Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CI/1222/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed.

REASONS FOR DECISION

1.     This is an appeal with the leave of a tribunal judge from a decision of a First-tier Tribunal  sitting in Nottingham given on 4 November 2010.

2.     The claimant was in receipt of industrial injuries benefit for life based on his being 15% incapacitated.  Benefit was paid into his bank account.  He had a home in Nottingham.  He obtained employment abroad and for a time ceased to live in Nottingham.  He retained his home there although it was let out on a short term basis while he was away.  He had arranged for the Royal Mail to forward his post to his mother in London, who would send them on to him.  He did not inform the DWP that he was not living at the Nottingham address, and it would appear that the forwarding arrangements with the Royal Mail failed.  A routine notification sent to him in April 2007 by Jobcentreplus was returned in August 2007 marked ‘gone away’.  Payment of benefit was suspended from 29 August 2007.

3.     On 27 September 2007, Jobcentreplus then wrote to him at the Nottingham address (they had no other address for him) asking him to confirm his permanent residential address.  The letter stated that if he did not reply by 8 November 2007 his entitlement to benefit might be cancelled.  It was not returned, nor does it appear to have been forwarded to him, with the result that he did not reply.  By a further letter dated 27 November 2007, Jobcentreplus notified him at the same address that he was no longer entitled to benefit because he had not sent the information as to his permanent address.  Once again this letter failed to reach him.

4.     It would appear from the claimant’s representative’s written submissions dated 22 October 2010 that he had returned to his Nottingham address by June 2008 and had obtained employment locally.  It would appear that he only realised that he was no longer receiving benefit when he checked his bank accounts.  This would seem to have been in the summer of 2009 and led to his telephoning Jobcentreplus on 25 August 2009 to enquire.  They told him that benefit had been terminated and that he should put in a new claim, which he did on 1 September 2009.  He was then awarded the same benefit again backdated 3 months from 25 August 2009.

5.     The claimant appealed and claimed to be entitled to receive all the payments from the date of suspension in August 2007.  There was no dispute that if he had to make a new claim, then it could only be backdated 3 months, but he contended that the cancellation of his benefit (as opposed to its suspension) was an error by the DWP and that it had no ground to cancel or supersede the award.

6.     That contention was upheld by the tribunal which concluded that although the DWP was entitled to suspend payment, there was no power to terminate it.  The tribunal found as follows, referring to the Social Security and Child Support (Decisions and Appeals) Regulations 1999:

“Under Reg 16(3)(a)(iv) a benefit may be suspended if a claimant is not residing at the last address notified to the DWP.  As this was the case with [the claimant], the SoS was entitled to suspend the payment of Industrial Injuries Benefit (IIB).

Reg 16(3) also enables benefit to be suspended in circumstances where there is an issue either as to the conditions of entitlement or as to a possible revision under s 9 of the 1998 act or supersession under s 10.  However a doubt as to the address of a claimant of IIB is not relevant to such issues.

Reg 17 also enables benefit to be suspended if a claimant fails on request from the SoS to provide information but this only applies if the information is required (as before) for the purposes of a possible revision or supersession under s 9 or 10.  This does not assist the SoS for the same reason.

The power to terminate a benefit is conferred by Reg 18.  It can apply to a claimant whose benefit has been suspended under Reg 16 and who fails to respond to an information requirement under Reg 17, but under Reg 17(1) this is conditional upon the information being required for … a possible revision or supersession under s 9 or 10.  …

Although the SoS therefore was entitled to suspend the benefit under Reg 16(3)(a)(iv), there was no power to terminate the award of benefit.  Payment of the benefit including the arrears therefore should have been made under Reg 20 to [the claimant] once he had established that he was still alive and where he lived.”

7.     The tribunal went on to conclude, by analogy with CA/3800/2006, that the incorrect approach of the Secretary of State amounted to an official error which could be revised under regulation 3(5)(a) of the Decisions and Appeals Regulations, substituting a suspension of benefit for its termination.  The decision to terminate was erroneous and was based entirely on a misunderstanding by a decision maker as to the extent of the Secretary of State’s powers.  The claimant’s new claim and appeal were treated as an application for revision of the original termination decision, and on that basis he succeeded.

8.     In his submissions on this appeal, the Secretary of State contends that the tribunal, in referring to the circumstances in regulation 16(3) determined that each of the circumstances only applied where there was a doubt as to “whether there is continued entitlement or an award or it should be revised or superseded and determined that this was not the case in the award in question (IIDB).”  The submission is not clearly or grammatically expressed, but it is clear from the first paragraph of the above citation from the tribunal’s decision that the tribunal made no such finding in respect of regulation 16(3)(a)(iv), but concluded that it was an independent provision which entitled the Secretary of State to suspend payment.  It then went on to find that for the other provisions of regulation 16(3)(a) to apply there had to be an issue as to the conditions of entitlement or a possible revision or supersession, which did not arise here.  While the precise wording of the tribunal’s summary of those other three provisions may be slightly inaccurate, the Secretary of State does not submit that any of them did apply, but only that the fourth condition, like each of those three, was a stand alone provision and, unlike any of those three, it did apply.  That is not a challenge to the tribunal’s decision on this point, but confirmation of its finding that the Secretary of State was entitled to rely on this provision to suspend payment.

9.     The Secretary of State then goes on to contend that the tribunal was wrong to determine that regulation 17(1) only applied where the provision of evidence was required to decide whether to revise or supersede an award and could therefore only have effect “under the condition in regulation 16(3)(a)(ii)”.  He submits that regulation 17(2)(a) clearly refers to the fact that, for the purposes of regulation 17(1) any person whose benefit is suspended under regulation 16(3)(a) “fall under the evidence provisions, which clearly means any of the 4 sub-paragraphs of regulation 16(3)(a)”.

10. Regulation 17 provides, so far as relevant:

(1)   This regulation applies where the Secretary of State requires information or evidence for a determination whether a decision awarding relevant benefit should be –

(a)   revised under section 9; or

(b)   superseded under section 10.

(2)   For the purposes of paragraph (1), the following persons must satisfy the requirements of paragraph (4) –

(a) a person in respect of whom payment of a benefit has been suspended in the circumstances prescribed in regulation 16(3)(a);

(3)   The Secretary of State shall notify any person to whom paragraph (2) refers of the requirements of this regulation;

(4)   [This contains provisions as to the time within which the information or evidence must be supplied] …

11. It is apparent from regulation 17(1) that regulation 17 only applies where the information or evidence is required for a determination whether a decision awarding benefit should be revised or superseded.  It is not every piece of information or evidence sought under regulation 16(3)(a) that is required for that purpose.  The fact that the claimant had moved from his old address without providing a new one is not one that provides grounds for revising or superseding the award of benefit.  Regulation 17(2)(a) does not alter this.  It simply provides, in respect of a person in respect of whom benefit has been suspended under regulation 16(3)(a), that for the purposes of paragraph (1) the information has to be provided in accordance with paragraph (4). 

12. It is not every matter that arises under regulation 16(3)(a) that is relevant for the purposes of paragraph (1).  If the information is not required for the purposes of paragraph (1), the regulation does not apply, as is spelled out in paragraph (1), and the person in question does not have to provide it under paragraphs (2) and (4).  The information as to the claimant’s address was not relevant to the question whether his benefit should be revised or superseded, because the change of address could not affect that benefit,  Accordingly, regulation 17 did not apply and the decision terminating his entitlement was incorrect and arose from an official error.  The appeal was rightly treated as an appeal from a refusal to correct that error, and the tribunal was correct to allow the appeal.

13. I would add that if I had concluded that entitlement had been correctly determined, in the absence of any decision showing that it had been determined from the date that payment had been suspended, it appears to me that it should have been treated as only effective from the date on which it was made and that any suspended payments prior to that date would still be payable under regulation 20. 

14. As it is, the appeal is dismissed and the whole of the benefit due in respect of the period from the date of the suspension is payable as set out in the decision of the tribunal.

(signed) Michael Mark

Judge of the Upper Tribunal

7 June 2012