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[2009] UKUT 2 (AAC) (07 January 2009)

 


IN THE UPPER TRIBUNAL Appeal No. CIS/2833/2008

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Secretary of State, brought with the permission of a legally qualified panel member, against a decision of an appeal tribunal sitting at Weymouth on 18 April 2008. For the reasons set out below that decision was in my judgment erroneous in law and I set it aside. In exercise of the power in section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I substitute for the decision made by the Tribunal a decision dismissing the Claimant's appeal against the Secretary of State's decision made on 23 November 2007.

Introduction

2. The Claimant (Mr J) was in receipt of income support, and was also in receipt of carer's allowance by reason of the care which he was giving to his disabled wife (Mrs J). His applicable amount for income support purposes included, I assume, the amount appropriate for a couple. The amount of his carer's allowance was part of his income for income support purposes, and so was deducted in determining his income support entitlement.
3. Mr J's entitlement to carer's allowance ceased with effect from 2 September 2005 (the reason does not emerge from the papers, and does not affect the outcome). His income support award should therefore have been increased with effect from that date. However, he did not inform his local office that payment of carer's allowance had ceased, and that office was not aware that it had. His income support therefore continued to be calculated on the footing that carer's allowance should be deducted, until on 10 October 2007 he informed the local office that his carer's allowance had ceased with effect from 2 September 2005, and requested that arrears of income support be paid with effect from that date.
4. By a decision of the Secretary of State made on 23 November 2007 it was decided that the income support award should be superseded and increased, but with effect only from 10 October 2007, not from 2 September 2005.
5. The Tribunal allowed Mr J's appeal, holding that the supersession had effect from 2 September 2005.

The relevant legislation

6. The statutory provisions governing the date from which the supersession took effect are in regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. That sets out exceptions to the general rule, in section 10(5) of the Social Security Act 1998, that a supersession takes effect from the date of the application for supersession (or from the date of the superseding decision where it was made on the Secretary of State's own initiative).
7. The general position set out in regulation 7(2) of the 1999 Regulations is that, in the case of a supersession which is advantageous to the claimant and is made on the ground of a change of circumstances, the supersession takes effect from the date of the change of circumstances if the change was notified to an appropriate office within one month of the date when the change occurred or within such longer period as may be allowed under regulation 8. An application under regulation 8 for an extension of the period for notification must be made within 13 months after the change of circumstance. If the change of circumstance is not notified to an appropriate office within one month, or such extension as is granted under regulation 8, the superseding decision takes effect from (broadly) the date of notification.
8. In the present case, therefore, the general provisions in regulation 7(2) would have the effect that the superseding decision whereby increased income support was awarded took effect from about 10 October 2007, the date of notification. The local office was not informed of the cessation of carer's allowance within one month, and there was no possibility of an extension under regulation 8 because the notification was not within 13 months of the cessation.
9. However, special provisions governing the effective date of a

supersession where the change of circumstances is the cessation of payment of carer's allowance have recently been added to regulation 7(2) by amendment. The relevant part of reg. 7(2) now reads:

"Where a decision under section 10 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision had effect ……the decision under section 10 shall take effect –

……………………………………………………………..

(bc) subject to paragraph (bd), where the decision is advantageous to the claimant and is made in connection with the cessation of payment of a carer's allowance, the day after the last day for which that allowance was paid;

(bd) sub-paragraph (bc) shall only apply to the disabled person whose benefit is affected by the cessation of payment of carer's allowance."

10. Sub-paragraph (bc) was added with effect from 2 October 2006, and sub-paragraph (bd) with effect from 24 September 2007. They were therefore both in force at the time when the decision under appeal to the Tribunal was made.

The Tribunal's decision

11. On the face of it sub-paragraph (bd) was not satisfied in the present case. Mr J (the income support claimant) was not "the disabled person whose benefit is affected by the cessation of payment of carer's allowance." "The disabled person" clearly means the person being cared for (Mrs J), and on the face of it sub-paragraph (bd) appears only to apply where the disabled person is also the person claiming the benefit (in this case income support) which was affected by the cessation of carer's allowance. That has throughout been the Secretary of State's contention.
12. However, the Tribunal disagreed and held that sub-paragraph (bd) was satisfied. It summarised its reasoning succinctly in the Decision Notice:

"[Mr J] is entitled to the increase in income support resulting from the cessation of carer's allowance as from 2 September 2005 because the decision superseding the previous award is advantageous to him and is made in connection with the cessation of payment of a carer's allowance and because the benefit of the disabled person, his wife [Mrs J], is affected by the cessation of payment of carer's allowance.

[Sub-paragraph (bd)] is not at all clear. It does not say that the disabled person has to be the claimant. She could be said to be receiving income support if her husband is claiming it for both of them, as is clearly the case here.

Her benefit was affected by the cessation of carers allowance as a person who was jointly entitled to such benefit. There is no reason to suppose that the operation of [sub-paragraph (bd)] should depend upon which of the two partners is the one actually applying for income support for both of them."

Analysis and conclusions

13. It is true that sub-para. (bd) does not in terms say that the disabled person must be the claimant for the affected benefit. However, is it correct to say (as the Tribunal held) that Mrs J is a person "whose benefit is affected by the cessation of payment of carer's allowance?"
14. The main statutory provisions relating to claims for income support by and awards in favour of couples are the following. If both members of a couple satisfy the conditions of entitlement, a claim can be made by whichever partner they agree should claim, and in default of agreement by such one of them as the Secretary of State determines: reg. 4(3) of the Social Security (Claims and Payments) Regulations 1987. By s.134(2) of the Social Security Contributions and Benefits Act 1992 "the entitlement of one member of a family to any one income-related benefit excludes entitlement to that benefit for any other member for the same period." Where one member of a couple is entitled to income support and, with his agreement, his partner then claims income support, the former's entitlement shall terminate on the day before that claim is made or treated as made: reg. 4(4) of the 1987 Regulations. The legislation contains provisions as to the amounts of the personal allowance and premiums applicable in cases where the claimant is a member of a couple. For example, the amount of the personal allowance is higher in the case of a couple than in the case of a single person. For the purpose of determining the claimant's assets the income and assets of any other member of his family are aggregated with those of the claimant: s.136(1) of the 1992 Act.
15. Although it can be said, speaking somewhat loosely, that one member of a couple claims income support "on behalf of" the other member, it seems to me that the legislation makes it clear that strictly speaking the award is made in favour only of the claimant, and the entitlement is his alone. I draw support for that conclusion from what was said by Richards L.J. at para. 37 of Secretary of State for Work and Pensions v Wilson [2006] EWCA Civ 882; R(H) 7/06 in respect of a claim to housing benefit by one of a couple:

"I would be prepared to accept that Mr Wilson's claim was not made on behalf of his wife, though this had nothing to do with the fact that he was the sole tenant. Under the statutory scheme either of them could have made the claim, irrespective of whether it was a sole or joint tenancy; but it seems to me that, whichever of them made the claim, the claim was his or her own claim and was not also made on behalf of the partner."

For example, if a claimant in receipt of income support as one of a couple were to die, leaving his or her assets to another person by will, arrears of entitlement to income support would pass to the legatee, not to the other member of the couple, subject of course to any exercise by the Secretary of State of the power in reg. 30(3) of the Social Security (Claims and Payments) Regulations 1987 and to any claim under the Inheritance (Provision for Family and Dependants) Act 1975. The position would be different in relation to jobseeker's allowance, where reg. 30(4A) of the 1987 Regulations specifically provides that on the death of one member of a joint-claim couple the amount payable under an award shall be payable to the other member of the couple.

16. As I have said, it seems to me that the natural meaning of sub-paras (bc) and (bd), when read against the background of the provisions in relation to couples which I have referred to, is that the disabled person must be the claimant for the affected benefit. I do not think that the words "the disabled person whose benefit is affected by the cessation of payment of carer's allowance" correctly describe, except in a very loose sense, the position where the person in whose favour the affected benefit was awarded was not the disabled person but his partner.

16. I therefore turn to consider whether any assistance is to be gained by looking at the likely purpose of sub-paras (bc) and (bd).

18. As I understand it the main situations in which the cessation of entitlement to carer's allowance might result in an increased entitlement to another benefit are the following. First, there is the situation (as in the present case) where the entitlement to carer's allowance was being taken into account as income in determining a claimant's entitlement to income support or another means-tested benefit. That could only be so where the person in receipt of the means-tested benefit is either the carer himself or a member of his family (as defined (in relation to income support) in s.137(1) of the 1992 Act). Secondly, there is the situation where the person being cared for would be entitled to the severe disability premium/ additional amount for income support or other means tested benefit purposes if no carer's allowance were being paid to the carer. The severe disability premium/additional amount is not payable if carer's allowance is in payment to a person caring for the disabled claimant: see, in relation to income support, para. 13(2)(a)(iii) of Schedule 2 to the Income Support (General) Regulations 1987.

17. It seems to me that the rationale behind the introduction of sub-para. (bc) must have been that the person in receipt of the means tested benefit might well be unaware of the cessation of the carer's entitlement to carer's allowance, and so be unable to report it. (That is, however, only likely to be so in the second of the two situations which I outlined in the previous paragraph).
18. Cases in which the recipient of the means-tested benefit became aware of and reported the cessation of carer's allowance within 13 months from the date of the cessation could have been dealt with justly by extending the period for notification under reg. 8 of the 1999 Regulations, but not so where the interval was of more than 13 months.
19. Before the enactment of sub-para (bd), however, the remedial provision in sub-para (bc) was clearly capable of applying to any case where cessation of entitlement to carer's allowance increased the amount of an entitlement (whether of the person being cared for or anyone else, including the carer) to another benefit. That would appear to have gone well beyond what can have been intended. In particular, it would have applied where the carer's own entitlement to a means-tested benefit was being reduced by reason of his receipt of carer's allowance, and where he in breach of notification requirements simply failed to report the cessation of care allowance to the income support office.
20. Sub-para (bd) must have been intended to remedy that defect. The Tribunal stated (see the third paragraph of its Decision Notice, set out in paragraph 12 above) that there is no reason why it should make a difference whether the income support claimant was the disabled person or his partner. However, I would not agree with that. By stipulating in sub-para (bd) that the person in receipt of the benefit must be the disabled person (i.e. the person being cared for) the draftsman ensured that the benefit of the provisions could not be invoked by the person whose carer's allowance had ceased, and who would therefore necessarily have been aware of the cessation, and who would almost certainly have been in breach of the requirement to report the cessation.
21. If the provisions were capable of being invoked in the present case (i.e. where the income support claimant is not Mrs J, the disabled person, but her partner, Mr J), the result would be to allow them to be invoked by the person whose care allowance had ceased, which was the most obvious situation which sub-para (bd) must have been intended to avoid. It does not seem to me to be very plausible to suggest that the provisions were intended to benefit the disabled person in circumstances where her partner was the recipient of both carer's allowance and the other affected benefit, and who had failed to report to the relevant office the fact that his care allowance had ceased.
22. Examination of the probable rationale behind the enactment of sub-paras. (bc) and (bd) therefore seems to me to support the construction of those provisions which I consider to be the natural one.
23. For the above reasons I conclude that the Secretary of State is right in submitting that the effect of sub-para (bd) is that sub-para (bc) applies only where the claimant for the affected benefit was the disabled person (i.e. the person being

cared for), and not where the disabled person was the partner (or other member of the family) of the claimant for the affected benefit. I therefore allow the Secretary of State's appeal.

Charles Turnbull

Judge of the Upper Tribunal

7 January 2009