UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CIS_3890_2005 (25 May 2006)

CIS/3890/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeal. The decision of the Sheffield appeal tribunal is erroneous in point of law. I set it aside and substitute the decision that the tribunal should have given which is that the award of income support to the claimant in force on 18 April 2005 is not superseded, with the result that the claimant remains entitled to income support from that date. Presumably the award will now be superseded by the Secretary of State from 30 June 2005, following the claimant's resumption of employment, but I am not entitled to take account of circumstances not obtaining at 18 April 2005.

REASONS

2. The claimant is a German citizen who came to the United Kingdom on 1 April 2004 and has been habitually resident in the United Kingdom since some time later that year. She commenced full-time employment as a chambermaid on 31 August 2004. However, she became incapable of work due to a back problem on 6 October 2004 and her contract of employment was terminated shortly afterwards. She was awarded income support from 15 October 2004 on the ground that she was incapable of work. On 18 April 2005 the Secretary of State superseded the award on the ground that the claimant had ceased to be habitually resident in the United Kingdom because she had ceased to be a "worker" within the scope of regulation 5(1)(a) of the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326) and no longer had a right to reside in the United Kingdom under regulation 14 of those Regulations so as to satisfy the condition imposed by regulation 21(3G) of the Income Support (General) Regulations 1987 (SI 1987/1967 as amended by SI 2004/1232). She appealed, relying on regulation 5(2) of the 2000 Regulations, which provides that a person does not cease to be a qualified person under the Regulations solely because "he is temporarily incapable of work as a result of illness or accident".
3. The tribunal said:

"The Appellant's representative put forward a number of arguments, the first of which was that anything which was not permanent must be temporary. The Tribunal rejected that argument and decided that for all practical purposes the word temporary must imply an incapacity which had a finite limit to it either in fact or in expectation such as a broken leg or a bout of flu or some illness or injury which had a certainty of recovery. The Appellant gave evidence that she still continued to have back problems and although she returned to work in June of 2005 the condition of her back had not changed and she was still hoping to have treatment on it at some time in the future.

"The Tribunal having found as a fact that the Appellant's incapacity was not a temporary incapacity, the decision of the Decision Maker on 18 April 2005 was deemed to be correct."

The claimant now appeals against the tribunal's decision with the leave of a district chairman and the support of the Secretary of State.

4. The Secretary of State submits that the claimant had acquired "worker" status, albeit that the time for which she had worked was short, that the claimant had demonstrated incapacity for work as a result of illness through the provision of medical certificates and that the tribunal had failed adequately to explain why it found the incapacity to be temporary when the claimant had in fact returned to work. He further submits that I should find that the incapacity was temporary and substitute a decision to that effect.
5. I broadly accept the Secretary of State's submission. The tribunal was entitled to take the view that the condition from which the claimant was suffering was a permanent one. However, it does not follow that incapacity was not temporary, if the claimant was to be regarded as incapable of work at all. The fact that the claimant had returned to work was sufficient to show that the condition was not one that would permanently incapacitate the claimant in respect of all work. (Although the return to work was after the date of the Secretary of State's decision, it was evidence that could be taken into account in considering what could have been anticipated at the date of that decision.) However, it is reasonable to consider a person to be incapable of work for a period after he or she has become incapable of following previous employment, even if there is other work that he or she might undertake. Moreover, the British system in respect of incapacity benefit deems a person to be incapable of work for benefit purposes if a personal capability assessment is satisfied and also pending such an assessment. Such a person may not actually be incapable of work and may be looking for a job. If such a person is not to be treated as incapable of work for the purposes of the 2000 Regulations, there would arise the question whether that person should be treated as a workseeker instead. However, there are practical difficulties in treating a person who is entitled to benefit on the basis of incapacity as a workseeker, not the least of which is arranging for registration as being available for work. There is therefore much to be said for what appears to be implied in the Secretary of State's submission, which is that a person should be treated as incapable of work if entitled to benefits on that basis.
6. It seems to me that the tribunal erred in assuming that because the claimant may have had a permanent disability, she was necessarily permanently incapable of work or, alternatively, in failing to consider whether she was a workseeker if she was not incapable of work. I therefore set aside the tribunal's decision and I accept the Secretary of State's suggestion that I should find that the claimant was temporarily incapable of work. The consequence is that I give the decision set out in paragraph 1 above.

(signed on the original) MARK ROWLAND

Commissioner

25 May 2006