UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CIB_3542_2007 (17 June 2008)

 


[2008] UKSSCSC CIB_3542_2007 (17 June 2008)

CIB 3542 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal. The decision of the tribunal is set aside. I replace the decision of the tribunal with the decision it should have taken. This is:

Appeal allowed. The decision of the Secretary of State of 6 06 2006 that the appellant does not satisfy the contribution conditions for his claim for incapacity benefit is set aside. The matter is referred back to the Secretary of State to consider the appellant's claim in the light of this decision.

For the avoidance of doubt, this decision sets aside both the tribunal decision and the decision of the Secretary of State about whether the appellant satisfied the contribution conditions that applied to his claim for incapacity benefit received on 19 05 2006. The effect is that no decision has been taken on the claim. It will now be for the Secretary of State to take that decision. If that decision is not in favour of the appellant, the appellant will have a fresh right of appeal.

2. The claimant and appellant ("Mr D") is appealing with permission of a chairman against a decision of the Watford tribunal on 6 09 2007 under reference 052 06 0013.

REASONS FOR THE DECISION

3. The procedures involved in this long drawn out appeal have resulted in the decision being delayed. Unfortunately, Mr D had to be admitted to hospital during this period. Mrs D has taken up the appeal on his behalf. Because of the urgency of that development at a time when the Commissioner handling the case was not available, the case was transferred to me. In addition, as I informed the parties when I first looked at the case, I was able informally to consider it as a special commissioner of income tax as well as formally as a social security commissioner. This was directly relevant as the dispute involved decisions by Her Majesty's Revenue and Customs ("HMRC") about contributions as well as by the Secretary of State for Work and Pensions about benefit entitlement.
4. I issued a lengthy direction to the parties on 16 04 2008 giving both a summary of the conduct of the appeal to that time and my own views about the way forward. I invited the parties to consider those views and comment. I also asked the secretary of state's representative to consult HMRC about some aspects of those directions and for further information.
5. I have now received a most helpful submission from David Kendall acting as secretary of state's representative. This was made after consultation with HMRC. It also contains further information about Mr D's claim. He formally withdrew the previous submission for the Secretary of State that the tribunal decision under appeal was not wrong in law, and agreed that it did err in law. He invited me to set aside the decision and refer the matter back to the Secretary of State to consider the matter again in the light of all the information now available. Mrs D, on behalf of her husband, maintained his robust challenge to the actions of both officials and tribunals. She also asked me to set aside the decision of the tribunal.
6. I agree with both of them that the errors of law in the decision of the tribunal are such that its decision should be set aside. I do not propose at this stage to delay issuing this decision by rehearsing again the full history of this complex dispute. The appeal involves general issues of law that I deal with below. Most of the history is specific to this appeal and does not give rise to any general issue. It is sufficient to record the summary views from my direction:

"23 I am not surprised at some of the views expressed by the appellant and his wife during the long drawn out proceedings that followed his attempt to clear up his contribution record behind his incapacity benefit claim. It started with a mistake by his employers. This was made worse by a mistake by the National Insurance Contributions Office. They were put right only through the appellant's insistence and because of his appeal. The next mistake was that his appeal was relisted for hearing [by the social security tribunal] part way through this process when it should not have been relisted. The result was a further mistake in that the tribunal decision that resulted was completely wrong in law. The appellant was alerted by these proceedings to some of the extraordinarily complex legal provisions that officials have to apply in this situation, and raised a new issue. This sent officials looking into that new issue, and – yet another mistake - the right government department asked the wrong government department to decide it. This misled the final [social security] tribunal into taking the – again mistaken - view that a social security decision was in fact a tax decision when it was not. This may suggest that the appellant was right all along in insisting that the social security tribunal should decide his appeal. But that is also mistaken. The social security tribunal could properly decide only a part of his appeal. Unfortunately two different tribunals took different views about which parts they could decide, and both of them got it wrong."

7. The new issue added to the appeal by Mr D was an argument based on the application of the Social Security (Earnings Factor) Regulations 1979 to his claim. I outlined in my direction what I considered to be the correct way to handle a dispute about the application of these regulations to a claim for incapacity benefit. As both the Secretary of State for Work and Pensions and HMRC have confirmed that they agree with the views expressed there, and Mr D and his wife have not argued that those views are wrong, no point of dispute now arises and I summarise the proper procedure below:

(a) It is for the National Insurance Contributions Office of Her Majesty's Revenue and Customs to decide any question about the contribution record of a claimant for incapacity benefit.

(b) Any challenge to that decision on either an issue of fact or a question of law goes to a tax tribunal, not a social security tribunal. If an appeal involving a question about a claimant's contributions comes before a social security tribunal, then the social security tribunal must apply regulation 38A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This requires it to adjourn the appeal and refer the matter to the Secretary of State for onward reference to Her Majesty's Revenue and Customs for decision. The tribunal may decide the appeal only after a decision has been received from Her Majesty's Revenue and Customs.

(c) It is for the Secretary of State for Work and Pensions to decide any question about the interpretation and application of the Social Security (Earnings Factor) Regulations 1979 to the individual contribution record of any claimant for incapacity benefit.

(d) If a claimant disputes the decision of the Secretary of State on any issue of fact or law arising under the 1979 Regulations, then that dispute is to be decided by a social security tribunal. This includes any dispute about calculating the earnings factor attributable to a claimant under those regulations. If necessary, it is the task of the tribunal itself to check any disputed calculations.

8. At various stages of this appeal, tribunals (including the most recent tribunal) got the law wrong about both (b) and (d) above. Partly as a result, no proper full decision has yet been taken about the application of these provisions to Mr D's claim. The fairest and most effective decision I can now take is to set aside the decision of the tribunal for error of law and replace it with a decision setting aside the decision of the Secretary of State, and then to ask the Secretary of State to look at the matter again. In doing so, I ignore any change of circumstances that have arisen since the decision of the Secretary of State now set aside. However, as that decision has been set aside, the Secretary of State will be able to take the decision again in the light of all the evidence now available.
9. I repeat more general comments I made in my full direction. In my view, it is appropriate for the Secretary of State to ask the National Insurance Contributions Office to make any initial calculations applying the Social Security (Earnings Factor) Regulations 1979 to a particular claim. But the decision must be made either by or for the Secretary of State. This is a topic to which section 2 of the Social Security Act 1998 (decisions made by computers) is entirely appropriate, provided that the decision is given in a form that can be understood by claimants (and tribunals).

David Williams

Commissioner

17 06 2008

[signed on the original on the date shown]