DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the claimant.

 

The decision of the Ashford First-tier Tribunal (FTT) dated 5 February 2010 under file reference 151/09/00834 involves an error on a material point of law.  The FTT’s decision is set aside.  The Upper Tribunal remakes the FTT’s decision as follows:

 

The claimant’s appeal is allowed.

 

The decision of the Secretary of State dated 12.10.2008 is set aside.

 

The Secretary of State is directed to re-make the decision dated 12.10.2008 on the claimant’s entitlement to income-based jobseeker’s allowance.  In doing so, the Secretary of State should bear in mind the following findings made by the tribunal.

 

First, as regards the period from 01.01.2004 to 22.02.2004, the claimant was attending an official DWP training course and developing his business plan in preparation for participation in the BES 26-week test-trading programme.  During this period he might be treated as not engaged in remunerative work (regulation 53(bb)); he might also in fact have been working for fewer than 16 hours a week.  He was in practice available for and actively seeking work.  The payment of £800 received at the end of January 2004 is subject to the normal rules on the assessment and attribution of self-employed income.  The onus is on the Secretary of State to demonstrate that any such income exceeded the claimant’s applicable amount for this period.

 

Second, as regards the later period from 23.02.2004 to 20.08.2004, the claimant was participating in the BES 26-week test-trading programme and was in receipt of a training premium. If the training premium was a “training allowance”, then the following consequences follow. The training premium is disregarded as income (Schedule 7, paragraph 14).  The claimant is to be treated as not engaged in remunerative work for this period (see regulation 53(b)) and as being entitled to income-based JSA without meeting the labour market conditions (regulation 170). The claimant’s gross receipts from trading do not count as income in the usual way (regulation 88A) but instead were paid into a special account (regulation 102A) and subject to special treatment (regulations 102B-102C). 

 

The tribunal can make no decision in relation to the recoverability of any alleged overpayments as there is no evidence that any overpayment decision has been made by the Secretary of State.  Any such decision will give rise to fresh rights of appeal.

 

This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

 

The background to the appeal to the First-tier Tribunal

 

1. The claimant was awarded income-based jobseeker’s allowance (JSA) for various periods between 2003 and 2007.  He also worked in the TV production business for part of the period in question and in 2004 took part in the Business Enterprise Scheme (BES), a government scheme designed to encourage jobseekers to move into self-employment.

 

2. Although the circumstances of this appeal are rather complex in some respects, the key points can be summarised as follows.  The claimant was interviewed under caution on 15 January 2008 (docs 220-254).  Following that interview, on 12 October 2008 a decision maker made a supersession decision on the claimant’s entitlement to JSA (docs 257-261).  In short, the new decision was to disallow benefit altogether for various specified periods between September 2003 and March 2007 and to reduce entitlement for part of the month of April 2007.  The basis for that decision was the finding that the claimant had been in remunerative work (being self-employed) at the times in question.  The detailed decision, held on the Department for Work and Pensions (DWP) file, also stated that the claimant had been overpaid a BES training premium of £806.11 for the 26-week period from 27.02.2004 until 20.08.04.

 

3. DWP practice is not to send claimants a full copy of the detailed decision from the internal file, not least because they are sometimes difficult to follow.  Instead, a “plain English” letter, summarising the main points, is sent to the claimant.  The letter in this case, also dated 12.10.2008 (doc 262), simply stated that the claimant had been paid the wrong amount of JSA for various dates between 2003 and 2007, because he was in self-employment, and that “We will write and tell you how much you have been overpaid as soon as possible”.  There was no separate mention in that letter of the specific sum relating to the allegedly overpaid BES training premium.  There was certainly no mention of the amounts generally of overpaid JSA which have subsequently been mentioned.

 

4. This is an important distinction.  In essence, in such cases the DWP has to make two decisions.  The first decision is an “entitlement decision”, by way of the formal processes of revision or supersession, changing the earlier benefit awards and notifying the correct level of benefit entitlement.  The second decision is an “overpayment decision”, setting out the legal basis on which it is said that the consequential overpayment of benefit is recoverable from the claimant.

 

5. The DWP letter of 12.10.2008 is plainly a notification to the claimant of the first step in that process, an entitlement decision.  It does not purport to be a notification of the second step, an overpayment decision.  The reason why this is important is that it affects the validity of the subsequent decision of the First-tier Tribunal (FTT).

 

6. The claimant replied promptly on 05.11.2008 (doc 264) to the letter of 12.10.2008.  He specifically queried the decision that he was not entitled to JSA for the periods from 01.01.2004 to 08.06.2004 and from 25.06.2004 to 20.08.2004.  He also explained why (because, he said, he was on the BES programme).  He did not challenge the decision that he was not entitled to JSA for the other periods notified in the letter about the entitlement decision.  He made the same point on the official appeal form (doc 266) and in a further detailed letter of explanation dated 08.12.2008 (doc 267).

 

7. A different decision maker had another look at the earlier decision of 12.10.2008 but refused to revise that decision (docs 268-269, 30.12.2008).  Accordingly the claimant’s appeal proceeded.  There were then several “false starts” – a FTT heard the appeal in the claimant’s absence, but its decision was sensibly set aside, and there were also a couple of adjournments by the FTT.

 

The First-tier Tribunal’s decision

 

8. The FTT finally heard the appeal on 05.02.2010. The claimant and a presenting officer attended.  The FTT’s decision (doc 297) was to allow the appeal and to set aside the decision dated 12.10.2008.  The FTT concluded that the claimant was on the BES from 23.02.2004 to 20.08.2004 and that JSA was payable during that period.  However, the FTT also found that there was a recoverable overpayment for the earlier period from 01.01.2004 to 17.02.2004 amounting to £1,061.69 (but that the alleged overpayment for the later period in 2004, amounting to £3,785.83, was not recoverable, due to its finding about his participation in the BES).  That decision was followed by a statement of reasons (doc 301). However, the basis on which the figure of £1,061.69 was arrived at was unclear – it seems to appear for the first time in the FTT’s record of proceedings but without any clear explanation as to how that figure had been arrived at.

 

9. The claimant appealed to the Upper Tribunal, arguing that he was on the BES from 01.01.2004 (not just from 23.02.2004) through to 20.08.2004 and so, he argued, was not liable to repay the £1,061.69 alleged for the period at the start of 2004.  As he has clearly explained in a written submission to the Upper Tribunal, “my appeal only relates to this six [actually seven] week period”.

 

The proceedings before the Upper Tribunal

 

10. I subsequently gave the claimant permission to appeal.  The complexity of the issues has meant two rounds of written submissions before the Upper Tribunal, which has delayed matters somewhat.  The claimant has also asked for an oral hearing but I believe that the case can be dealt with adequately and more quickly on the papers.  I appreciate that the claimant has dyslexia, and feels more confident putting his points in person, but he has made his points admirably and clearly enough in writing.

 

11. Mr B A Wilson and Mr M Ford, who now act for the Secretary of State in these proceedings, both support the claimant’s appeal to the Upper Tribunal.  They propose that I allow his appeal against the FTT’s decision and send the case back for re-hearing before a new tribunal. 

 

12. I will not rehearse here all the careful arguments that have been made in this difficult appeal, but they have been taken into account.  However, for the reasons that follow, I have concluded that I must allow the claimant’s appeal.  I have also decided that I can substitute the decision that the FTT should have made.  This avoids having to send the case back for a re-hearing before a different FTT which will simply make for further delay. This therefore seems to me both fair and just and a proportionate way of resolving this matter sensibly. 

 

13. It may well be, however, that this is not the end of the matter, due to some loose ends that will become apparent. I am also conscious of the difficulties that the claimant has faced in obtaining legal advice and representation.  I would just add that if there are any further developments, he may of course be able to get expert and free advice from a law centre or a Citizens Advice Bureau (CAB).

 

The Upper Tribunal’s analysis

 

14. My conclusion, in outline, is that the FTT’s decision involves a material error of law for two reasons. For those two reasons I allow the claimant’s appeal to the Upper Tribunal.

 

The first error: a question of jurisdiction

15. The first error of law made by the tribunal is simply this. The tribunal apparently took the view that it was hearing an appeal against both (1) an entitlement decision and (2) an overpayment decision. In other words, the FTT thought the DWP had carried out both of the steps in the two-stage process I described above.  That much is clear from the terms of its decision notice and the statement of reasons.

 

16. However, there is actually no evidence on file of any overpayment decision ever having been made by the DWP.  There is certainly no evidence that any such decision was ever notified properly to the claimant.  For example, the letter of 12.10.2008 about the entitlement decision simply said “We will write and tell you how much you have been overpaid as soon as possible” – but no such letter is on file.

 

17. The closest we get is a computer screen-print of what appears to be an overpayment schedule from the DWP debt centre (doc 299), which seems to have been produced for (or possibly even for the first time at) the hearing.  However, there is no discussion anywhere in the papers about the statutory basis for recovering the overpayment.  There is a solitary but passing reference to the claimant’s alleged “failure to declare [the fact] you were in self-employment” in the entitlement decision letter, but no more than that.  The original submission to the tribunal was written solely in terms of there having been an entitlement decision which the claimant had appealed.  In any event, at least for a large part of 2004, the claimant would have been able to argue that the DWP knew full well about his work in TV production, precisely because it had been arranged under the official government-sponsored BES regime under the aegis of the DWP itself.

 

18. The FTT thus erred in law because it decided a question which was simply outside its powers on this appeal.  The claimant had appealed against the entitlement decision.  He had not had an overpayment (recovery) decision at that stage, so he could hardly have appealed against any such decision, and so that latter question was not before the FTT. This ground alone is sufficient to set aside the tribunal’s decision.

 

The second error: the first seven weeks of 2004 and the alleged concession

19. The tribunal’s second error of law relates to the claimant’s own grounds of appeal.  The FTT had assumed, and recorded as a fact, that the claimant was only challenging one period in the entitlement decision, namely that covering the period from 23.02.2004 until 20.08.2004.  However, it is clear from all the correspondence on file that the claimant was challenging the entire period from 01.01.2004 until 20.08.2004.  The note of evidence at the hearing is difficult to follow, but it certainly does not provide sufficient support for any concession by the claimant at the hearing that he had suddenly had a change of heart and now accepted that he was not entitled to benefit for the first seven weeks or so of 2004.

 

20. The claimant’s case is that the period that he was on the training scheme was not limited solely to the period from 23.02.2004 to 20.08.2004; rather it started from 01.01.2004.  His evidence – which has not been disputed at any stage by the DWP – was that in order to qualify for the 26-week scheme he first had to attend an initial programme of seminars and write a business plan for a TV series he hoped to get (and indeed succeeded in getting) commissioned.

 

21. The FTT’s decision is therefore wrong in law because of the lack of any clear evidence to support the recording of a concession by the claimant about his benefit entitlement for the initial period in 2004 from 01.01.2004 to 22.02.2004. 

 

22. I therefore allow the claimant’s appeal.  The decision of the Ashford First-tier Tribunal dated 5 February 2010 (under file reference 151/09/00834) involves an error on a material point of law for the two reasons identified above.  I therefore set aside the FTT’s decision as of no effect (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).

 

What happens next?

 

23. I could send the case back for re-hearing before a new FTT, as the Secretary of State’s representatives suggest.  However, I am reluctant to do that, given both the passage of time and the fact that it is unlikely that any significant new oral evidence will emerge now.  I have therefore decided to re-make or substitute the decision which the FTT should have made.  So what should that decision be?

 

24. The first point to note is that I am “standing in the shoes” of the FTT when re-making this decision.  The original appeal is against the Secretary of State’s decision dated 12.10.2008.  There is no overpayment decision, so I can make no decision about the recoverability of any alleged overpayment.  If the Secretary of State wishes to make any such decision, on the basis of a proper entitlement decision, then that is a matter for him.  Any such decisions will have to be properly notified to the claimant and will give rise to fresh rights of appeal to the FTT.  In deciding what steps to take, if any, the Secretary of State will doubtless have regard to all relevant factors, including the passage of time and so on.

 

25. It does not seem to be seriously disputed that for much of 2004 the claimant was involved in the BES scheme with the knowledge and indeed encouragement of the DWP.  That much appears to have been common ground at the FTT hearing (at which, as noted above and unusually, a DWP presenting officer was present).  Throughout this case I also note that the claimant has consistently challenged the decision of 12.10.2008 only in relation to the periods from 01.01.2004 to 08.06.2004 and then again from 25.06.2004 until 20.08.2004.  I also note the claimant’s evidence that at the hearing before the FTT the DWP presenting officer annotated the overpayment schedule from the DWP debt centre (doc 299) with two crosses against the periods 01.01.2004 to 08.06.2004 and 25.06.2004 to 20.08.2004, presumably indicating her view that these periods were not to be included in any periods of non-entitlement (and so overpayment).

 

26. On the evidence before me, I take the view that the simplest course of action is for me to re-make the FTT’s decision as summarised in the following terms.  The claimant’s appeal against the Secretary of State’s decision dated 12.10.2008 is allowed. The Secretary of State’s decision of that date is set aside.  Furthermore, the Secretary of State is directed to re-make that decision subject to the findings of fact and guidance on the law below.  The claimant will have a fresh right of appeal to the FTT against any ensuing new entitlement decision (in addition to the right of appeal against any overpayment recoverability decision, as mentioned above).

 

27. I also note that the Secretary of State’s decision of 12.10.2008 on the claimant’s entitlement to JSA was made on the basis that, at all material times, the claimant had been in remunerative employment, as shown by the invoices.  As such, he was found not to meet one of the core conditions of entitlement to JSA, namely being “not engaged in remunerative work” (Jobseekers Act 1995, section 1(2)(e)), a term which of course includes self-employment. 

 

28. It follows that the decision was not based on any finding that the level of actual income he received was such as to take him outside of the scope of JSA (see Jobseekers Act 1995, section 3(1)(a)).  Indeed, the detailed reasoning in the decision of 12.10.2008 on file states “system prints imply that the claimant did not declare earnings or hours worked during this period of training 23.02.04 to the 10.08.04; should this information be obtained it should be treated as actual earnings” (doc 260).  However, the position is not that straightforward.  It may be simplest to take the key periods in question in reverse order.

 

The period from 23.02.2004 to 20.08.2004

 

29. There is clear evidence, and I find as a fact, that the claimant was engaged on the BES during this 26-week period and that during this time he was paid a “training premium” of approximately £55 a week (doc 260).

 

30. The Secretary of State should first establish whether this payment was a “training allowance” within the wide definition of that term in regulation 1(3) of the Jobseeker’s Allowance Regulations 1996 (SI 1996/207; all references that follow to regulations or Schedules are to these Regulations).  I have to say this seems very likely. If so, this has a number of important consequences in terms of JSA entitlement.  First, a person who is “engaged on a scheme for which a training allowance is being paid” is treated by law as being not engaged in remunerative work (see regulation 53(b)) – and so meets that condition of entitlement to JSA. Even if that provision does not apply, a person who is receiving assistance “in pursuing self-employed earner’s employment whilst participating in an employment zone programme” (in the terms that applied up until 03.05.2004) or “under the self-employment route” (in the terms that applied from 04.05.2004) is likewise treated as not being engaged in remunerative work (regulation 53(bb)).  Second, a claimant receiving a training allowance would also have been entitled to income-based JSA for this period without fulfilling the labour market conditions of looking for work etc. (see regulation 170).

 

31. However, this leaves open the question of the income received and its effects on JSA entitlement.  Two types of income may be relevant here.  There is first the issue of the training premium.  There are, secondly, the payments generated by the claimant’s work while enrolled on the BES programme.

 

32. First, so far as the training premium is concerned, the general rule now is that while payments made under employment and training programmes as a substitute for benefits are taken into account as income, all other payments (including training premiums) are disregarded (Schedule 7, paragraph 14).  However, this general provision only came into effect as from 01.04.2004, part way through the period with which this appeal is concerned (via an amendment made by regulation 5(3) of the Social Security (Miscellaneous Amendments) Regulations 2004 (SI 2004/565)).  This provision replaced and repealed a number of disregards for specific schemes (see the former paragraphs 57, 58, 60, 60A, 61 and 63).  These disregards included, for example, mandatory top-up payments under the self-employment route (paragraph 60).

 

33. Second, there is also clear evidence, and I find as a fact, that during this 26-week period there were, in accordance with BES requirements, special arrangements in place for the payment of work which the claimant did in the development of the business. The claimant invoiced TV companies not in his own name but in the business’s name.  Payments of such invoices were not paid into the claimant’s personal bank account.  Instead they were paid into a special business account opened by, and overseen by, the claimant’s Jobcentre advisor.

 

34. Again, this has important implications for the claimant’s JSA entitlement which seem to have been overlooked in the Secretary of State’s original decision.  The scheme in question, whatever name was used in terms of official publicity (e.g. BES), appears to have been for statutory purposes the “self-employment route” as defined by regulation 1(3)). However, the statutory definition of that term has changed slightly over time, although the amendments appear to be ones of nomenclature rather than substance.

 

35. The original definition, in force from 27.11.2000 (see the Social Security Amendment (Employment Zones) (No. 2) Regulations 2000 (SI 2000/2910), regulation 2(3), defined the “self-employment route” as meaning:

 

“(a) that part of the Employment Option of the New Deal which is specified in regulation 75(1)(a)(ii)(aa)(ii); or

(b) assistance in pursuing self-employed earner’s employment whilst participating in an employment zone programme”.

 

36. That definition was later amended with effect from 14.10.2002 (see Social Security Amendment (Employment Programme) Regulations 2002 (SI 2002/2314), regulation 2(2)) to read as follows:

 

“(a) the Self-Employed Employment Option of the New Deal which is specified in regulation 75(1)(a)(ii)(aa); or

(b) assistance in pursuing self-employed earner’s employment whilst participating in an employment zone programme”.

 

37. This was the definition of “self-employment route” in operation at the start of 2004.  However, it was amended again with effect from 04.05.2004 (see the Social Security (Income-Related Benefits Self-Employment Route Amendment) Regulations 2004 (SI 2004/963), regulation 2) to take its current form, namely:

“self-employment route” means assistance in pursuing self-employed earner’s employment whilst participating in—

(a) an employment zone programme; or

(b) a programme provided or other arrangements made pursuant to section 2 of the Employment and Training Act 1973 (functions of the Secretary of State) or section 2 of the Enterprise and New Towns (Scotland) Act 1990 (functions in relation to training for employment etc.).”

 

38. The evidence on file certainly suggests that the claimant was on the “self-employment route”, whether that term was defined as in paragraph 36 or 37 above, during the period from 23.02.2004 to 20.08.2004. I note that regulation 75(1)(a)(ii)(aa) refers expressly to a programme which lasts “for up to 26 weeks”.

 

39. If that is right, then the normal rules for the assessment and attribution of self-employed income do not apply; see regulation 88A, headed “Income of participants in the self-employment route”.  This point appears not to have been understood by the Secretary of State’s decision maker in this case.  Instead, special rules apply, as set out in Chapter IVA of the Jobseekers Regulations 2006 (regulations 102A-102D).

 

40. In particular, gross receipts from trading do not count as income in the usual way (regulation 88A) but instead are paid into a special account (regulation 102A) and subject to special treatment (regulations 102B-102C).  The general intention appears to be that at the end of the self-employment scheme any balance remaining in the special account is to be spread over a future period equivalent to the length of the scheme (typically 26 weeks) and treated as income for JSA purposes, subject to income tax and an earnings disregard.  During the 26-week period itself, there is a full disregard for payments made to the claimant from the special account to meet the commercial expenses incurred during this period of “test-trading”: see Schedule 7, paragraph 62. 

 

41. This probably explains why in the present case, during the period from 23.02.2004 to 20.08.2004, there is no direct correlation between the invoices issued by the claimant, the payments made by commissioning companies and receipts into the claimant’s personal bank account – instead, the monies were being placed in the BES special account.

 

42. In consequence, although the FTT understandably did not analyse the case in as much detail, given both the paucity of information it had and the apparent concession by the presenting officer, the FTT was probably right to conclude that the claimant was still entitled to JSA for the 26-week test-trading period under the BES from 23.02.2004 to 20.08.2004.  However, this leaves the disputed period of seven weeks at the start of 2004.

 

The period from 01.01.2004 to 22.02.2004

 

43. The factual and legal position is less clear in relation to the seven weeks at the start of 2004.  That said, there has been no challenge to the claimant’s account that he was attending an official DWP training course and developing his business plan during this period in January and February 2004 as preparation for full participation in the BES 26-week test-trading programme. The DWP itself probably no longer retains sufficiently detailed records for this period.  However, there is no suggestion that the claimant was receiving a training allowance during this limited period.  The position is further complicated by the fact that the claimant invoiced a TV production company for £800 for work done in four weeks in January 2004 (doc 44).  The invoice included his business’s name.  However, this cheque appears to have been credited to his personal current account (doc 125), presumably because his special BES account may not have been set up and fully operational at that stage.

 

44. The Secretary of State will need to reconsider the issue of the claimant’s entitlement to JSA during this period from 01.01.2004 to 22.02.2004 with some care.  The fact that the claimant appears not to have been in receipt of a formal training premium during this period is not decisive.  Although regulation 53(b) would not apply in those circumstances, he might be regarded as not engaged in remunerative work by virtue of regulation 53(bb), unless this only bites when the 26 week period starts.  As noted at paragraph 30 above, the terms of this definition changed with effect from 04.05.2004 (see Social Security (Income-Related Benefits Self-Employment Route Amendment) Regulations 2004, regulation 4), although the amendment may not be significant on the facts of this case.  Even if he could not take advantage of regulation 53(bb), he may well as a matter of fact not have been working 16 hours or more a week in January 2004.

 

45. The absence of a training allowance in this seven week period would mean that the claimant would not have been able to take advantage of regulation 170, disapplying the labour market conditions.  However, there is no suggestion that the claimant was not actively seeking work and indeed all the evidence is to the contrary.

 

46. There remains the issue of the claimant’s income during this initial period in 2004.  As the payment for self-employed work of £800 at end of January was paid into his personal account, and not into his special BES account, this payment could not be treated under the special rules in regulations 102A-102D, described above.  It would therefore be taken as self-employed income, subject to the usual deductions for tax and national insurance and also reduced by any reasonable expenses wholly and exclusively incurred for the purposes of the business.  It is not clear from the papers on file what the claimant’s applicable amount was for JSA purposes at this time.  However, especially if he was required to meet mortgage costs at that time, it might well be that his income (after appropriate deductions) would not have been enough to disentitle him from income-related JSA during this seven week period.

 

47. In making a new decision the Secretary of State should bear in mind that the onus of proof is on the Department, and not the claimant, to show that there are valid grounds for superseding the previous awarding decision.

 

Conclusion

 

48. The FTT’s decision in involves an error of law for the two reasons identified above.  First, the tribunal erred by deciding the overpayment recoverability issue, when no such decision was before it on appeal (paragraphs 15-18 above).  Secondly, the tribunal made a mistake in law by recording a concession by the claimant that he was only disputing the period from 23.02.2004 until 20.08.2004 when there was no evidence to that effect.  Rather, the claimant was disputing the period from 01.01.2004 until 20.08.2004 (paragraphs 19-21 above).  I therefore allow the claimant’s appeal (Tribunals, Courts and Enforcement Act (TCEA) 2007, section 12(1)).

 

49. I accordingly set aside the FTT’s decision dated 5 February 2010 (TCEA 2007, section 12(2)(a)).  I also re-make the decision that the FTT should have made, finding the necessary facts as set out above (TCEA 2007, section 12(2)(b)(ii) and (4)).

 

50. The decision that the FTT should have made on the claimant’s appeal and which I now re-make or substitute, is as follows:

 

The claimant’s appeal is allowed.

 

The decision of the Secretary of State dated 12.10.2008 is set aside.

 

The Secretary of State is directed to re-make the decision dated 12.10.2008 on the claimant’s entitlement to income-based jobseeker’s allowance.  In doing so, the Secretary of State should bear in mind the following findings made by the tribunal.

 

First, as regards the period from 01.01.2004 to 22.02.2004, the claimant was attending an official DWP training course and developing his business plan in preparation for participation in the BES 26-week test-trading programme. During this period he might be treated as not engaged in remunerative work (regulation 53(bb)); he might also in fact have been working for fewer than 16 hours a week.   He was in practice available for and actively seeking work.  The payment of £800 received at the end of January 2004 is subject to the normal rules on the assessment and attribution of self-employed income.  The onus is on the Secretary of State to demonstrate that any such income exceeded the claimant’s applicable amount for this period.

 

Second, as regards the later period from 23.02.2004 to 20.08.2004, the claimant was participating in the BES 26-week test-trading programme and was in receipt of a training premium. If the training premium was a “training allowance”, then the following consequences follow. The training premium is disregarded as income (Schedule 7, paragraph 14).  The claimant is to be treated as not engaged in remunerative work for this period (see regulation 53(b)) and as being entitled to income-based JSA without meeting the labour market conditions (regulation 170). The claimant’s gross receipts from trading do not count as income in the usual way (regulation 88A) but instead were paid into a special account (regulation 102A) and subject to special treatment (regulations 102B-102C). 

 

The tribunal can make no decision in relation to the recoverability of any alleged overpayments as there is no evidence that any overpayment decision has been made by the Secretary of State.  Any such decision will give rise to fresh rights of appeal.

 

51. The ball is now in the DWP’s court, so to speak.  If the Secretary of State wishes to take the matter any further, he will need to make proper entitlement and overpayment decisions and notify the claimant accordingly.  Any such decisions, as noted above, will carry fresh rights of appeal.

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 29 February 2012 Judge of the Upper Tribunal