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Cite as: [1999] UKSSCSC CJSA_1266_1998

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[1999] UKSSCSC CJSA_1266_1998 (08 June 1999)

R(JSA) 2/01

Mr. D. Williams CJSA/1266/1998

8.6.99

Contribution based jobseeker's allowance - annual compensation payments following redundancy - whether periodical payments under an occupational pension scheme

The claimant was refused jobseeker's allowance because he received pension payments exceeding his weekly entitlement. The tribunal confirmed the decision and the claimant appealed to the Commissioner.

Held, allowing the appeal, that:

the tribunal had no information and made no findings of fact about the source of the payments and therefore erred in law;

the source in this case is the Civil Service Compensation Scheme and that is an occupational pension scheme so that the claimant is not entitled to jobseeker's allowance.

The Commissioner expressed the view that it would be helpful if correspondence from employers to potential claimants indicated the source of an annual compensation payment.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal against the decision of the Bexleyheath SSAT. It was brought by leave of the chairman. The decision was that the claimant was not entitled to jobseeker's allowance from and including 21 March 1997. For the reasons given below, I set it aside. However, I substitute for that decision my own decision to the same effect, which is:

The claimant is not entitled to jobseeker's allowance from and including
21 March 1997.

The appeal concerns the refusal to pay jobseeker's allowance to the claimant. This was because it was decided that he was receiving pension payments of such a level that they exceeded his weekly entitlement to jobseeker's allowance. The facts are not in dispute and I accept them in this decision, save for one, the source of the annual compensation payments that were treated as being pension payments. The claimant worked for HM Customs and Excise until 20 March 1997 when he left voluntarily, aged 51. As this was below his pensionable age (60), the claimant was awarded a pension only from pensionable age. He was also awarded an annual compensation payment until then.

Unfortunately, no one specifically identified the source of the annual compensation payments. The social security authorities cannot properly determine the nature of a payment such as the payment in this case without identifying its source. In CJSA/4316/1998 I held, with agreement of both parties, that a tribunal erred in law for failing to identify the source of compensation payments. It was later identified as the Civil Service Compensation Scheme ("the CSCS"). Exactly the same point arises here. There is nothing in the submissions to, the papers before, or the record or decision of, the tribunal that identified the source from which the annual compensation payments were made. The tribunal could not therefore properly decide the nature of the payments, and erred in law. On the basis of the submissions to me, I now find that the source was the CSCS.

To avoid further appeals arising in this way, it would assist in all cases where claimants are receiving annual compensation payments from public sector schemes such as the CSCS if the official correspondence given by employers to potential claimants properly indicated the source of the payments. It is obvious from files I have seen that standard form letters are used. I suspect that it would be a relatively simple matter, but one that would avoid these errors, to state the source of an annual compensation payment. This would assist adjudication officers, the Secretary of State, and tribunals as they must identify the source before reaching conclusions about the nature of the payments. Failure to do so is an error of law.

The question in this case is whether annual compensation payments received by the claimant from the CSCS are "pension payments" for jobseeker's allowance purposes. Section 4 of the Jobseekers Act 1995 provides that the weekly amount of pension payments received must be taken into account when calculating the weekly entitlement to jobseeker's allowance. Regulation 81 of the Jobseeker's Allowance Regulations 1996 provides that they must be taken into account to the extent that they exceed £50 a week. It is not in dispute that the weekly amounts of the claimant's annual compensation payments are over £50 greater than his weekly entitlement to jobseeker's allowance. If the annual compensation payment is a "pension payment", the claimant is not entitled to jobseeker's allowance. But I can understand why the claimant argues that the payment is not a pension payment. He was told he was too young to receive a pension, and that the annual compensation payments were paid to him to compensate him for that fact. He also appeals because of inconsistencies in the advice he received, and more favourable decisions made for other claimants.

The term "pension payments" is defined in section 35 of the Jobseekers Act 1995 as meaning periodical payments made in connection with the coming to an end of an employment from, among other sources, an "occupational pension scheme" or a "public sector pension scheme" as defined in section 1 of the Pension Schemes Act 1993. Payments from the Civil Service Compensation Scheme are periodical and are because of the termination of employment. Further, in decision CJSA/4316/1998 I decided that annual compensation payments paid from the CSCS are payments from an "occupational pension scheme" for jobseeker's allowance purposes. I did so following the reasons given by Mr. Commissioner Howell QC in his joint decision CJSA/5381/1997 and 1360/1998 [also to be reported as R(JSA) 1/01]. He decided that Commissioners are bound by the views expressed on the very wide definitions in section 1 of the 1993 Act by Millett LJ in Westminster City Council v. Haywood [1998] Ch 377 at 404-5 (Court of Appeal). It is clear from what Millett LJ said that the Civil Service Compensation Scheme is a public sector pension scheme and an occupational pension scheme within the definitions in section 1 of the 1993 Act, and therefore the 1995 Act also.

Although for other purposes the claimant received the payments because he was not paid a pension, annual compensation payments from the CSCS are pension payments as defined in the Jobseekers Act 1995. Further, the tribunal was right in finding that the annual compensation payments were properly taken into account under section 4 of the Jobseekers Act 1995 and regulation 81 of the Jobseeker's Allowance Regulations 1996. The conclusion it drew that the claimant was not entitled to jobseeker's allowance was right on the facts. Because its decision was inadequate, I set it aside but must reach a decision to the same effect.

The other points raised by the claimant are about advice he received when leaving, and on which he agreed to leave, and the treatment of others. Some of that advice related to unemployment benefit, which was replaced by jobseeker's allowance in October 1996, and is therefore not relevant to this appeal. I cannot comment on issues between the claimant and his former employer, or on decisions taken about benefit claims by others.

Date: 8 June 1999 (signed) Mr. D. Williams