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[1990] UKSSCSC CIS_135_1989 (25 June 1990)

R(IS) 7/91

Mr. V. G. H. Hallett CIS/135/1989
25.6.90

Payment of benefit - alleged non-receipt of instrument of payment - whether a question for an adjudication officer

The claimant, a nurse who worked on North Sea oil rigs from time to time, interspersed with periods of unemployment, had been in receipt of income support. He complained that some awards of benefit had not been paid to him by the Secretary of State because income support giros had not reached him. The adjudication officer decided that it is for the Secretary of State to decide whether an instrument of payment should be issued or replaced. The tribunal, upholding the adjudication officer's decision, decided they had no jurisdiction to determine whether instruments of payment had been received by the claimant. The claimant appealed to the Commissioner.

Held that:

the adjudication officer, the social security appeal tribunal and the Commissioner are statutory authorities, deriving their jurisdiction in relation to income support from section 52(3) of the Social Security Act 1986. In consequence, section 98 of the Social Security Act 1975 provides for any claim for benefit, and any question arising in connection with a claim or award, to be submitted to an adjudication officer, for determination. A right of appeal follows, under section 100 (para. 12);

an award of benefit, whilst not defined in Social Security Acts, is simply a decision that benefit is payable. Failure to implement an award of benefit is not a question connected with the question whether it is payable; it relates to the Secretary of State's obligation to give effect to decisions of the statutory authority (para. 14);

in the absence of clear words in legislation to remove the right of any person to have his complaint against the Secretary of State heard in the Courts, then that right remains. Consequently, a question whether the Secretary of State has honoured his obligation to pay benefit is not for the Statutory Authority (paras. 15-17).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

This claimant's appeal fails. My decision is that the decision of the social security appeal tribunal dated 8 June 1989 is not erroneous in law.

Representation

I held an oral hearing of this appeal. The claimant, who did not appear, was represented by Mr. Nicholas Warren, solicitor to the Birkenhead Resource Unit. The adjudication officer was represented by Mr. N. Butt of the Solicitor's Office, Departments of Health and Social Security. Written submissions have since been made on behalf of the claimant, the adjudication officer and the Secretary of State for Social Services.

Nature of this appeal

This appeal is concerned with the question whether the adjudication officer, the social security appeal tribunal or the Commissioner have jurisdiction to decide whether or not the Secretary of State has implemented an award of benefit under the Social Security Act 1975.

The issue arises in this way. The claimant is a nurse, who, from time to time, manages to get work on rigs in the North Sea. When not working, he had been in receipt of income support. He complains that some income support giros have not reached him and consequently some awards of benefit have not been paid by the Secretary of State.

The adjudication officer's decision

On 25 January 1989, an adjudication officer issued the following decision:

"1. The original appeal made by the claimant's representative on 4 December 1988 has been revised.

The decision to replace or issue instruments of payment rests with the Secretary of State."

The social security appeal tribunal's decision

The claimant appealed against this decision to a social security appeal tribunal, who heard the appeal on 8 June 1989. The claimant (Mr. Boswell) gave evidence. The chairman's note of evidence states:

"11.20am

Mr. W. is in Edinburgh. Wants to go ahead with appeal and get it over.

PO - 6 October 1988 claim for IS. Verification of savings requested 22 November 1988.

No verification. Claim refused. Appeal by Mr. Warren to preserve client's rights. Gave verification. Revision decision. IS from 6 October 1988 to 2 November 1988. Appeal abated R(SB) 1/82 referred to Mr. B. appealed again. Reads appeal letter. AO has not required Mr. B. to be available for work. Voluntarily signs on at UBO but not required to. As to how he receives payment whether by giro or order book. This is for officer in the Department of SS. As to non-receipt of giro cheques this is a matter for Secretary of State.

Mr. B. refers to jurisdiction. I am arguing that certain giros which D of E said has been sent to me were not received by me. Didn't want to go through Mr. Frank Field MP again. Two periods of out of work payments. Produces letter of 16 May 1989 from Manager of Local Office to Mr. Warren as to payments said to have been received. I was in the North Sea (I am an SRN - I work for short periods) when last payment (25 August 1988) was said to have been received. Submits notes (four pages). Has been burgled four times. Has now taken steps (alarm etc.) to stop burglaries."

[Note: "Mr. W." is Mr. Nicholas Warren. "PO" stands for presenting officer.]

The appeal tribunal's unanimous decision was:

"That this tribunal had no jurisdiction to determine whether instruments of payment have or have not been received by the client."

Their recorded findings of fact were:

"Clmt was aged 60 at 6 October 1988 when he claimed income support. Gave his savings but was asked for verification. Not supplied and claim refused on 22 November 1988. CLMT through his representative appealed to preserve clmt.'s rights and provided verification. Decision was reviewed and IS paid from 6 October 1988 to 2 November 1988 when clmt. started work on 3 November 1988. Mr. B. is an SRN who works from time to time as a medic on oil rigs in the North Sea. Further appeal made 31 January 1989 relating to alleged loss of giros and harassment by Departmental officials. Has had burglaries but has now taken steps to prevent thefts from his home."

Their recorded reasons for this decision were:

"We are satisfied that the review late in November 1988 following the appeal through Mr. Warren gave Mr. Boswell all that he could have achieved through that appeal. Accordingly that had the effect of cancelling the original decision made on 22 November 1988 (R(SB) 1/82).

The further appeal in January raises issues which are not within the jurisdiction of an adjudication officer or of this tribunal. They are for determination by the Secretary of State. (R(SB) 29/84)."

The claimant's grounds of appeal

The claimant applied for leave to appeal to the Commissioner against the decision of 8 June 1989. The grounds of appeal was that decision R(SB) 29/84 was decided on the wording of section 2(1) Supplementary Benefit Act 1976. Income support decisions were taken by adjudication officers under the regime of the Social Security Act 1975. On the reasoning of Mr. Monroe (the dissenting Commissioner) in R(SB) 29/84, the position under the 1975 Social Security Act was that questions about whether payment had been made were questions arising in connection with an award of benefit and they therefore fell to be determined by an adjudication officer. Leave to appeal was granted by the chairman of the tribunal.

Mr. Warren submits that questions of payment of benefit are questions in connection with an award of benefit within the terms of section 98(l)(b) of the Social Security Act 1975. The statutory authorities considered questions of overpayment. They directed payments to be made to building societies, electricity and water authorities, on behalf of claimants. They had jurisdiction to extinguish a claimant's right to payment where payment has not been obtained within twelve months. Jurisdiction in respect of social security questions not assigned elsewhere was vested in the statutory authorities: see paragraph 9 of decision R(G) 1/82 (reported). That was a decision of a tribunal of Social Security Commissioners. The manner of payment (e.g. by giro cheque or order book) was a matter for the Secretary of State to decide under regulation 20 of the Social Security (Claims and Payments) Regulations. But questions whether payment has been made by the Secretary of State were, in Mr. Warren's submission, for the statutory authorities to decide. Accordingly, the appeal tribunal were in error as to the law in deciding that they had no jurisdiction to determine whether or not instruments of payment had been received by the claimant.

Was the appeal tribunal's decision erroneous in law?

No, it was not erroneous in law. The appeal tribunal correctly decided that they had no jurisdiction.

The jurisdiction of the adjudication officer, the social security appeal tribunal and the Commissioner is statutory. (Indeed, they, and their predecessors, the insurance officer, the local tribunal and the Commissioner have for many years been described as "the statutory authorities": see Micklethwait on the National Insurance Commissioners page 8 and note 4).

The jurisdiction of the statutory authorities in relation to income support (the benefit in question in the present appeal) is conferred by section 52(3) of the Social Security Act 1986. That section provides that sections 97 to 104 and section 116 of the Social Security Act 1975 shall have effect for the purpose of income support as they have effect for the purposes of benefit under the Social Security Act 1975. Section 98 (as amended) provides:

"(1) There shall be submitted forthwith to an adjudication officer for determination in accordance with Sections 99 to 104 below -

(a) any claim for benefit;

(b) subject to subsection (2) below, any question arising in connection with a claim for, or award of, benefit; and

(c) any question whether a person would by reason of the provisions of, or of any regulations under, section 20(1) or (2) or this Act have been disqualified for receiving unemployment benefit, sickness benefit or invalidity benefit if he had otherwise had a right thereto.

(2) Subsection (1) above does not apply to any question which falls to be determined otherwise than by an adjudication officer.

(2A) If -

(a) a person submits a question relating to the age, marriage or death of any person; and

(b) it appears to the adjudication officer that the question may arise if the person who has submitted it to him submits a claim for benefit, the adjudication officer may determine the question.

(3) Different aspects of the same claim or question may be submitted to different adjudication officers under the foregoing provisions of this section; and for that purpose those provisions and the other provisions of this Part of this Act with respect to the determination of claims and questions shall apply with any necessary modifications."

Section 99 provides, by subsections (1) and (2):

"(1) An adjudication officer to whom a claim or question is submitted under section 98 shall take it into consideration and, so far as practicable, dispose of it in accordance with this section, and with procedure regulations under section 115, within 14 days of its submission to him.

(2) Subject to section 103 below (reference of special questions), the adjudication officer may decide a claim or question himself or refer it to a social security appeal tribunal."

Section 100 confers a right of appeal to the social security appeal tribunal and section 101 confers a right of appeal, in certain circumstances, to the Commissioner. (Sections 102 to 104 are not relevant).

The sole issue before me is whether the above mentioned sections confer jurisdiction on the statutory authorities to decide whether the Secretary of State has failed to honour an award of benefit (as defined in Schedule 20 of the Social Security Act 1975). For that is what the allegation that the claimant has not received the money awarded to him amounts to.

(1) Mr. Warren argues that this is a question that arises "in connection with [an] . . . award of benefit" in terms of section 98(l)(b) of the 1975 Act. I disagree. An "award" (of benefit) is not defined in the Social Security Acts. But its meaning is clear. It is simply a decision that benefit (a word defined in Schedule 20 to the 1975 Act) is payable. Such a decision confers a statutory right to payment; of Morton v. Chief Adjudication Officer, reported in the appendix to decision R(U) 1/88 per Lord Justice Slade, page 22, paragraph D. The failure to implement an award of benefit is not a question connected with the question whether it is payable. It relates to the quite distinct obligation of the Secretary of State which is to give effect to the decision of the statutory authority. [Regulation 20 of the 1987 Claims and Payment Regulations directs the Secretary of State to give effect to the award as soon as reasonably practicable by means of an instrument of payment or such other means as appear to him to be appropriate in the circumstances of the case.] Failure to do so can only be enforced in the Courts.

(2) The jurisdiction of the statutory authorities to decide overpayment questions is statutory: see section 53 of the Social Security Act 1986. The power to direct payments to be made to building societies, water authorities etc. on behalf of the claimant is conferred by regulation 35 and Schedule 9 to the 1987 Claims and Payments Regulations. The jurisdiction to extinguish the right to payment is conferred by regulation 38 of these regulations. So they all have express statutory authority. None of them are concerned with the enforcement of an award. They relate to the right (or title) to benefit. The question whether the Secretary of State has honoured an award by making payment falls in a different category, that of enforcement.

(3) Decision R(G) 1/82 (cited in para. 9 above) is no longer good law. A unanimous Court of Appeal decided on 1 November 1989 in Scrivener v. Chief Adjudication Officer (case CU/19/1989) that the tribunal of Commissioners who gave that decision acted without jurisdiction and had misconstrued the plain wording of section 93 of the Social Security Act 1975. It is not accordingly authority for the alleged principle of construction on which Mr.Warren relied.

(4) The other case relied on by Mr. Warren is decision R(SB) 29/84, which has also been cited by the appeal tribunal in support of their decision. The decision of the majority of Commissioners in that case contains general observations which support the decision of the appeal tribunal in the present case. It was properly relied on by them. Mr. Warren adopts the reasoning of the dissenting member, Mr. Commissioner Monroe. That Commissioner's reasoning relates to the interpretation of the new section 2(1) of the Supplementary Benefits Act 1976, which is set out in the Second Schedule to the Social Security Act 1980. That section empowered a supplementary benefit officer to determine "the question whether any person is entitled to supplementary benefit and the amount of such benefit and any other question relating to supplementary benefit which arises under this Act". The underlined words did not appear in the 1976 Act as originally enacted. Mr. Monroe's dissenting reasons were specifically directed to the underlined expression and to the effect of its insertion in section 2(1) of the 1976 Act. His remarks on that particular addition to a different Act and benefit accordingly do not assist me. I prefer the reasoning of the majority.

(1) Lord Simonds said in Pyx Granite Co Ltd. v. Ministry of Housing and Local Government [1960] AC 260 at page 286:

"It is a principle by no means to be whittled down that the subjects recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words".

(2) If section 98(1)(b) does confer jurisdiction on the statutory authorities to determine whether the Secretary of State has implemented an award that jurisdiction would form part of the statutory code. It is strongly arguable that such jurisdiction would be exclusive and would exclude the jurisdiction of the Court: compare Department of Health and Social Security v. Walker [1970] 2 QB 74 at page 79. Any other conclusion would lead to an undesirable conflict between the courts and the statutory authorities. Further, section 117 of the Social Security Act 1975 provides that the decision of the statutory authorities is, subject to the right of appeal, final. It was held in Jones v. Department of Employment [1989] 1 QB1 that matters assigned to the statutory authorities (an adjudication officer in that case) could not be litigated in the Courts. The finding of fact as to whether or not the Secretary of State has honoured an award, and made payment, is the first matter that would fall to be determined in proceedings for enforcement. So the principle set out in the above quotation from Pyx's case is applicable. Clear words would be required to remove the right to have this determined in adversarial Court proceedings and have it allotted exclusively to the statutory authorities. There are no such words.

(1) The express power authorising adjudication (formerly insurance) officers to determine questions relating to an award is not new. It has been in existence, as regards industrial injuries, since 1946: see section 45(1) of the National Insurance (Industrial Injuries) Act 1946. When, in the Social Security Act 1975, industrial injuries benefits and other national insurance benefits were brought together in a single act, the wording of section 45(1), which had been repeated in subsequent industrial injuries Acts, was adopted for all such benefits.

(2) The purpose of conferring an express power to decide questions in connection with awards, in addition to the jurisdiction to decide questions in connection with claims, is clear. In disablement benefit cases (part of the industrial injuries social security system), there could be (and still frequently are) several successive awards on a single claim. So a question can arise in relation to an award which is unrelated to the original decision on the claim. (Contrast a benefit where only one award can be made on the claim, where no such power is required.) Similarly, in special hardship allowance cases (later reduced earnings allowance) there could be more than one award on a claim. Such an express power is also required because some pensions can be awarded without a claim having been made at all: see regulation 3 of the Social Security (Claims and Payments) Regulations 1987, replacing section 79 of the Social Security Act 1975 (which had been repealed following the decision of the House of Lords in Chief Adjudication Officer v. McCaffrey).

(3) There is, accordingly, no reason to strain the language of section 98(1)(b) of the 1975 Act in order to extend it to the enforcement of functions assigned to the Secretary of State namely the payment of benefit. The jurisdiction to deal with questions relating to awards was conferred for a different purpose.

(1) No case has been cited to me, and I have been unable to discover any, where it has been decided that the statutory authorities have jurisdiction to decide whether the Secretary of State has or has not honoured an award of benefit under the Social Security Act 1975.

(2) There is a well recognised procedure for determination of this question by the Courts. The current practice is explained by the Secretary of State in his written submission to be as follows:

"The Commissioner may wish to know that about eighty cases per year are brought against the Secretary of State in the County Courts because he has declined to replace one or more allegedly lost or stolen instruments of payment. Each case is considered on its merits by the Solicitor's Office. Some are defended, some are not. The vast majority of such cases are for amounts of less than £500 and are therefore dealt with under the well known "small claims procedure" in the County Court. Almost all claimants act in person and seem to experience little difficulty in using the Courts. Citizens Advice Bureaux and other advice agencies are also familiar with this form of litigation."

(3) If the claimant wishes to pursue his contention that the Secretary of State has not paid him all the benefit to which he has been awarded, it is open to him to adopt this procedure. The statutory authorities have, for the reasons set out above, no jurisdiction to deal with his contentions in this respect.

It follows that the decision of the social security appeal tribunal was correct.

Before parting with this case, it is, however, appropriate to record that, in spite of persistent efforts to discover exactly what award of benefit the claimant contends has not been implemented by the Secretary of State, the claimant has been quite unable to give any satisfactory particulars. On 18 November 1988 (i.e. before the appeal tribunal hearing) the claimant completed form UB 707 giving the numbers of three giro cheques relating to July and August 1988 which he said he had not received. The Department of Employment produced those cheques, which had been cashed. In a witnessed statement on form A6 (a photocopy of which is in the case papers) the claimant agreed that it was his signature which was on those giro cheques and he must have received the amounts shown. A list of payments made by the DHSS to the claimant by giro cheque in 1988 and another list of payments made by the Department of Employment in 1988 were supplied to the claimant in February 1990. Copies are in the case papers. The claimant is unable to say which, if any, were not received by him. He says that it would not be possible to trace receipts of any of the giro cheques through his bank account. He told Mr. Warren "that he was in the practice of cashing them at the Post Office because, in what he described as his old-fashioned way, he was none too keen on the Bank Manager knowing he was unemployed" (letter from Mr. Warren dated 27 March 1990). He says he has a poor memory. He leads a peripatetic life, with periods of work on an oil rig interspersed with periods on benefit. He may himself believe he has not received some benefit paid to him. I am myself wholly unpersuaded that this is so. The present case indeed forms an excellent example of the reasons why for almost 80 years (i.e. since the National Insurance Act 1911) questions relating to failure to pay claimants benefit awarded by the statutory authorities have been left to the Courts for determination under an adversarial procedure.

My decision is set out in paragraph 1.

Date: 25 June 1990 (signed) Mr. V. G. H. Hallett

Commissioner