UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CH_5553_2002 (23 June 2003)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Southampton appeal tribunal, held on 2 October 2002 under reference U/03/203/2002/00772, is not erroneous in point of law.

The appeal to the Commissioner

2. This case comes before me on appeal to a Commissioner against the decision of the appeal tribunal with the leave of a district chairman of tribunals. The appellant is a housing benefit and council tax benefit claimant. The respondents are her local authority, Southampton County Council, and the Secretary of State.

How the issue arises

3. I take the facts from the chairman's full statement of the tribunal's decision. They are not in dispute. The claimant was unemployed and receiving housing benefit and council tax benefit. She was also receiving an income-based jobseeker's allowance. She worked for one day in March 2001. As a result of that work, she ceased to be entitled to her jobseeker's allowance for the three days of 26, 27 and 28 March. That break did not affect her housing benefit and council tax benefit. In June 2001, she obtained work, which began on 3 June 2001. But the local authority did not become aware of this until 12 June 2001. By that time, the claimant had been paid benefit by the local authority. The local authority gave a decision that the claimant had been overpaid housing benefit and paid excess council tax benefit, both of which were recoverable from her. One of the defences raised by her representative was that the claimant was entitled to an extended payment of both benefits. If that argument is correct, there was no overpayment.
4. The issue raised by this appeal is: is the argument correct?

The legislation

5. Extended payments are governed by regulation 62A of, and Schedule 5A to, the Housing Benefit (General) Regulations 1987 and regulation 53A of, and Schedule 5A to, the Council Tax Benefit (General) Regulations 1992. The two sets of provisions are in equivalent terms. I shall refer, for convenience, only to the housing benefit provisions.
6. In summary, an extended payment may be made to a claimant who has been receiving housing benefit on the basis of entitlement to income support or income-based jobseeker's allowance. When the social security benefit comes to an end, the housing benefit period ends. However, a new claim for housing benefit is treated as made and the claimant becomes entitled to housing benefit for a further four weeks at the rate previously applicable. This is beneficial to the claimant in three ways. First: the claimant is saved from having to make an immediate claim while settling into employment or changing from one social security benefit to another. Second: the period for making a 'renewal' claim is thereby extended. Third: the previous award is effectively extended, although the claimant would otherwise be entitled to an award of a lesser amount or not entitled at all.
7. There are, though, as there always are, conditions. One condition is in regulation 62A(1)(c). This provides that an extended payment can only be made if

'the additional conditions specified in Part I of Schedule 5A are satisfied'.

Paragraph 2 of that Schedule provides that the Secretary of State must have certified a number of matters, including

'(e) that the claimant had been entitled to and in receipt of income support or a jobseeker's allowance for a continuous period of at least 26 weeks until the relevant day'.

The relevant day was the day on which entitlement to income support or jobseeker's allowance ceased: see paragraph 12(1) of the Schedule.

8. If the conditions are satisfied, the claimant is treated as having made a claim: regulation 62A(1B).

The tribunal's decision

9. The Secretary of State has not certified that the claimant satisfied paragraph 2(2), because of the break in entitlement to jobseeker's allowance from 26 to 28 March. Before the tribunal, the claimant's representative sought to argue that the claimant had been entitled to a jobseeker's allowance for 26 continuous weeks. But the tribunal decided that it did not have jurisdiction over this matter.

On appeal

10. On appeal, the claimant's representative has argued that the tribunal did have jurisdiction.
11. The local authority has submitted simply that extended payments could only be made on the direction of the Benefits Agency through a Secretary of State's certificate and that the tribunal had no jurisdiction.
12. The Secretary of State became a party to the proceedings. Two submissions were made by different officers. One related to the claimant's entitlement to jobseeker's allowance. The other related to the Secretary of State's certificate. Both were issued in response to a direction by a legal officer to the Commissioners. I have not found the second submission particularly clear. This may reflect the fact that the issues have not been thought out. I find confirmation for this in the officer's remark that no guidance has been issued to local authorities on how to operate these provisions.
13. Broadly, I agree with the submissions made by the local authority and the Secretary of State.

The tribunal's jurisdiction

14. The local authority had given a decision relating to the overpayment of housing benefit and payment of excess council tax benefit. The tribunal had jurisdiction to deal with the appeal against those decisions.
15. The claimant's representative raised the extended payment collaterally as a defence against those decisions. The tribunal did not have jurisdiction to deal with that argument.
16. Regulation 62A and Schedule 5A operate by treating a claim as having been made. If a claim is made, a decision has to be given by the local authority. If a claim is not made, it does not give a decision. The claimant did not submit an actual claim for an extended payment. A claim for an extended payment can be treated as made, but only if the conditions for it are satisfied. If a claim is treated as made, it follows that: (a) there is no opportunity for a local authority to give a decision refusing to make an extended payment; and (b) the only decision that a local authority can make is to award the payment.
17. In its local authority benefit jurisdiction, an appeal tribunal's jurisdiction is governed by paragraph 6(1) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. This confers jurisdiction to hear an appeal against a 'relevant decision' of a local authority. No decision was made. So, the tribunal had no jurisdiction under that provision.
18. In its social security jurisdiction, an appeal tribunal's jurisdiction is governed by section 12(1) of the Social Security Act 1998. This confers jurisdiction to hear an appeal against decisions made under sections 8 and 10 of that Act. Section 8(1)(c) refers to

'any decision that falls to be made under or by virtue of a relevant enactment'.

The relevant enactments are set out in section 8(4). One is the Social Security Contributions and Benefits Act 1992, but the housing benefit provisions are expressly excluded by paragraph (a). So, the tribunal had no jurisdiction under that provision.

Other issues

19. The legal officer's directions and the Secretary of State's observations have referred to other issues. As I have decided that the tribunal had no jurisdiction to deal with the extended payment issue, these other issues do not arise. I mention them for completeness.
20. First, the procedure for extended payments was altered in April 2001, but the Secretary of State has not issued up-to-date guidance to local authorities. The Secretary of State's representative comments that that is not satisfactory and hopes it will be remedied when this decision is made.
21. Second, I do not have to decide whether the claimant was both entitled to and receiving a jobseeker's allowance for 26 weeks.
22. Third, there will be cases in which the claimant disagrees with the Secretary of State over whether the conditions for the issue of a certificate are satisfied. This case is one of them. It is unclear how a claimant can challenge this. The tribunal suggested that the claimant would have to 'negotiate' with the Secretary of State. That is not a term of art in this jurisdiction. No doubt, the tribunal chose it for that reason and to reflect the lack of any clear procedure for raising the issue. It would be desirable if there were a clear procedure.
23. Fourth, it is not clear whether a claimant can make an actual claim for an extended payment under the normal provisions of the Housing Benefit Regulations. Regulation 62A(4) provides that the normal provisions for claims do not apply to 'a claim pursuant to this regulation'. That is ambiguous. It may mean 'a claim for an extended payment' or 'a claim that is treated as made by virtue of a Secretary of State's certificate'. If the former interpretation is correct, an actual claim cannot be made. If the latter interpretation is correct, an actual claim can be made. Without a Secretary of State's certificate, it is inevitable that the local authority would refuse it. But at least the issue could then come before an appeal tribunal.

Summary

24. The tribunal correctly decided that it had no jurisdiction to deal with the extended payments issue in the circumstances of this case. It explained its decision clearly and adequately. It did not go wrong in law. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 3 July 2003