Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C19/03-04(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCAPACITY BENEFIT Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 5 January 2004 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of the legally qualified member, against the decision of an appeal tribunal, affirming a decision of a decision maker, to the effect that the claimant is not entitled to incapacity benefit (IB) from and including 11 February 2003.
2. A hearing of the appeal before me was arranged at which the claimant, who was not present, was represented by Mr McVeigh of the Citizens Advice Bureau, while the Department was represented by Miss Fleming of Decision Making Services.
3. The claimant became unfit for work on 12 February 1996 and was paid statutory sick pay until 5 May 1996. She claimed and was paid IB from 31 August 1996 by reason of pregnancy complications and hip pain. Later statements supporting the claim from a doctor referred to anxiety and depression. On 2 April 2003 an application to carry out permitted work was received in the Department (on form PW1 - a form issued by the customer care team within Incapacity Benefits Branch). In this application the claimant stated that she began work on 11 February 2003, that she worked on average 12 hours per week and that she earned £65.44 per week. On 25 April 2003 the claimant stated that she had worked from 11 February 2003 until 16 April 2003 for 12 hours per week but that she was no longer working. On 25 July 2003 the Department superseded the decision of 3 October 1996 (which awarded IB from and including 31 August 1996) on the basis of a relevant change of circumstances in that the claimant worked from and including 11 February 2003 and that work did not fall under permitted work rules and was therefore not in an exempt category. On 14 August 2003 the claimant appealed this decision on the basis:

(i) that despite speaking to numerous representatives in Incapacity Benefits Branch she was not informed of the 42 day time limit,

(ii) she did not receive the relevant form until at least 1 week after speaking to Incapacity Benefits Branch and,

(iii) to complete the questions on the form she had to wait for a payslip which was paid monthly. An accompanying letter from the claimant's General Practitioner stated that he also had telephoned the Social Security Agency for advice regarding the permitted work scheme and had not been informed of time limits.

On 11 November 2003 the Department reconsidered the available evidence but did not change the decision dated 25 July 2003.

4. On appeal, the Tribunal, consisting of a legally qualified member sitting alone, came to the following decision:

"Appeal disallowed. The Appellant failed to notify the Department in writing within 42 days of starting work and is therefore treated as capable of work and as a result is not entitled to incapacity benefit from and including 11/2/03 and the Department had grounds to supersede the decision awarding incapacity benefit."

5. The Tribunal gave the following reasons for its decision:

"The Tribunal accepts that the Appellant and her General Practitioner made enquiries regarding permitted work whilst she was claiming Incapacity Benefit. The Tribunal accepts that, at no time, was the Appellant or her General Practitioner advised that she had 42 days from starting work in which to notify the Department in writing of her starting work. The Tribunal accepts that the Appellant spoke to the Training and Employment Agency and was not warned about the 42 day rule. Finally, it is clear from the PW1 Form that it does not mention the 42 day rule. The Tribunal accepts that the Appellant, not unreasonably, waited for a monthly pay slip before completing the PW1 Form and that this time lapse meant that she had not give (sic) the "required notice" to the Department within 42 days as required by S.17(IE) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.

The Tribunal considers that compliance with the 42 day rule is mandatory and therefore non-compliance with it means that the Appellant is treated as capable of work from and including 11 February 2003. Without any discretion to extend time the Tribunal feels constrained to disallow this otherwise meritorious appeal."

6. The legally qualified member made the following record of proceedings:

"Independence of tribunal explained to the Appellant.

Mr Quinn

[The claimant] had been in receipt of Incapacity Benefit for some time. On the suggestion of her General Practitioner the Appellant considered returning to work as a therapeutic measure. Both the Appellant and her General Practitioner were very careful to avoid contravening any statutory restriction on working and claiming Incapacity Benefit. They each contacted the Department and the Training and Employment Agency to obtain advice about exempt employment. At no time were either of them warned that the Appellant was required to give written notice to the Department within 42 days of starting work. The Appellant completed the PW Form, and nowhere on it did it mention the "42 day rule". The Appellant waited until she got her pay slip before forwarding her completed PW Form and consequently fell outside the 42 day written notice rule."

7. The claimant sought leave of the legally qualified member to appeal to a Commissioner and, as stated at the first paragraph herein, leave was granted on 13 February 2004 by a legally qualified member.
8. Mr McVeigh, on behalf of the claimant, submitted that the tribunal erred in law by relying on 17(1E) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 as, in his submission this regulation is ultra vires, because it is outside the powers of the relevant enabling Act (section 167D) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. Mr McVeigh specifically argued that, unlike many other Regulations within the social security system governing time limits, no provision exists within regulation 17(1E) to extend the time limit under special circumstances and, accordingly, he submitted that these rules are manifestly unjust. Mr McVeigh also submitted that section 167D of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, which enabled relevant regulations to be made, did not enable or empower a regulation such as regulation 17(1E) to be made.
9. Section 167D of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is in the following terms:

"(1) Regulations may provide that a person shall be treated as capable of work, or as incapable of work, in such cases or circumstances as may be prescribed.

(2) Regulations may, in particular, provide that a person shall be treated as capable of work if he does work of a prescribed description, or more than the prescribed amount of work of a prescribed description.

Accordingly regulations may provide that a person shall not be treated as capable of work by reason only of his doing such work as may be prescribed, or no more than the prescribed amount of work of a prescribed description."

It is common case between the parties that the only enabling power for regulation 17 is contained in section 167D.

10. Regulation 17(1E) provides, in so far as is relevant to the present case, as follows:

"(1E) In this regulation –

…

"the required notice" means, in relation to work referred to in any of heads (i) to (iv) of paragraph (1)(a), notice to the effect that the person is undertaking, or is about to undertake the work, given in writing to the Department by that person or another person acting on his behalf -

(a) in the case of work referred to in paragraph (1)(a)(i) to (iii), at any time before the person ceases to undertake the work; and

(b) in the case of work referred to in paragraph (1)(a)(iv), no later than the end of the period of 42 days which begins with the day on which the work begins;
.…."

Regulation 17(1), read together with regulation 17(1A) and (1B), sets out a number of categories of exempt work, an arrangement which is wholly protected from the preclusive effect of regulation 16 which, to quote Bonner, Hooker and White, Social Security Legislation 2004, Volume I: Non-means Tested Benefits, at paragraph 8.116, when referring to the equivalent Great Britain legislation, "deploys the preclusive device of treating someone as capable of work in order to penalise those who work inappropriately while claiming."

11. Section 167D(1) empowers the making of regulations to treat a person either as capable of work or incapable of work "whatever might be the reality of his situation" – to quote Bonner etc at paragraph 1.449. This raises the concept of "deemed incapacity" or "deemed capacity." Section 167D(2) in addition enables regulations, in particular, to be made deeming capacity or incapacity in situations where a person is working. The legislation is drafted in such a way as to make it important that a claimant gives the required notice.
12. It is common case that the work carried out by the claimant falls within regulation 17(1)(a)(iv) and (1A)(a) and (1B)(a)(i) and (b) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995. Accordingly, under regulation 17(1E), in the definition of "the required notice", the particular definition at (b) is relevant and, accordingly, written notice must be given to the Department, either by the claimant or by someone acting on her behalf, not more than 42 days after the day on which the work begins.
13. It is common case that no provision exists within the Regulations to extend this time limit. Mr McVeigh submits that such a situation is unlike the situation in other regulations within the social security system and is both manifestly unjust, irrational and ultra vires the 1992 Act. In particular, he submitted that the legislation relating to the time limit is ultra vires section 167D(2) of the 1992 Act as no power was given to the decision making authorities only to accept notice of employment in the time span of 42 days.
14. However, no specific power has been given to set out any particular time limits and the question therefore arises whether the rule making authority – Section 167D(2) – permits any imposition of a time limit.
15. It is relatively clear that a Commissioner has power to consider whether a regulation made by the Department is invalid on the ground of irrationality. However, it is also clear that this jurisdiction ought to be exercised only if a serious issue of irrationality arises and to question whether a regulation is invalid on that ground must be necessary for the determination of the issue which arises before a Commissioner – see R(IS)26/95, a Great Britain decision of a Tribunal of Commissioners affirmed by the English Court of Appeal in Chief Adjudication Officer and another -v- Palfrey and others at paragraph 45 of the Tribunal of Commissioners' decision.
16. The claimant missed the time limit and there is no extension clause. However, the language of the regulation is clear. The question arises whether the enabling powers in section 167D of the 1992 Act are wide enough.
17. In my view it is necessary to look not only at the specifics of the case but also the generality. If someone claims incapacity benefit (IB) while working and being able to work, it is reasonable to impose restrictions and conditions to allow the Department to monitor and approve the work involved. Written notice is undoubtedly reasonable but the question arises: - is a strict time limit without any leeway for good cause reasonable?
18. Undoubtedly regulation 17 is a very specific and restrictive piece of legislation: - see C71/98(IB) at paragraph 13. In addition other regulations, such as regulation 19(2) and (3) of the Social Security (Claims and Payments) (Northern Ireland) Regulations 1987 have strict time limits.
19. It seems to me that a general power to make regulations in this area must implicitly permit a power to set relevant time limits for informing the Social Security authorities whether a relevant person is doing particular work or not. I note that the objection made on behalf of the claimant is not against the time limit but on the lack of a power being given to extend the time limit. However, while the lack of such a power to extend is undoubtedly restrictive, that, in itself, does not make it irrational. I am not persuaded that there is any general obligation on the legislator to make regulations allowing for the extension of time. A Commissioner does not have a general power to interpret or redraft legislation in such a way as to result in the legislation according with some general notion that the Commissioner considers the law should be.
20. Mr McVeigh has demonstrated that, in other not dissimilar situations in the Social Security legal system, there are powers to extend time. Ms Fleming has also demonstrated that there are not dissimilar situations where no such power has been given. I do not feel that either submission helps me in the present case. The sole question is whether the legislator was entitled or empowered to make regulations requiring a time limit to give the relevant information to the authorities while, at the same time, not allowing for an extension. I conclude that the legislator was entitled to impose the time limit of 42 days and was not obliged to provide for an extension of the time limit.
21. It is noteworthy that Mrs Commissioner Brown in C2/199-00(WB) dealt with a time limit problem concerning widows benefit and regulation 19(2) and (3) of the Social Security (Claims and Payments) (Northern Ireland) Regulations 1987. The vires argument was not expressed in terms of irrationality but the Commissioner in that case held similar regulations to be intra vires.
22. Therefore, I conclude that the Tribunal came to the only conclusion possible in light of the facts found.
23. However, the decision-making authorities will undoubtedly appreciate that the Tribunal felt it had been "constrained to disallow this otherwise meritorious appeal". I also consider that the PW1-form, which in my view is misleading, may have been a contributory factor to the result of this case. In the circumstances, if the relevant statutory provisions are not amended in the very near future, it seems to me that the Department ought to consider urgently amending the PW1 – form, so that "the 42 day rule" is specifically drawn to the attention of persons in a similar position to that of the present claimant.
24. Accordingly, I conclude that this appeal must be dismissed as the Tribunal's decision is not erroneous in point of law.

(Signed):

J A H Martin QC

Chief Commissioner




9 December 2004