Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C2/99(ICA) (26 June 2000)

 


Decision No: C2/99(ICA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INVALID CARE ALLOWANCE

Appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 15 January 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with leave of the Chairman of the Tribunal, against the decision of the Appeal Tribunal in which it was held that the claimant was not entitled to Invalid Care Allowance from 21 September 1998 to 25 October 1998.
2. The claimant made a claim for Invalid Care Allowance from 7 August 1997 by completing the appropriate form which was received in the Department on 27 May 1998. She stated on the form that she was caring for her daughter J . On 29 June 1998 the claimant stated that she did not have any expenses in connection with her employment on the Mental Health Tribunal (sic). On 26 August 1998 an Adjudication Officer confirmed that no expenses had been claimed. On 9 November 1998 information was received from the claimant's employer, described as "Mental Health Review Tribunal" stating that the claimant was still employed and was paid on a monthly basis. Earning details for the period from June 1998 to September 1998 ranged from £180.60 per month to £277.10 per month. The period before 21 September 1998 has been a subject matter of other decisions and is not directly relevant to the present appeal. On 16 November 1998 the Adjudication Officer disallowed the claim for Invalid Care Allowance for the period from 21 September 1998 to 25 October 1998. The claimant then appealed to a Tribunal.
3. The Tribunal found the following fact material to its decision:-

"Appellant earns fees, assessed on a session basis, but

is paid monthly and, if she was earning sufficient to

attract income tax this would be deducted at source at

the standard rate as is the case with people employed

and paid a salary."

4. The Tribunal gave the following reasons for its decision:-

"Tribunal feels that the argument advanced by appellant

is a valid one which raises a possible unjust situation

in that the appellant is more akin to a self employed

person that an employed earner and earns fees on a

session basis but, on the evidence, it is clear that

appellant is paid monthly. That is the fees earned

on a session basis accumulate and are paid at the end

of each month. We find that appellant is an employed

earner within the meaning of that phrase in the

Regulations.2

Thus, in order to arrive at the earnings in the week

proceeding the week of claim, we feel that Regulation

8(1)(b)(i) of the Computation of Earnings Regulations

must be applied as it refers to payment for a period

in excess of a week as distinct from earnings in that

sense, and in this case, the application of their

Regulation results in a figure in excess of £50 per week.

Thus, in accordance with Regulation 8 of the Social Security

(Invalid Care Allowance) Regulations (N.I.) 1976 the

appellant is taken as gainfully employed in the relevant

week and is not entitled to benefit as per Section 70(i)

and (8) of the Contributions and Benefits Act 1992."

5. The record of proceedings prepared by the Chairman was in the following terms:-

"Appellant attended without a representative but it appears

she is a Tribunal member in another area.

[The claimant's husband] says the appellant is not employed

as such but earns fees for sessions attended by her on mental

health tribunals. It is, therefore, inappropriate to use the

method of calculating income set out in Regulation 3 of the

Social Security Benefit (Computation of Earnings) Regulations

(N.I.) 1996.

He feels that the appellant earns on a daily basis, not

monthly, but admits she is paid monthly.

The method of calculating earnings by the regulation 3 is

contrary to government policy as it discourages people from

undertaking public duties, and, as most carers are women and

most part-time workers are women, the application of this

method of calculating earnings, could be termed sexual

discrimination.

[Claimant's husband] says Regulation is wrong and only

drafted for the purpose of saving administrative costs and

for the convenience of the Department. It is inappropriate

and unfair.

[Claimant's husband] says, in his view, appellant is not an

employed earner. Neither is she self employed. She does not

enjoy the privileges of an employer. She does earn fees on a

session basis."

6. The unanimous decision of the Tribunal was in the following terms:-

"Appellant is not entitled to Invalid Care Allowance from

21.9.98 to 25.10.98 (inclusive)."

7. The claimant sought leave to appeal to a Commissioner on the following points of law:-

"There has been a breach of the rules of natural justice.

The regulations for the calculation of weekly income for

those paid monthly act against women who have public

appointments contrary to public policy aimed at encouraging

women to take public appointments.

This allowance is a care allowance and since most carers are

women and low paid the operation of these regulations are

discrimination against women."

8. As stated at the first paragraph, the Chairman granted leave to appeal on 9 June 1999.
9. A Commissioner on 24 November 1999 required the claimant, by a direction under the provisions of regulation 20(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, to furnish full particulars of her case. In spite of an extension of time being granted no such particulars were ever furnished.
10. A hearing of the case was arranged and was held on 23 May 2000. On the preceding day the office received a letter stating (inter alia) the following:

"Can you please remove my appeal from your list tomorrow at

11 am."

11. The letter received is somewhat ambiguous but consideration was given to whether it amounted to an application to withdraw the appeal. It is clear that a Commissioner has jurisdiction to hear this appeal in any event as an appeal can only be withdrawn with a Commissioner's leave - see regulation 26(2) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999. I decided to continue hearing the appeal in the circumstances as it was relevant that, in a written submission dated 22 May 2000, Mr Cassidy, of the Decision Making and Appeals Unit of the Department for Social Development, had made a submission which in effect supported the claimant's appeal, though on entirely different legal grounds, and that this support was potentially in favour of the claimant.
12. At the hearing the Department was represented by Mr John Morrissey of Counsel instructed by the Departmental solicitor whilst the claimant, not surprisingly in the circumstances, was neither present nor was she represented.
13. Although the claimant's case had not been set out as required by the Commissioner's direction requiring further particulars, Mr Morrissey still attempted to deal with the issues.
14. In relation to the first point, namely that the decision was in breach of the rules of natural justice, Mr Morrissey submitted that the claimant had not made a substantive submission on this point and, in particular, it was not clear whether the claimant was arguing that the procedure was in breach of the rules of natural justice or the application of the law was in breach of the rules of natural justice.
15. I find nothing in the present case to suggest that there has been any breach of natural justice. Accordingly, in the circumstances I conclude that there are no grounds on which I can decide that there has been such a breach in this case.
16. The second point relied upon by the claimant in her notice of application for leave to appeal is that the relevant regulations for the calculation of weekly income discriminate against women.
17. Mr Morrissey submitted that the provisions of the relevant law are neutral as regards male and female and that therefore there are no grounds for any direct discrimination. He therefore submitted that the claimant's case can only be grounded on a claim for indirect discrimination. However indirect discrimination arises only where (i) the complaint proves a demographic point, namely that the practice or enactment complained of, although apparently sexual neutral, in fact has a disproportionate impact on one sex; and (ii) the author of the practice or enactment is unable to establish that the practice or enactment complained of can be explained by objectively justified factors unconnected with discrimination on grounds of sex - see Great Britain Commissioner's decision R(G)2/91 and R v Secretary of State for Education ex parte Schaffter [1987] IRLR page 53.
18. It seems that the claimant may be relying on European Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security or Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. However, as Mr Morrissey submitted at the hearing (and Mr Cassidy, the Departmental Official now concerned with this case, also submitted in a letter dated 11 November 1999) the onus of proof that the claimant has been indirectly discriminated against rests on the claimant. It is also relevant that, whilst a Commissioner has in the appropriate circumstances an inquisitorial role, he has no investigatory powers.
19. I accept this basic submission that there is no evidence in this case that there has been any indirect discrimination and therefore it is not for the Department to prove a negative.
20. Therefore, for the reasons stated, I conclude that the Tribunal has not erred in law in the respects alleged by the claimant.
21. However Mr Cassidy, by letter dated 22 May 2000, brought forward another significant point which, Mr Morrissey submits, demonstrates that the Tribunal has erred in point of law in coming to its decision. The substance of Mr Cassidy's letter is as follows:-

"The adjudication officer's decision in this case refers to

section 70(1)(b) of the Social Security Contributions and

Benefits (Northern Ireland) Act 1992 and regulation 8 of the

Social Security (Invalid Care Allowance) Regulations (Northern

Ireland) 1976. No reference is made to The Social Security

Benefit (Computation of Earnings) Regulations (Northern

Ireland) 1996 under which [the claimant's] average weekly

earnings were calculated.

The submission to the tribunal refers specifically to

regulation 8(1)(b)(i) of the computation of earnings

regulations. The tribunal upheld the adjudication officer's

decision applying regulation 8(1)(b)(i).

Regulation 8 contains a number of subsections catering for

various circumstances. It is possible that regulation

8(1)(b)(i) has been incorrectly applied and that, applying

regulation 8(3), a different figure for [the claimant]

average weekly earnings could have been arrived at.

Regulation 8(1)(b)(i) provides that where the period in

respect of which a payment is made is a month, the weekly

amount shall be determined by multiplying the amount of that

payment by 12 and dividing the product by 52. In the present

case, the calculation produced an amount of £55.43. As a

consequence [the claimant] was not entitled to ICA for the

period under appeal.

However, regulation 8(3) provides:

"Where the amount of the claimant's earnings

fluctuates and has changed more than once, or

his regular pattern of work is such that he

does not work every week, the application of

the foregoing paragraphs may be modified so

that the weekly amount of his earnings is

determined by reference to his average weekly

earnings over -

(a) where there is a recognisable cycle of

work, the period of one complete cycle

(including, where the cycle involves

periods in which he does not work, those

periods but disregarding any other

absences);

(b) in any other case, a period of 5 weeks or

such other period as may, in the particular

case, enable his average weekly earnings to

be determined more accurately."

[The claimant's] earnings fluctuate and she has no recognisable

cycle of work. It appears that regulation 8(3)(b) applies.

That provision allows for considerable discretion in deciding

the period to be used in determining average weekly earnings.

The use of different periods will result in different averages:

One month - August:

£240.20 x 12 = £55.43

52

This produces the same figure arrived at under regulation

8(1)(b)(i) and benefit falls to be disallowed.

Two months - July and August:

(£180.60 + £240.20) x 6 = £48.55

52

This figure is less than £50 and entitlement to benefit would

not be affected.

Three months - June, July and August:

(£198.35 + £180.60 + £240.20) x 4 = £47.63

52

This figure is less than £50 and entitlement to benefit would

not be affected.

Four mounths (sic) - June, July, August and September:

(£198.35 + £180.60 + £240.20 + £277.10) x 3 = £51.70

52

This produces a figure of more than £50 and benefit falls to

be disallowed.

The first example shows that the conclusion reached by the

adjudication officer and the tribunal need not necessarily be

incorrect. However, by applying regulation 8(1)(b)(i) the

tribunal has failed to exercise the discretion permitted by

regulation 8(3). On that ground, I believe, the tribunal

erred in law."

22. For the sake of completeness I set out regulation 8(1) of the Social Security Benefit (Computation of Earnings) Regulations (Northern Ireland) 1996 which is in the following terms:-

"8.-(1) For the purposes of regulation 6 (calculation of

earnings of employed earners), subject to paragraphs (2)

to (4), where the period in respect of which a payment is

made -

(a) does not exceed a week, the weekly amount shall be

the amount of that payment;

(b) exceeds a week, the weekly amount shall be

determined -

(i) in a case where that period is a month,

by multiplying the amount of that payment

by 12 and dividing the product by 52,

(ii) in a case where that period is 3 months, by

multiplying the amount of the payment by 4

and dividing the product by 52,

(iii) in a case where that period is a year, by

dividing the amount of the payment by 52,

(iv) in any other case, by multiplying the amount

of the payment by 7 and dividing the product

by the number equal to the number of days in

the period in respect of which it is made."

23. In my view the Department's submission is correct. In the Tribunal's reasons for its decision it is stated that "we feel that regulation 8(1)(b)(i) of the Computation of Earnings regulations must (my emphasis) be applied". The Tribunal has failed to consider the very probable application of regulation 8(3) which, as Mr Cassidy and Mr Morrissey have pointed out, could well result in the claimant being entitled to the relevant benefit for the period in issue. It is most unfortunate that the Tribunal's attention was not drawn to the provisions of regulation 8(3) in the written submissions before it and I also note that the Tribunal did not have the benefit of having a presenting officer in attendance at the hearing.
24. I therefore conclude for the reasons stated that the decision of the Tribunal is erroneous in point of law and I accordingly set it aside. In normal circumstances I would have no hesitation in referring the case to a freshly constituted Tribunal to redetermine the case. However I am aware that the claimant may not wish to pursue the appeal in light of the contents of her letter to the Commissioners' Office dated 22 May 2000. In the circumstances the decision whether to pursue her appeal must be left entirely to the claimant. At the time she wrote the letter to the Commissioners' Office she was not in possession of Mr Cassidy's submission to the effect that he accepted that the Tribunal had erred in point of law. This, in itself, may result in her taking a different approach to the one implicit in her letter to the Office stated 22 May 2000.
25. I therefore refer the case to a freshly constituted Tribunal to redetermine the case and direct it to take account of the provisions of regulation 8 (and in particular regulation 8(3)) of the Social Security Benefit (Computation of Earnings) Regulations (Northern Ireland) 1996 in coming to its decision.

JOHN A.H. MARTIN QC

CHIEF COMMISSIONER

26 JUNE 2000