UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CIS_4502_2002 (07 April 2003)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Stratford appeal tribunal dated 17 May 2002 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute a decision on the claimant's appeal against the decision dated 10 November 2001 on the findings of fact made by the appeal tribunal (Social Security Act 1998, section 14(8)(a)(i)). That decision is that the claimant is not to cease to be entitled to income support with effect from 27 August 2001.
2. In the light of the most recent written submission on behalf of the Secretary of State, dated 14 March 2003, I can deal with this case relatively shortly. The circumstances as put to the appeal tribunal by the Secretary of State were that the claimant, who had been in receipt of income support for some years, was sent an A2 review form, to check that his details were correct, on 21 May 2001. The form was not returned. Reminder letters were sent on 20 June 2001 and on 13 August 2001. The claim was said to have been suspended by the Secretary of State on 28 August 2001. On 10 November 2001 the decision was given that the claimant was not entitled to income support from 27 August 2001 because he had failed to provide information and evidence as requested by the Secretary of State. The Secretary of State's written submission referred to regulations 16 and 17 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and to the power to terminate benefit entitlement under regulation 18 where a person fails to reply to a request for information.
3. The claimant appealed against the decision of 10 November 2001. The appeal tribunal dismissed the appeal, saying that regulation 18 empowered the Secretary of State to terminate benefit where a person fails to reply to a request for information and that the claimant had failed to take three opportunities to respond. I granted the claimant leave to appeal against the appeal tribunal's decision, pointing out the complicated chain of provisions in regulations 16 to 18 and the failure of the Secretary of State or the appeal tribunal to identify whether payment of benefit to the claimant was suspended under the powers in regulation 16 or in regulation 17.
4. The reason why that matters is, briefly, as follows. Regulation 16 of the Decisions and Appeals Regulations allows payment of benefits including income support to be suspended in a number of circumstances. These include an issue arising as to whether a person is entitled to benefit or as to whether an award of benefit ought to be revised or superseded or whether a claimant has moved from the last notified address. It is possible that the suspension of payment on 28 August 2001 was under regulation 16, although the computer printout at page 6 refers to the reason as being that the review form had not been returned. There could nevertheless be said to have been an issue raised by the failure to reply as to whether the claimant had moved. But where there has been a suspension of payment of benefit under regulation 16, regulation 18(1)(a) only allows a decision that a claimant is to cease to be entitled to benefit where the claimant has "subsequently" failed to comply with an information requirement under regulation 17. In the present case, no reminders were sent after payment of benefit was suspended on 28 August 2001. Therefore, if the suspension was under regulation 16, the conditions for termination of entitlement under regulation 18 were not met.
5. Payment of benefit to the claimant could have been suspended under regulation 17(5), so allowing a decision after a month had expired that entitlement was to cease from the date of the suspension (regulation 18(1)(b) and (3)). However, regulation 17 has a complicated structure, even ignoring for the present how far regulation 17(1) limits its operation. Paragraph (4) allows the Secretary of State to require a person within one of the categories listed in paragraph (2)(b) to (e) to supply information or evidence within a month (or a longer period) or to satisfy him that the information or evidence cannot be supplied for one of the reasons specified. One of the categories of person to whom the requirement can be applied is of a person who fails to comply with a requirement of the Secretary of State under regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987 to furnish documents, information or facts (sub-paragraph (c)). It is a condition of the operation of regulation 17 that the Secretary of State notifies a person made subject to an information requirement of the requirements of the regulation. If payment of benefit is suspended under regulation 17(5), it can be decided that entitlement is to terminate after the expiry of one month from the first suspension of payment (regulation 18(1)(b) and (3)).
6. In the present case, the claimant could have come within regulation 17(2)(c), as the requirement to complete the review form sent out on 21 May 2001 could plainly have come within regulation 32(1) of the Claims and Payments Regulations. There could then have been a suspension of payment under regulation 17(5) if the reminder sent out on 20 June 2001 satisfied all the conditions of regulation 17 for imposing an information requirement. The reminder sent out on 13 August 2001 could not on its own found the suspension of payment on 28 August 2001, as the required month had not elapsed.
7. After the first round of written submissions to the Commissioner, I directed the representative of the Secretary of State to obtain whatever evidence was available to show what power was used by the Secretary of State in suspending payment of the benefit on 28 August 2001 and what the terms were of the reminders issued on 20 June 2001 and 13 August 2001. The representative has now reported that, despite several requests, he has had no substantive response from the local office concerned. The attitude of the local office is to be deplored and is at the very least discourteous to the Commissioners and to Mr Spencer, the representative concerned. He has now submitted that the Secretary of State has been unable to show that benefit was suspended under regulation 17 and that, for the reason given above, a suspension under regulation 16 could not found a termination of entitlement under regulation 18. Therefore, it had not been shown that there was any basis on which entitlement to benefit could have been terminated under regulation 18. The consequence was that the pre-existing award of income support should remain in operation. The claimant has commented on that submission with approval.
8. I agree with the submission of 14 March 2003. When Parliament has set out a carefully constructed procedure which can lead to the serious result of removing a claimant's entitlement to benefit, that result cannot be endorsed unless all the necessary steps in the procedure can be shown to have been gone through. It is not good enough simply to refer to the general purposes of the procedure in the vague way which was done in this case. If the Secretary of State does not produce the necessary evidence after having had a fair opportunity to do so, he must bear the consequences.
9. The appeal tribunal therefore erred in law in confirming the decision of 10 November 2001 without there having been evidence to support the operation of regulation 18 of the Decisions and Appeals Regulations. I set its decision aside for that reason. It is clearly expedient for me to substitute the decision which should have been given on the facts found by the appeal tribunal. That decision is that the claimant is not to cease to be entitled to income support with effect from 27 August 2001. The pre-existing award is to continue to have effect. As the claimant became entitled to income support again from 22 November 2001 on a new claim, my decision will have practical effect for the period from 27 August 2001 to 21 November 2001.

(Signed) J Mesher

Commissioner

Date: 7 April 2003