UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CP_1673_2003 (06 August 2003)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Newcastle appeal tribunal, held on 17 December 2002 under reference U/44/229/2002/00335, is not erroneous in point of law.

The appeal to the Commissioner

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

The history of the case

3. The claimant is entitled to a retirement pension. He now lives with his wife in Spain. The issue is whether or not he was entitled to an increase of the pension in respect of his wife.
4. From and including 10 January 1994, he was awarded an increase on his retirement pension in respect of his wife under section 83(2)(a) of the Social Security Contributions and Benefits Act 1992.
5. In February 2000, his wife started work in order to help support their adult son. This was not reported until 25 April 2001. The information was not acted on until October 2001. The decision-maker for the Secretary of State then superseded the decision awarding the increase from and including 6 March 2000. This led to an overpayment in respect of the inclusive period from 6 March 2000 to 7 October 2001. However, the overpayment was not recoverable after 22 April 2001, as after that date it had arisen as a result of the delay by the Secretary of State in acting on the information provided.
6. The claimant appealed against that decision, but the tribunal dismissed the appeal.

The grounds of appeal

7. On seeking leave to appeal from the tribunal, the claimant made two points:

•    the tribunal should have deducted his wife's travel expenses;

•    the tribunal should have deducted Spanish income tax.

8. On seeking leave to appeal from a Commissioner, the claimant made a number of other points:

•    the tribunal used gross earnings instead of net earnings;

•    any repayment should be limited to the difference between the earnings threshold and the actual earnings;

•    he had not been given sufficient information about the calculation of earnings;

•    the chairman's failure to give reasons for refusing leave to appeal was discourteous and unprofessional;

•    the postal arrangements for communicating with Spain were not sufficient to allow him to comply with time limits;

•    the legislation should be interpreted to ensure a dignified retirement without worries about necessities, and to alleviate anxieties rather than to cause them.

9. I deal below with the points made by the claimant about the calculation of his wife's earnings.
10. The other points he has made are of no help to him on this appeal. An appeal to a Commissioner lies only on an issue of law against the decision of the appeal tribunal. The failure to supply information to the claimant is a criticism of the Department for Work and Pensions, not of the appeal tribunal. The fact that the chairman did not give reasons for refusing leave to appeal did not affect the correctness of the tribunal's decision in law. Anyway, the criticism is misplaced. Chairmen are not required to give reasons for refusing leave to appeal. Generally they do not. Commissioners, on the other hand, always give reasons. So, if the application is renewed to a Commissioner and refused, a claimant will be given a short explanation of why. The point about the time limits is a valid one. However, the time limits have not prejudiced the claimant in securing his right of appeal to a Commissioner.

The law

11. The claimant's entitlement to the increase was dependent on regulation 8 of the Social Security Benefit (Dependency) Regulations 1977. Regulation 8(2) provides that if a spouse's earnings exceed a specified amount in any week, there shall be no increase in the following week.
12. Whether or not a spouse's earnings exceed the limit has to be determined under the Social Security Benefit (Computation of Earnings) Regulations 1996. Regulation 3 of those Regulations applies the regulations to the calculation of earnings of claimants. But regulation 2(1) defines a claimant as including a spouse for whom an increase is claimed.

The purpose of the legislation

13. The claimant argues that the legislation should be interpreted to ensure a dignified retirement without worries about necessities and to alleviate anxieties rather than to cause them. I am sure that those considerations are among the general factors that underlie the legislation on retirement income. However, in social security law general principles are always worked out through detailed rules. The techniques of interpreting legislation do not allow me to rewrite the clear terms of legislation in order to accommodation a particular claimant's circumstances.

Deduction of travel expenses

14. The 1996 Regulations contain a complete code for the calculation of earnings. It makes no provision for the deduction of travel expenses. This was a change from the legislation that previously applied: regulation 4(b)(i) of the Social Security Benefit (Computation of Earnings) Regulations 1978. The tribunal was correct in law not to allow this deduction.

Deduction of Spanish income tax

15. Regulation 10(4)(a)(i) provides for the deduction of

'(a) any amount deducted from those earnings by way of-

(i) income tax'.

16. Does that include Spanish income tax or is it limited to British income tax? The Secretary of State submits that the income tax in this regulation is not limited to British income tax, but refers to income tax deducted in any country. I accept that submission for these reasons:

•    The provision is not in its terms limited to British income tax payable under the Income and Corporation Taxes Act 1988.

•    This is in contrast to provisions relating to contributions that are limited to those payable under the British legislation. Regulation 10(4)(a)(ii) is an example.

•    It is also in contrast to regulation 14, which limits personal reliefs for the self-employed to those given under specified provisions of the 1988 Act.

•    This interpretation makes sense as the money received in a foreign country, as in this country, is subject to a liability for income tax.

17. I also accept the Secretary of State's submission that when allowance is made for Spanish income tax at the appropriate rate, the earnings still exceed the threshold.

The amount of the recoverable overpayment

18. The legislation that governs an increase in a retirement pension provides that no increase is payable if a spouse has earnings in excess of the threshold. The effect is that if the threshold is exceeded, the claimant has no entitlement to the increase. I must, therefore, reject the claimant's argument that only the difference between the threshold figure and his wife's actual earnings should be recovered.

Conclusion

19. The claimant has put forward a number of detailed calculations. They are all carefully worked out and accurate. But they are based on a mistake that claimants often make. The mistake is to overlook the legislation. The issue is not how much his wife earned. The issue is how much she earned, as calculated in accordance with the provisions of the legislation, specifically the Social Security Benefit (Computation of Earnings) Regulations 1996. The tribunal calculated her earnings correctly in that way.
22. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 6 August 2003