UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CJSA_2028_2000 (05 July 2001)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CJSA/2028/2000

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER: MR J MESHER


 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal is allowed. The decision of the Whittington House East social security appeal tribunal dated 30 April 1999 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute a decision on the claimant's appeal against the adjudication officer's decision dated 6 July 1998 after making the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). The decision is that:

(a) the adjudication officer's decision issued on 18 November 1997 falls to be reviewed on the ground that it was erroneous in point of law (Social Security Administration Act 1992, section 25(2)), as it misconstrued the jobseeker's allowance legislation on qualification for housing costs, and in accordance with regulations 57(1) and (3)(a) and 63A(1) of the Social Security (Adjudication) Regulations 1995 the revised decision may take effect from the date from which the adjudication officer on 18 November 1997 could have awarded benefit;

(b) the revised decision on the review under (a) is that the adjudication officer's decision issued on 1 May 1997 to the effect that the claimant was entitled to jobseeker's allowance from 21 April 1997 payable at the personal rate appropriate to entitlement under the contribution-based conditions falls to be reviewed on the ground of relevant change of circumstances (Social Security Administration Act 1992, section 25(1)(b));

(c) the revised decision on the review under (b) is that the amount of jobseeker's allowance payable from 16 June 1997 is to be determined in accordance with section 4(6) and (7) of the Jobseekers Act 1995, or as the case may be section 4(8) and (9), on the basis that her applicable amount for that purpose include an amount for housing costs at half of the ordinary calculation from 16 June 1997 and at the full rate from 20 October 1997 (Jobseeker's Allowance Regulations 1996, Schedule 2, paragraph 6(1)(a) and (b)) and that regulation 63A of the Social Security (Adjudication) Regulations 1995 imposes no restriction on the date from which any additional benefit is payable.

I explain in paragraphs 29 to 31 below the principles on which any additional payments due to the claimant, having taken account of payments made following the appeal tribunal's decision and further action to be taken by the Secretary of State in relation to the carer premium, are to be calculated.

2. There is agreement between the claimant's representative and the Secretary of State that the appeal tribunal of 30 April 1999 erred in law and that the calculation of her housing costs has so far been made on a false legal basis. It was suggested in the Secretary of State's submission dated 25 January 2001 that I could substitute a decision on the appeal. When I rescinded my direction for an oral hearing, at the request of both parties, I directed further submissions, in particular on the dates from which the claimant could receive any additional benefit from the application of the correct legal approach. The Secretary of State's submission dated 2 April 2001 did not suggest referring the case to a new appeal tribunal, but put forward a submission "based on assumptions made from the accepted facts (implicit or otherwise) in order to take a pragmatic approach in this case". The submission was written "in the absence of copies of the claim pack, review requests and the claimant's correspondence". I might have some sympathy with that approach if there had been some mention of an attempt to obtain the relevant documents. As it is, the Secretary of State has failed to produce evidence knowing of the likelihood that the Commissioner was going to substitute a decision on the facts. I therefore see no obstacle to my taking a pragmatic approach and deciding the case on the current evidence. It is much better in such a complex case for me to come to a decision rather than to try to explain many options to a new appeal tribunal.
3. The case stems from the claim for jobseeker's allowance ("JSA") submitted on 21 April 1997. The claim form is not in evidence before me, but it is accepted that on the form the claimant indicated that she wished to be considered for both income-based and contribution-based JSA. The Secretary of State in the submission of 2 April 2001 accepts, from the treatment of a later form, that the claim form must have included a question about housing costs. The claimant's representative, Karen Timperley of Carers London Advice and Representation Unit, has said in her submission dated 2 May 2001 that the claim form includes questions on housing costs and mortgage payments, including a question about when any mortgage or loan secured on the home was taken out. It is now known that there was such a mortgage in the joint names of the claimant and another person taken out in 1986 to purchase the home. There is no reason to suppose that the claimant did not provide that information in answer to the questions on the April 1997 claim form and I find that she did so.
4. According to the adjudication officer's written submission to the appeal tribunal, the decision on the claim was that the claimant was entitled to contribution-based JSA from 21 April 1997, but was not entitled to income-based JSA because her income exceeded the applicable amount. I have no copy of the original decision or of the form in which it was notified to the claimant on 1 May 1997. That could be significant, because the formula used in the submission to the appeal tribunal was misleading. That follows from the convoluted provisions in the Jobseekers Act 1995 about the interrelationship between contribution-based JSA and income-based JSA. Subsequent references to plain sections are to this Act.
5. Section 1(2) provides that a claimant is entitled to JSA if she satisfies a number of conditions (which the claimant did in this case) and satisfies either the conditions set out in section 2 (the contribution-based conditions) or those set out in section 3 (the income-based conditions). The claimant here plainly satisfied the contribution-based conditions. I am satisfied that she also satisfied the income-based conditions. The condition in section 3(1)(a) is that a claimant "has an income which does not exceed the applicable amount ... or has no income". That ostensibly was the ground on which the claimant was said not to be entitled to income-based JSA, but I think that that must be wrong. Whether a claimant has any income for this purpose must be judged before any award of JSA is made, so that contribution-based JSA cannot count. That is amply confirmed by section 4, which contains elaborate provisions for the amount of JSA payable making it crystal-clear that a claimant who is entitled to contribution-based JSA may have no income. I am satisfied from the approach of the adjudication officer and the appeal tribunal that the claimant in April 1997 had no other income, or other income that was below her applicable amount, so that the obstacle to payment of income-based JSA was the award of contribution-based JSA.
6. The decision on income-based JSA ought therefore to have been based on section 4(6) or (8):

"(6) Where a claimant satisfies both the contribution-based conditions and the income-based conditions but has no income, the amount payable shall be--

(a) the applicable amount, if that is greater than his personal rate; and

(b) his personal rate, if it is not.

(8) Where a claimant satisfies both the contribution-based conditions and the income-based conditions and has an income, the amount payable shall be--

(a) the amount by which the applicable amount exceeds his income, if the amount of that excess is greater than his personal rate; and

(b) his personal rate, if it is not."

The amount payable to the claimant on either alternative was her "personal rate", ie the rate for the purposes of contribution-based JSA (section 4(1)). In April 1997 the personal rate for a person of 25 and over (before deductions for earnings or pensions) was £49.15 per week. The applicable amount, for the purposes of income-based JSA, for a single claimant aged 25 or over, with no dependants, no entitlement to premiums and (crucial to this case) no housing costs, was also £49.15 per week.

7. The answer to the immediate question of why the claimant had no housing costs as at 21 April 1997 lies in paragraph 6 of Schedule 2 to the Jobseeker's Allowance Regulations 1996 ("the JSA Regulations"):

"6.-(1) Subject to the provisions of this Schedule the existing housing costs to be met in any particular case are--

(a) where the claimant has been entitled to a jobseeker's allowance for a continuous period of 26 weeks or more, the aggregate of--

(i) an amount determined in the manner set out in paragraph 9 by applying the standard rate to the eligible capital for the time being owing in connection with a loan which qualified under paragraph 14 or 15; and

(ii) an amount equal to any payments which qualify under paragraph 16(1)(a) to (c);

(b) where the claimant has been entitled to a jobseeker's allowance for a continuous period of not less than 8 weeks but less than 26 weeks, an amount which is half the amount which would fall to be met by applying the provisions of sub-paragraph (a);

(c) in any other case, nil."

The claimant's loan qualified under paragraph 14 and her housing costs were "existing" housing costs because the loan was taken out before 2 October 1995. But as at 21 April 1997, as she had not been entitled to JSA for any period at all, she fell within paragraph 6(1)(c).

8. On 13 October 1997 the claimant was notified that her entitlement to contribution-based JSA, which is limited to 182 days (section 5), would be exhausted on 19 October 1997. For some reason, the claimant submitted a new claim form. It is now agreed on behalf of the Secretary of State that the expiry of entitlement to contribution-based JSA constituted a relevant change of circumstances which would lead to review and to an alteration in the amount of or the basis of the JSA payable, and that there was no need to make a new claim. That is right under the Social Security Administration Act 1992 adjudication regime. Claims have to be made for JSA generally. Under the Social Security Administration Act 1992 regime changes of circumstances were a matter for review. However, the claim form was received and it is accepted on behalf of the Secretary of State that the claimant must have answered the questions on housing costs again.
9. On 18 November 1997 the claimant was notified of a decision that she was entitled to income-based JSA from 20 October 1997. Again, I do not have a copy of that decision before me and I do not know if it took the form of a review decision or a decision purportedly made on a new claim. No amount for housing costs was included in the claimant's applicable amount. On 1 April 1998 the Benefits Agency received a MI 12 form completed by both the claimant and her mortgage lender giving details of the loan. On the form the claimant wrote:

"I wish that any assistance with my mortgage payments be backdated to April 97 when I was first in receipt of Job Seekers Allowance. I was advised by the staff at the Hackney Job Centre at that time that I could not claim any mortgage assistance as I was on contribution based JSA rather then income based. It now appears that this was incorrect and is being looked at."

I do not know what happened to get that form issued to the claimant, but at least a copy of the form is before me.

10. According to the submission to the appeal tribunal, on 15 July 1998 the adjudication officer issued the following decision, dated 6 July 1998:

"The claimant is not entitled to an amount of Income-Based Jobseeker's Allowance in respect of her housing costs for mortgage interest payment for any period prior to 31.3.98. This is because she was not entitled to Income-Based Jobseeker's Allowance before that date."

It was that decision which was under appeal to the appeal tribunal. The letter of appeal also raised the question of entitlement to the carer premium following a backdated award of invalid care allowance. I shall deal with that question later.

11. It is plain that the decision set out above could not be sustained and the adjudication officer did not seek to defend it in the written submission to the appeal tribunal. He referred to paragraph 6(1) of Schedule 2 to the JSA Regulations, although he wrongly described the test as being whether the claimant had been or could be treated as having been entitled to income-based JSA for a period of eight weeks or more. He also referred to, and set out, paragraph 13(5) and (6) of Schedule 2:

"(5) For the purposes of this Schedule, sub-paragraph (6) applies where a person is not entitled to an income-based jobseeker's allowance by reason only that he has--

(a) capital exceeding £8,000; or

(b) income exceeding the applicable amount which applies in his case; or

(bb) a personal rate of contribution-based jobseeker's allowance that is equal to, or exceeds, the applicable amount in his case; or

(c) both capital exceeding £8,000 and income exceeding the applicable amount which applies in his case.

(6) A person to whom sub-paragraph (5) applies shall be treated as entitled to a jobseeker's allowance throughout any period of not more than 39 weeks which comprises only days--

(a) on which he is entitled to a contribution-based jobseeker's allowance, statutory sick pay or incapacity benefit; or

(b) on which he is, although not entitled to any of the benefits mentioned in head (a) above, entitled to be credited with earnings equal to the lower earnings limit for the time being in force in accordance with regulation 9 of the Social Security (Credits) Regulations."

12. The adjudication officer made the following submission on whether the test in paragraph 6(1) of Schedule 2 was met:

"The claimant was awarded and paid Income-Based Jobseeker's Allowance with effect from 20.10.97. As she was not entitled to Income-Based Jobseeker's Allowance prior to that date by reason only that her income exceeded her applicable amount but she had been entitled to Contribution-Based Jobseeker's Allowance for a period of 26 weeks immediately prior to that date, I submit that from 20.10.97 she can be treated as having been entitled to Income-Based Jobseeker's Allowance for a period in excess of 8 weeks.

In conclusion I submit that the claimant is entitled to an amount of Income-Based Jobseeker's Allowance in respect of her housing costs for mortgage interest with effect from 20.10.97 but she is not entitled to an amount of Income-Based Jobseeker's Allowance in respect of her housing costs for mortgage interest for any period prior to 20.10.97 because she was not entitled to Income-Based Jobseeker's Allowance before that date."

The adjudication officer did not trouble to identify any ground to review the decision issued on 18 November 1997. That perhaps explains why he did not consider whether the claimant might have qualified for income-based JSA prior to 20 October 1997 if her applicable amount had been increased by some housing costs. He also seems to have lost sight of the important difference between the effect of eight weeks' entitlement to JSA and the effect of 26 weeks'.

13. Those confusions were unfortunately transferred to the appeal tribunal's decision. In the statement of facts and reasons prepared after the hearing, the appeal tribunal appeared to accept the logic of the adjudication officer's position in saying that as the claimant had been entitled to contribution-based JSA for 26 weeks immediately prior to 20 October 1997 "all waiting periods were deemed by the Adjudication Officer to have been satisfied". That would seem to suggest that full housing costs should have been allowed from 20 October 1997. However, the decision notice completed and issued on the day of the hearing expressly stated that the claimant was entitled to half of eligible housing costs from 20 October 1997 and full eligible housing costs from 31 March 1998. It is that conclusion which appears to have been adopted by the Benefits Agency in implementing the appeal tribunal's decision, according to the documents on quantification which have been passed on to the Commissioners' office and added to the papers.
14. The claimant now appeals against the appeal tribunal's decision with my leave. It is plain, and not in dispute, that the appeal tribunal's decision was erroneous in law and must be set aside. As noted above, there was a fundamental inconsistency between the appeal tribunal's reasoning and its decision. In addition, both decision and reasoning were apparently based on a wrong interpretation of the test in paragraph 6(1) of Schedule 2 to the JSA Regulations and failed to consider the claimant's potential entitlement to income-based JSA prior to 20 October 1997. The issue then, as I have decided that it is expedient for me to substitute a decision on the claimant's appeal against the adjudication officer's decision issued on 15 July 1998, is to identify the correct legal approach to the circumstances.
15. The central point of law concerns the qualification in paragraph 6(1) of Schedule 2 to the JSA Regulations for inclusion of half or full eligible housing costs in a claimant's applicable amount for the purposes of income-based JSA. Entitlement to contribution-based JSA meets that qualification just as much as entitlement to income-based JSA. The words used are "a jobseeker's allowance", which in the absence of any restriction must refer to JSA based on either route of entitlement. Thus, where a claimant is actually entitled to contribution-based JSA there is no need for assistance from paragraph 13(5) and (6) of Schedule 2. Those provisions may have a practical effect in other circumstances.
16. The result on underlying entitlement in the present case is clear, and has been accepted on behalf of the Secretary of State. The claimant became entitled to contribution-based JSA from 21 April 1997. Eight weeks later, on 16 June 1997, she qualified for half of her eligible housing costs to be included in her applicable amount for the purposes of income-based JSA. Twenty-six weeks later, on 20 October 1997, she qualified for full housing costs to be included. If, as I have found above, the claimant at the time had no other income apart from contribution-based JSA, her applicable amount would from 16 June 1997 have exceeded her personal rate by the amount of housing costs allowed. That should have led to an increase in the amount of JSA payable under section 4(6). The amount of the personal rate would then be treated as attributable to entitlement to contribution-based JSA and the excess as attributable to income-based JSA. The increase in the amount payable would have been achieved by revision on review, once the adjudication officer had gathered the necessary information. There was no need or power for the claimant to make a separate claim for income-based JSA, having already made a claim for JSA. There should then have been another review on the change of circumstances on 20 October 1997, both the falling away of the condition in section 4(6) by the exhaustion of entitlement to contribution-based JSA and the change from half to full eligible housing costs.
17. However, those actions were not taken at the time. The difficult issue is how far the claimant's underlying entitlement can be awarded by later decisions on review, in the light of the regulations in force at the relevant dates on the limits on paying benefit for past periods.
18. I have to start with the decision which was under appeal to the appeal tribunal. Although the written submission to the appeal tribunal made no mention of review, the decision can only be regarded as a refusal of the claimant's application for review on the housing costs issue made in the form MI 12. She asked there for the allowance of housing costs from April 1997, but the application for review must be traced back through the chain of operative decisions.
19. I should say at this point that, although I am giving a decision now after making findings of fact, I am satisfied that the issue is one of review and not of revision/supersession under the Social Security Act 1998. The claimant's application for review was made on 1 April 1998, but it does not fall within paragraph 3(1) of Schedule 16 to the Social Security Act 1998 (Commencement No 11, and Savings and Consequential and Transitional Provisions) Order 1999 to be treated as an application to the Secretary of State for revision or supersession. The application was made before 18 October 1999 but was also decided by the adjudication officer before that date. The situation does not fall within any other provision of Schedule 16. Thus I apply the general principle that the relevant powers are those in existence at the date of the application for review, so that I am dealing with review in deciding the appeal against the adjudication officer's decision issued on 15 July 1998.
20. The adjudication officer's decision issued on 18 November 1997 was plainly erroneous in law. There must have been a misinterpretation of paragraph 6(1) of Schedule 2 to the JSA Regulations for full housing costs not to have been included in the claimant's applicable amount from 20 October 1997 onwards and there was a failure to consider whether there was an entitlement to income-based JSA before that date. Indeed, there may have been an error in treating the case as one of a new claim for income-based JSA and not an issue of the review of a decision on an existing claim. The decision is to be reviewed on that ground (Social Security Administration Act 1992, section 25(2)). Because the error of law involved misconstruing legislation, the normal one-month limit on payment of benefit for a period before the date of the application for review is lifted (Social Security (Adjudication) Regulations 1995, regulations 57(1) and (3)(a) and 63A). There is therefore no obstacle to my giving a decision that the claimant's applicable amount should include full housing costs from 20 October 1997 onwards. But in addition the revised decision can go back to any date from which benefit could have been awarded in a decision given on 18 November 1997. Thus I must consider whether there are grounds to review the adjudication officer's decision issued on 1 May 1997. The identification of the precise grounds of review applicable is crucial, because the limits on past payment as at 18 November 1997 turn on that.
21. I have concluded that the decision of 1 May 1997 does not fall to be reviewed for mistake as to or ignorance of material fact or for error of law. That is essentially because the decision was correct when it was made. From 21 April 1997 and for the next eight weeks, the claimant could have no housing costs included in her applicable amount, which therefore exactly matched her personal rate for the purposes of contribution-based JSA. The adjudication officer on 1 May 1997 was no doubt ignorant of some facts about the claimant's mortgage, but those facts were not material at the time. There was no error of law in awarding JSA of an amount equal to the personal rate, reflecting satisfaction of the conditions of entitlement to contribution-based JSA, even if the expression of the conclusion may have been misleading.
22. I have considered very carefully whether the decision could be said to have been erroneous in law for failing to consider the provisions of regulation 13(1) of the Social Security (Claims and Payments) Regulations 1987 ("the Claims and Payments Regulations") on advance claims:

"(1) Where, although a person does not satisfy the requirements for entitlement to benefit on the date on which a claim is made, the adjudicating authority is of the opinion that unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day (`the relevant day') not more than 3 months after the date on which the claim is made, then that authority may--

(a) treat the claim as if made for a period beginning with the relevant day; and

(b) award benefit accordingly, subject to the condition that the person satisfies the requirement for entitlement when benefit becomes payable under the award."

23. In a general sense the circumstances as at 1 May 1997 were suitable for the application of such a rule. On a correct view of the law it was known that after eight weeks of entitlement to contribution-based JSA and if nothing else changed an entitlement to income-based JSA would come into existence. However, the circumstances did not fit the technical requirements of regulation 13(1). In the context of regulation 13(1) not satisfying the requirements of entitlement to benefit can only mean not satisfying them so as not to be entitled to the benefit in question at all. Otherwise, the provision for treating the claim as made on the later date could not work. The structure of the Jobseekers Act 1995, and in particular sections 1 to 4, shows that JSA is one benefit and not two benefits. There is power in paragraph 18 of Schedule 1 to make regulations treating contribution-based JSA and income-based JSA as benefits for prescribed purposes under the Social Security Contributions and Benefits Act 1992. Regulation 2(2)(b) of the Claims and Payments Regulations provides that a reference in those Regulations to a benefit includes "a jobseeker's allowance". It follows that "benefit" in regulation 13 can only mean JSA and not either type of JSA as a separate benefit. Thus, the circumstances were that the claimant was entitled to benefit, ie JSA, at the date of claim, and there was no question of satisfying the requirements of entitlement to JSA as a whole only at some later date. Therefore, it was not an error of law for the adjudication officer to fail to consider regulation 13 on 1 May 1997.
24. Nor, it seems to me, could the adjudication officer on 1 May 1997 have made a staged award of JSA at the personal rate from 21 April 1997, reflecting entitlement to contribution-based JSA, and of the increased applicable amount from 16 June 1997, reflecting entitlement to income-based JSA. The principle on which adjudication under the Social Security Administration Act 1992 was based was that an adjudication officer should deal with the circumstances as they were from the date of claim down to the date of decision and that the decision should be whatever was appropriate to those circumstances. Any subsequent change of circumstances after a decision making a continuing award of benefit could only be taken into account through the process of review. It was the existence of that principle which made it necessary to have regulation 13 of the Claims and Payments Regulations to authorise advance awards, but only in cases where there was no entitlement to the benefit in question at the actual date of claim.
25. The adjudication officer's decision of 1 May 1997 cannot then be reviewed simply on the ground of error of law or ignorance/mistake of fact in a way which would trigger regulation 57 of the Adjudication Regulations so as to allow payment of additional benefit from a date earlier than 20 September 1997. The only applicable ground of review under section 25 of the Social Security Administration Act 1992 is relevant change of circumstances. There is no exemption in JSA cases from the limit in regulation 63A of the Adjudication Regulations of one month prior to the date of application for reviews on that ground. Thus it is crucial to identify the date of the application for review. It might be said that the date is that of the claimant's submission of the second JSA claim form or, as submitted for the Secretary of State, 20 October 1997, the day after the exhaustion of entitlement to contribution-based JSA. However, it seems to me that there is an alternative.
26. In my judgment, in circumstances like those of the present case a claim form for JSA which states that the claimant has a mortgage or loan secured on the home which was taken out before 2 October 1995 must be taken as including an advance application for review to take account of the circumstances as they will be after eight weeks of entitlement to JSA. I do not know what happened in practice on claims for income support or for JSA where contribution-based entitlement was never in issue. Presumably where such answers were given on the claim form, although no housing costs could be allowed for the first eight weeks, the adjudication officer would gather the necessary information from the lender to calculate the amount of eligible housing costs allowable after eight weeks. If benefit had been awarded from the beginning, the amount would be adjusted to include housing costs. No doubt there should have been a formal decision on review, but the adjudication officer would not have troubled whether there had been an application by the claimant because he was able to institute the review of his own motion on the basis of the circumstances revealed by the claim form and later enquiries. It would in any case have been ludicrous to have expected a claimant, even one assumed to have full knowledge of the relevant law, to make a separate application for review saying that there had been a relevant change of circumstances in the passing of eight weeks. But where the proper action is not taken at the time, so that in looking back under review powers at a later date the date of an application for review is crucial, a claimant is not to be disadvantaged by failing to do what it would have been ludicrous to expect her to do.
27. There is long-standing authority, applied many times, in the decision of the Tribunal of Commissioners in R(SB) 9/84 (paragraph 17(iii)) that in general:

"in the case of a fresh claim made after a previous refusal and raising a question of prior entitlement such a claim may be treated as including a request for back-dating of the claim or an application for review as may be appropriate, bearing in mind the conditions applicable to each and the period of underlying past entitlement which may be established."

By the same token, in the special circumstances of the present case, the claim for JSA, which was necessarily a claim for an indefinite period (Claims and Payments Regulations, regulation 17(1)) and therefore raised the question of future entitlement, should be treated as having included an application for review to take account of the passing of eight weeks' entitlement, in the event that JSA was awarded from the date of claim. The special circumstances include that the relevant date falls shortly after the date of claim and that there was no change in the claimant's personal circumstances involved. I stress that my reasoning relates to the Social Security Administration Act 1992 adjudication regime. I express no opinion on what the answer might be under the Social Security Act 1998 adjudication regime.

28. Accordingly, as at 18 November 1997 there was an outstanding application for review on the ground of relevant change of circumstances made in the claim form received on 21 April 1997. There had been no determination on that application. The adjudication officer on 18 November 1997, although he was no doubt prompted to look at the claimant's case in general by the exhaustion of her entitlement to contribution-based JSA and the arrival of a second claim form, therefore had power to determine that application. In giving the revised decision on review of the decision issued on 18 November 1997, I can and do determine that application, so as to revise the claimant's applicable amount with effect from 16 June 1997 and again from 20 October 1997. Since the relevant application was made on 21 April 1997, there is no restriction on the payability of any additional benefit under regulation 63A of the Adjudication Regulations.
29. My decision giving effect to the reasoning above is set out in paragraph 1. I have not attempted to calculate the amounts of the housing costs to be included in the claimant's applicable amount from 16 June 1997 onwards, as I do not have the primary evidence on which to do that (although some calculations following the appeal tribunal's decision are now in the papers). Nor am I able to say definitely that additional benefit will be payable to the claimant, especially from 20 October 1997, because of the difficult interaction with the matters mentioned in the next paragraph. I remit to the Secretary of State the issues of calculating the amounts of housing costs and the applicable amount for the purposes of JSA entitlement under the claim of 21 April 1997 and of any additional benefit payable in consequence. If there is any disagreement with the results of those calculations, the case is to be returned to me or to another Commissioner for further decision. The matter of actual payment, taking into account payments already made, is for the Secretary of State and not for the Commissioner or for appeal tribunals.
30. There remains the issue of the carer premium and entitlement to invalid care allowance ("ICA"). In her letter of appeal and written submission to the appeal tribunal of 30 April 1999 the claimant said that she had been awarded ICA which had eventually been backdated to 2 June 1997, but had not received any carer premium in her JSA applicable amount for the period from 2 June 1997 to 19 October 1997. She produced a copy of letter dated 25 March 1998 to her from the ICA Unit referring to extra backdating and entitlement now having been given from 2 June 1997. The letter also said that a copy of the ICA decision had been sent to the claimant's local office with a minute asking them to look again at her benefit position for the period from 2 June 1997 to 19 October 1997. That suggests that the initial award of ICA had been from 20 October 1997, but that a later award was made from 2 June 1997. The appeal tribunal in its decision notice asked the Benefits Agency to note the award of ICA from 2 June 1997. I asked in a direction whether I could deal with this issue in my decision. Ms Timperley said yes; the Secretary of State's representative said no. I have concluded (without needing to examine the extent of Commissioners' current powers to deal with questions first arising in the course of an appeal) that I ought not to determine this issue, as I do not have enough evidence to be able to reach a final conclusion. Therefore, I leave it to the Secretary of State to determine whether there should be a supersession under regulation 6(2)(e) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 in relation to the period from 2 June 1997 to 19 October 1997 and the carer premium. By virtue of regulation 7(7) of those Regulations there is no time limit on how far back such a supersession can take effect.
31. However, I need to say something about the likely outcome on the carer premium, because of the interaction with the decision which I have made on housing costs. There seems no doubt that the claimant became entitled to ICA from 2 June 1997 and so qualified for the carer premium from 2 June 1997, which would be an addition to her applicable amount. In many cases, the ICA paid in arrears would have to be treated as income for the weeks to which it related, which income would exceed the amount of the premium. But while contribution-based JSA was payable to the claimant, no ICA would be payable to her because of the effect of the Social Security (Overlapping Benefit) Regulations 1979. Regulation 4(5) requires the amount of the non-contributory benefit, ICA, to be adjusted by having the amount of the contributory benefit, contribution-based JSA, deducted from it leaving only the balance payable. As the amount of the full personal rate of JSA exceeds the amount of ICA, that would leave no amount of ICA payable. Thus down to 19 October 1997 it appears that the claimant would have no extra income from ICA, so that there would be nothing to offset the carer premium and the additional housing costs which I have awarded. It appears very likely that an additional amount of JSA will become payable on both grounds. That is why, although I have put paragraph 1(c) above in a very cautious form, I consider that the necessary points of principle have been dealt with in my decision. As from 20 October 1997, it appears that a review was at some point carried out to include the carer premium in the claimant's applicable amount and presumably also to include ICA as income, so that no further action is necessary. If that is wrong the Secretary of State has powers to correct the position. The review of housing costs can then be given effect as from 20 October 1997 on consideration of all elements of the applicable amount and income.

(Signed) J Mesher

Commissioner

Date: 5 July 2001