CDWA/OO1/92
The Office of Social Security and Child Support Commissioners
 
SOCIAL SECURITY ACTS 1975 TO 1990
SOCIAL SECURITY ADMINISTRATION ACT 1992 CLAIM FOR DISABILITY LIVING ALLOWANCE 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
[ORAL HEARING]
SUPPLEMENTAL DECISION 

1. This decision is supplemental to a decision dated 27 April 1994, given by me on this file, in which I dismissed the adjudication officer's appeal against a decision of a social security appeal tribunal dated 27 August 1992. The tribunal allowed an appeal from a decision of an adjudication officer as follows,
"……… at the date of claim, 18 May 1992, and subsequently, [the claimant] has been in receipt of a training allowance which for [disablement working allowance] purposes is not to be regarded as being a wage for work done. Therefore [the claimant] cannot be said to be engaged in remunerative work which is a qualifying condition for [disablement working allowance]."
At the relevant time, the claimant, a young man, was a trainee at the Bank of England.

2. Following the issue of my decision of 27 April 1994 I received correspondence from the claimant's mother complaining about the implementation of my decision. I asked for a submission from the adjudication officer which was made on 16 December 1994, on the understanding that, though the Commissioner had already given his decision, the circumstances 
of the case were somewhat exceptional. I quote from that submission below. I directed an oral hearing which took place on 21 March 1995. Neither the claimant nor his mother who had represented him were able to be present at the hearing but the adjudication officer was represented by Miss N Yerrell of the Office of the Solicitor to the Departments of Health and Social Security. I am indebted to Miss Yerrell for her assistance to me at the hearing.

3. The adjudication officer's submission of 16 December 1994 refers to my decision of 27 April 1994 and then continues,
"Following the Commissioner's decision, DWA was awarded [on 25 July 1994] for 26 weeks from 19 May 1992 to 16 November 1992 and arrears of benefit paid on 25 July 1994. The claimant made a further claim for DWA on 18 August 1994 which was intended to be a claim from 17 November 1992. In effect this claim was therefore a renewal claim for DWA. The prescribed time for making a renewal claim is set out in paragraph 11(a) of Schedule 4 to [the Social Security (Claims and Payments) Regulations 1987 i.e.]
'(a) where disability working allowance has previously been claimed and awarded the period beginning 42 days before and ending 14 days after the last day of that award of disability working allowance;'
This renewal claim is therefore clearly outside the prescribed time for claiming. Under regulation 19(2) the prescribed time can be extended where the claimant has shown good cause for the delay for a period ending on the date of claim. This extension is however limited by regulation 19(4) so as to prevent entitlement for any period more than 12 months before the date of claim. As the original award of DWA by the SSAT had been suspended by the Secretary of State pending the outcome of the [adjudication officer's] appeal to the Commissioner, the [adjudication officer] decided that the claimant had shown good cause for the delay in making a renewal claim. The prescribed time was therefore extended but potential entitlement limited to 18 August 1993, this being the date 12 months before the date of claim. Having thus extended the prescribed time, regulation 6(3) provides that the claim:- 
'………… shall be treated as made on the first day of the period in respect of which the claim is ... timeously made.' 
In this case the claim was treated as made on 18 August 1993. It is important to establish this date as the conditions of entitlement set out in section 129 of the Act must be satisfied '…… when the claim for it [DWA] is made or is treated as made –'.
Enquiries revealed that on 18 August 1993 the claimant was still with the Bank of England. However, despite the Commissioner's decision, the [adjudication officer] decided that – 
'…… the claimant was not entitled to Disability Working Allowance on the date of claim, 18/08/93 because the claimant was not in paid work for at least 16 hours a week.' 
This decision was notified to the claimant on 20 October 1994 and an appeal was lodged. The appeal was taken as an application for review of the disallowance but no decision has yet been given on the application. I respectfully submit that there are two issues here;
(1) entitlement to DWA arising from the decision of the Commissioner dated 27 April 1994;
(2) entitlement to DWA based on the claim made on 18 August 1994;
Entitlement to DWA arising from the decision of the Commissioner dated 27 April 1994.
To be entitled to DWA, the claimant must satisfy various conditions when the claim was made or treated as made. These conditions are set out in section 129(1) of the [Social Security Contributions and Benefits Act 1992]. The sequence of appeal to the SSAT and then the Commissioner all stemmed from the original claim made on 18 May 1992 and considered whether one such condition, namely whether the claimant was or was not in remunerative work, was fulfilled. The Commissioner's decision dated 27 April 1994 that the claimant was in remunerative work therefore related back to that original claim and entitled the claimant to an award from that date under section 129(6) of the Act an award of DWA can be for no more than 26 weeks. Although regulation 17(1) does allow for indefinite awards in some circumstances it is expressly subject to various named provisions, including Section 129(6). I submit therefore that, on the claim made on 18 May 1992, it is only possible to award DWA for 26 weeks beginning with that date. DWA has been awarded from 19 May 1992 to 16 November 1992.
  
Entitlement to DWA based on the claim made an 18 August 1994.
Since there is no provision for an indefinite award of DWA, I submit that any entitlement subsequent to 16 November 1992 must be triggered by another claim. In this case there is no other claim apart from the one made on 18 August 1994. Although regulation 19(1) and paragraph 11(a) of Schedule 4 does allow some flexibility in making renewal claims, the claimant's second claim was a long way outside the boundary of this. As has been said earlier, the time limit for claiming can be extended under reg 19(2) where good cause has been shown, subject to the 12 month overall limitation on entitlement provided by reg 19(4). The earliest possible date of entitlement based on this second claim is therefore 18 August 1993 continuing to 15 February 1995 (26 weeks after the date of claim). As the claimant's circumstances had not changed since the original claim, and having regard to the Commissioner's decision dated 27 April 1994, the [adjudication officer] clearly erred in law in deciding that the claimant had failed to satisfy the remunerative work test. I submit therefore that it would be possible for the adjudication officer to review this decision under section 30(1) of the Social Security Administration Act 1992 so as to give entitlement to DWA from 18 August 1993. The claimant's position with the Bank of England was due to terminate on 11 September 1994 but on his renewal claim he indicated he had started new employment on 25 July 1994. It is not clear whether there was a period of non-employment between him leaving the Bank of England and starting his new job. The [adjudication officer] will need to establish this and further consider whether the employment from 25 July 1994 enables an award of DWA to be made." (Paragraphs 3-14 of the adjudication officer's submission).

4. I must at this point consider to what extent I have any jurisdiction to deal with the matters raised in the adjudication officer's above-cited submission. Miss Yerrell asked me to deal with the question of jurisdiction. The Commissioner has, under section 23 of the Social Security Administration Act 1992, jurisdiction to consider and decide whether "the decision of the [social security appeal] tribunal was erroneous in point of law." s.23(1)). My decision of 27 April 1994 on this file was of course in exercise of that jurisdiction. On giving his decision the Commissioner is then normally functus officio and any further proceedings will have to lie either by way of review by an adjudication officer or in appropriate cases appeal to the Court of Appeal. Nevertheless, in my view, the Commissioner does have the power to enquire as to the implementation of a decision that he has given particularly where a complaint is made by one of the parties that that decision has not been properly implemented. In addition, a Commissioner can, as in this case, give a supplemental decision, whether or not his original decision envisaged that this might be done. The supplemental decision can only supplement the original decision. It cannot, of course, subtract from it or vary it.

5. This supplemental decision is intended to explain the results of the enquiries that I have made into the implementation of my original decision on this file. In fact, the result of those enquiries is to show that the Department has implemented my decision fully because of the limitation on an award of disablement working allowance to a maximum period of 26 weeks, by section 129(6) of the Social Security Contributions and Benefits Act 1992. Therefore my decision was fully implemented 
"The Bank's Youth Training Programme is under the control of the local Training and Enterprise Council ['TEC'] called CLINTEC who are themselves contracted to the Employment Department. They say CLINTEC had no regard to section 2 of the Employment and Training Act 1973 [the section involved in Commissioner's decision R(FIS) 1/83]. CLINTEC fund the project to the value of £46 per week and the bank make this up to £100 per week, in the claimant's case. No tax or national insurance is deducted from this money. There is no guarantee of a job with the Bank at the end of their training period. The 'Team Members Brief' says that an aim of Youth Training is;
'To give young people the opportunity to gain a recognised vocational qualification through a planned programme of work experience and training i.e. a qua1ification which a prospective employer will accept and which shows what work the trainee can do and how good they are at it.' The money paid to trainees is described as an allowance and travel expenses, not a wage. People on Youth Training are regarded as trainees and not employees of the Bank. Trainees have no right to severance/redundancy terms."

12. I should of course bear in mind that I cannot deal with new matters of fact unless I hold the original tribunal's decision to be erroneous in law (section 23 of the Social Security Administration Act 1992). Nevertheless it seems that the original tribunal did in fact have adequate factual evidence on which it could act and that there is no error of law in their not having obtained the further factual evidence which I have now obtained. It is clear incidentally from that further factual evidence that the claimant and those with him on the training scheme are in fact required to work in a meaningful way in the Bank, particularly after they have been on the training scheme for a while. There are many aspects of their conditions of the training scheme which are closely analogous to those relating to an ordinary employee eg. as to health and safety, grievances, discipline, necessity to submit medical evidence if away ill, need to be punctual and keep working hours.

13. After the second hearing (on 3 March 1994) and as a result of researches by me, I issued a further Direction as follows,
"Regulation 6(3) of the Disability Working Allowance (General) Regulations 1991 provides:- 
'A person who otherwise satisfies all the requirements of paragraph (1) [definition of remunerative work] shall not be treated as engaged in remunerative work if he is engaged by a charitable or voluntary body or is a volunteer where the only payment received by him, or due to be paid to him, is a payment which is to be disregarded under ... paragraph 2 of Schedule 3 (sums to be disregarded in the calculation of income other than earnings).'
Paragraph 2 of Schedule 3 to the 1991 Regulations refers to: 
'Any payment in respect of any expenses incurred by a claimant who is – 
(a) engaged by a charitable or voluntary body; or 
(b) a volunteer if he otherwise derives no remuneration or profit from the employment …… ' 
Is the inference from these provisions that a person receiving only a 'payment in respect of expenses' can nevertheless be regarded as in remunerative employment, unless expressly excepted by regulation 6(3) of the 1991 Regulations? (cf. R(FC) 2/90.)?" 

14. In response to that submission, the adjudication officer in a further written submission dated 16 March 1994 submits as follows,
"I cite the provisions of regulation 21 of the [Disability Working Allowance (General) Regulations 1991] which defines what earnings are for the purposes of disability working allowance. Regulation 21(1)(d) provides that earnings include:
'any payment made by the claimant's employer in respect of any expenses not wholly, exclusively and necessarily incurred in the performance of the duties of the employment, including any payment made by the claimant's employer in respect of – 
(i) travelling expenses incurred by the claimant between his home and place of employment;
(ii) not applicable;'
Such expenses are quite clearly then, earnings. In principle, once a person has satisfied all of regulation 6(1) of the General Regulations, there is no reason, unless regulation 6(3) of the General Regulations applies, that a person only receiving such expense payments in their employment, could not be considered as in remunerative work. In [the claimant's] case, however, I submit that this principle does not apply. There is no dispute that he receives travelling expenses from the Bank of England. However, he does not, I submit, have an employer, nor is he in employment. The expenses are therefore not paid by his employer, they are paid by the training provider. They are paid simply to enable him to attend the training course. He is on a training scheme run under the direct control of the local Training Enterprise Council [TEC]. Neither the expenses nor the training allowance are in any way a 'quid pro quo' for the work done. He is being trained with a view to obtaining a vocational qualification which would help him to get a job with a prospective employer. It is clear that the Bank do not regard themselves as his employer. The expenses he has paid cannot therefore be said to be connected with employment." 

15. In fact regulation 6 of the Disability Working Allowance (General) Regulations 1991 dealing with the requirement for a person to be "treated as engaged in remunerative work" (regulation 6(1)) does not require the receipt of "earnings" as an element of being "treated as engaged in remunerative work". However I accept that the definition of "earnings" in regulation 2l(1)(d) is an indication of "remunerative work" and I also accept the adjudication officer's submission that the mere payment of travelling expenses (other than in cases of engagement by a charitable or voluntary body or volunteer) could constitute "earnings". 
16. As to the point made by the adjudication officer that the claimant is nevertheless not an employee nor engaged in employment, this arises from the requirement of regulation 6(1)(c) that a person shall be "employed at the date of claim and satisfies the requirements of paragraph (5) [relating to expected future work]." However, that requirement must be read in the context of the whole of regulation 6(1) which, as in force at the relevant time, read as follows:-
"6(1) Remunerative work
For the purposes of [disability working allowance] ... For a person shall be treated as engaged and normally engaged in remunerative work; 
(a) where - 
(a) the work he undertakes is for not less than 16 hours per week;
(b) the work is done for payment or in expectation of payment; and 
(c) he is employed at the date of claim and satisfies the requirements of paragraph (5)."

17. It is clear that the word "employed", is not confined to contracts of employment, in the narrow sense connoted by the 'master and servant' relationship, (see definition of "employment" and "employed" in section 122(1) of the Social Security Contributions and Benefit Act 1992). In R(FC) 2/90 it was held that, despite the fact that there was no contract of employment as such between a Salvation Army Officer and the Army, nevertheless that officer was "engaged in remunerative work". It was not therefore strictly necessary for the tribunal in this case to consider whether or not there was a contract of employment (in the narrow sense) between the claimant and the Bank of England. In all other respects, I affirm the tribunal's reasoning as being correct, including their distinguishing of R(FIS) l/83, though I would add that I consider that the claimant's work was not only possibly done "in expectation of payment" but was also in my view done for present payment.

18. Lastly, I deal with a point made by the adjudication officer in paragraph 4 of a written submission dated 8 November 1993, in which he states,
"In support of my contention that this is a training 
allowance, I draw the Commissioner's attention to regulation 2(1) of the Family Credit (General) Regulations 1987, where it says,
…… [see para. 18 below]".

19. I note however that the definition of "training allowance" thus referred to also occurs in the Disability Working Allowance (General) Regulations 1991, the definition being inserted in regulation 2(1) of those Regulations by Amendment Regulations, S.I. 1992, No. 2155 with effect from 5 October 1992. The detailed definition of "training allowance" clearly does include the kind of allowance that is paid by the Bank to the cla1mant in this case. However, it would appear that that definition was inserted because of an amendment in the definition in regulation 41 of the 1991 Regulations of the word "student", also inserted by SI 1992 No. 2155. The amended definition starts, "'student' means a person, other than a person in receipt of a training allowance ……" (my underlining). By thus excluding a person in receipt of a training allowance from the disqualification that would otherwise attach to a person who was a "student", it appears to me that the Regulations reinforce the view that I have taken that the claimant were not to be treated as if he were a "student" (compare R(FIS) 1/86) and is indeed to be treated as "engaged in remunerative work". 
  
(Signed) M.J. Goodman
Commissioner