Login FormClose

Free ESA, PIP and DLA Updates

With over 140,000 subscribers our fortnightly updates bulletin is the UK's leading source of benefits news. Get the facts about what's changing, how it affects you and how to prepare.   Get your free benefits updates now.

Professional Members

We support both claimants and professionals.  These are just some of the organisations who have subscribed to Benefits and Work:

  • Royal College of Nursing
  • Spinal Injuries Association
  • Chesterfield Law Centre
  • Coventry Mind
  • Birmingham Citizens Advice Bureau
  • Colchester Borough Council Welfare Rights

Read more




This decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below.



Decision and Hearing

1. This appeal by the claimant does not succeed. I confirm the decision of the Newcastle tribunal made on 8th November 2003 (reference U/44/223/2002/00286) to the extent that it decided that the claimant is not entitled to incapacity benefit from 13th December 1997 to 7th January 1999 inclusive or from 26th August 1999 to 2nd September 2001 inclusive. The tribunal also dealt with entitlement to credits but I deal with that below.

2. I held an oral hearing of this appeal on 29th October 2003. The claimant did not attend but was represented by his mother, to who I refer as “Mrs B”. The Secretary of State was represented by Mr Lewis. I am grateful to both of them for their assistance.


3. At the outset of the hearing Mr Lewis raised a preliminary point going to jurisdiction. He suggested that neither the claim nor the appeals were valid because they had been made not by the claimant but by Mrs B, who had not been appointed by the Secretary of State to act for the claimant. Mrs B said that her son had always authorised her to act on his behalf and that the Department under its various names had always recognised this. For the reasons set out below I reject the submissions made by Mr Lewis as to validity and jurisdiction.

4. Regulation 4(1) of the Social Security (Claims and Payments) Regulations 1987 provides for claims for incapacity benefit to be made in writing on a form approved by the Secretary of State for the purpose “or in such other manner, being in writing, as the Secretary of State … may accept as sufficient in the circumstances of any particular case”. There is no requirement in the regulations for the claim form to be signed personally by the claimant. In the present case the claim was made on 15th January 1996. I do not have a copy of that form and I suspect that Mr Lewis has not seen it either. However, a new claim made on 13th September 2001 is signed by Mrs B “for” her son. I am prepared to assume that the 1996 claim was made in the same way. The Secretary of State paid benefit on that claim, apparently without any difficulty, for a considerable period of time. It is clear to me therefore that the Secretary of State accepted the claim as “sufficient in the circumstances” of this case. (In R(SB) 9/84 a Tribunal of Commissioners took a similar view in relation to claims for supplementary benefit under an earlier version of the regulations.)

5. Section 12(2) of the Social Security Act 1998 provides the claimant with a right of appeal to an appeal tribunal but says nothing about the method of appealing. Section 12(7) provides for regulations to be made which “may make provision as to the manner in which” appeals are to be brought. Among such regulations are the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Regulation 33(1), so far as is relevant, provides that an appeal to an appeal tribunal shall be in writing either on a form issued for the purpose by the Secretary of State or in such other format as the Secretary of State accepts as sufficient for the purpose and shall:

33(1)(a) be signed by

(i) the person who, under … section 12(2), has a right of appeal; or
(ii) where [that person] has provided written authority to a representative to act on his behalf, by that representative;

6. Mrs B signed the appeal form on 26th March 2002. The Tribunal Appeals Service issued an enquiry form to the claimant on 20th May 2002. This form was not in the bundle of papers prepared for the Commissioner but is in the tribunal’s own file of which I have possession while considering the matter. The first enquiry is “Do you want to withdraw your appeal?”. There is a tick in the box to indicate “no” and the answer to the enquiry was signed by the claimant himself on 28th May 2002. In the circumstances of this case this seems to me to amount to the claimant providing written authority for his mother to act on his behalf in the appeal.

7. Regulations 2 and 58 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 deals with the procedure for applying to a tribunal chairman (or legally qualified panel member) for leave to appeal to the Commissioner against a decision of the tribunal. There is no requirement for the application to be signed by the claimant in person and, although that is obviously the best practice, it is not a legal requirement. When a chairman has granted leave, notice of the appeal must be served on the Commissioners. This is dealt with in regulations 12 and 13 of the Social Security Commissioners (Procedure) Regulations 1999. Regulation 12(1) sets out what must be contained in the notice of appeal. Again, there is no legal requirement that the notice be signed by the claimant.


8. The claimant was born on 26th November 1971. I give something of his history in order to place the facts of the present case in context and because his mother has drawn attention to its importance. This background is drawn from reports and transcripts provided by Mrs B. Mr Lewis had no objection to my relying on them. The claimant had developmental and behavioural problems as a child and there is a great deal of psychiatric and medical information available. However, he was able to complete some training in agriculture and also building. He joined the army in about February 1992 and was posted to Northern Ireland in August of that year. During his time in Northern Ireland he was on various occasions struck by a thrown missile, very close to a mortar bomb when it exploded, and in November 1993 he was travelling in a vehicle which overturned, killing a friend who was travelling with him. The claimant became very agitated after this incident.

9. Meanwhile, he began getting into disciplinary trouble from early 1993. In March of that year he was arrested on a charge of rape, but that was not pursued, although he was convicted of theft, for which he was fined. In July he was sentenced to 14 days detention for sleeping on guard duty. In February 1994 he was fined and disqualified from driving for an incident of reckless driving in September 1993. In October 1993 he was sentenced to another 14 days detention for a disciplinary offence. In February 1994 he was sentenced to 21 days detention for stealing a pair of shoes from another soldier and in May 1994 he was sentenced to 60 days detention for assaulting another soldier.

10. In March 1994 the claimant was diagnosed as suffering from alcohol abuse and the army arranged attendance at an alcohol education course. On 12th August 1994 he was discharged from the army for misconduct after he hijacked a taxi. He had alcohol and psychiatric problems following this and in February 1995 he assaulted his ex brother-in-law in a public house, for which he was imprisoned for 9 months. He was subsequently certified as incapable of work because of stress and anxiety. Incapacity benefit was awarded and paid from 15th January 1996. By August 1996 there was a definitive diagnosis of post traumatic stress disorder (PTSD). In October 1998 a report by a consultant neuropsychologist concluded that the claimant was functioning in the borderline subnormal range of intelligence with respect to verbal abilities and in the low average range with respect to non-verbal abilities. Although he would have been able cope with the physical demands of army life “intellectually he may well have been stretched and his judgement may not always have been at the desired level”.

The Facts in the Present Appeal

11. The claimant has had a number of entanglements with the criminal law which have led to periods of imprisonment and created the issue to be decided in this case. I deal with the incidents in the order in which they occurred (although the consequences overlapped each other) and after setting them out I will then refer to them by letter. I refer to the complainants as “V” followed by a number.

Case A

12. On 8th May 1997 a sexual episode took place between the claimant and V1. The nature of this episode was disputed but V1 alleged that there was an indecent assault. Both agreed that the claimant had bitten V1 twice on the back. The claimant was arrested and remanded in custody for 2 weeks following this incident and was then released on bail until trial of this particular matter although he spent time in custody on other matters, with which I deal below. On 7th April 1998 the claimant was convicted of indecent assault by a jury at the Crown Court. Sentencing was adjourned and then further adjourned pending the outcome of an appeal by the claimant to the Court of Appeal and the resolution of other matters. That course of action was subsequently criticised by the Court of Appeal. Lord Justice Laws said “I have never known that course of action to be taken before by a trial judge when an appeal is pending”. It is not clear whether the claimant was remanded in custody or bail on this meanwhile but that does not really make any difference because (as I set out below) he was finally acquitted on this matter so any period in custody on this matter alone is to be disregarded. On 14th December 1999 the Court of Appeal, after admitting and hearing fresh evidence relating to the credibility of V1, quashed the conviction on the grounds that it was unsafe. It ordered a retrial and remanded the claimant in custody pending the retrial. The retrial took place on 4th September 2001 when the prosecution offered no evidence because its witness(es) failed to attend and the claimant was acquitted.

Cases B, C and D

13. V2 was a female taxi driver. On 8th November 1997, while on bail for case A, the claimant got into her taxi at a taxi rank. V2 alleged that inside the taxi the claimant made inappropriate sexual remarks, indecently exposed himself, indecently assaulted her and, after getting out of the taxi, kicked it and smashed a window (causing a total of £500 worth of damage) and then hit V2 on the cheek. The claimant was prosecuted for indecent assault (case B), assault occasioning actual bodily harm (case C) and criminal damage (case D). He was not arrested on these matters until 9th December 1997 and was then remanded in custody. Meanwhile, of course, he was tried on case A. He was tried on cases B, C and D at the Crown Court in November 1998. He pleaded guilty to cases C and D and not guilty to case B. He did not give evidence himself (although other witnesses were called for the defence) and was convicted by the jury on 18th November 1998. Sentencing was adjourned pending the outcome of the appeal in case A and the claimant (who had been in custody on this matter since his arrest) was again remanded in custody until he was given conditional bail on 8th January 1999. He breached the conditions of his bail on 2 occasions. The first resulted in a remand in custody for 1 month in April 1999. The second resulted in a remand in custody from 18th or 25th August 1999 (different dates are given in the various papers in the file). On 14th August 2001 the Court of Appeal quashed the conviction on case B because of the way in which the judge had intervened at the trial to bolster the prosecution case. A retrial was not ordered but the claimant was remanded in custody to the Crown Court for sentencing in Cases C and D after the conclusion of the retrial in case A. He was subsequently sentenced to 18 months imprisonment (see below).

Case E

14. On 25th August 1999, as the claimant was returning to prison, there was some kind of scuffle involving the claimant, 2 prison officers and V3, another prisoner. This resulted in V3’s leg being broken. On 17th May 2000 the claimant pleaded guilty at the Crown Court to a charge of assault occasioning actual bodily harm on V3. His plea was accepted but he was not sentenced at that time. For this offence, too, he was subsequently sentenced to 18 months imprisonment (see below).

Sentenced At Last – and the Final Appeal

15. On 4th September 2001, after his eventual acquittal in Case A (see above), the claimant was sentenced at the Crown Court in respect of Cases C, D and E. By this time the claimant had (according to calculations referred to in a later decision in the Court of Appeal) served a total of 1153 days in custody, being about 3 years and 2 months. The total sentence given was 3 years imprisonment. The individual sentences were:
• Case C: 18 months imprisonment
• Case D: 6 months imprisonment concurrent with the above (the Court of Appeal later said that this was “an unlawful sentence”)
• Case E: 18 months imprisonment consecutive to the above.

16. Having already been in custody for longer than the total period of imprisonment imposed, the claimant was released immediately after sentencing. However, he appealed against sentence to the Court of Appeal. At the hearing before them on 30th April 2002 the Court of Appeal did not criticise the sentences in terms of the seriousness of the incidents from which the charges arose, but decided that “a degree of leniency” was justified in view of the history of PTSD “which … we accept is genuine and attributable to his service” and also “the unusual and disturbing history of the case”. It replaced the Crown Court sentences with a total sentence of 21 months imprisonment. The individual sentences were:

• Case C: 12 months imprisonment
• Case D: 2 months imprisonment concurrent with the above
• Case E: 9 months imprisonment consecutive to the above.

The Decision Under Appeal

17. On 4th September 2001, the day that the Crown Court imposed the sentence enabling his immediate release, the claimant made a further claim for incapacity benefit and raised the question of the period covered by the cases that I have discussed. The decision in respect of the period from 4th September 2001 is not before me. Credits were allowed for the period 8th January 1999 to 25th August 1999, corresponding to the period that he was on bail (although also including a brief period in custody). That decision is not challenged. On 22nd February 2002 (in a decision issued on 27th February 2002) the Secretary of State refused to award incapacity benefit or credits for the periods 13th December 1997 to 7th January 1999 and 26th August 1999 to 2nd September 2001. On 6th March 2002 the claimant appealed to the tribunal against that decision. On 25th September 2002 the tribunal adjourned with Directions for the production of further information. On 8th November 2002 a differently constituted tribunal considered the matter afresh and confirmed the decision of the Secretary of State. On 2nd January 2003 a District Chairman of the tribunal granted the claimant leave to appeal to the Commissioner against the decision of the tribunal.

18. Meanwhile, decision making powers in respect of credits had been transferred from the Secretary of State to the Inland Revenue. On 13th December 2002 the Inland Revenue decided to award class 1 credits for the whole of the period 6th April 1997 to 5th April 2002. Accordingly, there is no longer any dispute over the question of entitlement to credits and I do not propose to go into the correctness of the earlier decisions on credits made by the Secretary of State. That leaves the question of entitlement to incapacity benefit for the periods 13th December 1997 to 7th January 1999 and 26th August 1999 to 2nd September 2001.

The Relevant Law

19. Section 113(1) of the Social Security Contributions and Benefits Act 1992 provides, so far as is relevant:

113(1) Except where regulations provide otherwise, a person shall be disqualified for receiving [incapacity benefit] …., for any period during which the person-
(a) …; or
(b) is undergoing imprisonment or detention in legal custody.

20. Regulation 2 of the Social Security (General Benefit) Regulations 1982 provides, so far as is relevant, that section 113(1) shall not operate to disqualify a person for receiving incapacity benefit

2(2) … for any period during which the person is undergoing imprisonment or detention in legal custody in connection with a charge brought … against him in criminal proceedings, or pursuant to any sentence or order for detention made by a court in such proceedings, unless, in relation to him, a penalty is imposed at the conclusion of those proceedings …

Regulation 2(8)(d) defines “penalty” so as to include a sentence of imprisonment.

21. Regulation 4 of the Social Security (Incapacity Benefit) Regulations 1994 provides, so far as is relevant:

4(1) For the purposes of incapacity benefit a day shall not be regarded as a day of incapacity for work if it is …

(b) a day on which a person is disqualified for receiving incapacity benefit during a period of … imprisonment or detention in legal custody, if that disqualification is for more than 6 weeks.

The Claimant’s Argument

22. There are various ways of expressing Mrs B’s argument. One is that that the claimant was not lawfully imprisoned or in legal custody for any period in excess of the final total sentence of imprisonment for 21 months. Another is that if the claimant had been from the outset convicted of the offences of which he was eventually convicted, and sentenced at the correct time to the sentences that he was finally given, he would at the latest have been released 12 months after being remanded in custody on cases C and D and then 9 months after being remanded for case E. For other periods he was not lawfully imprisoned or in legal custody. Alternatively, that in December 1997 he was only remanded in custody for the indecent assault (case B) of which he was later acquitted. This argument is based on the suggestion that the ground given for refusing bail was that he was a danger to the public.


23. On the face of it these might be attractive arguments but I am unable to accept them. For one thing, the Court of Appeal took into account the unusual procedural history when finally fixing what it regarded as a lenient sentence. More important, the argument does not work as a matter of law. I have no doubt that the remand in custody in December 1997 was also in respect of at least case C if not also in respect of case D. Most likely, the court made no distinction. Therefore the eventual acquittal on case B makes no difference. The fact that the Court of Appeal fixed a sentence of 12 months imprisonment on these matters when the claimant was in custody on them for 13 months before being given bail, including 11 months before conviction, does not as a matter of law mean that he was not lawfully imprisoned or in legal custody for that 13 month period. The claimant was remanded in custody by a court of competent jurisdiction acting within its legal powers, even if on the merits of the case the Court of Appeal subsequently took a different view of the correctness of the sentence imposed..

24. Similarly, the fact that the Court of Appeal fixed a sentence of 9 months imprisonment on case E when the claimant was in custody for over 2 years before being sentenced, including 9 months before conviction, does not as a matter of law mean that he was not lawfully imprisoned or in legal custody for that 2 year period.

25. Mr Lewis discussed the implications of regulation 4(1)(b), which I have set out above, but it is not necessary for me to go into them.

For the above reasons, although I have jurisdiction in this matter, this appeal by the claimant does not succeed.

H. Levenson

16th December 2003