UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CIB_1378_2004 (30 June 2004)

DECISION OF THE SOCIAL SECURITY COMMISSIONER


 


1. My decision is given under section 14 of the Social Security Act 1998. It is:

The decision of the Brighton appeal tribunal under reference U/45/177/2003/00868, held on 16 September 2003, is not erroneous in point of law.

The appeal to the Commissioner

2. This is an appeal by a claimant, brought with my leave. The Secretary of State does not support the appeal.

The issue

3. The issue is whether the claimant was entitled to a back to work bonus when her entitlement to income support came to an end.

How the issue arose

4. The claimant was receiving income support as a lone parent and also doing some part-time work. Her son became 16 on 22 February 2003. Her income support should have been terminated straightaway, but it was not. Instead it remained in payment until March 2003. I do not when the decision was actually made, but it was notified to the claimant in a letter of 12 March 2003. The letter reported that entitlement had come to an end because her son had reached 16 and that payment of income support would end on 17 March 2003.
5. On 17 March 2003, the claimant's hours of work increased to 16, and her wages rose accordingly. Her employer confirmed that she worked on 17 March 2003.

The back to work bonus

6. The claimant contends that in those circumstances she was entitled to a back to work bonus. The relevant legislation is contained in regulation 7 of the Social Security (Back to Work Bonus) (No 2) Regulations 1996.

Entitlement to income support

7. In order to apply regulation 7, I have to identify when and why the claimant ceased to be entitled to income support.
8. As to the when, the Secretary of State terminated the award of income support from and including 18 March 2003. That is shown by the letter of 12 March 2003, which reports that 17 March will be the last day of payment. The Secretary of State argues that entitlement ended in the benefit week when the claimant's son attained 16. I reject that argument. The claimant may have ceased to satisfy the conditions of entitlement in that week. But she remained entitled thereafter for so long as she retained an award. The Secretary of State could have terminated the claimant's entitlement retrospectively. But the decision-maker did not do that and the Secretary of State must take the consequences.
9. As to the why, the claimant ceased to be entitled to income support because her son reached the age of 16. That is the reason given by the Secretary of State for terminating the award in the letter of 12 March 2003. Her entitlement did not cease because of the increase in her hours of work. That increase was not known to the Secretary of State when the award was terminated.

The work condition

10. Regulation 7 contains 4 sets of circumstances that allow the payment of a back to work bonus. Only two might apply to the claimant. Both require her to satisfy 'the work condition'. This is defined in regulation 7(2)(b). It specifies that the claimant's circumstances must change in one of three ways. She (or her partner, if she has one) must: (a) start work; (b) increase her hours of work; or (c) increase her earnings from work.
11. I emphasise that the work condition is defined by reference to those matters only. Regulation 7(2)(b) goes on to deal with the effect of those changes on benefit entitlement. That effect is not part of the definition of 'the work condition'. I mention this, because the notes in the standard tribunal reference work suggest otherwise. See Social Security Legislation 2003: Volume II at pages 702 and 703 in section 2.951.
12. In this case the claimant increased both her hours of work and her earnings from that work. She satisfied the work condition.

Regulation 7(2)

13. This contains one of the sets of circumstances that might allow payment of a back to work bonus to the claimant. However, it does not apply, because one of the circumstances is not satisfied. There was in this case no link between the claimant's increased hours and wages and the ending of her entitlement to income support. I have already explained that the award of income support was terminated without reference to her hours of work.

Regulation 7(2)

14. This contains the other set of circumstances that might allow payment of a back to work bonus to the claimant. The relevant provision here is regulation 7(3)(a). It provides that the claimant must satisfy the work condition 'within 14 days of his ceasing to be entitled to' income support. The word 'within' is often used in legislation when setting time limits. It has a special significance. It signifies that the time begins to run from the day after the event specified. In this case, the event specified is the claimant ceasing to be entitled to income support. She was last paid in respect of 17 March. That was the day when her hours increased. So, she had increased her hours of work before she ceased to be entitled to income support. That was too soon for her to be entitled to a bonus.
15. I am sure that the claimant will find this a wholly unsatisfactory reason for losing her entitlement to a bonus. However, the legislation is technical and detailed, and she has not satisfied the strict conditions.

Two other points

16. I mention briefly some points that I dealt with in my grant of leave. The tribunal is a statutory body. It was charged with the legal duty of deciding whether or not the claimant was entitled in law to a back to work bonus. It had to apply the law as set out in the Regulations. In doing so it was limited to the powers given it by law. It had no power to give compensation for any bad advice that the claimant may have been given by the Department. She may be entitled to some form of compensation from the Department – her representative will be able to advise her – but the tribunal had no power to award it. Finally, the tribunal could not apply an estoppel against a statutory provision.

How should I dispose of the case?

17. The tribunal decided that the claimant's entitlement to income support came to an end when her son reached 16. That was wrong in law. Nonetheless, the tribunal came to the correct conclusion that the claimant was not entitled to a back to work bonus. As the outcome of the appeal was correct, it would be an empty exercise to substitute a decision to the same effect. I dismiss the appeal.

Signed on original on 30 June 2004

Edward Jacobs Commissioner