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THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CIS/0542/2001
SOCIAL SECURITY ACTS 1992 1998
APPEAL FROM DECISION OF AN APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
COMMISSIONER: Mr H Levenson
1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Sutton tribunal of 3rd October 2000. I substitute my own decision. This is to the effect that the claimant was entitled to income support from 26th August 1998 to 4th October 1998. My decision is without prejudice to any award governing any other period.
Background and Procedure
2. This case has been made more complicated than necessary by the failure within the Department to follow, or to record as having been followed, proper procedures, and by garbled submissions from the adjudication officer. I set out below as accurate a history as I believe can now be constructed.
3. The claimant was born on 23rd March 1955. She was married and had a child born on 27th February 1992. In August 1993 she separated from her husband and the child remained with her. On 19th August 1993 she claimed income support, which was awarded from that date on the basis that she was a lone parent. Presumably she was divorced from her first husband because she married again in 1996. It appears that her husband (who came from a non EU country) was admitted to the United Kingdom on the basis that he had no recourse to public funds. On 18th February 1997 they had a child. The claimant continued to be in receipt of income support until 12`h August 1998. She was out of the United Kingdom from 4th July 1998 to 13th August 1998, visiting her sick mother in North Africa.
4. Meanwhile, on 6th August 1998 an official from the Department visited the claimant's home and discovered for the first time both the claimant's remarriage and the fact of her temporary absence from the United Kingdom. The file shows that the claim for income support was "closed down" on 13 `h August 1998. There is no indication that an adjudication officer ever reviewed entitlement or made a decision at this stage. Unless and until such a decision was made, entitlement should have continued (regulation 17 of the Social Security (Claims and Payments Regulations) 1987 and section 25 of the Social Security Administration Act 1992). It was also stated that "if the true facts had been known [the claimant] would not have been entitled to benefit for the first 4 weeks of her absence from the UK" (page 12A of the bundle of papers before me). I do not think that is correct but in any event no decision was made by an adjudication officer as to entitlement or overpayment.
5. According to the claimant (page 13) she visited the Benefits Agency on 15 `h August 1998 to re establish her claim for income support. She was again pregnant and also unwell, but was sent away to claim jobseekers allowance. When she tried to do so she was sent away to get medical evidence and to claim income support. This account has never been challenged, the tribunal (while not dealing with these specific facts) accepted that there was "no conflict of primary fact" and I accept her account as being, in the circumstances of this particular case, all too probable.
6. On 7th March 1999 the claimant's GP confirmed that he had advised her to refrain from work from 14 `h Tul j' 1998 to 1 Ith October 1998 because of pregnancy and back pain (see duplicate certificate issued on 2"d August 1999 and reproduced on page 16).
7. On 22°d September 1998 the claimant made a new claim to income support on the basis that she was 7 months pregnant, her baby being expected on 20th December 1998. I assume for the purposes of my decision (and in accordance with a series of decisions made by Commissioners in other cases) that the making of the new claim brought to an end the previous claim and award. It appears that on 15th October 1998 the adjudication officer awarded income support from 5th October 1998 to 5th February 1999 and refused to make any award from 22nd September 1998. The file does contain a copy of the adjudication officer's decision, merely a handwritten memorandum from within the Department (page 10). However, the basis for the decision was that this covered the period commencing 11 weeks before the expected period of confinement and ending 7 weeks after the date on which the pregnancy was due to end. I set out below the relevant law. In my opinion there was an error in not making this award from the date of claim, but no appeal was lodged.
8. On 26th November 1998, on behalf of the claimant, a housing adviser signed a request to backdate the award to 13th August 1998, the day from which the previous award had been "closed down". The submission to the tribunal from the adjudication officer states that this request was received on the date it was signed. The submission indicates that on 1St February 1999 the adjudication officer refused to make a backdated award, but again there is no copy of that decision on the file. On 1St April 1999 the claimant appealed to the tribunal. The appeal letter (page 13) related to the period 13th August 1998 to 4th October 1998. It really encompasses two issues. The first is whether there were any grounds of entitlement during that period. The second is whether any entitlement should be backdated. The submission from the adjudication officer recorded the decision as being that the claimant was required to be available for employment as a condition of receiving income based jobseekers allowance but made no reference to income support or to backdating. However it is clear from the request of 26th November 1998 and from the letter of appeal that the issue was backdating of entitlement to income support.
9. On 22°d June 1999 the claimant's GP reported that she was very well known to him, that in May 1998 she had vaginal bleeding and was referred to a hospital. A scan then revealed that she had been pregnant with twins, of whom one had miscarried. She had normal delivery of the other child on 11th December 1998. The claimant had told the GP that she had been out of the country from 4th July 1998 to 15th August 1998 to visit her sick mother, probably a misprint for 13th August.
10. On 12th July 1999 the tribunal adjourned so that further submissions could be made. The tribunal did not consider the matter again until 3rd October 2000, when it confirmed the decision on the basis that there was no entitlement to income support during the period under consideration. On 3rd January 2001 a District Chairman of the tribunal refused the claimant's application for leave to appeal to the Commissioner against the decision of the tribunal. The claimant now appeals by my leave granted on 5th April 2001. The Secretary of State (who has taken over the conduct of this matter from the adjudication officer) opposes the claimant's appeal and supports the decision of the tribunal. Submissions in this case were completed by the end of May 2001 but it was not referred to me for decision until 22nd October 2001. It is unfortunate that the cumulative effect of the various delays means that it is now over 3 years since the end of the period under consideration.
The Law on Income Sup12ort and Pregnancy
11. Section 124(1)(e) of the Social Security Contributions and Benefits Act 1992
provides that, subject to the satisfaction of other conditions which are not in dispute in
this case, a person in Great Britain is entitled to income support if she falls within a
"prescribed category of person". "Prescribed" means specified in or determined in
accordance with regulations (section 137(1)). Regulation 4ZA(1) of the Income
Support (General) Regulations 1987 provides that (subject to exceptions which are
not relevant in this case) a person to whom any paragraph of schedule 1B to the
regulations applies falls within a prescribed category of person for the purposes of
section 124(1)(e) (my emphasis).
12. Schedule 1B contains 28 paragraphs. A person need only fall within one of them to be a prescribed person. Paragraph 7 applies (amongst other persons) to persons who are incapable of work or treated as incapable of work in accordance with Part XIIA of the 1992 Act or regulations made thereunder. These regulations include regulation 14 of the Social Security (Incapacity for Work)(General) Regulations 1995. So far as is relevant regulation 14(a) provides as follows:
14. A pregnant woman shall be treated as incapable of work (a) on any day on which, because of her pregnancy, there is a serious risk of damage to her health or to the health of her unborn child if (i) . . . (ii) in a case where the all work test applies, she does not refrain from work in any occupation; . . .
Returning to schedule 1B to the 1987 regulations, paragraph 14 applies to:
14. A woman who (a) is incapable of work by reason of pregnancy; or (b) is or has been pregnant but only for the period commencing 11 weeks before her expected period of confinement and ending 7 weeks after the date on which her pregnancy ends.
13. It can be seen that the circumstances spelt out in regulation 14(a) of the 1995 regulations are narrower than those spelt out in paragraph 14(a) of schedule 1B to the 1987 regulations. In this appeal the claimant argues that paragraph 14(a) stands alone. The adjudication officer, the tribunal, and now the Secretary of State, take the view that that paragraph 14(a) must be read as incorporating the stricter test in regulation 14(a).
14. In principle I find the claimant's approach more appealing. If the other view is correct. If the tribunal were correct then there is no point at all in having paragraph 14(a) because every possible case would be covered by paragraph 7 (which applies regulation 14(a)). Had it been the
drafting intention to achieve this, then paragraph 14 could have included a similar reference to that included in paragraph 7. It does not. Finally, paragraph 14 is, word for word, the same as paragraph 9 of Schedule 1 to the 1987 regulations, which it replaced on 7th October 1996 (see below). The 1987 regulations were drafted many years before incapacity benefit, the all work test or Part
XIIA were gleams in the Departmental eye. Neither on 7th October 1996 nor since then has any amendment been made to the wording of what is now paragraph 14.
15. However, the Secretary of State relies on section 171A(l) of the 1992 Act, which provides that:
171A(1). For the purposes of this Act, save as otherwise expressly provided, whether a person is capable or incapable of work shall be determined in accordance with the provisions of this Part of this Act.
The argument is that this leads to regulation 14 of the 1995 regulations.
16. The 1987 regulations were restructured, and paragraph 9 of schedule 1 became paragraph 14 of schedule 1B on the implementation of the Jobseekers Act 1995 on 7th October 1996. This restructuring was carried out mainly by section 22 of and schedule 1 to The Income Support (General)(Jobseekers Allowance Consequential Amendments) Regulations 1996. These regulations were approved by resolution of each House of Parliament. They were made under a number of powers to make regulations, which were recited in the preamble to the regulations. These include:
(a) Section 40 of the Jobseekers Act 1995, which authorises the Secretary of State, amongst other matters, to "make such transitional provision, consequential provision or savings as he considers necessary or expedient for the purposes of or in connection with" the coming into force of any provision (b) Section 124(1)(e) of the Social Security Contributions and Benefits Act 1992 (see above), which was inserted into the 1992 Act by the 1995 Act (c) Section 137(1) of the Social Security Contributions and Benefits Act 1992, which defines "prescribed" in the 1992 Act as meaning specified in or determined in accordance with regulations.
17. Section 171A(1) was inserted into the 1992 Act on the introduction of incapacity benefit on 13th April 1995. It seems to me that it must be read subject to the later provisions of the Jobseekers Act 1995 and associated regulations, which came into force on 7th October 1996. Thus, I read paragraph 14 of Schedule 1B to the 1987 regulations as being free standing and not dependent on any other provision dealing with incapacity.
The Tribunal Decision and the Facts
18.The tribunal considered the facts in light of the stricter test in regulation 14(a) of the 19895 regulations. It found that, notwithstanding the claimant's earlier difficulties when she lost one of the twins, from July 1998 to 4th October 1998 there was no serious risk of damage to her health
or to that of her unborn child. It did not make alternative findings under paragraph 14(a). Accordingly, I must set aside its decision as having been made in error of law. In view of the medical evidence on the file, the age of this matter and the relative brevity of the disputed period, it is expedient that I substitute my own decision.
19. I accept the evidence given by the GP in the certificate of 7' March 1999/2 "d August 1999 and in the report of 22°d June 1999. In considering whether there was any serious risk, the tribunal was influenced by the fact that the claimant visited her sick mother and was not advised by her GP not to do so. Even assuming that this involved direct flights (6 weeks apart) to and from North Africa, I agree with the claimant's representative that the claimant's ability to undertake these is not much of an indication of any capacity to work. There was no other evidence to contradict that from the GP and accordingly I find that from 14th July 1998 to 11th October 1998 the claimant was incapable of work by reason of pregnancy. The other conditions being satisfied she would have been entitled to income support for the whole of that period had her claim been made in time. However, the claim for backdating with which this appeal is concerned was not made until 26th November 1998.
Backdating the Award
20. By virtue of the provisions of regulation 19(1) of and schedule 4 to the Social Security (Claims and Payments) Regulations 1987 the prescribed time for claiming income support is the first day of the period in respect of which the claim is made. Regulation 19(4) of those regulations permits that time limit to be extended up to a maximum period of 3 months where any of the circumstances specified in regulation 19(5) is satisfied and as a result the claimant could not reasonably have been expected to make the claim earlier.
21. Regulation 19(5)(d), as worded at the time of the claim for backdating, applied where:
(d) The claimant was given information by an officer of the Department of Social Security or of the Department for Education and Employment which led the claimant to believe that a claim for benefit would not succeed.
22. I have (in paragraph 5 above) found such facts as bring the case within regulation 19(5)(d). The decision on the claim for income support was made on 15`h October 1998 although I do not know when it was sent to, received by or seen by the claimant. At the time the decision was made she was already about seven months into a difficult pregnancy. In these circumstances, and in light of the history of this case, I have no doubt that the claimant could not reasonably have been expected to make the backdating claim earlier than when it was made. However, the award can only be backdated to a date three months before the claim for backdating was made on 26th November 1998.
23. For the above reasons this appeal succeeds to the extent indicated above.
Commissioner 25th October 2001