.  Further, it must be clear that the statement applies to the whole period of sickness.  In the absence of such a statement, jobseeker's allowance must continue to be paid, as regulation 55 stops the disease or disablement being regarded as a change of circumstances relating to availability for work, active seeking of work, or capacity for work for up to two weeks.  One other point can be noted.  Had income support been awarded earlier in this case, then the award would have operated to supersede any entitlement to jobseeker's allowance under regulation 55 without regard to that regulation.  That did not happen in this case. 

My decision 

29	On that interpretation, and taking into account the support given by the adjudication officer to this appeal, I make the finding that the conditions for the continuation of jobseeker's allowance, save for those covered by regulation 55(1), apply in this case, and that there is no statement of a kind which causes the proviso to regulation 55(1) to operate. My formal decision that jobseeker's allowance is therefore payable for the period under appeal is in paragraph 1.

								David Williams
								Commissioner
								23 February 2000
ANNEX 

Regulation 55:

Short periods of sickness

55.-(1) Subject to the following provisions of this regulation, a person who -
(a)	[ (1) has been awarded a jobseeker's allowance] or is a person to whom any of the circumstances mentioned in section 19(5) or (6) apply; and
(b)	proves to the satisfaction of the adjudication officer that he is unable to work on account of some specific disease or disablement; and
(c)	but for his disease or disablement, [(1) would satisfy] the requirements for entitlement to a jobseeker's allowance other than those specified in section 1(2)(a), (c) and (f) (available for and actively seeking employment, and capable of work),
shall be treated for a period of not more than 2 weeks as capable of work, except where the claimant states in writing that for the period of his disease or disablement he proposes to claim or has claimed incapacity benefit disablement allowance or income support.

(2)	The evidence which is required for the purposes of paragraph (1)(b) is a declaration made by the claimant in writing, in a form approved for the purposes by the Secretary of State, that he has been unfit for work from a date or for a period specified in the declaration.

(3)	The preceding provisions of this regulation shall not apply to a claimant on more than two occasions in any one jobseeking period or where a jobseeking period exceeds 12 months, in each successive 12 months within that period and for the purposes of calculating any period of 12 months, the first 12 months in the jobseeking period commences on the first day of the jobseeking period.

(4)	The preceding provisions of this regulation shall not apply to any person where the first day in respect of which he is unable to work falls within 8 weeks of-
(a) 	an entitlement of his to incapacity benefit, severe disablement a or statutory sick pay; or
(b) 	an entitlement to income support where the person claiming a jobseeker’s allowance satisfied the requirements for a disability premium by virtue of paragraph 12(1 )(b) of Schedule 2 to the Income Support Regulations.

Amendment (indicated by [(1) ...]):
(1) Jobseeker's Allowance and lncome Support (General)  (Amendment) Regulations 1996 (SI 1996 No 1517), reg 17 (October 7, 1996).