UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CJSA_1304_2001 (23 November 2001)

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THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CJSA/1304/2001

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF AN APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER: Mr H Levenson


 


1. I refuse the claimant's request for an oral hearing of the application for leave to appeal as I am satisfied that the application can be determined properly without a hearing. I grant leave to appeal. In accordance with the provisions of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations 1999 I treat this application as an appeal. The Secretary of State has explicitly consented to this course of action, and the consent of the claimant is implied.

2. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Carlisle Appeal Tribunal of 28^th June 2000. I substitute my own decision. This is to the effect that the claimant continued to be entitled to jobseekers allowance (JSA) from and including 13^th February 2000 and, in particular, from and including 4^th March 2000. I remit to the Secretary of State matters relating to calculation and payment of any arrears.

3. The parties are now agreed that I should make the above decision. However, it is likely that the position of other claimants will be affected by my decision and it is necessary to go into some detail.

4. The claimant was born on 11^th April 1961. He had been in receipt of income-based JSA when, on 14^th February 2000, he commenced a course of Work Based Training for Adults which was due to last until 7^th July 2000. Such courses are provided pursuant to arrangements made by the Secretary of State under the provisions of section 2(1) of the Employment and Training Act 1973. I am informed by the Secretary of State that some people who attend such activities do so with Employed Status. In such cases the person involved is paid a wage by the employer and entitlement to income-based benefit ceases. That was not the case with this particular claimant. Claimants who are in receipt of contribution based JSA at the time they start Work Based Training for Adults also cease to be entitled to JSA and, instead, receive a Training Allowance. However, if a claimant in receipt of income-based JSA starts a course of Work Based Training for Adults and does not have Employed Status, then the arrangements for payment are more complex.

5. Section 2(2)(d) of the 1973 Act empowers the Secretary of State to make payments to persons who use the facilities provided under that section. The form and amount of such payments are not prescribed. In practice, a claimant in receipt of income-based JSA who starts a course of Work Based Training for Adults and does not have Employed Status continues to be entitled to JSA at the rate of 10p weekly and is given a weekly payment of such training allowance as will bring the amount up to the equivalent of JSA entitlement plus £10 premium. These calculations are made, and the payment arranged, by the Employment Service computer. This is what happened in the present case. The additional amount, excluding the premium, is treated as income for the purposes of the calculation of entitlement to JSA. The premium is disregarded as income by virtue of paragraph 14(c) of schedule 7 to the Jobseekers Allowance Regulations 1996.

6. On taking up his place, the claimant agreed to inform the Employment Service if his participation ended for any reason or if his circumstances changed. For some reason the claimant left the training on 3^rd March 2000. The Employment Service was notified of this on 8^th March 2000 by the providers of the training. The claimant had been receiving his money fortnightly and assumed that normal payment of JSA would simply resume. It was not until 22^nd March 2000 that he realised something was amiss. He telephoned the Employment Service and it appears that his claim for JSA had been treated as closed down and he was told to make a new claim. He did so and JSA was awarded from that date. He also applied for JSA to be backdated to 4^th March 2000, the day after he left the training. On 28^th March 2000 the Secretary of State refused to backdate the award.

7. On 4^th April 2000 the claimant appealed to the tribunal against that decision and on 28^th June 2000 the tribunal confirmed the decision. On 15^th January 2001 a different tribunal chairman refused to set aside the decision of the tribunal and on 27^th February 2001 the chairman of the original tribunal refused the claimant leave to appeal to the Social Security Commissioner against the decision of the tribunal. The claimant applied directly to the Commissioner. Until this point the Secretary of State and the tribunal had dealt with the matter as though it were an ordinary claim for backdating. However, when the application was received by the Commissioners, Miss Commissioner Fellner caused further enquiries to be made and the true position became known. In fact, the claimant never lost his entitlement to JSA (it being agreed that the conditions of entitlement continued to be satisfied). There had been no notice issued under regulation 23 of the 1996 regulations and the claimant could not be subject to a sanction. I understand that such notices are now being issued by the Secretary of State in cases such as this.

8. I only wish to add that it is possible that the literature that is issued to claimants is misleading and consideration should be given to clarifying the wording.

H. Levenson

Commissioner

23rd November 2001