Northern Ireland - Social Security and Child Support Commissioners' Decisions

CA-v-Department for Social Development (IS) [2012] NICom 311

 

Decision No:  C1/11-12(IS)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCOME SUPPORT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 26 January 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an appeal from the tribunal which sat at Newtownards on 26 January 2011, leave to appeal having been granted by the legally qualified member who constituted the tribunal.

 

2.     An oral hearing of the appeal has been requested.  However, I believe that this appeal can properly be determined without a hearing.

 

3.     For the reasons given below I disallow the appeal.

 

REASONS

 

         Background

 

4.     The appellant made a claim for income support (IS) on 28 July 2010.  At that time the applicant had been detained in a medium secure hospital ward since 7 June 2009.  He had a diagnosis of schizophrenia.  On enquiry from the Department the clinic confirmed that he was held under both a hospital order and a restriction order.  The statutory basis of the appellant’s detention was Article 44 and Article 47 of the Mental Health (Northern Ireland) Order 1986.

 

5.     Broadly speaking, Article 44 applies where an individual is convicted of a criminal offence, but the court decides that he is suffering from a mental illness and the most suitable way of dealing with him is by a hospital order.  Article 47 applies where a hospital order has been made and it is necessary for the purpose of preventing serious harm to the public that the individual concerned continues to be subject to restriction, in which case a restriction order can be made.  The restriction order can be discharged where it appears that the individual no longer presents a serious threat to the public or is no longer suffering from a mental illness.  The relevant provisions are more complex than this and I merely seek to give a context to the appeal by summarising them in this way.

 

6.     The Department decided that the appellant was “disqualified from” receiving IS as he was detained under Articles 44 and 47 of the Mental Health (NI) Order 1986.  The appellant appealed out of time.  It would appear that the late appeal was admitted for special reasons on the basis that the appellant was detained although I have not seen the determination to that effect.

 

7.     On 19 November 2011, the appellant, or someone on his behalf, indicated that he was content for the appeal to proceed without an oral hearing.  The appeal was considered on the papers by a tribunal on 26 January 2011.  The tribunal disallowed the appeal on the basis that the appellant was “a person detained under the Mental Health Act” [sic] by way of a decision issued on 1 February 2011.  On 25 February 2011 the appellant requested a statement of reasons for the tribunal decision.  This was issued to him on 4 May 2011 together with a record of the tribunal proceedings.

 

8.     On 31 May 2011 the appellant applied for leave to appeal to the Social Security Commissioner from the tribunal.  The grounds submitted were:

 

         (i)      the appellant’s status had changed from prisoner to patient and the Department and tribunal had not taken this into account;

 

         (ii)     the appellant did not respond to the enquiry as to whether the appellant wanted an oral hearing and the subsequent appeal took place without his knowledge;

 

         (iii)    the tribunal referred to the Mental Health Act, which does not apply in Northern Ireland;

 

         (iv)    the tribunal found that the appellant’s applicable amount for IS was nil as he was detained, yet detention in hospital did not of itself disqualify a patient from receiving IS.

 

9.     The legally qualified member of the tribunal granted leave to appeal on 13 June 2011 and this was notified to the appellant on 22 June 2011.  On 15 July 2011 the appellant completed his appeal which was received by the Office of the Social Security Commissioners on 20 July 2011, expressly relying on the same grounds.

 

10.   On 6 September 2011 the Department was invited to make observations on the appeal.  Mr Woods responded on 15 September 2011.  He (correctly in my view) submits that the reference to the “Mental Health Act” was no more than a slip of the pen.

 

11.   He initially supported the view that the tribunal had erred in law.  His basis for this was that the tribunal found that the appellant was an in-patient under Articles 44 and 47 of the Mental Health Order 1986 and was therefore entitled to IS at a nil rate.  He reasoned that the appellant did not fall within the definition of “prisoner” as initially decided by the Department, since he was not detained under Article 53 of the Mental Health Order.  He therefore agreed that the tribunal had erred in law.

 

12.   The legal officer in the Office of the Social Security Commissioners then made an enquiry of Mr Woods as to whether there are any restrictions on the appellant’s entitlement arising from his alleged status as “patient”.  On 16 November 2011 Mr Woods responded by resiling from the submission that the appellant would be entitled to IS.

 

13.   In his submissions Mr Woods says that it is irrelevant whether the appellant falls within the definition of “prisoner” or “patient”.  He says that the appellant does not fall within any of the prescribed categories of person entitled to IS.  In response to my direction, the appellant’s representative has also accepted that the appellant does not fall within the prescribed categories and was not entitled to IS.

 

         Assessment

 

14.   In order to satisfy the conditions of entitlement to IS, a claimant must fall into a prescribed category of person as required by section 123(1)(e) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  By regulation 4ZA of and Schedule 1B to the Income Support (General) Regulations (NI) 1987, specific provision is made for prescribed categories of persons to be entitled to IS.

 

15.   Previously, former paragraph (7) of Schedule 1B made provision for persons incapable of work or treated as incapable of work under the Social Security Contributions and Benefits (Northern Ireland) Act 1992 to be in the prescribed category of persons entitled to IS.  This paragraph had potential application to the appellant.  However, the paragraph was revoked by the Income Support (Prescribed Category of Persons) Regulations (Northern Ireland) 2009 with effect from 30 December 2009.  The express policy intention behind the change was for such claimants to “migrate” to employment and support allowance.

 

16.   The appellant claimed IS on 28 July 2010.  Due to the above amendment, at this date he no longer fell within the prescribed categories of person eligible to be entitled to IS.  No other paragraph applied to him.

 

17.   In its decision, the tribunal focused on the question of whether the appellant was a patient under Articles 44 and 47 of the Mental Health Order and decided that he had a nil entitlement as a result.  There was no presenting officer before the tribunal and the Department’s submission was somewhat vague and did not supply the relevant legislation to the tribunal.  Mr Woods change of tack in the appeal before me illustrates that this was not a straightforward matter.

 

18.   Paragraph 2A of Schedule 7 to the IS Regulations provided that persons detained under Article 53 (that is to say persons serving sentences of imprisonment who are removed to hospital during their sentence) had a nil applicable amount and therefore a nil entitlement.  However, the Schedule is silent on the position of persons such as the appellant who are subject of a hospital order or a restriction order under Articles 44 and 47.  By referring to these articles as a basis for deciding that the appellant had a nil applicable amount, the tribunal decision is flawed.  However, that is immaterial.  The appellant has no entitlement to IS because of the requirement that he should be within a prescribed category of person.  He is not.  The tribunal therefore reached the right conclusion, but for the wrong reason.

 

19.   There is no material error of law in the tribunal’s decision and I disallow the appeal accordingly.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

24 July 2012