CIS/2075/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I admit the claimant’s late application for consideration, I grant leave to appeal and I allow the appeal.  I set aside the decision of the Whittington House appeal tribunal dated 18 June 2001 and I substitute a decision that the decision of 12 June 2000 awarding the claimant income support from 1 May 2000 (subsequently upheld by a tribunal on 5 September 2000) does not fall to be revised and the claimant remains entitled to income support from 1 May 2000.  I leave to the Secretary of State the calculation of the amount of benefit to which the claimant is entitled since payment ceased.

REASONS

2.	I accept the Secretary of State’s submission that I should find special reasons for admitting the late application due to confusion arising in the tribunal’s post-hearing procedure when a chairman treated an application for setting aside as an application for leave to appeal.  There was some further delay but, in all the circumstances, including the fact that there is some evidence that the claimant has suffered from depression, I am satisfied that the application should be admitted.  I grant leave to appeal because the application plainly raises a point of law.  Both parties have given their consent to my treating the application as the appeal.  Since receiving the parties’ submissions, I have had the advantage of seeing the file in an appeal concerning incapacity “credits” brought before another Commissioner by the same claimant (CIB/3919/02) and, even more helpfully, two tribunal files attached to that file.  The documents in those files have helped me to piece together the early history of this case and explain how the problems revealed on this appeal arose but, in view of the consensus as to the outcome there should be in this case, I have not troubled the parties with those documents.

3.	Although incapacity for work is a ground upon which a person may be entitled to income support (paragraph 7 of Schedule 1B to the Income Support (General) Regulations 1987), the question whether a person is, or is to be treated as, incapable of work is in practice always, or almost always, determined in the context of a claim for incapacity benefit or for “credits” and that determination is then applied afterwards to the income support claim.  This practice arises from the way what used to be the Benefits Agency is organised and it is permissible under the legislation, which provides that one incapacity determination is conclusive for the purposes of other such determinations (regulation 10 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999).  It follows that, if a person wishes to challenge a decision disallowing income support on the ground that he or she is capable of work, and wishes to do so on the ground that he or she is in fact incapable of work, the challenge must be made to the incapacity benefit or “credits” decision rather than to the income support decision.  While an appeal against an incapacity decision is pending, the claimant may remain entitled to income support under paragraphs 24 to 27 of Schedule 1B to the 1987 Regulations but, where paragraph 25 applies, at a reduced rate by virtue of regulation 22A.

4.	In the present case, the claimant had been treated as incapable of work for the purposes of “credits” and, therefore, income support from 2 July 1999.  The decision in respect of “credits” was superseded with effect from 2 May 2000 following a personal capacity assessment in the light of new medical evidence in the form of a report dated 1 March 2000 from an examining medical officer.  The claimant “contested” the decision in a letter dated 4 May 2000 and the decision was “reconsidered”, but “not changed” on 11 May 2000.  On 17 May 2000, the claimant referred to a request to return his order book and asked for an indication of the law relied upon and the Benefits Agency replied on 30 May 2000.  By letter dated 1 June 2000 in which he referred to the “letter dated 30/5/00 explaining your decision to withdraw my Income Support”, the claimant purported to lodge an appeal against the decision dated 2 May 2000.  This led the Secretary of State, on 15 June 2000, to reconsider but not to change the decision of “11 May 2000”.  On 23 June 2000, the claimant purported to appeal against the decision dated 11 May 2000 in which he again referred to the letter of 30 May 2000.  On 29 June 2000, the Benefits Agency wrote to the claimant asking him to provide grounds for the appeal lodged on 1 June 2000.  No reply was received and on 23 July 2000 a further letter was sent to the claimant telling him that a tribunal chairman would be asked to decide whether the appeal was “duly made” and should be accepted.  On 26 October 2000, the clerk to the tribunal wrote to say that it had been confirmed that the appeal was not duly made and that no further action would be taken on the appeal.  

5.	Meanwhile, it appears that, because the letter of 1 June 2000 had referred to income support, it had rightly been taken to be also a decision appealing against a decision made on 4 May 2000 purporting to “review” the award of income support on the ground that it had been decided in relation to “credits” that the claimant was not incapable of work.  There was a further decision on 12 June 2000, awarding income support at the reduced rate from 1 May 2000 (the discrepancy of a day possibly being due to the date on which the relevant “benefit week” started) because, by the date of that decision, the appeal against the “credits” decision had been lodged.  The claimant appealed against the decision of 12 June 2000.  The Secretary of State submitted that the appeal was “misconceived” because it had “little chance of success”.  A chairman decided that that did not mean the appeal should be struck out but, on 5 September 2000, the appeal was dismissed.

6.	It was shortly after that that the appeal against the “credits” decision was held not to have been duly made.  That information was conveyed to those dealing with the claim for income support and, on 20 November 2000, the Secretary of State purported to revise the decision awarding income support so as to disallow income support with effect from 2 June 2000 on the ground that there had not been an appeal against the “credits” decision.  There has never, so far as I am aware, been any suggestion that benefit paid before 20 November 2000 is recoverable from the claimant.  I am not told why 2 June 2000 was taken as the date from which the decision should be effective and I need not consider the merits of that choice of date.

7.	On 18 November 2000, the claimant appealed against the decision revised on 20 November 2000 and he also wrote to the Appeals Service asking that the decision that his appeal against the “credits” decision had not been duly made and the decision of 5 September 2000 both be set aside.  After some correspondence, the clerk to the tribunal wrote to the claimant, on 22 February 2001, saying that “the chairman has reconsidered his decision on the Incapacity Benefit appeal and directed that the appeal is now valid”.  Thus, the “credits” appeal was reinstated.  The decision of 5 September 2000 was not set aside and the claimant has not pursued it further, so far as I am aware.  Instead, he pursued the new income support appeal but that got off to a bad start when it was struck out on 24 April 2001 on the ground that the claimant had not returned the enquiry form.  Two days later, it was reinstated, after the Appeals Service discovered that the claimant had in fact returned the enquiry form in January and there had been a “clerical error”.  With the enquiry form, the claimant had sent a letter dated 17 January 2001 referring to the fact that he was pursuing his other two cases. On 18 June 2001, the tribunal dismissed the income support appeal.  The claimant applied for the decision to be set aside, giving details of the pending “credits” appeal, about which he had written to the Appeals Service before the hearing, but to no avail.  He was simply refused leave to appeal.  He protested that he had not yet asked for leave to appeal and the correspondence continued in that vein for a while, before the claimant made the present application.  Meanwhile, on 2 August 2001, the “credits” appeal was heard and dismissed.  The claimant’s appeal against that decision, brought with the leave of a Commissioner, is the case on file CIB/3919/02 to which I have referred.

8.	The Secretary of State supports this appeal on the ground that the information that the “credits” appeal had been reinstated should have been before the tribunal.  It appears that the claimant’s letter dated 17 January 2001, referring to the matters the claimant was pursuing, was not placed by the clerk before the tribunal.  It was left in the tribunal file, stapled to the enquiry form, and therefore was presumably not copied to the Secretary of State either.  It is true that, at the time the letter was written, the “credits” appeal had not been reinstated, but had the tribunal checked on the Appeals Service computer at the time of the hearing, the fact that the appeal was pending again would have been confirmed.  It is also unfortunate that the sections of the Benefits Agency dealing with incapacity issues and with income support are quite so separate from one another so that the fact that the “credits” appeal had been reinstated was apparently not communicated to the income support section. I agree that the tribunal’s decision was erroneous in point of law and must be set aside.

9.	I also accept the Secretary of State’s submission that I should substitute my own decision for that of the tribunal.  Paragraph 25 of Schedule 1B to the Income Support (General) Regulations 1987, which is the relevant provision entitling the claimant to income support while his “credits” appeal is pending, applies until the final determination of the “credits” appeal.  It has been held in CIS/2654/99, following CIS/210/94, that an appeal is finally determined until any application for leave to appeal or appeal to a Commissioner has been determined.  The legislation implies that benefit will be paid in respect of a period between a decision being given and an appeal being brought – at any rate if the appeal is not late or is admitted despite its lateness – and it seems to me that the same approach must be taken if an appeal is rejected as not being duly made and is then reinstated.  Consequently, I agree with the Secretary of State that, in the present case, the claimant has remained entitled to income support ever since the decision was made that he was not incapable of work (subject, of course, to him satisfying the other conditions of entitlement and not having too much income).

10.	Deciding on the claimant’s underlying entitlement is relatively easy.  The difficult issue in this appeal is deciding whether the claimant can be awarded the benefit to which, prima facie, he is entitled, given the procedural hurdles placed in my way by the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  The question is: if lodging an appeal against an incapacity determination or having one reinstated retrospectively affects entitlement to income support, what is the ground for back-dating a claim or for revision or supersession and from what date is the supersession, if it be supersession, effective ?  By chance, there is a way out of the dilemma in this case but those responsible for suggesting amendments to the 1999 Regulations may wish to consider whether the Regulations adequately cater for decision-making under paragraphs 24 to 27 of Schedule 1B to the 1987 Regulations.

11.	The solution in the present case arises because I am told that the decision of 20 November 2000 under appeal to me was the result of a revision of the decision of 12 June 2000.  No appeal lies against a revision but an appeal does lie against a revised decision and must be allowed if the decision should not have been revised.  Quite apart from the fact that I am unclear as to what the grounds of revision may have been, the decision of 12 June 2000 had been upheld by a tribunal on 5 September 2000 and it was therefore the tribunal’s decision that governed entitlement and had to be replaced if entitlement was to cease.  Judging from the submission made to the tribunal, the decision made on 20 November 2000 was made in ignorance of the tribunal’s decision but, in any event, there was no power under section 9 of the 1998 Act to revise a tribunal’s decision.  Consequently, it seems plain that there should have been no revision in the present case.  By virtue of section 12(8)(a) of the 1998 Act, I need not consider whether the tribunal’s decision should have been superseded under section 10 of that Act in the light of the situation as it stood on 20 November 2000 and what might be done in the light of the subsequent reinstatement of the “credits” appeal given section 12(8)(b).  It is enough that I say that the decision of 12 June 2000 ought not to have been revised and that the decision of the tribunal given on 5 September 2000 continues to have effect so that the claimant remains within the scope of paragraph 25 of Schedule 1B of the Income Support (General) Regulations 1987.

	(Signed)	MARK ROWLAND
		Commissioner
		7 May 2003