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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14 of the Social Security Act 1998. It is:
The decision of the Bournemouth appeal tribunal under reference U/03/185/2004/01385, held on 6 January 2005, is not erroneous in point of law.
Contribution-based incapacity benefit
2. The claimant became incapable of work as a result of chronic fatigue syndrome and was paid statutory sick pay until 15 January 2003. She claimed incapacity benefit on 16 January 2003, but this was refused on 17 February 2003 on the ground that she did not satisfy the contribution conditions. She was, though, awarded national insurance incapacity credits.
Incapacity benefit in youth
3. The contribution conditions place young claimants at a disadvantage. Section 30A of the Social Security Contributions and Benefits Act 1992 addresses this problem. It provides an alternative basis for entitlement that bypasses the contribution conditions.
4. Section 30A(1) provides:
‘(1) Subject to the following provisions of this section, a person who satisfies-
(a) either of the conditions mentioned in subsection (2) below; or
(b) if he satisfies neither of those conditions, each of the conditions mentioned in subsection (2A) below,
is entitled to short-term incapacity benefit in respect of any day of incapacity for work (“the relevant day”) which forms part of a period of incapacity for work.’
5. Section 30A(2) provides for entitlement (a) based on contribution conditions and (b) for those over pensionable age. Section 30A(2A) provides:
‘(2A) The conditions mentioned in subsection (1)(b) above are that-
(a) he is aged 16 or over on the relevant day;
(b) he is under the age of 20 or, in prescribed cases, 25 on a day which forms part of the period of incapacity for work;
(c) he was incapable of work throughout the period of 196 consecutive days immediately preceding the relevant day, or an earlier day in the period of incapacity for work on which he was aged 16 or over;
(d) on the relevant day he satisfies the prescribed conditions as to residence in Great Britain, or as to presence there; and
(e) he is not, on that day, a person who is receiving full-time education.’
Entitlement under section 30A(2A) is known as incapacity benefit in youth.
6. As the claimant was born on 20 May 1982, I need to deal with the provision that extends section 30A(2A)(b) to the age of 25. That regulation is regulation 15(2)(a) of the Social Security (Incapacity Benefit) Regulations 1995, which extends the age to 25 for a claimant who was
‘(a) registered on a course of
(i) full-time advanced or secondary study, or
(ii) vocational or work-based training,
at least 3 months before he attained the age of 20 years’.
7. The claimant was sent a form to complete in case she might be entitled to ‘incapacity benefit in youth’. Although the form was sent to her in March 2003, she did not complete and return the form until February 2004. She asked for her entitlement to be considered from 30 July 2003.
8. The Secretary of State treated entitlement to ‘incapacity benefit in youth’ as requiring a separate claim. Her ‘claim’ was initially refused on the ground that she was not in full-time education. The submission to the appeal tribunal invited the tribunal to substitute a different decision. That decision refused the claim for the inclusive period from 30 July 2003 to 24 November 2003 on the ground that it was not made within the three month time limit for making a claim. It then refused the claim on and from 25 November 2003 on the ground that the claimant was not in full-time education. The tribunal adopted the proposed decision. I gave the claimant leave to appeal to a Commissioner.
Is a separate claim always necessary for incapacity benefit in youth?
9. No. I accept the Secretary of State’s submission on this issue, which is as follows.
10. The need for a claim is governed by section 1 of the Social Security Administration Act 1992. Section 1(1) provides that a claim is a condition of entitlement for ‘any benefit’ ‘Benefit’ is defined by section 1(4)(a) as including any benefit as defined by section 122 of the Social Security Contributions and Benefits Act 1992. That definition includes benefits under Parts II to V of that Act. The incapacity benefit provisions fall within Part II.
11. But is incapacity benefit in youth a separate benefit from incapacity benefit so that it necessarily requires an additional claim? The answer is found in the wording of section 30A. It does not create incapacity benefit in youth as a separate benefit. What it does is to create a separate set of conditions on which incapacity benefit can be awarded for those whose incapacity began in youth.
12. For some purposes an application for some forms of entitlement is treated as a claim for benefit although it is not in law a separate benefit. See the definition of ‘claim for benefit’ in regulation 2(1) of the Social Security (Claims and Payments) Regulations 1987. However, incapacity benefit in youth is not included in that definition.
13. The effect of this reasoning is that a claim for incapacity benefit includes a claim for incapacity benefit in youth. If a claimant has claimed incapacity benefit, it is not necessary to make an additional and separate claim for incapacity benefit in youth. It may be necessary to complete a further form in order to provide the information relevant to that basis of entitlement. But that form will not be a separate claim.
How does the reasoning so far apply to this case?
14. The claimant made a claim for incapacity benefit on 16 January 2003. That claim included a claim for incapacity benefit in youth. When it was refused on 17 February 2003, that refusal covered all bases of entitlement.
15. If the claimant had been able to show that she was entitled to incapacity benefit in youth on or before 17 February 2003, the decision refusing the claim could have been revised. However, the claimant did not do that. She only asserted entitlement on the basis of incapacity benefit in youth from 30 July 2003. If she did satisfy the conditions from that date, it would be a change of circumstances after the date of the refusal of the claim. The claim had ceased to exist by virtue of section 8(2) of the Social Security Act 1998. The claimant could only establish entitlement to incapacity benefit, on the in youth or any other basis, by making a new claim.
16. So, in the circumstances of this case, the form submitted in February 2004 could only take effect as a new claim for incapacity benefit.
Is it possible to extend the time for making the claim?
17. No. I accept the Secretary of State’s submission on this issue. The claimant has attributed her delay in claiming to being wrongly advised that she was not entitled. Even if that assertion were true, it would not assist the claimant. The time for claiming incapacity benefit is governed by regulation 19(1) of, and paragraph 2 of Schedule 4 to, the Social Security (Claims and Payments) Regulations 1987. That allows three months for a claim to be made. There is no provision for extending that time, whatever the circumstances.
Was the claimant registered on a full-time course?
18. There is no definition of what constitutes a full-time course for the purpose of regulation 15(2)(a)(i). There is a definition in regulation 17, but that is only for the purposes of section 30A(2A)(e). The issue is therefore one of fact. Unlike in other provisions, the issue is not whether the claimant attends full-time or receives full-time education. The issue is whether the course for which she is registered is full-time.
19. The tribunal found that it was part-time. Did it go wrong in law in making that finding?
20. The College described the course as part-time. That fact is significant, but not necessarily decisive. Two other facts are also relevant. The claimant was required to attend college for one day a week. And she was expected to undertake private study of 8 to 10 hours a week.
21. In addition to the study, the claimant was required to undertake 60 hours of work experience over the period of the course. This was not organised for the claimant by the College. She spent time with two organisations in order to gain this experience. The terms on which she was engaged were employment terms. There as an element of supervision and training included, but that is not unusual in, or incompatible with, an employment relationship.
22. In conclusion, I consider that the tribunal was entitled to find that the claimant was not registered on a full-time course. It was entitled to disregard the work experience. It was essential to, but not part of, the course. As to the tuition and study at the College, the claimant may well have been expected to attend for tuition, and to do as much private study, as on a full-time course. The only difference would be that the tuition was compressed into a single day. However, that is how it was organised. With the emphasis on the course for which the claimant was registered, I consider that the tribunal was entitled to find as it did.
Was the claimant involved in vocational or work-based training?
23. The claimant’s representative has raised this issue in response to the Secretary of State’s observations. The argument is that the training the claimant received while she was on work experience came within regulation 15(2)(a)(ii). This is an alternative to regulation 15(2)(a)(i).
24. The work experience that the claimant undertook during the period of the work was not vocational training. This is defined by section 30C(6) of the Social Security Contributions and Benefits Act 1992. That refers to training under statutes that are not relevant to this case. The definition is extended by regulation 3 to include ‘any training received on a course which a person attends for 16 hours or more a week, the primary purpose of which is the teaching of occupational or vocational skills.’ The argument by the claimant’s representative overlooks the importance of the word ‘course’. The tribunal found, and was entitled to find, that the course and the work experience were separate. The training that the claimant received while on work experience was not received ‘on a course’.
25. Nor was the work experience work-based training. This is defined in regulation 15(5) as ‘vocational training undertaking on the premises of an employer’. The argument by the claimant’s representative overlooks the opening words of regulation 15(2)(a). The claimant had to be ‘registered on a course’. The College course required her to gain experience, but this was a matter for her. The claimant was not registered with the College to provide it. And the arrangement with the organisation for whom the claimant worked was not registration on a course. The tribunal found, and was entitled to find, that she was simply employed.
26. The claimant’s representative has put before the appeal tribunal and before me every argument that is sustainable on the evidence before the tribunal. The tribunal rejected those arguments. I accept the Secretary of State’s submission to me that the tribunal did not go wrong in law. I, therefore, dismiss the appeal.
Signed on original
on 05 July 2005 Edward Jacobs