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Scrivener v. Chief Adjudication Officer [1991] UKSSCSC CSB_801_1989 (16 April 1991)

R(SB) 1/91
(Scrivner v. Chief Adjudication Officer)

Mr. D. G. Rice CSB/801/1989
23.4.90

CA (Glidewell LJ)
16.4.91

Recovery of overpayment - recovery of overpaid supplementary benefit from arrears of Belgian unemployment benefit – whether supplementary benefit to be apportioned between the claimant and his family for the purposes of Article 111(3) of Council Regulation (EEC) 574/72

The claimant was in receipt of Belgian unemployment benefit from September 1982. He was later disqualified from receiving benefit for a sixteen week period commencing 20 December 1982. The claimant returned to England on 9 February 1983 and received supplementary benefit. A Belgian appeal tribunal reduced the period of suspension to four weeks from 20 December 1982 and as a result the claimant became entitled to unemployment benefit from 9 February to 10 April 1983. The adjudication officer decided that of the £634.84 arrears of unemployment benefit £609.32 should be reimbursed for payment of supplementary benefit. On appeal to a British tribunal, the claimant contended that the Belgian unemployment benefit was in respect of himself alone whilst supplementary benefit took into account the needs of his family and therefore the amount of supplementary benefit to be deducted from the unemployment benefit should be reduced by that part of it which represented the needs of his family. The tribunal dismissed the appeal and the claimant appealed to a social security Commissioner.

Held that:

there is no provision for dissecting supplementary benefit. Section 12(1) and (1A) of the Supplementary Benefits Act 1976 provides for the entirety of supplementary benefit to be recovered and not merely part of it (para. 11);

the second paragraph of Article 111(3) of Regulation (EEC) 574/72 only applies where a member of the claimant's family receives a benefit in his own right (para. 12).

The appeal was dismissed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

For the reasons hereinafter appearing, the decision of the social security appeal tribunal given on 17 February 1988 is not erroneous in point of law, and accordingly this appeal fails.

This is an appeal by the claimant, brought with my leave, against the decision of the social security appeal tribunal of 17 February 1988. The claimant asked for an oral hearing, a request which was acceded to. At that hearing the claimant, who was present, was represented by his wife Mrs. C. S, whilst the adjudication officer appeared by Miss. A. Windsor of the Solicitor's Office of the Departments of Health and Social Security.

The facts of this case go back many years and give rise to considerable complications. However, none of the facts would appear to be in dispute and accordingly it will suffice if I merely narrate enough of the history of the matter to render this appeal intelligible. The claimant, who had settled in Belgium in 1978 with his wife and their six children, and had been employed in that country by a number of different insurance companies, in June 1982 left his employment there on account of certain family difficulties arising out of his mother's death in February of that year. The claimant informed the unemployment benefit office in Belgium of the position, and they issued to him form E303. He went backwards and forwards between England and Belgium on a weekly basis, but returned eventually to the latter country permanently in September 1982. Belgian unemployment benefit then took effect. However, on 15 and 21 December 1982 decisions were taken by the regional inspector of unemployment refusing the claimant unemployment benefit in Belgium for July 1982, and disqualifying him for a sixteen week period commencing on 20 December 1982. The claimant then sought the minimum means of subsistence ("minimex") in Belgium, but because he had not been residing there for at least the previous five years, it was refused. On 9 February 1983 the claimant and his family returned to England. In order to do so, as they were to all intents and purposes destitute, they had to obtain financial assistance from a charitable fund. Thereafter, the claimant received supplementary benefit.

In July 1983 the Belgian appeal tribunal decided to reduce the period of suspension imposed on the payment of Belgian unemployment benefit to four weeks running from 20 December 1982. As a result of this decision in Belgium the claimant became entitled to Belgian unemployment benefit for the period from 9 February 1983 to 10 April 1983 at the rate of £12.208 per day. In or about November 1983 the Belgian authorities advised the Overseas Branch of the DHSS at Newcastle Central Office of the position, and on 30 November 1983 the Overseas Branch notified the Wimbledon Unemployment Benefit Office of what had occurred. Between 30 November 1983 and 23 December 1983 the adjudication officer decided that of the £634.84 arrears of Belgian unemployment benefit, the Secretary of State should receive £609.52 by way of reimbursement for payment of supplementary benefit. On 23 December 1983 the Overseas Branch sent to the claimant a remittance for £25.32 being the balance of the said arrears.

In due course, the claimant appealed to the tribunal, who in the event upheld the adjudication officer, subject of an increase in the entitlement of the secretary of state, out of the Belgian unemployment benefit award, from £609.52 to £633.94 in accordance with a schedule presented to the tribunal, the calculation apparently not being in dispute.

At this stage it is perhaps helpful if I refer to the relevant statutory provisions which apply to a case of the kind now before me. Section 12(1) and (1A) of the Supplementary Benefits Act 1976 (that Act has since been repealed and section 12 has in substance been re-enacted in relation to income support as section 27 of the Social Security Act 1986) provided as follows:

"12.- (1) Where a prescribed payment which apart from this sub-section falls to be made from public funds in the United Kingdom or under the law of any other Member State is not made on or before the date which is the prescribed date in relation to the payment, then -

(a) in the case of a payment from such public funds, the authority responsible for making it may abate it by the relevant amount; and

(b) in the case of any other payment, the Secretary of State shall be entitled to receive the relevant amount out of the payment:

and in this sub-section 'the relevant amount', in relation to a payment, means the amount which an adjudication officer determines has been paid by way of supplementary benefit and would not have been paid if the payment had been made on the date aforesaid.

(1A) Where -

(a) a payment by way of prescribed income is made after the date which is the prescribed date in relation to the payment, and

(b) an adjudication officer determines that an amount which has been paid by way of supplementary benefit would not have been paid if the said payment had been made on the date aforesaid,

the Secretary of State shall be entitled to recover that amount from the person to whom it was paid."

In the present case, when the claimant came to England and was awarded supplementary benefit, his entitlement to Belgian unemployment benefit had not been finally resolved, and accordingly the payment of such unemployment benefit, when it was ultimately determined, was made after the prescribed date, and consequently, pursuant to section 12(lA), the Secretary of State was entitled to recover the supplementary benefit paid out for the relevant period. Moreover, section 12(1) provided the mechanism for recovery. It enabled the Secretary of State to recover the supplementary benefit so paid ("the relevant amount") from the arrears of Belgian unemployment benefit.

However, section 12 was not the only relevant statutory provision. It was incumbent on the adjudicating authorities to consider and apply the relevant articles of Regulation (EEC) 1408/71 and Regulation (EEC) 574/72, the claimant being a person to whom it is not in dispute these Regulations applied (see Article 2(1) of Regulation (EEC)1408/71). Regulation (EEC) 1408/71 is concerned with the rules for the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the community. Regulation (EEC) 574/72 lays down the procedure for implementing Regulation (EEC) 1408/71. Article 69 of the latter regulation permits a claimant going to another Member State to seek employment to "export" his unemployment benefit, subject to certain conditions. It is not in dispute in the present case that the claimant satisfied those conditions. It follows, therefore, that when the claimant came to this country, having qualified for Belgian unemployment benefit, he was still entitled to that benefit. The benefit would in practice be paid by the British authorities on behalf of Belgium, and would be recovered in due course from the Belgium authorities pursuant to Article 97 of Regulation (EEC) 574/72. This article provides as follows:

"1. The amount of benefit paid under Article 69 of the Regulation [when used in Regulation (EEC) 574/72. 'Regulation' refers to Regulation (EEC) 1408/71] shall be refunded by the competent institution to the institution which has paid the said benefits, as shown in the accounts of the latter institution."

The purpose of such forms as E302 and E303 is merely to inform the authority receiving them of the amount of benefit which should be paid. These are issued in accordance with Article 83 of Regulation (EEC) 574/72, which provides as follows:

"l. In order to retain the right to benefits, an unemployed person covered by Article 69(1) of the regulation shall submit to the institution of the place to which he has gone a certified statement in which the competent institution shall certify that he is still entitled to benefits under the conditions laid down in paragraph 1(b) of the said Article. The competent institution shall specify in particular in this certified statement:

(a) the amount of benefit to be paid to the unemployed person under the legislation of the competent State:

[there then follow further details relevant to the matter]

An unemployed person who intends to go to another Member State in order to seek employment there shall, before his departure, apply for the certified statement referred to in paragraph 1. If the unemployed person does not submit the said certified statement, the institution of the place to which he has gone shall obtain it from the competent institution. The employment services of the competent State must ensure that the unemployed person has been informed of his obligation under Article 69 of the Regulation and under this Article.

The institution of the place to which the unemployed person has gone shall notify the competent institution of the date on which the unemployed person registered and the date on which payment of benefit was commenced and shall pay out the benefit of the competent State in accordance with the procedure provided for by the legislation of the Member State to which the unemployed person has gone.

……"

Complications arise, as in this case, where the institution of the place to which the unemployed person has gone is not acting merely as a conduit pipe for the competent institution of the place from which the unemployed person has come, but has an interest in recovering payments which it has itself made, and which, under its domestic legislation, it is entitled to recover out of the "exported" benefit. This is dealt with in Article 111(3) of Regulation (EEC) 574/72. For this provides as follows:

"3. When a person to whom the regulation [i.e. Regulation (EEC) 1408/71] applies has received assistance in the territory of a Member State during the period in which he was entitled to benefit under the legislation of another Member State, the body which gave the assistance may, if it is legally entitled to reclaim the benefits due to the said person, request the institution of any other Member State responsible for the payment of benefits in favour of that person to deduct the amount of the assistance paid from the amounts which the latter pays to the said person.... The institution responsible for payment shall make the deduction under the conditions and within the limits provided for such setting off by the legislation which it administers, and shall transfer the amount deducted to the creditor body."

Now, in the present case the British authorities were entitled, pursuant to regulation 12(1) and (1A), to recover the supplementary benefit paid out to the claimant, and accordingly were, pursuant to Article 111(3), entitled to request the Belgium authorities to deduct an amount corresponding to that supplementary benefit from the unemployment benefit authorised by them to be paid to the claimant . The wording of Article 111(3), where it says "which the latter pays to the said person" is a little puzzling, in that, strictly speaking, the payment to the claimant is effected by the British, not the foreign authorities. However, clearly when the Article says "the latter pays" it means "the latter authorises to be paid". There is no direct payment by the foreign authorities to the claimant, but the foreign Member State incurs the relevant expense by reason of its having to reimburse the British authorities for the sum involved.

It follows from what has been said above that, in the present case, the British authorities were entitled to deduct from the Belgian unemployment benefit all sums paid out by way of supplementary benefit, and to restrict payment of such unemployment benefit in favour of the claimant to whatever sum might be left over. This was the approach of the adjudicating officer, and was upheld by the tribunal. I see nothing wrong with the tribunal's decision.

The claimant's case, as put to me by his wife (and the same case was presented to the tribunal) took the following form. The Belgian unemployment benefit was benefit in respect of the claimant alone, and did not incorporate any element in respect of his wife and six children. This alone was "exported" to this country. Had the claimant stayed in Belgium with his family, he would have received in addition a further benefit, taking into account the requirements of his wife and children. However, that benefit would only have accrued so long as he was resident with his family in Belgium. But, when he came to England, he became entitled to supplementary benefit. That benefit took into account the needs of his family. Whilst the claimant could see the force of the contention of the British authorities that they were entitled to recovery of this supplementary benefit from the Belgian unemployment benefit, if, but only if, there had been added to the latter the amount that he would have received, by way of additional benefit in respect of, his family, had he remained in Belgium, he could not see that it was fair that supplementary benefit should be deducted in its entirety from Belgian unemployment benefit, which only related to his own personal needs and did not take into account the requirements of his family. In other words, he contended that the amount of supplementary benefit that should be deducted from his Belgian unemployment benefit should be reduced, and that that part of it which represented the needs of his family should be disregarded. In his view, there should be a logical consistency. If a British benefit was to be deducted from a foreign benefit, the exercise should proceed on the basis that both benefits related either to the claimant alone or to the claimant and his family, and if the foreign benefit did not incorporate any item in respect of the family, then the English benefit to be deducted therefrom should be reduced accordingly.

However, the difficulty that faces the claimant is that, although there might well be logic in his approach, the whole matter is governed by regulations, and I have no discretion in the matter to waive or relax such regulations. There is no provision for dissecting supplementary benefit in the way suggested by the claimant. Section 12(1) and (1A) provides for the entirety of supplementary benefit to be recovered, and not merely part of it, and for the purposes of that particular provision it is immaterial how the foreign payment is made up.

However, the claimant sought to derive assistance from the second paragraph of Article 111(3), not so far quoted, but which reads as follows:

"When a member of the family of a person to whom the regulation applies has received assistance in the territory of a member of state during a period of which the said person was entitled to benefit under the legislation of another member state in respect of the member of the family concerned, the body which gave the assistance may, if it is legally entitled to reclaim the benefits due to the said person in respect of the member of the family concerned, request the institution of any other Member State responsible for the payment of such benefits in favour of that person to deduct that amount of the assistance paid from the amounts which the latter pays to the said person in respect of the member of the family concerned."

I am not entirely sure how the claimant considered he was to derive any advantage from this particular provision, but in any event it clearly has no application to the present situation. That paragraph clearly only applies where a member of the claimant's family receives a benefit in his own right. However, in the case of supplementary benefit, at the relevant only the husband could claim, and although the award was made to him was augmented to take onto account the requirements of his family, the award was made to him and him only. There was no award to any other person. Accordingly the second paragraph of Article 111(3) has no application.

The claimant also sought to rely on section 12(2) of the Supplementary Benefit Act 1976. That particular provision read as follows:

"12.(2) Where for any period -

(a) a person (in this sub-section referred to as A) is entitled to any prescribed benefit in respect of another person (in the sub-section referred to as B); and

(b) B's requirements have been taken into account in determining the amount of any supplementary benefit payable for that period to B or some other person (other than A); and

(c) the amount of the supplementary benefit so payable has been determined on the basis that A has not made payments for the maintenance of B at a rate equal to or exceeding the amount of the prescribed benefit;

the amount of a prescribed benefit may, at the descretion of the authority administering it, be abated by the amounts paid under this Act exceed what an adjudication officer determines they would have been had A, at the time the amount of the supplementary benefit was determined, been making payments for the maintenance of B at a rate equal to the amount of the prescribed benefit."

How this particular provision operates is succinctly explained by Mr. John Mesher in his "Supplementary Benefit and Family Income Support: The Legislation": Second Edition at page 17:

"Prescribed benefits are listed in reg. 5 of the Duplication and Overpayment Regulations. They are benefits, like child benefit, which can be claimed if a person (A) is contributing to the support of another person (B) at least the rate of the benefit. If supplementary benefit is being paid for (B) on the basis that this contribution was not paid, the excess paid as a result can be deducted from (A)'s prescribed benefit."

Manifestly, none of this has anything to do with the claimant's position in the present case.

Accordingly, there is no force in the claimant's contentions, and I see no reason for my interfering with the tribunal's decision. Moreover, I am satisfied that they have explained the position with sufficient particularity.

I therefore dismiss this appeal.

Date: 23 April 1990 (signed) Mr. D. G. Rice Commissioner

The claimant applied to the Court of Appeal for leave to appeal to that Court, leave having been refused by the Commissioner. On 16 April 1991 the Court of Appeal (Glidewell LJ) refused the application. The judgment of the Court of Appeal follows.

JUDGMENT OF THE COURT OF APPEAL

The Applicant (Plaintiff) appeared in person (with his wife, Mrs. Scrivner).

Mr. Robert Jay, instructed by The Treasury Solicitor, appeared for the Respondent (Defendant).

LORD JUSTICE GLIDEWELL: This is an application for leave to appeal against a decision of Mr. Rice, social security Commissioner, who on 23 April 1990 dismissed an appeal against a decision of a social security appeal tribunal which had been given on 17 February 1988 as not being erroneous in point of law.

In order to explain briefly what the point at issue is, it is necessary to go into the history of this matter at least to some modest extent, though, if I may say so, it is set out with the greatest possible clarity in Mr. Rice's decision.

Mr. and Mrs. Scrivner and their family, Mr. Scrivner being the appellant, have lived in Belgium, or did live in Belgium, from 1978 onwards. Mr. Scrivner was employed in that country in a number of different employments (he was employed by a variety of insurance companies) but, as a result of certain family difficulties in early 1982, in June of that year Mr. Scrivner left his employment there. He then claimed unemployment benefit in Belgium. He did some travelling backwards and forwards between England and Belgium in the summer of 1982, but I do not think that is relevant. He returned permanently to that country in September 1982.

The regional inspector of unemployment for the district in which they were living decided in December 1982 firstly that he was not entitled to unemployment benefit for July, and secondly disqualified him from unemployment benefit for a sixteen week period commencing from the date when the decision was made, which would have lasted until approximately the end of April 1983. Mr. and Mrs. Scrivner were also refused the Belgian equivalent of social security benefit, which is called in their jargon "minimex".

So, being without funds of any sort, they returned to England on 9 February 1983, and from that time forward claimed and received supplementary benefit in the United Kingdom. In the meantime, they had appealed against the decision of the regional inspector of unemployment to a Belgian appeal tribunal, and that appeal succeeded in July 1983 to the extent that the period of suspension for the payment of Belgian unemployment benefit was reduced from sixteen weeks to four weeks, the effect of which was that Mr. Scrivner was entitled to a back payment of Belgian unemployment benefit for twelve weeks at the rate of £12.20 a day.

However, it seems that that unemployment benefit, whether rightly or not is not for me to determine because it is a matter of Belgian law and it may be of European law, was determined as being unemployment benefit for Mr. Scrivner alone without any increase or supplement, taking into account the position of his wife and his children.

United Kingdom supplementary benefit, on the other hand, does take into account the fact that a person is living with his wife and he has dependent children, and the supplementary benefit which Mr. Scrivner received did take that into account.

The mechanism for repayment of underpaid unemployment benefit in another member state of the European community is, putting it shortly, that the relevant authority in the country in which at the time when the repayment becomes due the claimant is living makes the payment, and then I suppose there is some cross accounting.

However, by what was section 12(1) and (1)(a) of the Supplementary Benefits Act 1976, the Department of Health and Social Security in making that repayment on behalf of the Belgian authority were entitled to make a deduction in respect of the supplementary benefit which they had paid Mr. Scrivner for effectively the same period. The relevant provision for the purposes of this case is sub-section (1)(A), which provides:

"Where -

(a) a payment by way of prescribed income is made after the date which is the prescribed date in relation to the payment; and

(b) a benefit officer determines that an amount which has been paid by way of supplementary benefit would not have been paid if the said payment had been made on the date aforesaid,

the Secretary of State shall be entitled to recover that amount from the person to whom it was paid."

The payment by way of prescribed income being made after the date which is the prescribed date in relation to that payment is, in this case, the repayment of the underpaid Belgian unemployment benefit which ought to have been paid either weekly or monthly in the spring of 1983, and the benefit officer has determined that the supplementary benefit would not have been paid if the Belgian unemployment benefit had been paid. So far Mr. and Mrs. Scrivner agree with that as a matter of general proposition. The subsection provides that "the Secretary of State shall be entitled to recover that amount from the person to whom it was paid", and what the Secretary of State has done is to deduct from the refund of the Belgian unemployment benefit the relevant amount of supplementary benefit actually paid to Mr. Scrivner leaving a balance, which I think was a few pence only, effectively cancelling it.

MRS. SCRIVNER: £25 it was, my Lord.

LORD JUSTICE GLIDEWELL: I thought it was reduced on appeal.

MRS. SCRIVNER: My Lord, no.

LORD JUSTICE GLIDEWELL: It does not matter. It meant effectively that it wiped out the repayment.

Mr. Scrivner appealed against this decision and has lost the appeal at all stages up to now. There is a right of appeal with leave only to this court on a point of law against the decision of the social security Commissioner. The Commissioner himself has refused leave, and it is now for me to decide whether leave should be granted. I do so by considering whether there is an arguable point on this appeal, that is to say whether there is a point which, if argued before the full court, would have a reasonable prospect of success.

The first point which is made is that the provisions of section 12 are intended to prevent duplication of payment, and Mrs. Scrivner makes very clearly the point that in relation to that part of the supplementary benefit which was calculated in respect of herself and the children, as opposed to Mr. Scrivner's part so to speak, there has been no duplication of payment because the unemployment benefit in Belgium was calculated only on the basis of what her husband was entitled to.

As a broad logical proposition, that appeals to me. But this court is not here to exercise, any more than was the social security Commissioner, some sort of general concept of fairness. These matters are governed entirely by the statutory provisions and the provisions of the regulations. The wording of sub-section (1)(A) is, in my view, entirely clear. What the Secretary of State is entitled to recover is "the amount" which has been paid by way of supplementary benefit, provided only that it would not have been paid had the unemployment benefit been paid. There is no provision in the subsection for notionally dividing up the amount of supplementary benefit into that part attributable to the husband and that part attributable to the wife and the children. So the broad general argument, I am afraid, is doomed to failure.

However, Mrs. Scrivner, on her husband's behalf, raises before me, as she did before the social security appeal Commissioner, another argument based upon the wording of subsection (2) of section 12 of the 1976 Act. That provides in the following terms:

"Where for any period -

(a) a person (in this subsection referred to as A) is entitled to any prescribed benefit in respect of another person (in the subsection referred to as B); and

(b) B's requirements have been taken into account in determining the amount of any supplementary benefit payable for that period to B or to some other person (other than A); and

(c) the amount of the supplementary benefit so payable has been determined on the basis that A has not made payments for the maintenance of B at a rate equal to or exceeding the amount of the prescribed benefit;

the amount of a prescribed benefit may … be abated".

The social security Commissioner has determined that the provision simply does not apply to the facts of this case. Mrs. Scrivner argues firmly that it does.

Prescribed benefits include a list of five different benefits prescribed in regulations which she drew to my attention. They do not include supplementary benefit itself. They do, however, include such benefits as child benefit and other forms of additional benefit paid in respect of children within the family, and a number of other irrelevant benefits.

In my view, what this somewhat convoluted sub-section is seeking to do is to provide that if the person called A, who for this purpose we may take as being the male head of the family, has been paid one of those forms of prescribed benefit in respect of another person such as a dependent teenage child and somebody else in the family, either that teenage child him or herself, or perhaps the teenage child's mother, has been drawing supplementary benefit which is calculated on the basis that the teenage child is dependent upon either him or herself or, let us say, the mother, then in effect there has been a double payment through two different channels of benefit for that teenage child, who is B for the purposes of this subsection. The purpose of this subsection is to enable that double payment to be recovered.

The important point, going back to sub-section (2)(b), is that it must be an amount of any supplementary benefit payable for that period to B (in my example the teenage child) or some person other than A (in my example the male head of the family). That immediately rules out this case, because the supplementary benefit in this case was not paid to Mrs. Scrivner or to anybody else. It was only paid to Mr. Scrivner, who is A for the purposes of that subsection.

Complex though it is, I am absolutely satisfied that the social security Commissioner was correct in coming to the conclusion that that provision did not apply on the facts of the present case. I therefore conclude that his decision, which I consider to be very clear and very carefully set out, was entirely correct. An appeal against it would have no chance of success, and it would be of no kindness to the Scrivners to grant them leave to appeal that might expose them to the possibility of an order for costs if they lost. It may be that in one or other of the proceedings that are pending in continental Europe, in Belgium, or the European Court of Human Rights they will have more success, but in respect of this appeal I refuse Mr. Scrivner leave.

Order: Application refused.