UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CIS_2291_2001 (12 February 2002)

 


File number: CIS 2291 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the appeal. The decision of the tribunal is not in error of law.
2. The appellant is appealing, with permission of the chairman, against the decision of the Birkenhead appeal tribunal on 15 March 2001. The decision was that the appellant has been overpaid income support and that the amount overpaid was recoverable from the appellant.
3. I held an oral hearing of this appeal at Bury County Court on 1 February 2002. The appellant was represented by Mr Richard Atkinson of Birkenhead Welfare Benefits Advice Unit. The Secretary of State was represented by Ms D Heywood of the Office of the Solicitor to the Department for Work and Pensions. Both submissions were concise and to the point, and I am grateful for them. It was noted during the hearing that the grant of leave by the chairman may not have been signed properly, although clearly everyone thought that leave had been granted. Ms Heywood (if I may say so, very properly in the circumstances) waived any right to take a point on this on behalf of the Secretary of State. I confirm that I treat the leave as properly given, but for the avoidance of doubt confirm it and waive any irregularities that might have resulted from what was clearly an oversight.
4. The facts relating to the fact of and amount of overpayment are not disputed. As Mr Atkinson put it, the case is a straight case of construction of the regulations. The appellant was not entitled to income support but would or could have been entitled to jobseeker's allowance. This was because during the period in question she had been working part time while receiving income support on the basis that she was incapable of work. There should be an offset against the amount of the overpayment of income support for the jobseeker's allowance that could have been paid instead of the income support. This arose under regulation 13 of the Social Security (Payments on Account, etc) Regulations 1988 (as amended) ("the POA Regulations").

Regulation 13 of the POA Regulations

5. After the introduction of jobseeker's allowance, but before the introduction of tax credits, Regulation 13 as amended reads:

In calculating the amounts recoverable under section 53(1) of the Act or regulation 11, where there has been an overpayment of benefit, the adjudicating authority shall deduct –

(a) any amount that has been offset under Part III;

(b) any additional amount of income support, or income-based jobseeker's allowance which was not payable under the original, or any other, determination, but which should have been determined to be payable –

(i) on the basis of the claim as presented to the adjudicating authority, or

(ii) on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination;

but no other deduction shall be made in respect of any other entitlement to benefit which may be, or might have been, determined to exist.

The comma and the words underlined were added to the regulation by the Social Security and Child Support (Jobseeker's Allowance) (Consequential Amendments) Regulations 1996, regulation 23 (6). This adds the underlined text to six different parts of the POA Regulations. While that may have been efficient drafting in one sense, it does add into this regulation a misplaced and meaningless comma. Giving meaning to the comma could make a much greater amendment to the regulation than I see as intended.

6. The contention Mr Atkinson argued before me was based in part on the precise form of amendment. Before the introduction of jobseeker's allowance, it was accepted that any amount of income support entitlement could be set off against any other amount under regulation 13. I hesitate to say that this was clear. In CP 5257 1999 Commissioner Mesher commented of the regulation that "it is very easy to criticise somebody else's drafting in hindsight, but that seems to me a masterpiece of obscurity". I agree. This case shows that the 1996 amendments added to that obscurity. Nor have the subsequent 1999 amendments helped. Put another way, if this was a consumer product it would now be long past its sell-by date. It is, nonetheless, still on the shelves.
7. Mr Atkinson adopted the criticism in CP 5257 1999, and took me to some of the sources of confusion. He accepted that Part III was irrelevant, but the rest of the test was most obscure. I suggested that as the punctuation was clearly faulty it should be read without it, as follows:

In calculating the amounts recoverable … where there has been an overpayment of benefit the adjudicating authority shall deduct … any additional amount of income support or income based jobseeker's allowance which was not payable under the original or any other determination but which should have been determined to be payable on the basis of the claim as presented to the adjudicating authority or on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination but no other deduction shall be made in respect of any other entitlement to benefit which may be or might have been determined to exist.

8. Mr Atkinson pointed out that a literal interpretation of regulation 13 had been rejected by the Commissioner in CP 5257 1999 at paragraph 32. In that decision it was accepted that "benefit" applies to any benefit. It followed that the reference to claims and determinations were references to claims and determinations of any benefit. It was therefore open for the regulation to be interpreted so as to include claims to jobseeker's allowance as well as claims to income support. In other words, where there was an overpayment of income support but the appellant should have claimed jobseeker's allowance instead, then the regulation should be applied to the jobseeker's allowance that could have been claimed as well as the income support that could have been claimed. If necessary, it should be assumed that a claim for jobseeker's allowance was made.

CIS 1777 2000

9. Mr Atkinson very fairly pointed out that two decisions of Commissioners seemed against him. The first is a decision of Commissioner Jacobs, CIS 1777 2000, paragraph 9 of which reads:

"The provision (regulation 13) was amended to include a reference to income-based jobseeker's allowance when that benefit was introduced in 1996. I do not read the provision as authorising the deduction from an overpayment of income support of an amount of jobseeker's allowance that would have been paid if a claim for that benefit has been made rather than a claim for income support. Head (I) refers to the claim as presented – the claim as presented was one for income support. Head (ii) refers to the claim as it would have appeared if the facts had been correctly presented – if the facts had been correctly known, the claim would have appeared as a claim for income support to which the claimant was not entitled. The claimant might have been advised by the Department of Social Security to make a claim for an income based jobseeker's allowance, but that would have been a different claim – there is no power for the Secretary of State for income support as a claim for income based jobseeker's allowance in the alternative under Schedule 1 to the Social Security (Claims and Payments) Regulations 1987."

10. The second decision is that of Commissioner Mesher in CP 5257 1999, where he comments on CIS 1777 2000 at paragraph 35. After indicating that Commissioner Jacobs "rightly" decided as he did, Commissioner Mesher reviewed the authorities, concluding that:

"… the authority of which I am aware, although slight, is in favour of the application of regulation 13 to the calculation of the amount of overpayments of benefits other than income support, and now income based jobseeker's allowance."

Mr Atkinson was undaunted by these decisions. He suggested that the decision of Mr Jacobs should be reconsidered, as it was a short decision without reference to authority and without the benefit of oral argument. CP 5257 1999 could be distinguished, as the Commissioner himself stated, and was perhaps hesitant in its support of CIS 1777 2000.

11. Mr Atkinson supported his argument by reference to the context of the amendment. If CIS 1777 2000 was right, then the scope of regulation 13 had been reduced considerably by a sidewind. The amending regulations were consequential amendment regulations and had not been put to the Social Security Advisory Committee. The loss of rights to a claimant had therefore not been considered by that Committee. Further, the effects of the amendment were uneven, as there was no clear division between working claimants and sick claimants. He suggested the case of a carer as one example of that. The regulation should therefore be interpreted to avoid those anomalies. That could be done if income support and jobseeker's allowance were regarded as a unity after 1996, as they had been before 1996.
12. Turning to the purpose of regulation 13, it was an exception to the general rule. The general rule was recovery under, now, section 71 of the Social Security Administration Act 1992. The history of the regulation has been discussed in CP 5257 1999, and he adopted that. The exception was designed to put down a baseline of benefit entitlement below which a claimant could not be forced. In other words, even if there had been an overpayment of some other benefit, regulation 13 protected a minimum entitlement of a claimant. If the 1996 amendments took full effect as contended by the Secretary of State, that baseline was removed. No longer could someone receive the absolute minimum that income support represented to most claimants. This strongly argued to a wide interpretation of regulation 13, rather than the narrow one in CIS 1777 2000. Any administrative problems thought to arise from this were not a barrier to this approach. Most of the problems arose anyway.
13. I asked Mr Atkinson whether, given that argument, he was contending that the amendment of the regulation was ultra vires, that is, beyond the powers given in the Jobseekers Act 1995. He did not contend that, and I do not therefore consider it save to note that the terms of the Consequential Amendments Regulations follow the same pattern as Schedule 2 to the Jobseekers Act 1995 ("Consequential Amendments"), and there is no obvious excess of powers given the wide regulation-making powers in the 1995 Act.
14. Ms Heywood supported the decision of the tribunal in refusing to allow a deduction for possible jobseeker's allowance. There had been no claim for jobseeker's allowance, and that closed the matter. She relied on CIS 1777 2000, and on CP 5257 1999 in support. The effect of the amendment clearly had the result that CIS 1777 2000 established. She referred to other authorities, but I do not think they take her case further.

My decision

15. In my view the tribunal adopted the correct interpretation of regulation 13. Its reason was that a putative claim for jobseeker's allowance could not come within the regulation. That is essentially the same reasoning as in CIS 1777 2000 (which was decided before the tribunal hearing but not circulated at the time, or cited to the tribunal). I agree with CIS 1777 2000.
16. In respect to Mr Atkinson's powerful advocacy of another possible reading of the tortured language of regulation 13, I add the following. Parliament decided to divide the former entitlement to income support in two when it provided, in the words of the long title to the Jobseekers Act 1995, "for a jobseeker's allowance and to make other provision to promote the employment of the unemployed and the assistance of persons without a settled way of life". Parliament was entitled, if it wished, to remove the safety net of a single benefit of last resort for all claimants. It was also entitled, if it wished, to take measures to encourage the unemployed to work. This case concerned someone who was working while claiming the benefit now designed only for those of working age who are either incapable or work or excused from it. The current form of regulation 13 may now cause hardship of a kind that regulation 13 may originally have been designed to stop in cases such as this. But there is no intrinsic right to benefit in all circumstances underlying regulation 13.
17. Although the wording is particularly obscure for such an important and potentially severe rule, the effect is clear. Anyone who is working or capable of work so as to exclude them from income support must claim jobseeker's allowance. If they do not, and they continue to receive income support, they risk losing both the income support actually received and the jobseeker's allowance they might have received.
18. Regulation 13 does not contain any discretion. That rests with the Secretary of State in deciding whether and how to collect any overpayment. No doubt the Secretary of State will take into account whether the public purse has in reality lost the sum claimed as overpaid or some other amount.

David Williams

Commissioner

12 February 2002

[Signed on the original on the date shown]