UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CSP_13_2003 (05 June 2003)

 


DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner's Case No: CSP/13/2003

1. My decision is that the decision of the tribunal given at Edinburgh on 27 November 2002 is not erroneous upon a point of law. The appeal fails. I dismiss it.
2. This appeal came before me on 3 June 2003 for an oral hearing. The claimant represented himself. The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Crilly, Solicitor, of the Office of the Solicitor to the Advocate General.
3. The claimant has appealed to the Commissioner against the decision of the tribunal which confirmed the decision of the Secretary of State issued on 10 November 2001 and found that the claimant is entitled to an increase of retirement pension at the reduced weekly rate of £1.65 for his wife for and including 22 October 2001. This was on account of invalid care allowance which was paid to the claimant's wife at the weekly rate of £41.75. The decision found that the increase of retirement pension was reduced in terms of regulation 10 of the Social Security (Overlapping Benefits) Regulations 1987. In the reasoning of the tribunal the crucial paragraph was as follows:-

"According, applying the correct terms of Reg. 10, there is in fact a statutory requirement for the offsetting of the Invalid Care Allowance, against the increase of retirement pension."

4. The facts of the case are simple. The claimant claimed and was found entitled to a Category A retirement pension by virtue of section 44(1) Social Security Contributions and Benefits Act 1992. He is also, by virtue of section 83 entitled to an increased in his Category A pension in respect of his wife. He and his wife have two disabled children who are both in receipt of disability living allowance. His wife is in receipt of invalid care allowance by virtue of her care of their children.
5. Mr Brodie, for the Secretary of State, did not support the appeal. His submission was that the tribunal had not erred in law in making the decision which they did.
6. In making that submission Mr Brodie set out his decision in relation to the nature of the statutory provisions for increase of Category A pension for the claimant in respect of his wife and also the nature of invalid care allowance.
7. In respect of the claimant's increase in his retirement pension in respect of his wife, it was Mr Brodie's submission that the claimant's wife was an adult dependant of the claimant. He directed me not only to the statutory provisions I have already referred to but also Schedule 4, Part IV, paragraph 5 of the Social Security Contributions and Benefits Act 1992. That schedule in Part IV is headed:-

"Increases for Dependants"

It also in a table sets out the benefit to which increase applies which includes an increase for adult dependant. One of the benefits referred to is a Category A retirement pension. I did not understand the claimant to contest that his wife was for these pension purposes an adult dependant.

8. In respect of invalid care allowance it was Mr Brodie's submission that this was a benefit to compensate a carer for an inability to earn by virtue of the care devoted to a severely disabled person as defined by section 70(2) of the Social Security Contributions and Benefits Act 1992. It was his submission that the allowance relates to the person to whom it is paid. In other words it is not related to the person who is severely disabled. It was his submission that this is demonstrated by the exclusion from the allowance of those who are gainfully employed, section 70(1)(b) or receiving full time education, section 70(3). It was his position that the benefit was conceived as an earnings replacement benefit. It was his submission that there were other benefits to which the disabled person might be entitled such as disability living allowance and attendance allowance.
9. It was his submission that it was against that background that the provisions of regulation 10 of the Social Security (Overlapping Benefits) Regulations 1979 fell to be considered in relation to the increase in pension to which the claimant was entitled in respect of his wife and the invalid care allowance paid to her.
10. One complication arose in considering these regulations and that is that for the purposes of interpretation "the Act" means the Social Security Act 1975 – see regulation 2(1). Mr Brodie however directed me to section 9 of the Social Security Act (Consequential Provisions) Act 1992. There it provides:-

"Continuity of the law

2. – (1) The substitution of the consolidating Acts for the repealed enactments does not affect the continuity of the law.

(2) Anything done or having effect as if done under or for the purposes of a provision of the repealed enactments has effect, if it could have been done under or for the purposes of the corresponding provision of the consolidating Acts, as if done under or for the purposes of that provision.

(3) Any reference, whether express or implied, in the consolidating Acts or any other enactment, instrument or document to a provision of the consolidating Acts shall, so far as the context permits, be construed as including, in relation to the times, circumstances and purposes in relation to which the corresponding provision of the repealed enactments has effect, a reference to that corresponding provision.

(4) Any reference, whether express or implied, in any enactment, instrument or document to a provision of the repealed enactments shall be construed, so far as is required for continuing its effect, as including a reference to the corresponding provision of the consolidating Acts.

The Social Security Act 1975 was repealed by virtue of section 3 and Schedule 1 of the Consequential Provisions Act 1992 and thus for the purposes of the regulations the reference to the 1975 Act can be construed as including a reference to the corresponding provision of the consolidating acts. Both the 1975 Act and the Social Security Contributions and Benefits Act 1992 made provision for Category A retirement pensions, increases for adult dependants in respect of those pensions and for invalid care allowance. There was no dispute between parties that in interpreting section 10 this was to be done in context of section 2 of the Act quoted above when reference is made to the 1975 Act.

11. Regulation 10 of the Overlapping Benefits regulations provides:-

"Adjustment of dependency benefit where certain personal benefit is payable

10. – (1) Subject to the following provisions of this regulation, where a dependency benefit under the Act is payable for the same period as one or more of the following personal benefits is, or but for the provisions of these regulations would be, payable to the dependant –

(a) a personal benefit under Chapter I or II of Part II of the Act (other than a benefit specified in regulation 4(2) (a) (b) (c) (e) or (g);

……

the dependency benefit shall be adjusted in accordance with paragraph (2)."

In regulation 2 the words "dependency benefit" are given the following definition:-

"'Dependency Benefit' means that benefit, pension or allowance which, apart from those regulations, is payable (whether under the Act or otherwise) to a person in respect of another person who is….. an adult dependant;……"

Personal Benefit is defined in the same regulations:-

"'Personal Benefit' means any benefit, pension or allowance (whether under the Act or otherwise) which is not a dependency benefit….. and which apart from these regulations, is payable to any person;"

12. It was Mr Brodie's submission that the increase in the claimant's pension for the claimant's wife as an adult dependant was a dependency benefit and that invalidity care allowance was a personal benefit. It was his submission that in these circumstances the dependency benefit fell to be adjusted in accordance with paragraph (2) regulation 10. The effect of that submission was that the tribunal did not err in law by making the adjustment to the claimant's Category A retirement pension that it did. It was Mr Brodie's submission that invalid care allowance was encompassed by being a benefit which fell under Part II of the Social Security Act 1975 in section 37 and which was contained now in section 70 of Part III of the Social Security Contributions and Benefits Act 1992.
13. The essence of the claimant's submission is support of his appeal was that invalid care allowance is unlike all the other benefits and is not capable of adjustment or offset. It was his position that invalid care allowance was not sui generis with other benefits. It was his position that invalid care allowance was not intended as a compensation for a loss of the carer's ability to earn; it was a payment to assist with essential needs. He said that did not see how the increase in pension could on any view be said to overlap. It was his position that he received the pension increase in order that he could look after his wife and that she received invalid care allowance to look after disabled children.
14. In the event I consider that there is no substance in the claimant's appeal and I am persuaded by the submission of Mr Brodie which in my view skilfully and accurately guided me through the complicated statutory provisions. It seems to me that on a proper application of the statutory provisions, the tribunal and before them the decision maker, applied the legislation correctly. I have no doubt that having regard to regulation 2 and regulation 10(a) invalid care allowance is a personal benefit as defined in these regulations. First invalid care allowance is a benefit under chapter I and II of Part II of the 1975 Act and was continued in the consolidating legislation of the Social Security Contributions and Benefits Act 1992. This Act and the overlapping benefits regulations make no exception for it. It in no way could be described as a dependency benefit as for the reasons outlined by Mr Brodie it is directed to the claimant of that benefit namely, in this case, the appellant's wife and is payable to her. The claimant in this appeal demonstrated the flaw in his own argument in respect that it was his submission that if a third party, he put it rather colourfully as "Bloggs the gardener", had been able to claim invalid care allowance, and was successful in that claim for invalid care allowance he (the claimant) would be entitled to the increase in his retirement pension. The inevitable conclusion of that proposition, which is not disputed, is that the invalid care allowance is a personal benefit. The difficulty for the claimant in this appeal is that if it is accepted that the increase in pension is a dependency benefit and the invalid care allowance is a personal benefit, then the adjustment to his retirement pension is properly made. In my view it is a fundamental misconception on the claimant's part that invalid care allowance is designed for the support of the severely disabled person as opposed to financial assistance for the carer who cares for him.
15. The appeal fails.

(Signed)

D J MAY QC

Commissioner

Date: 5 June 2003