JMcB-v-Department for Social Development (IS) [2012] NICom 308

 

Decision No:  C3/12-13(IS)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCOME SUPPORT

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 8 November 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal, both parties to the proceedings having consented to me proceeding in that manner.

 

2. The decision of the appeal tribunal dated 8 November 2010 is in error of law.  The error of law identified will be explained in more detail below.  The appeal tribunal should note, however, that the Department accepts that it was misled by the written submission prepared for the appeal tribunal hearing in relation to the correct legal basis upon which the decision under appeal was made.

 

3. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

4. I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

 

5. My decision is that the decision of the Department dated 19 February 2010 is confirmed.  This decision will come as a disappointment to the appellant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.  That means that there is only one inevitable outcome.

 

Background

 

6. The appellant claimed income support (IS) on 29 April 2008, effective from 18 April 2008, on the grounds that he was entitled to incapacity benefit credits.  On his application form he declared his marital status as separated.

 

7. On 13 May 2008 the appellant’s claim for IS was assessed and he was awarded £64.30 per week.  From 17 April 2009 the appellant was awarded a disability premium component of IS giving him an applicable amount of £91.80 per week.  On 7 January 2010 he was notified that this would increase to £93.45 from 16 April 2010.

 

8. On 19 February 2010 a request from the Child Maintenance and Enforcement Division to deduct £6 per week from the appellant’s IS was received in Newtownards Social Security Office.  It is not clear why the request was for the sum of £6.  Also on 19 February 2010 the Department implemented a deduction for £5, effective from 19 February 2010 and the appellant was notified of the decision on the same day.

 

9. On 8 March 2010 a letter from the appellant was received in the Department disputing the deduction of £5. On 11 March 2010 the decision to deduct the £5 was looked at again but was not changed.

 

10. A letter of appeal from the appellant was received in the Department on 9 April 2010.

 

11. The appeal tribunal hearing took place on 8 November 2010.  The appellant was present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 19 February 2010.  On 26 May 2011 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 3 June 2011 the application was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

12. On 5 August 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 8 November 2011 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 7 December 2011.  In these initial written observations, Mr Smith, for DMS, submitted that the decision of the appeal tribunal was in error of law.  The written submissions were shared with the appellant on 12 January 2012.  On 22 February 2012 I accepted the late application for special reasons and directed an oral hearing of the application.  On 27 April 2012 a further submission was received from Mr Crilly which was shared with the appellant on the same date.  The oral hearing took place on 1 May 2012.  The appellant was present and represented himself.  The Department was represented by Mr Donnan.

 

Errors of law

 

13. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

14. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

 

(ii) failing to give reasons or any adequate reasons for findings on material matters;

 

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

 

(iv) giving weight to immaterial matters;

 

(v) making a material misdirection of law on any material matter;

 

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings;

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

Why was the decision of the appeal tribunal in error of law?

 

15. As was noted above, a further submission in connection with the issues arising in the appeal was received from Mr Crilly on 27 April 2012.  It is worth setting out the major part of that submission in full, as it accurately and succinctly sets out the relevant issues, as follows:

 

‘C13/02-03(IS)

 

9. (The claimant’s) application for leave to appeal to the Commissioner has also been classified as an Income Support appeal.  However, if the decision to make deductions from benefit was one based on Child Support legislation then, in accordance with what was held in C13/02-03(IS), this should have been registered as a Child Support appeal.

 

10. C13/02-03(IS) was concerned with the consideration of “good cause” and the subsequent imposition of a reduced benefit direction in respect of a parent with care who had failed to provide information to the Department in relation to the father of her child.  For administration purposes, these matters had been disposed of by staff in the Social Security Agency.  The parent with care’s appeal against the decision taken by the latter was treated as an Income support appeal and registered as such.  The same considerations were afforded to her appeal to the Commissioner.

 

11. In determining the appeal, the Chief Commissioner held that decisions concerning “good cause” and the imposition of a reduced benefit direction are matters which are decided by the application of Child Support legislation solely.  Consequently, the appeal had been incorrectly classified and, as such, the Chief Commissioner determined that he had no jurisdiction to hear a Child Support appeal whilst sitting as a Social Security Commissioner.  Accordingly, it was directed that the claimant’s appeal be re-registered as a Child Support appeal to allow it to be properly addressed by a Child Support Commissioner.

 

Weekly child support liability of £5.00 – relevant legislation

 

12. I submit that the substance of (the claimant’s) appeal does not lie against the decision that he was liable to pay the weekly amount of £5.00 in respect of child support payments.  I further submit that (the claimant’s) liability to pay £5.00 per week was correctly established in accordance with the relevant Child Support legislation which is outlined below.

 

13. The primary legislation in relation to the application of flat rate of £5.00 for weekly payments of child support maintenance is found in paragraph 4 of Schedule 1 to the Child Support (Northern Ireland) Order 1991 (“the 1991 Order”) as amended by the Child Support, Pensions and Social Security Act (Northern Ireland) 2000.  Paragraph 4(1) is relevant for the purposes of (the claimant’s) case.  This provision states:

 

4.—(1) Except in a case falling within sub-paragraph (2), a flat rate of £5 is payable if the nil rate does not apply and—

 

(a) the non-resident parent’s net weekly income is £100 or less; or

 

(b) he receives any benefit, pension or allowance prescribed for the purposes of this head; or

 

(c) he or his partner (if any) receives any benefit prescribed for the purposes of this head.

 

The regulations made under the 1991 Order which are relevant for this appeal are the Child Support (Maintenance Calculations and Special Cases) Regulations (Northern Ireland) 2001 (“the MCSC Regulations”).

 

Regulation 4 of the MCSC Regulations is concerned with the flat rate of child maintenance.  The relevant provision for the purposes of this appeal is regulation 4(2)(a) which outlines:

 

(2) The benefits prescribed for the purposes of paragraph 4(1)(c) of Schedule 1 to the Order are—

 

(a) income support under section 123 of the Contributions and Benefits Act;

 

Recovery of child support maintenance by deduction from benefit

 

14. As noted in paragraph 8 of this addendum, I submit that the claimant’s appeal lies against the decision by the Social Security Agency to make deductions from his award of income support in order to recover the weekly amount of child support he was liable to pay.

 

15. In order to determine if the decision to make deductions from the claimant’s income support award falls within the realm of Child Support legislation or lies against a decision made under Social Security legislation, I submit that it is necessary to have regard to the relevant provisions in each area and to consider the relationship between both.

 

Deductions – Child Support legislation

 

16. Article 40 of the 1991 Order as amended by the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 provides for the recovery of child support maintenance by deduction from benefit.  Article 40 states:

 

40.―(1) This Article applies where—

 

(a) a non-resident parent is liable to pay a flat rate of child support maintenance (or would be so liable but for a variation having been agreed to), and that rate applies (or would have applied) because he falls within paragraph 4(1)(b) or (c) or 4(2) of Schedule 1; and

 

(b) such conditions as may be prescribed for the purposes of this Article are satisfied.

 

(2) The power of the Department to make regulations under section 5 of the Social Security Administration (Northern Ireland) Act 1992 by virtue of subsection (1)(q) (deductions from benefits) may be exercised in relation to cases to which this Article applies with a view to securing that payments in respect of child support maintenance are made or that arrears of child support maintenance are recovered.

 

(3) For the purposes of this Article, the benefits to which section 5 of that Act applies shall be taken as including war disablement pensions and war widows’ pensions (within the meaning of section 146(2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (interpretation)).

 

Paragraph (2) outlines that the power of the Department to make regulations under section 5(1)(q) of the Social Security Administration (Northern Ireland) Act 1992 (“the Administration Act”) may be exercised in relation to cases to which Article 40 applies, as in the present instance.

 

Deductions – Social Security Legislation

 

17. The regulations referred to in paragraph (2) of Article 40 are the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (“the Claims and Payments Regulations”).  In particular, regulation 34A provides for deductions to be made from benefits which are then paid to third parties.  Regulation 34(1) outlines:

 

34A.—(1) Except as provided for in regulation 34ZA and Schedule 8B, deductions may be made from benefits and direct payments may be made to third parties on behalf of a beneficiary or his partner in accordance with the provisions of Schedule 8A and Schedule 8C.

 

Schedule 8C to the Claims and Payments Regulations is specifically concerned with deductions from benefit in respect of child support maintenance and payment to persons with care.  Paragraph 2 of that Schedule provides:

 

2.—(1) Subject to paragraphs 5 and 6, the Department may deduct from a specified benefit awarded to a beneficiary, an amount equal to the amount of maintenance which is payable by the beneficiary (or in the case of income support, state pension credit, income-based jobseeker’s allowance or income-related employment and support allowance, payable either by the beneficiary or his partner) and pay the amount deducted to or among the person or persons with care in discharge (in whole or in part) of the liability to pay maintenance.

 

(2) A deduction may only be made from one of the specified benefits in any one week.

 

(3) No deduction may be made unless the amount of the relevant specified benefit is not less than the total of the amounts to be deducted under this Schedule plus 10 pence.

 

Paragraphs 5 and 6 are not relevant in this case.

 

18. Paragraph 3(1) of Schedule 8C allows for an additional deduction of £1 per week in respect of arrears:

 

3.—(1) Except where income support, state pension credit, income-based jobseeker’s allowance or income-related employment and support allowance is payable to the beneficiary or his partner, the Department may deduct the sum of £1 per week from a specified benefit which the beneficiary has been awarded and, subject to sub-paragraph (2), pay the amount deducted to or among the person or persons with care in discharge (in whole or in part) of the beneficiary’s liability to pay arrears of maintenance.

 

19. Schedule 8C was inserted into the Claims and Payments Regulations by the Social Security (Claims and Payments) (Amendment) regulations (Northern Ireland) 2001 (S.R. 2001 No. 22).  The explanatory note contained therein states:

 

“Article 40(2) of the Child Support (Northern Ireland) Order 1991, one of the enabling provisions under which these Regulations are made, was substituted by section 20 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000.  Section 20 of that Act was brought into operation, for the purpose only of making regulations, on 22nd November 2000 by virtue of the Child Support Pensions and Social Security (2000 Act) (Commencement No. 1) Order (Northern Ireland) 2000 (S.R. 2000 No. 358 (C.16)).”

 

I submit that Article 40 of the 1991 Order as substituted does not contain the power to make regulations in itself.  Rather it was amended only to allow regulations to be made under section 5 of the Administration Act.  As noted in paragraph 17 of this addendum, the regulations concerned are the Claims and Payments Regulations.  I submit that the Administration Act and the Claims and Payments Regulations represent Social Security legislation which incorporates Schedule 8C.  I further submit that the decision to make deductions from benefit in this case was carried out in accordance with the provisions of Schedule 8C. 

 

20. Taking this into account, it is my submission that the deduction from (the claimant’s) income support was decided under Social Security and not Child Support legislation and that, accordingly, (the claimant’s) application to the Commissioner has been correctly and properly classified as an Income Support appeal.  I further submit that the circumstances in this instance are different to those in C13/02-03(IS) as the decision taken by the Social Security Agency in that case was arrived at by reliance on Child Support legislation alone.

 

21. I continue to submit that the tribunal erred in this case as it relied on the wrong legislation to make deductions from (the claimant’s) benefit.  In so doing, the tribunal based its decision upon the unamended form of Article 40 of the 1991 Order as well as regulation 28 of the Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992 and Schedule 8A to the Claims and Payments Regulations.  These provisions are only relevant to making deductions from benefit in relation to payments other than payments of child support maintenance in the unreformed Child Support scheme which was in place for new applications prior to 03.03.03.

 

22. I submit that the legislation which should have been considered and applied by the tribunal in relation to making deductions from benefit is that outlined in paragraphs 16 to 18 of this addendum. 

 

23. In paragraph 28 of the Department’s original observations, the Commissioner was requested to set the decision aside or to give the decision that the tribunal should have given.  If the Commissioner agrees with the Department’s submissions concerning the tribunal’s error in having regard to the incorrect legislation, I submit that there would be no need to remit this case to a new tribunal to make more findings of fact.  With that in mind, I respectfully submit that the Commissioner should give the decision that the tribunal ought to have given.’

 

16. I agree with Mr Crilly’s submission in its entirety and for the reasons which have been set out in that submission agree that the decision of the appeal tribunal was in error of law.

 

17. I can understand why the appellant was dissatisfied with the decision which was made in connection with deductions from his IS.  He points to correspondence which he has received in connection with his entitlement to IS and questions why deductions are permitted to be made from his benefit when that correspondence sets out the amount which ‘the law’ states that he requires to live on.  Nonetheless, Mr Crilly’s submissions accurately set out the legal basis upon which the decision was made.

 

A further issue arising

 

18. At the oral hearing of the application, the appellant queried why the amount which is deducted from his IS was increased within the last year from £5 per week to £6.80 per week.  Mr Donnan undertook to enquire into this issue and his reply, dated 2 May 2012 is as follows:

 

‘1. At the oral hearing held on 01/05/12, at which the Chief Commissioner considered whether to grant (the claimant) leave to appeal against the tribunal’s decision dated 08/11/10; an issue arose concerning the amount being deducted from (the claimant’s) weekly Income Support (IS).

 

2. (The claimant) raised this point, stating that the amount deducted in respect of his liability for child maintenance to be paid over to Child Maintenance Enforcement Division (CMED) had increased within the last year from £5.00 per week to £6.80 per week.

 

3. I was representing the Department at the hearing but was unaware of any recent increases to the amount being deducted.  It was my understanding that the amount deducted was for “flat rate maintenance” – in other words the weekly liability was set by CMED as £5.00 per week and this fixed rate was not subject to change.

 

4. Therefore the Chief Commissioner requested that I investigate this matter and report back with my findings.  I will set these out in the following paragraphs:

 

5. I telephoned the Income Support office in Newtownards and was informed that the deductions did in fact increase from £5.00 per week to £6.80 (as (the claimant) had highlighted).  This happened with effect from 16/04/11, with the latest deduction being made on 27/04/12.

 

6. I asked the IS decision maker to explain why the deduction increased, bearing in mind the weekly liability was an amount for flat rate maintenance and not subject to increase.  She stated that this was an error caused unfortunately by the deduction being recorded on the IS computer system as being a liability for a contribution to maintenance – not flat rate maintenance.

 

7. I requested that this be corrected with immediate effect as the weekly deduction should be £5.00.  She reported back that she has stopped deductions of £6.80 and also that arrears have been paid to (the claimant) at £1.80 per week in respect of the period 16/04/11 to 27/04/12 totalling £97.20 (£1.80 x 54 weeks).

 

8. I would submit to the Chief Commissioner that it would appear at some point the IS deductions for child maintenance in (the claimant’s) case have erroneously been confused with the older Child Support scheme and so the IS computer automatically (and incorrectly) increased these deductions with effect from April 2011.  The IS office is now aware of their mistake and have taken steps to refund (the claimant).  He would have received the payment of £97.20 in his bank account yesterday afternoon.

 

9. I should further explain that the IS office informed me that the error on their computer system concerning these deductions needs to be reported to their computer help-desk for resolution.  So, whilst they have been able to stop deductions of £6.80 per week, they have not been able to recommence deductions at the requested rate of £5.00.

 

10. This means for the time being that no deductions in respect of child maintenance will be made from (the claimant’s) Income Support.  However, once the computer problem is resolved, (the claimant) should be made aware that the IS office will recommence a deduction of £5.00 at the earliest opportunity.  I therefore requested the IS decision maker to issue (the claimant) with a written explanation to this effect and she assured me she would do so urgently.’

 

Disposal

 

19. The decision of the appeal tribunal dated 8 November 2010 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

20. I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

 

21. My decision is that the decision of the Department dated 19 February 2010 is confirmed.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

24 July 2012