UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CIS_1277_2002 (03 September 2002)

 


CIS/1277/2002

1. 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 Peterborough tribunal of 16^th November 2001. I substitute my own decision. This is to the effect that the claimant is entitled to income support without deduction in respect of presumed receipt of disablement benefit, from the day after the date on which the award of disablement benefit ceased, which was on or about 9^th February 2000 (CORRECTED FROM "2002"). I remit to the Secretary of State the precise calculation and payment of arrears on this basis. In the event of any difficulty with this or failure of the parties to agree the appropriate calculations, either party may refer the matter back to me for decision on this point.

2. I held an oral hearing of this appeal on 29^th August 2002. The claimant attended in person and was assisted by his father. The Secretary of State was represented by Ms Haywood from the office of the Solicitor to the Department for Work and Pensions. I am grateful to all of them for their assistance.

3. The claimant was born on 5^th March 1964. He lived and lives with his wife (who did not work) and 6 children (currently aged from 5 to 16). He became incapable of work after injuring his back in an industrial accident. An award of industrial injuries disablement benefit was made, although I do not have the precise details. The claimant was awarded income support from 25^th February 1998. The amount of income support to which he would otherwise have been entitled was reduced by the amount of income that he was receiving from his disablement benefit. This was in order. Questions of entitlement to disablement benefit and to income support were dealt with by different offices of what was then called the Department for Social Security. The claimant's income support was (at all relevant times) being paid directly into his bank account.

4. The claimant was living in a house which he owned subject to a mortgage. When he was unable to work he ran into financial difficulties and was unable to pay the mortgage. The house was repossessed and he still ended up owing the mortgagees £22,000. In February 2000 he rented a house from a private landlord and the local authority has been meeting the cost (presumably through housing benefit). Initially he was paying off the mortgage debt at the rate of £20 per month but that has since been reduced to a nominal amount. He also had accumulated credit card debts.

5. In the normal course of events the claimant underwent a medical examination in connection with possible continued entitlement to disablement benefit. His disablement due to loss of faculty was assessed at less than 14% and on 9^th February 2000 entitlement to disablement benefit ended. The claimant was notified of this by the office dealing with disablement benefit. Subject to the correct procedure being followed, his income support should then have been increased to take account of this loss of income.

6. There is a factual dispute over what happened next. The claimant's account (supported by his father) is that within a couple of days of receiving notification from the office dealing with disablement benefit, he went with his father to the local office dealing with income support and showed the notification to a woman counter clerk, who helped him to fill in a form, which he left at the office. This was early in the afternoon. He assumed that the correct payment of income support would be made. The tribunal records the claimant as saying: "His wife and father made sure that he reported the loss immediately. His wife, in particular, is always careful to ensure that their money is correctly paid and she would not let him rest until he went down". Presumably this last reference is to going to report the matter to the local office. He did not understand the various forms sent to him by the income support office until the structure of the form was changed with the one he received in about July 2001. It was then that he realised that the income support office was still taking account of receipt of disablement benefit which it assumed he was still receiving. His bank statements were sent out quarterly and he did not really understand them and could not tell that he was receiving income support as though he had not informed the local office of the removal of his disablement benefit.

7. The Secretary of State accepts that until 9^th July 2001 the income support office was still taking account of disablement benefit it assumed the claimant was receiving. However neither the Secretary of State nor any of the officials in the Department could find any record of the claimant having reported to the income support office prior to 9^th July 2001 that he no longer had any entitlement to disablement benefit.

8. It is agreed that on 9^th July 2001 the claimant reported (or reported again) to the income support office that he had no longer been in receipt of disablement benefit from 9^th February 2000. On 18^th July 2001 the Secretary of State superseded the existing decision and decided that entitlement to income support should be increased as from 9^th July 2001 by the amount of the disablement benefit that had been taken into account. However, the Secretary of State refused to backdate this increase.

9. On 25^th July 2001 the claimant appealed to the tribunal against the refusal of the Secretary of State to backdate the effective date of supersession. On 16^th November 2001 the tribunal confirmed that refusal. The chairman of the tribunal refused leave to appeal to the Social Security Commissioner against the decision of the tribunal. However, I granted leave to appeal on 16^th April 2002. The Secretary of State opposes the appeal and supports the decision of the tribunal.

10. Section 10(1) of the Social Security Act 1998 provides that a decision of the Secretary of State (including a decision made by the adjudication officer, whose functions were taken over by the Secretary of State) may be superseded by the Secretary of State on application or on his own initiative. Section 10(3) provides for regulations to prescribe the cases, circumstances and procedure by which a decision to supersede may be made. Section 10(5) provides that, subject to section 10(6), a decision to supersede shall take effect as from the date on which it is made. Section 10(6) provides that regulations may prescribe other dates from which supersession is to take effect in prescribed cases or circumstances.

11. Regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides:

6(1) Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).

(2) A decision under section 10 may be made on the Secretary of State's … own initiative or on an application made for the purpose on the basis that the decision to be superseded –

(a) is one in respect of which –

(i) there has been a relevant change of circumstances since the decision was made; or

(ii) it is anticipated that a relevant change of circumstances will occur; [or] …

12. Regulation 7(2) provides, so far as is relevant:

7(2) Where a decision under section 10 is made on the ground that there has been … a relevant change of circumstances since the decision was made, the decision under section 10 shall take effect –

(a) from the date the change occurred …where

(i) the decision is advantageous to the claimant; and

(ii) the change was notified to an appropriate office within one month of the change occurring or within such longer period as may be allowed under regulation 8 for the claimant's failure to notify the change on an earlier date; …

13. The first thing to note about regulation 7(2)(a)(ii) is that, if the notification is within one month, it does not have to be the claimant who does the notifying. The second thing is that there is no definition in these regulations of the meaning of "an appropriate office".

14. The Social Security (Claims and Payments) Regulations 1987 also uses the phrase "an appropriate office" as the place where a claim for income support (and certain other benefits) must be made. Regulation 2 of those regulations defined the phrase (at the time with which the current case is concerned) as being "an office of the Department of Social Security or the Department for Education as Employment". Since that time there has been a restructuring of departmental responsibilities and names, but the point remains the same. Although regulation 2(1) is expressed as applying for the purposes of those regulations, it would be irrational to use different definitions for the purposes of making a claim and for the purposes of notifying a change of circumstances so that the decision on the claim can be superseded.

15. In the present case, the office administering disablement benefit was "an office of the Department of Social Security". It knew that entitlement to disablement benefit had ended. It knew this because an official acting on behalf of the Secretary of State had been notified of and accepted the new assessment of the degree of disablement and had made a decision not to renew or continue entitlement. Either that official was in a different office and notified the office administering disablement benefit, or he or she was in the same office and was notified and also notified his or her colleagues. Either way, even if the local income support office was unaware of the change of circumstances, the office administering disablement benefit had been notified of the change within one month. Therefore regulation 7(2)(a) applied so that the supersession had to take effect from the date of circumstances occurred.

16. I am also bound to say that in this case I find irrationality at the heart of the tribunal reasoning. Paragraph 21 of the full statement is as follows:

"23. The tribunal regrets that the [claimant] is not believed. It strikes the tribunal as inherently improbable that [he] would have failed to pursue the matter of the processing of the information relating to his change of circumstances as he states. He claims to have been told to report the change by his wife and his father yet no one appears to have checked that his report had been acted upon. He states that he had to go into debt in order to cope financially yet did not seek to ensure that his benefit rate was correct. He claims not to have noticed, in effect, the reduction in his income either by checking bank statements or notifications of benefit from the Benefits Agency or by the plain effect on his weekly budget".

17. However, once the claimant had (as he says) reported the change, he had done what had been urged by his wife and father. If he did not (as he says) understand the financial information that he was receiving, in the context of what he experienced as a financially complex situation, it is not at all clear why the tribunal thought he was not entitled to assume that the Benefits Agency or the Department had processed the reported change correctly. The tribunal reasoning here is circular. It is saying that it did not believe that he reported the change because he did not follow it up, but it did not believe that he would not have followed it up because it did not believe that he had reported the change. Also, surely it is inherently improbable that given his desperate financial situation (which is not disputed), he would not have reported the change. The tribunal seems to have held given his desperate financial situation against him. Thus, even if I had not been allowing this appeal on the basis of the meaning of the regulations, I would have allowed it on this basis.

18. For the above reasons this appeal by the claimant succeeds.

H. Levenson

Commissioner

3^rd September 2002

Corrected 3^rd October 2002