UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner's Case No: CG/4024/2001

1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
2. 1. The decision of the Milton Keynes appeal tribunal, held on 5^th June 2001, is erroneous in point of law.
3. 2. I set it aside and remit the case to a differently constituted appeal tribunal.
4. 3. I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision. Specifically, I direct the tribunal to investigate and determine two issues of fact: (a) was the cost of the claimant's polo shirts an expense wholly, exclusively and necessarily incurred in the performance of her duties? and (b) did she disclose her increase in wages in October 2000 to the Department for Work and Pensions?

I direct that the cost of the telephone monitoring link is not a care charge.

The tribunal must follow the analysis of the supersession procedure laid down by the Tribunal of Commissioners in CDLA/3466/2000 and CI/3700/2000.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Powell. The Secretary of State does not support the appeal.

The history of the case

6. The claimant was awarded an invalid care allowance in respect of caring for her daughter in 1998.
7. While in receipt of invalid care allowance, a claimant is allowed to have earnings up to a threshold. That threshold at the time with which this appeal is concerned was £50. So long as the threshold is not breached, the earnings are disregarded. Once it is breached, the claimant loses all entitlement to the allowance. It is all or nothing. There is no phased reduction of the allowance as earnings increase.
8. The claimant's earnings were slightly below the threshold. They then increased from October 2000. From then, the claimant was paid £220.46 a month, from which a pension contribution of £6.61 was deducted by her employer.
9. The Secretary of State superseded the decision awarding invalid care allowance to the claimant, deciding that she was not entitled to the allowance for the inclusive period from 23^rd October 2000 to 8^th April 2001. The Secretary of State also made a recoverable overpayment decision for the inclusive period from 23^rd October 2000 to 17^th December 2000, based on the claimant's failure to disclose her increase in wages.
10. The claimant exercised her right of appeal to the appeal tribunal. She did not attend, but was represented by a local Welfare Rights Group. The tribunal confirmed the Secretary of State's decision and the claimant has appealed to a Commissioner.

The issues

11. The appeal raises the following issues.

The supersession decision

12. The representative argued that the decision under appeal was a nullity because it was not valid as a supersession in that it did not identify the grounds for supersession. The tribunal rejected the argument.
13. I am surprised that this argument is still being run by representatives. It has been rejected repeatedly by Commissioners. The task of the tribunal was to take the decision that the decision-maker should have taken on the basis of the evidence and arguments now available. If the decision was defective, the proper course was for the tribunal to give a decision that was not defective.
14. Anyway, it is clear from the context of the decision that it was based on a change of circumstances. Those words may not have been used in the decision as set out in the papers, but the terms of the decision could only be explained in that way.

The calculation of earnings

15. The relevant legislation is the Social Security Benefit (Computation of Earnings) Regulations 1996.

Converting monthly earnings to weekly amounts

16. The claimant was paid each calendar month. The legislation provides that her wages must be converted to weekly amounts by multiplying by 12 and dividing by 52: see regulation 8(1)(b)(i). The claimant has pointed out that there are actually a little over 52 weeks in a year. That is correct. However, it does not alter what the legislation provides.

The telephone link

17. The claimant pays a small rental for a careline telephone link. This allows her daughter to press a button held on a cord round her neck. This sounds a warning with the monitoring station and establishes a telephone link. The claimant's daughter has epilepsy and a short warning of a seizure. This link allows her to alert the station, which arranges for the claimant to attend to help her daughter. It may also be possible for the operator to talk to someone who is with the claimant's daughter.
18. The claimant argues that this is deductible as a 'care charge' under regulation 10(3) of, and Schedule 3 to, the Regulations. The issue for the tribunal was whether the line rental was a means of providing 'care'. That word is not defined in the Regulations. The claimant's representative has quoted from dictionary definitions, but they do not take account of the context. The tribunal concluded that the telephone link did not amount to care. I agree.
19. It is not necessary for me to define the word 'care'. It is sufficient to say that in the context it is not appropriate to cover the link. The natural interpretation of the arrangement is that the monitoring arrangement exists to allow someone to be called who can care for the claimant's daughter. It does not itself provide that care. Nor does the person who monitors alarms at the station.
20. The tribunal came to the correct conclusion and the only one that was open to it as a reasonable tribunal familiar with the use of language. I direct the tribunal at the rehearing that the cost of the line rental is not deductible.

The clothing

21. The claimant has bought polo shirts bearing her employer's logo. This identifies her as a member of staff and protects her own clothing. See the employer's letter at page 37.
22. The cost of this clothing must be excluded from her earnings if it was an expense wholly, exclusively and necessarily incurred in the performance of the duties of the employment. The tribunal did not deal with this issue. That is perhaps not surprising, as the representative's written submission did not deal with it. However, in view of the employer's letter, it did arise on the appeal. The failure to deal with it is an error of law.
23. The Secretary of State submits that the three conditions were not satisfied. I am not so sure. Certainly, the conditions are strict. It has been said that they are so strict that they are 'deceptive' and 'come to nearly nothing at all': see the judgment of Mr Justice Vaisey in Lomax v Newton [1952] 2 All England Law Reports 801 at page 802. However, further inquiry might show that they apply here. The polo shirts might have been used when off duty, but given their protective function, I suspect that they were not used except for work. Given the hints about the work that appear in the papers, I suspect that some form of protection was necessary. This issue justifies a rehearing.

The overpayment

24. The claimant's representative criticises the tribunal for not dealing with this. That is disingenuous. The representative prepared a written submission for the tribunal, which did not raise the issue. Nor was it mentioned anywhere else in the papers as being in issue. The tribunal was entitled to limit itself to those issues identified by the competent representative under section 12(8)(a). There is no error of law on this ground.
25. However, as there will be a rehearing and in view of the claimant's comments at page 90, I direct the tribunal to deal with the issue whether the claimant failed to disclose her increase in wages to the Department.

Summary

26. I allow the appeal and direct a rehearing so that the issues of fact I have identified may be further investigated.

Signed on original

Edward Jacobs Commissioner 3rd April 2002