UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CG_3137_2003 (27 May 2004)

CG/3137/2003

1. In a technical sense only this appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Romford tribunal made on 27^th January 2003 under reference U/42/153/2003/00153. I substitute my own decision, although this will be of no comfort to the claimant since the effect will be the same as that of the decision made by the tribunal. My decision is that the original award of invalid care allowance ("ICA") is superseded and that the claimant is not entitled to ICA for the period 27^th May 2002 to 9^th June 2002 because the claimant being absent from Great Britain on the dates referred to below amounts to a relevant change of circumstances and the law provides that he is not entitled during this period. My decision is without prejudice to the claimant's entitlement to ICA for any other period.
2. The claimant was born on 11^th December 1943. On 16^th October 1998 he was awarded ICA with effect from 7^th September 1998 in respect of caring for his father in law, who was born on 13^th January 1909. On 24^th April 2002 the claimant left the United Kingdom, returning on 3^rd June 2002 after an absence of nearly 7 weeks, spent in Australia (where his son had been taken ill while backpacking) until 6^th May 2002, and then in Sri Lanka.
3. It seems that on 1^st May 2002, while the claimant was away, the local office of the Department wrote to him at his home address with a query about his benefit. On 13^th May 2002 the claimant's wife replied on his behalf explaining that he was away and when he would be back. On 19^th October 2002 the ICA unit of the Department sent a review form to the claimant and on 28^th October 2002 the claimant replied with details of his absence from the United Kingdom and stating that he had thought that he could be away for 8 weeks without prejudicing his ICA.
4. On 6^th November 2002 the Secretary of State superseded the decision of 16^th October 1998 on the basis that the claimant's absence from Great Britain constituted a change of circumstances. He decided that the claimant was "not entitled" to ICA from 27^th May 2002 to 9^th June 2002 inclusive. It appears that entitlement to ICA from 10^th June 2002 was unaffected. I also note that the decision says nothing about recovery or recoverability of any overpaid benefit and, in this context, I note that the claimant's wife first disclosed the claimant's absence to the Secretary of State in her letter of 13^th May 2002, which must have been received by the Secretary of State within the first 4 weeks of the claimant's absence.
5. On 29^th November 2002 the claimant appealed to the tribunal against the decision of the Secretary of State. He argued that he had to leave the United Kingdom for exceptional reasons, that the law should be flexible and that while he was away it was his wife who was actually looking after her father.
6. On 12^th March 2003, after hearing from the claimant in person, the Romford tribunal purported to confirm the decision of the Secretary of State but its use of legal terms was wrong and its reasoning was muddled. On 10^th July 2003 the District Chairman of the tribunal refused to give the claimant leave to appeal to the Social Security Commissioner. The claimant renewed his application for leave before the Commissioner. I held an oral hearing of that application on 26^th November 2003 at which the claimant represented himself and the Secretary of State was represented by Mr S Cooper. I am grateful to them both for their assistance. (I am bound to say that I have found the subsequent written submissions from both parties less helpful).
7. I granted leave to appeal on the basis that an apparent conflict between regulation 10B of the Social Security (Persons Abroad) Regulations 1975 (in relation to disqualification) and regulation 9(2) of the Social Security (Invalid Care Allowance) Regulations 1976 (in relation to entitlement) needed to be explored. I stated that I was not impressed by the claimant's arguments that the former represents the spirit and the latter the letter of the law, or by the relevance of the 4 week period only being exceeded by a short period. I also regard it as irrelevant to the case before me that, during the claimant's absence, the claimant's wife was caring for her father.
8. The main provision creating entitlement to invalid care allowance is section 70 of the Social Security Contributions and Benefits Act 1992. Section 70(4) of that Act provides that:

70(4) A person shall not be entitled to an allowance under this section unless he satisfies prescribed conditions as to residence or presence in Great Britain.

9. The relevant conditions are prescribed by the Social Security (Invalid Care Allowance) Regulations 1976. Insofar as is relevant, regulation 9 provides:

9(1) Subject to the following provisions … the prescribed conditions [for the purposes of section 70(4)] in relation to any person in respect of any day shall be –

…

(b) that he is present in Great Britain

…

(2) For the purposes of paragraph 1(b) … a person who is absent from Great Britain on any day shall be treated as being present in Great Britain –

(a) if his absence is, and when it began was, for a temporary purpose and has not lasted for a continuous period exceeding 4 weeks; or

(b) if his absence is temporary and for the specific purpose of caring for the severely disabled person who is also absent from Great Britain …

10. It is agreed that the claimant was absent from Great Britain for more than 4 weeks and that his father in law (the severely disabled person) remained in Great Britain while the claimant was absent. On the face of it that should be the end of the story and the decision of the Secretary of State is correct. However, the claimant refers to the provisions of the Social Security (Persons Abroad) Regulations 1975.
11. Section 113(1)(a) of the Social Security Contributions and Benefits Act 1992 states that, except where regulations otherwise provide, a person "shall be disqualified for receiving" certain benefits, including ICA, for any period "during which that person is absent from Great Britain".
12. Regulation 10B of the Social Security (Persons Abroad) Regulations 1975, as amended on 12^th April 1976, provides that:

10B A person shall not be disqualified for receiving an invalid care allowance by reason of being absent from Great Britain.

This regulation is headed "Modification of the Act in relation to invalid care allowance". This must now be read as a reference to the 1992 Act. Section 113(1) of the 1992 Act is made subject to contrary provision in regulations and deals also with matters other than disqualification for receiving invalid care allowance. Thus, for the purposes of this case, section 113(1) must be read as though it does not apply to invalid care allowance, and can be disregarded. At no time was the claimant disqualified and the tribunal was wrong to find that he was disqualified.

13. I agree with the Secretary of State's argument that if regulation 10B of the 1975 regulations were to be read as prevailing over regulation 9(1)(b) of the 1976 regulations, then the claimant could receive ICA indefinitely although absent from Great Britain. That is clearly not the intention of the statutory scheme. In any event, one provision relates to "entitlement" and the other to "disqualification". In the statutory scheme these are two different concepts, although I do accept that these words are used in the legal provisions with no thought as to their ordinary meaning in everyday English.
14. If, on the basis of my decision, the Secretary of State decides that there has been a recoverable overpayment, the claimant will have further rights of appeal in relation to recoverability, but the issue of entitlement is now settled by my decision.

H. Levenson

Commissioner

27th May 2004.