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[1993] UKSSCSC CIS_646_1991 (03 March 1993)

R(IS) 4/94

Mr. D. G. Rice CIS/646/1991
3.3.93

Income - payment in lieu of concessionary coal - whether "voluntary"

The claimant, whose late husband had been a miner, received a cash payment of £6.92 per week from the National Coal Board. This payment was in lieu of concessionary coal and was made pursuant to an agreement between British Coal and the National Union of Mineworkers. The adjudication officer decided that this income fell to be taken into account in full in the calculation of the claimant's income support. The claimant appealed to a social security appeal tribunal, the point at issue being whether the weekly payment was "voluntary" and could therefore be disregarded. Upholding the adjudication officer's decision the tribunal decided that the payment was not voluntary because it was legally enforceable. The claimant appealed to the social security Commissioner. The Commissioner decided that the tribunal's decision was erroneous in point of law. The tribunal had reached the right conclusion on the basis of an incorrect interpretation of the law.

Held that:

the question whether a payment of cash in lieu of concessionary coal of the type received by the claimant was "voluntary" was considered in the context of the Housing Benefit (General) Regulations 1987 and the Community Charge Benefit (General) Regulations 1989 in R v. Doncaster Borough Council, ex parte Francis Alice Boulton and it was held there that such a payment was not voluntary;

in that judgement Laws J said that the word "voluntary" in the context of housing benefit and community charge benefit legislation denoted the obtaining or giving of something without anything being obtained in return;

the provision allowing for a partial disregard to apply to "voluntary" payments was not at all concerned with the question whether or not the payer had entered upon legal obligations; it was concerned with cases where a person or body, outside the state, had shouldered some part of the burden of providing relief to persons living in the kind of economic circumstances which will allow the payment of an income-related benefit, without receiving anything in return;

the national agreement (under which cash payments in lieu of concessionary coal are made) was entered into by British Coal in the interests of good labour relations so as to better secure the willing services of its employees. British Coal therefore made the agreement in the expectation of improved industrial relations and efficiency being obtained in return. This legitimate and proper purpose was far removed from the purpose of benevolence which lies behind the term "voluntary" in the regulations;

the payment in lieu of concessionary coal in this case was not voluntary. The principle enunciated by Laws J in R v. Doncaster Borough Council, ex parte Francis Alice Boulton in relation to the Housing Benefit and Community Charge Benefit Regulations applies equally to the interpretation of paragraph 15 of Schedule 9 to the Income Support (General) Regulations 1987.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal given on 5 July 1991 is erroneous in point of law, and accordingly I set it aside. As it is expedient that I give the decision the tribunal should have given, I further decide that the cash payment of £6.92 per week in lieu of concessionary coal is not a voluntary payment, and as a result cannot be disregarded in calculating the claimant's income for the purposes of determining entitlement to income support.

This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 5 July 1991.

The question for determination by the tribunal was whether the claimant's receipt of a cash payment in lieu of concessionary coal should be taken into account in calculating her entitlement to income support. This in turn depended upon whether or not such payment could be disregarded under paragraph 15 of Schedule 9 to the Income Support (General) Regulations 1987 [SI 1987 No. 1967] which reads as follows:

"15(1) Except where sub-paragraph (2) applies and subject to sub-paragraph (3) …, £10 of any charitable payment or of any voluntary payment made or due to be made at regular intervals"

But the cash payment in lieu of concessionary cash could only be so disregarded if it was a "voluntary" payment. In the event, the tribunal, upholding the decision of the adjudication officer, decided that the payment in question could not be regarded as "voluntary", and accordingly it had to be taken into account as part of the claimant's income. It should be mentioned that the claimant's late husband had been a miner, and she received the cash payment in lieu of concessionary coal as his widow, pursuant to an agreement between the National Coal Board and the National Union of Miners.

The question whether a payment of the above kind was "voluntary" within paragraph 13(1) of Schedule 4 to the Housing Benefit (General) Regulations 1987 (and the corresponding provision in Schedule 3 to the Community Charge Benefit (General) Regulations 1989) was considered by Laws J in The Queen v. Doncaster Borough Council, ex Parte Frances Alice Boulton, and it was there held that such payment was not "voluntary". In the course of his judgment, Laws J referred to the opinion of Lord Halsbury in Overseers of the Savoy v. Art Union of London [1896] AC 296, at page 305:

"My Lords, there is no doubt that the word 'voluntary' is constantly used in two different senses: it is constantly used as the antithesis of something done under compulsion; but it is also used commonly among lawyers (and not uncommonly among other people) as denoting the obtaining or giving of something without anything being obtained in return …"

The learned judge went on to say that in the statutory provision which he had to consider the word "voluntary" had to be construed in the second sense referred to by Lord Halsbury. Moreover, the question of legal enforceability did not arise. He said as follows:

"In my judgment the provision is not at all concerned with the question whether or not the payer has entered upon legal obligations; it is concerned with cases where a person or body, outside the State, has shouldered some part of the burden of providing relief to people living in the kind of economic circumstances which will attract housing benefit. I have no doubt but that the adjective 'voluntary', as it appears in these regulations, is used in the second sense described by Lord Halsbury."

The learned judge then goes on to elaborate:

"This approach is I think supported by paragraph 2 of the Schedule which I have read. The reference there to a 'charitable or voluntary body' is clearly to a body which exists for some such purpose as the relief of hardship and which will receive no advantage for itself out of any payment that it makes. The word 'voluntary' of course qualifies a different noun than in paragraph 13; but the essential sense is the same.

While the foregoing reasoning offers a construction of the regulations, it does not answer the question whether payments made by British Coal under the National Agreement are to be regarded as voluntary within it. Mr. Luba submitted that even were I to adopt the construction which I have, still the payments were voluntary in this case. In part his submission depended upon paragraphs 28 and 29 of the agreement; I have dealt with that. In part, as I understood it, it depended upon the deeper proposition that in any event British Coal got nothing back from these payments; that they are, in other words, to be regarded as a volunteer in the sense I have accepted.

I am no more able to accede to this wider argument than to that based on paragraph 28. It seems to me quite plain that the National Agreement, being the result no doubt of careful negotiations with the trades unions, was entered into by British Coal in the interests of good labour relations so as better to secure the willing services of its employees. That is not of course to say that British Coal entertained no more than a selfish motive for making these payments or to suggest that they have no lively and genuine concern for the interests of miners and widows for their own sake; rather, it is to indicate that the purpose of the National Agreement is to promote the efficient running of the National Agreement is to promote the efficient running of the coal industry in which, no doubt as with any large organisation, an important element is to see that employees, ex-employees and their widows (in other contexts they might be widowers) are properly looked after. This legitimate and proper purpose is, however, far removed from the purpose of benevolence behind voluntary payments in the regulations as I have sought to expound it."

Although Laws J was concerned with the Housing Benefit (General) Regulations 1987 and the Community Charge Benefit (General) Regulations 1989, all that he says applies, in my judgment, equally to paragraph 15 of Schedule 9 to the Income Support (General) Regulations 1987. It follows that, for the reasons given by him, the payment in lieu of coal in this case was not a voluntary payment, and as a result cannot be disregarded.

The tribunal based their decision on their belief that the payment in question was legally enforceable. However, as Laws J has stated, enforceability was wholly irrelevant. Accordingly, the tribunal erred in point of law, and I must set aside their decision. However, it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision. For the reasons given by Laws J, the payment is not a voluntary payment, and as a result cannot be disregarded.

My decision is as set out in paragraph 1.

Date: 3 March 1993 (signed) Mr. D. G. Rice Commissioner