Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC C14-93(IS) (24 June 1994)

 


Decision No: C14/93(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INCOME SUPPORT Appeal to the Social Security Commissioner on a question of law from the decision of the Ballymena Social Security Appeal Tribunal dated 24 May 1993 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal and comes with leave from the Chairman of that Tribunal.
2. I held an oral hearing at which claimant was represented by Mr Allamby and the Adjudication Officer was represented by Mr McMullan.
3. Briefly the facts are that the claimant who is in receipt of income support had various deductions made from his benefit in respect of electricity arrears and also in respect of repayment of a Social Fund loan and £5.00 per week in connection with the repayment of a previous overpayment of benefit. The only question which was before me was whether or not the Tribunal erred in law in its interpretation of paragraph 6 of Schedule 8(a) of the Claims and Payments Regulations (Northern Ireland) 1987.
4. The Tribunal went into the matter very thoroughly and at great length. The relevant law is found in regulation 6 which reads:-

"6.-(1) Subject to paragraph 8, where a beneficiary who has been awarded any specified benefit or his partner is in debt for any item of mains gas or mains electricity, including any charges for reconnection of gas or electricity, ("fuel item") to an amount not less than the rate of personal allowance for a single claimant aged not less than 25 years and continues to require that fuel, the adjudicating authority shall determine that an amount of the award of the specified benefit ("the amount deductible") calculated in accordance with sub-paragraphs (2) to (5) shall be paid to the person to whom payment is due in accordance with paragraph 2(2) but, except in a case to which sub-paragraph (5) applies, only where the adjudicating authority is of the opinion that such a payment would be in the interests of the family.

(2) Subject to sub-paragraph (5), the amount deductible shall, in respect of any fuel item, be such weekly aggregate of the following as is appropriate -

(a) in respect of a debt to which sub-paragraph (1) applies a weekly amount equal to 5 per cent, of the personal allowance for a single claimant aged not less than 25 years, but where a debt remains outstanding in respect of more than one fuel item the aggregate of the amounts calculated under this head shall not exceed twice 5 per cent, of the personal allowance for a single claimant aged not less than 25 years;

(b) except where current consumption is paid for by other means (for example pre-payment meter), an amount equal to the estimated average weekly cost necessary to meet the continuing need for that fuel item, varied, when appropriate, in accordance with sub-paragraph (4)(a).

(4) Where an amount is being paid direct to a person on behalf of the beneficiary or his partner in accordance with a determination under sub-paragraph (1) and that determination falls to be reviewed -

(a) where since the date of that determination the average weekly cost estimated for the purpose of sub-paragraph (2)(b) has either exceeded or has proved insufficient to meet the actual cost of continuing consumption so that in respect of the continuing need for that fuel item the beneficiary or his partner is in credit or, as the case may be, a further debt has accrued, the adjudicating authority may determine that the weekly amount calculated under that sub-paragraph shall, for a period of 26 weeks, or such longer period as may be reasonable in the circumstances of the case be adjusted so as to take account of that credit or further debt;

(b) where a debt in respect of any fuel item has been discharged the adjudicating authority may determine that the amount deductible in respect of that fuel item shall be the amount determined under sub-paragraph (2)(b).

(5) Subject to paragraph 8, where the aggregate amount calculated in accordance with sub-paragraph (2) exceeds a sum equal to 25 per cent of the applicable amount (that 25 per cent; being, where it is not a whole number of pence, rounded down to the next such penny), a determination that such aggregate amount be paid shall be made only with the consent of the beneficiary and where the beneficiary does not so consent the adjudicating authority shall determine that an amount equal to 25 per cent of the applicable amount (that 25 per cent; being, where it is not a whole number of pence, rounded down to the next such penny) shall be paid."

5. The difficulty arises in connection with regulation 6(5) and the Tribunal was perfectly correct in holding that under 6(5) there is no discretion and that arises where the aggregate amount of deduction equals or exceeds 25 per cent, then a deduction of 25 per cent must be made were the application does not consent to a greater deduction and the interests of the family may not be taken into account at that point.
6. However, the Adjudication Officer now argues that in considering all the deductions, which in this case were numerous, there was a discretion in 6(4) which relates to determining the average weekly cost. He said the Adjudication Officer has a discretion and he assessed the deduction under that regulation as £3.86 because that was the amount which brought the total deduction up to 25 per cent which was the maximum in the absence of claimant's consent. However, Mr McMullan on behalf of the Adjudication Officer now argues that as disconnection of the electricity was not an issue then the Adjudication Officer, before he exercised the discretion which he has, should have taken into account the interests of the family and all other deductions which were being made and could well have decided that no deduction should be made in respect of the under-estimation for a previous period. It is at that point the Adjudication Officer could have exercised his discretion and considered the interests of the family because as the Tribunal properly held there is no discretion under 6(5).
7. Mr McMullan also drew attention to the fact that one of the deductions was an amount of £5.00 which was being deducted each week in respect of recovery of an overpayment and drew attention to the fact that the guidelines to Adjudication Officers sets out priority of deductions. Mr McMullan argued that in accordance with the guidelines the £5.00 which was being deducted for overpayment recovery should have been suspended.
8. Mr Allamby argued along much the same lines as Mr McMullan. He argued that 4(a) gave a discretion which the Adjudication Officer should have exercised and that with all the deductions claimant was left with very little.
9. I have considered all that has been said and I have considered the regulations. The Tribunal went into the matter very carefully and was perfectly correct in holding that regulation 6(5) gave the Adjudication Officer no discretion. However I am satisfied the Adjudication Officer did not properly exercise his discretion in respect of 6(2) and 6(4) and also he did not follow the guidelines laid down in respect of the priority of deductions, in particular relating to recovery of an overpayment.
10. Adjudication Officers should bear in mind that they are not servants of the electricity authority and that because the electricity authority makes a request for certain payments to be made to it, that it is merely a request and it is not a direction or a demand and even though the regulation contains a formula for such deduction, nevertheless the Adjudication Officer has ample discretion in this matter which should be exercised properly. It is understandable that the electricity authority seek as much of a reduction in the debt as it can get but nevertheless the discretion which is vested in the Adjudication Officer means that he must take into account the interests of the family and there must be a proper balance between the interests of the family and the repayment of the debt.

I am satisfied that the Tribunal erred in not considering whether or not the Adjudication Officer properly exercised his discretion in respect of regulation 6(2) and 6(4). This is not in any way a criticism of the Tribunal which I consider went into the matter in great depth. I therefore allow the appeal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal may exercise the discretions contained in 6(2) and 6(4).

(Signed): C C G McNally

COMMISSIONER

24 June 1994