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	UK Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2001] UKSSCSC CIS_2654_1999 (05 January 2001) URL: http://www.bailii.org/uk/cases/UKSSCSC/2001/CIS_2654_1999.html Cite as: [2001] UKSSCSC CIS_2654_1999

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[2001] UKSSCSC CIS_2654_1999 (05 January 2001)

 


THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/2654/99

1. This appeal, brought with leave of the regional chairman, succeeds. The decision of the Social Security Appeal Tribunal on 21 1 99 was erroneous in point of law, for the reason given below. But I consider it expedient pursuant to s14(8)(a)(i) of the Social Security Act 1998 to make findings of fact and give my own decision in accordance with them. This is that the appellant was entitled to income support at a reduced rate from 3 9 98 up to and including the day before he was again accepted as incapable of work, 21 10 98. However, this will be of no benefit to him, because the amount of jobseekers allowance (JSA) he received during the same period must be offset against, and will exceed, the arrears of income support to which he would otherwise be entitled.
2. At the appellant's request I held an oral hearing in Liverpool, at which the appellant was present and represented by his sister Deborah and the Secretary of State (who has succeeded the former adjudication officer) was represented by Mr David Lewis of counsel. I am grateful to both representatives for their help. Following that hearing I issued a direction for further information, which was provided by the Secretary of State's officer Mr Myers and on which the appellant had no further comment.
3. This appeal is against the refusal to the appellant of income support on a claim made on 7 9 98.. The appellant, a divorced man born on 21 4 62, had had a period of incapacity for work from 16 2 95 to 29 10 96, and had been paid income support on that basis under paragraph 7 of Schedule 1B to the Income Support (General) Regulations, which prescribes, as one of the categories of persons under regulation 4ZA, persons who are incapable of work under the All Work Test instituted under Part XIIA of the Contributions and Benefits Act. The benefit would, after a period of 364 days, have included the disability premium (paragraphs 11(a) and 12(b) of Schedule 2 to the Income Support (General) Regulations). It is recited in the Commissioners file on the unsuccessful application for leave to appeal against the incapacity credits decision (see below) that he was again certified by his doctor as incapable of work from various causes from 29 10 96 and incapacity credits were paid from that date. I assume that income support on the grounds of incapacity therefore continued to be paid.
4. On 24 10 97 the appellant was sent an incapacity for work questionnaire, which he returned on 6 11 97. It was perfectly proper for periodic checks to be made to ensure that his incapacity for work continued. He underwent an All Work Test examination on 24 4 98; and he failed it.. So he was found capable of work from and including 28 4 98. He appealed that decision, and also made a fresh claim on 6 5 98, based on incapacity from 29 4 98), which was rejected because he had received an adverse incapacity decision within the previous 6 months (regulation 28(2)(b) of the Incapacity for Work (General) Regulations).
5. There was never any question of the appellant receiving incapacity benefit because his contribution record would have been defective. But regulation 19 of the Incapacity for Work (General) Regulations provides that a determination that a person is capable of work under the All Work Test is to be treated as conclusive for the purposes of entitlement to any other benefit - in this case income support. The mechanism is that a claimant no longer falls within paragraph 7 of Schedule 1B to the Income Support Regulations, as he is no longer incapable of work under the All Work Test, so he can no longer receive income support on the grounds of incapacity for work. Nor can he continue to receive the disability premium, as he no longer is, nor is he treated as, incapable of work under the All Work Test as required by paragraph 12(b) of Schedule 2. (This latter point caused me some difficulty, but I am now satisfied. I apologise to the parties for the extra work and delay caused by my difficulty.)
6. However, pending the determination of an appeal against an incapacity decision, a person is not deprived of income support altogether: paragraph 25 of Schedule 1B prescribes as another category of persons under regulation 4ZA those who have appealed against an All Work Test decision, but "only for the period prior to the determination of [the] appeal". However regulation 22A provided that the personal allowance element of the applicable amount of a claimant in this position should be reduced by 20%. That was, I presume, applied in this appellant's case. He could not escape it, because although he was incapable of work in accordance with the regulations in force on 12 4 95 (the day before the new incapacity for work regime was introduced), he was not then in receipt of invalidity pension or severe disablement allowance and had not been incapable of work for a continuous period of 28 weeks before that date, but only for a couple of months, so he could not bring himself within the exceptions in regulation 22A(3).
7. The appeal against the incapacity credits decision was heard in the appellant's absence on 21 8 98, and it was rejected. That being the case, the second claim of 6 5 98 was bound to fail. A set-aside request was refused, and the appellant was refused leave to appeal to the Commissioners, both by the chairman, and by one of my colleagues on 30 3 99. In the absence of any request for judicial review of that refusal, that was the end of the appeal against the adjudication officer's decision of 28 4 98, and the appellant was fixed under regulation 19 of the Incapacity for Work Regulations with the finding that he was capable of work. I should stress that although I have seen the Commissioner's file relating to that appeal, no aspect of it has ever been before me.
8. In the meantime, the appellant had been advised to claim jobseekers allowance (JSA), because this would give him a better rate of benefit than income support. He had not been entitled to the disability premium as part of his income support since 24 8 98, and under JSA he would not be subject to the 20% deduction from his income support under paragraph 22A. He could only claim JSA on the basis that he was not entitled to income support (s3(1)(b) of the Jobseekers Act 1995). He duly made a claim on 3 9 98 (having been paid income support until 2 9 98) and was awarded JSA.
9. However, he was unhappy about the finding of capacity for work, which he had appealed, and on 7 9 98 he made a fresh claim for income support. This was refused, on the ground that he did not fall within any of the prescribed categories under paragraph 4ZA and Schedule 1B.
10. The appellant was accepted once again as incapable of work from and including 22 10 98, and so far as I know has remained on incapacity-based income support, no doubt with restoration of the disability premium after 364 days, since then. The period under consideration before me is therefore limited to 7 9 98 to 21 10 98.
11. The appeal against the income support refusal was heard on 21 1 99, and the tribunal concluded that the appellant did not qualify for income support under paragraph 7 of Schedule 1B, having been found capable of work, nor under any of the other Schedule 1B categories.
12. The appeal to me was essentially based on continuing incapacity, which was not a valid ground given the refusal of leave to appeal against the incapacity decision. But the Secretary of State's officer concerned with it before me submitted that the decision was wrong, because paragraph 25 of Schedule 1B continued to apply to preserve entitlement to income support (less 20%) until the appeal against the incapacity decision had been finally determined by refusal of leave to appeal. He cited CIS/210/94, which had held that the then equivalent provision to paragraph 25 protected an appellant up to and including the day before the date of the Commissioner's own decision. However, the officer pointed out that the appellant had in fact done better during his period on JSA than he would if he had received income support, and that any award of arrears of income support for the period in question would be exceeded by the JSA actually received. As the two benefits are mutually exclusive, as explained above, the JSA would require to be offset under regulation 5(2) of the Payments on Account, Overpayments and Recovery Regulations.
13. Similar arguments were addressed to me by Mr Lewis at the oral hearing.
14. Both the appellant in his written response to the Secretary of State's officer and his sister at the oral hearing stressed, quite understandably given the complexity of the provisions under consideration, that as far as they were concerned the appellant had always been incapable of work during the relevant period. Certainly at the oral hearing he took no part whatsoever in the proceedings and appeared incapable of doing so. However, as I have said the appeal before me is not against the incapacity decision, the only decision to which the facts of incapacity are relevant. I am bound by my colleague's refusal of leave to appeal, and I also bear in mind that I saw the appellant well over two years after the events in question and a year after he was again found incapable of work.
15. I agree with the submissions on behalf of the Secretary of State that the appellant was entitled to the benefit of paragraph 25 of Schedule 1B until the day before my colleague's dismissal of his application for leave to appeal, ie until 29 3 99. I agree with the holding in CIS/210/94 (Mr Lewis assured me that he had found no adverse authority on the general principle) that the "determination" of an appeal occurs only once it can be taken no farther, and not merely once a tribunal has reached a conclusion. Indeed, it might be said that an appeal continues to be undetermined until any time allowed for appealing (or applying for judicial review of) the latest decision has elapsed, though I need not decide this since the appellant here had long been reawarded income support on the basis of incapacity by the time his application for leave to appeal was refused.
16. I therefore allow the appeal. But as mentioned in paragraph 1 above, this will be of no financial benefit to the appellant, because the JSA he was receiving between 7 9 98 and 21 10 98 was higher than the income support, without the disability premium and with the 20% reduction pending determination of the incapacity appeal, would have been. There will of course be no question of any JSA overpayment being recoverable, so the appellant suffers no harm by my decision, even though he gets no benefit.

(signed) Christine Fellner

Commissioner

5 January 2001