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DECISIONS OF THE SOCIAL SECURITY COMMISSIONER
1. My decisions are as follows. They are given under section 14(8)(a)(i) of the Social Security Act 1998.
The decisions of the Stockport appeal tribunal under references U/40/125/2002/01802 and 02194, held on 16 December 2002, are erroneous in point of law.
I set them aside and substitute decisions with the consent of the parties.
Those decisions are as proposed by the Secretary of State:
The claimant is, for the purposes of entitlement to incapacity benefit, to be treated as a welfare to work beneficiary on and from 21 October 2001.
The calculation of the claimant’s applicable amount for the purposes of his entitlement to income support is to be undertaken in accordance with the above decision on incapacity benefit.
The appeals to the Commissioner
2. These are two appeals to a Commissioner against the decisions of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Pacey. The Secretary of State has conceded that the tribunal went wrong in law and has invited the Commissioner to substitute decisions, favourable to the claimant, for those given by the tribunal. I accept that concession as correct in law, but not for the reasons given by the Secretary of State’s representative.
3. As the decision is given with the consent of the parties, I am absolved of the duty to give reasons by virtue of regulation 28(2) of the Social Security Commissioners (Procedure) Regulations 1999. I therefore limit my reasons to the issue on which I disagree with the legal basis of the Secretary of State’s concession.
4. This appeal concerns a claim for incapacity benefit.
The history of the case
5. The claimant received incapacity benefit for the inclusive period from 8 October 1996 to 18 March 2001. He began work on 19 March 2001. He reported that fact, orally and in writing, on 15 March 2001. He again became incapable of work on 21 October 2001.
6. The Secretary of State has decided that the claimant’s new period of incapacity cannot be linked with the previous period under regulation 13A of the Social Security (Incapacity for Work) (General) Regulations 1995. The reason given is that the claimant did not satisfy the condition in regulation 13A(1)(d)(i). This requires that the claimant
‘gave notice, within a period of a month after so ceasing to be entitled to that benefit, to the Secretary of State that he had been engaged in remunerative work within one week from the end of that past period of incapacity for work’.
The claimant denies ever receiving the standard report form that is issued to claimants so that they may report in accordance with that requirement.
7. The claimant exercised his right of appeal to an appeal tribunal, but the tribunal dismissed his appeal.
8. The issue for me is this. Was notice given before the claimant went off incapacity benefit sufficient to satisfy regulation 13A(1)(d)(i)?
The claimant’s argument
9. The claimant’s representative presented a detailed argument, both to the tribunal and to the Commissioner, on the interpretation of regulation 13A(1)(d)(i). I reject that argument, as did the tribunal. The words used in that provision, in their mutual context, make it impossible to interpret the provision as referring to any time other than when the claimant had ceased to receive incapacity benefit and had become engaged in work.
The Secretary of State’s argument
10. For the same reason, I reject the argument of the Secretary of State’s representative in this appeal:
‘Social Security policy advice on this issue is that the regulation should be given a wide and more flexible interpretation and that “gave notice, within a period of one month after so ceasing to be entitled” includes a month prior to so ceasing to be entitled to that benefit.’
There is no basis in the principles governing statutory interpretation that would allow it. The whole wording of regulation 13A(1)(d)(i) clearly, and only, contemplates notice once the claimant has ceased to be entitled to benefit and has become engaged in work.
11. Nonetheless, I accept the Secretary of State’s concession as rightly made. My reasoning is based not on the interpretation of the provision, but on principles governing its application. I derive this principle from a number of decisions by Commissioners. They each deal with different circumstances from those in this case. But it is possible to derive from them principles of wider application.
12. In R(U) 3/85, a Tribunal of Commissioners dealt with an appeal that was made in anticipation of the decision-maker’s decision. The Tribunal decided that this did not affect the validity of the appeal before it. It said (paragraph 8):
‘The question which arises in this case … is what happens when the appeal ante-dates the actual decision. A legalistic approach is to say that, as at the time the appeal was lodged there was no decision against which it could be directed, then there was no effective appeal. However, against that various other factors have to be borne in mind. … In a sense, in the special circumstances of this case, it could be said that his appeal was a continuing one to take effect as and when the relevant concrete decision was actually made.’
The Tribunal then (paragraph 9) also treated the parties as having waived any irregularity by proceeding without objection at the hearing before the tribunal.
13. Paragraph 8 of that decision is authority for this proposition. If a claimant takes action before the time prescribed by law, that action can be treated as having continuing effect until the time begins to run. This is similar to the effect I achieved in CI/4421/2000. There, I granted leave on an application for leave to appeal against a decision that I had not yet taken, saying (paragraph 37):
‘Mr Cox’s application and my grant of leave are both inchoate until the issue of this decision, but they will then take effect.’
14. In R(SB) 8/89, Mr Commissioner Skinner dealt with a period of claim that ended on a day when the office of the Department of Health and Social Security was closed. The Department had directed the Post Office not to deliver mail on that day. In setting out the law for the tribunal at the rehearing, the Commissioner said (paragraph 7):
‘In my judgment if the office of the Department puts it out of its power to receive the claim by closing its offices and also arranging with the Post Office not to deliver mail on the days upon which the office is closed, then, it puts it out of its power to receive the claim. … If … it did and … in the normal course of delivery the claim would have delivered on that day then such is the date of claim.’
15. That decision is authority for this proposition. If the law allows a claimant a time within which to do something, the Secretary of State cannot effectively truncate that period by making no means available for the claimant to take full advantage of it.
16. In CI/337/1992, Mr Commissioner Rowland dealt with a claim for reduced earnings allowance that was submitted before the time for claiming had begun to run. He decided that the claim could nonetheless be valid and effective. The relevant passage of his decision is this (paragraph 13):
‘I take the view that, if a claim is made before the prescribed time for claiming, the Secretary of State has the right to require a fresh claim to be made within the prescribed time. But Mr Scoon [who appeared for the Secretary of State at the oral hearing] was prepared to accept that, if he does not do so and the claim is processed in the ordinary way, it should be treated as having been properly made within the prescribed time.’
The Secretary of State has since relied on that decision in observations on appeals to Commissioners.
17. That decision is authority for this proposition. If information is provided too soon, the Secretary of State is entitled to require the claimant to comply with the terms of the legislation. But if that is not done and the Secretary of State acts on the information, the claimant must not be prejudiced. In effect, the Secretary of State is taken to have waived the requirement.
18. The circumstances of this case are different from those in all of those decisions I have cited. But they are covered by the principles on which those decisions are based.
19. What are those principles? The Secretary of State has a legitimate interest in ensuring that action is taken within the time period specified in the legislation. But that interest is less when the information is provided too soon than when it is provided too late. If information is provided too soon and the Secretary of State does not require the claimant to comply with the time limit, the information will be treated as received and held as inchoate until the time begins to run. Certainly, this will be so if the Secretary of State effectively prevents the claimant from complying within the time specified by not giving notice of the need to comply.
20. In this case, the claimant provided the relevant information to the Secretary of State, but did so too soon. He was prevented from providing it later and in accordance with the legislation, because the Secretary of State did not notify him of the need to do so. In those circumstances, he was not in a position to exercise his right to preserve his position in accordance with the legislation because the Secretary of State had effectively prevented it.
21. On that reasoning, I accept that Secretary of State’s concession as correctly made in law.
22. I leave open the issue of how these principles apply if the claimant is never given notice and does not provide the information until it is too late under the legislation.
23. I recently gave a decision in a similar case: CIB/3973/2002. In that case, on one interpretation of what the claimant said, he had given notice before he had moved from incapacity benefit into work. The distinction between that case and this is that in that case the claimant had not, at least at the time of the appeal to the appeal tribunal, denied that he had received notification that he needed to notify the Secretary of State within one month of starting work. That was equivalent to the Secretary of State requiring the claimant to comply with the terms of regulation 13A(1)(d)(i).
A consequential point
24. There is a consequential point that is outside my jurisdiction. It is dealt with in paragraph 14 of the Secretary of State’s observations on these appeals. Obviously it is right that that issue should be resolved. I rely on the Secretary of State, the claimant or his representative to deal with it.
25. This appeals concerns a claim for income support. In particular, the issue is whether the claimant satisfies the conditions for the disability premium to be included in the applicable amount for the purpose of calculating his entitlement to income support. The decision in this appeal follows from that in CIB/1886/2003.
Signed on original Edward Jacobs
16 October 2003