HL/CW/IW
THE SOCIAL SECURITY COMMISSIONERS

				Commissioner’s Case No:	CIB/4090/1999

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER H LEVENSON

1.	This appeal brought by the adjudication officer (and subsequently taken up by the Secretary of State) succeeds.  In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision made by the social security appeal tribunal on 12 October 1998 as having been made in error of law.  I substitute my own decision.  This is to the effect that in each of the weeks commencing Sunday 22 February 1998 and ending on Saturday 23 April 1998 the claimant is to be treated as capable of work and (accordingly) not entitled to incapacity benefit.  In respect of the week prior to the commencement of that period, and the weeks subsequent to that period and ending on 6 June 1998 I remit to the Secretary of State the question as to whether the claimant is to be treated as capable of work during those weeks.  Any such decision by the Secretary of State is to be taken in accordance with my decision.  However, since I understand that the payment of benefit was not suspended in this case and there is no question of recoverability, the Secretary of State might decide that it is appropriate not to make any further decision in relation to those weeks.

2.	The claimant was born on 24 June 1946.  He had mental health problems from about 1993.  During the relevant period the claimant was living in an institution which provides sheltered work for people with disabilities.  So far as concerns the present appeal, the claimant was certified as incapable of work in 1994 and subsequently received invalidity benefit, which was replaced by incapacity benefit from 13 April 1995.  The claimant had been doing some voluntary work at the institution, to which I shall refer as “the Centre”.  From Monday 23 February 1998 he started doing some paid work at the Centre.  This was administrative work, mainly light office duties and some receptionist duties.  He was paid at the rate of £3.25 hourly, which is the rate which would have been paid to any person doing that job, and worked on Mondays to Fridays, for up to 15 hours each week.  The last day on which he did such work was 12 June 1998.  I accept as accurate the schedule of hours worked and amounts paid which has been provided by the Centre and is reproduced on page 9 of the bundle of papers.  However, the weeks as defined in that schedule end on varying days of the week.  The regulations require that consideration be given to a week commencing on Sunday and ending on Saturday.  For some of the weeks listed on the schedule, this is not possible, and that explains the form of my decision in paragraph 1 above.  If necessary, the Secretary of State will have to seek further information from the Centre.  

3.	Regulation 16(1) of the Social Security (Incapacity for Work) (General) Regulations 1995 provides that, subject to certain exceptions, a person shall be treated as capable of work on each day of any week commencing on Sunday during which he does work to which the regulation applies.  Regulation 16(2) provides that the regulation applies to “any work which a person does...whether or not he undertakes it in expectation of payment, apart from care of a close relative or domestic tasks carried out in his own home”.  The main exception, and the one relevant in the present case, is work which falls into any of the categories of exempt work set out in regulation 17(1) and is done within the limits set out in regulation 17(2).  

4.	The relevant provisions of regulation 17 are as follows:-

	“17.-(1)	The categories of exempt work referred to in regulation 16(1)(a) are -

	(a)	work undertaken on the advice of a doctor which -

		(i)	helps to improve, or to prevent or delay deterioration in, the disease or bodily or mental disablement which causes that person’s incapacity for work; or

		(ii)	is part of a treatment programme and is done under medical supervision while that person is an in-patient or regularly attending as an out-patient of a hospital or similar institution; or

		(iii) is done while that person is attending an institution which provides sheltered work for people with disabilities;

	(b)	...

	(c)	...

	(2)	The weekly limits in relation to exempt work are -
	(a	that earnings from work referred to in paragraph (1)(a) do not exceed £48.00;
	(b)	that, subject to paragraph (3), the combined total of the number of hours spent doing work referred to in paragraph (1)(a)(i) or (b) is less than 16; ...
5.	On 17 July 1998 the adjudication officer decided that the claimant had worked, the work did not fall into an exempt category, that he is therefore treated as capable of work on each day of the week from and including 23 February 1998 and accordingly was no longer entitled to incapacity benefit from that date.  On 28 July 1998 the claimant appealed to the social security appeal tribunal against the decision of the adjudication officer.  Apart from the matters which concerned the tribunal and the matters raised in the appeal before me, it seems to me that the adjudication officer was in error in not putting a closing date on the effect of the decision, which was made after the claimant had finished doing the relevant work.  Regulation 16(1) can only operate in respect of periods during which the claimant is doing work to which the regulation applies and which does not come within one of the exceptions.  Unless and until entitlement to benefit is reviewed on other grounds, the claimant continues to be entitled to incapacity benefit during such periods as regulation 16(1) does not operate.
6.	The tribunal considered the matter on 12 October 1998.  It allowed the appeal and found that the work undertaken by the claimant came within regulation 17(1)(a)(iii).  That finding of fact has not been challenged in the proceedings before me and I adopt it.  However, the tribunal then went on to consider the hours worked by the claimant, calculated an average working week as being just over 15 hours, and made no reference to the earnings.  In fact, it was unnecessary to consider the question of the number of hours worked.  It is clear from the wording of regulation 17(2)(b) that the restriction of the number of hours that can be worked for the exception to operate, does not apply to work that comes within regulation 17(1)(a)(iii).  However, the tribunal made a clear error of law in its failure to consider the amount of earnings, as required by regulation 17(2)(a).  I observe at this stage that the earnings limit was set at £48 with effect from 6 April 1998.  Prior to that the earnings limit was £46.50 weekly.  That change does not affect the calculations in the present case.  (I also observe that from 1999 there was a dramatic increase in the earnings limit to £58).
7.	On 1 December 1998 the adjudication officer took a peculiar and improper course of action.  He wrote to the tribunal chairman explaining why he disagreed with the decision of the tribunal.  He then wrote:
	“If you agree with this, the next question is how can the situation be corrected?  Referral to the Social Security Commissioner takes about two years and there is no guarantee they will take the case.  I have discussed setting aside with a full time chairman at Cardiff, but the common view is sustaining it may be difficult.
	The other option is I review the decision of the Social Security Appeal Tribunal under the Social Security Administration Act 1992, section 25, because the decision was based on a mistake as to a material fact.  The mistake being the tribunal did not consider all the evidence before it, namely the earnings question.
	Before I decide which course to take I seek your views.  Review seems most appropriate.  Due to time constraints, would you kindly reply as quickly as possible?”
There are avenues properly open to a party who disagrees with the decision of the tribunal.  These are referred to in the adjudication officer’s comments.  However, it is not proper for one party to write to the chairman of the tribunal asking him to disagree with the decision made by the tribunal and to give legal advice on what is to happen next.  Adjudication officers have their own sources of advice.  If this adjudication officer wanted leave to appeal to the Social Security Commissioner, then the correct procedure would have been to make an application for such leave.  
8.	Perhaps more surprisingly the chairman of the tribunal actually replied to the adjudication officer indicating that the tribunal had averaged the hours worked and suggesting that this could also be done with the earnings.  “I believe this matter should be referred to the Commissioner for verification if the appeal continues and a copy of this letter should be included in the papers.  I regret that the actual decision notice did not make this clear, but you will appreciate that the tribunal was expected to cover 12 paper hearings in 1 session and full decisions are not given in these cases”.  It should hardly need stating that the tribunal has to stand by what is written in the full statement (which was in fact given in this case) and the chairman of the tribunal should not elaborate on this in private correspondence of one of the parties.  In the event, the adjudication officer did apply for leave to appeal to the Social Security Commissioner against the decision of the tribunal and the chairman granted leave on 5 May 1999.
9.	I accept the adjudication officer’s argument that it would not have been appropriate to average the claimant’s earnings during the period.  It is clear that the weekly earnings limit has to be taken into account.  Regulation 3 of the Social Security Benefit (Computation of Earnings) Regulations 1996 provides that for the purposes of Part II to V of the Social Security Contributions and Benefits Act 1992 and of any regulations made thereunder “the earnings of a claimant shall be calculated by determining in accordance with these Regulations the weekly amount of his earnings”.  Incapacity benefit is dealt with in Part II of the 1992 Act.  Regulation 8(1) provides that for the purposes of calculation of earnings of employed earners, where the period in respect of which a payment is made does not exceed a week, the weekly amount shall be the amount of that payment.  This is subject to other provisions which do not apply in the present case.  Accordingly, at least so far as the claimant’s entitlement to incapacity benefit is concerned, his position under the provisions of regulation 16 and 17 must be considered on a week by week basis for the purposes of deciding whether the earnings limit has been exceeded.

10.	It is nearly two years since the adjudication officer’s decision was made, the basic facts of the case are not in dispute and it is expedient that I substitute my own decision to the effect indicated in paragraph 1 above.  

					(Signed)	H Levenson
							Commissioner

					(Date)	5 June 2000