[2006] UKSSCSC CG_3102_2006 (25 July 2006)

PLH                                                                           Commissioner's File:  CG 3102/04
	
	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  	Carer's (Invalid Care) Allowance
Appeal Tribunal: 	Fox Court
Tribunal Case Ref:  	
Tribunal date:	15 April 2004
Reasons issued:	17 April 2004

[ORAL HEARING]

     1.     	This claimant’s application for leave to appeal is granted and the appeal is allowed, as in my judgment the Fox Court appeal tribunal consisting of the chairman Mr R Poynter sitting alone on 15 April 2004 erred in law in not addressing obvious errors on the part of the Secretary of State in relation to the payment of carer’s allowance to the claimant from 19 May 2003, which were within the proper scope of her appeal to the tribunal.  That appeal was against a decision of 11 November 2003 which had purported to supersede the award of carer's allowance made to her on 18 August 2003 only to the extent of holding nothing was payable to her under it from 10 November 2003 onwards.  
     2.     	I set the tribunal decision aside and substitute the decision I am satisfied ought to have been given, which is that:
(1)  the claimant was entitled to carer’s allowance at the weekly rate of £43.15 at all material times from 19 May 2003 and remained so entitled on a continuing basis from 11 November 2003, because she was caring for a severely disabled person (for completeness, the evidence before me is that she continued to do so until 8 December 2004);
(2)  for the period 19 May to 31 August 2003 inclusive the Secretary of State was not entitled to withhold payment of the claimant’s carer’s allowance totalling £647.25 on the ground that a retirement pension was paid to her during that period as stated in the award decision letter of 18 August 2003, as in fact no such retirement pension was or could have been paid to her;  the only pension payments he was entitled to deduct from that £647.25 would have been any increases actually paid to the claimant's husband for her as an adult dependant on his own pension over the same period, but the Secretary of State’s evidence failed to show actual payment of such increases to justify withholding payment of £647.25; 
(3)  from and after 1 September 2003 (and not from any earlier date) the claimant having attained the age of 60 on 26 August 2003 was entitled in her own right to payment of a retirement pension (on her own plus her husband’s contributions) at the full weekly basic rate of £46.35, so that no additional payment was due to her concurrently for her carer’s allowance, by virtue of regulation 4(5) Social Security (Overlapping Benefits) Regulations 1979 SI No. 597;
(4)  the case is referred to the Secretary of State for the amounts, if any, properly deductible from her entitlement to carer’s allowance from 19 May 2003 to be recalculated accordingly, and for any amount still due to her for the period before the start of her own retirement pension on 1 September 2003 to be paid.
     3.     	This case is before me as an application by the claimant for leave to appeal against the tribunal decision of 15 April 2004.  An oral hearing was directed in view of the confused position evident from the documents in the case.  The claimant’s husband, himself a retirement pensioner, appeared and argued the case on her behalf.  The Secretary of State was represented by Mr J Heath of the solicitor's office, Department for Work and Pensions.  Both parties consented under regulation 11(3) Commissioner’s Procedure Regulations 1999 SI No 1495 to the hearing being treated as that of the full appeal and to my determining the case on that basis if satisfied leave ought to be granted.  For the reasons that follow I grant such leave and proceed to determine the appeal.
     4.     	As the claimant’s husband explained to me, he and his wife had become entangled in the appeal system only as a result of their attempting to obtain some clarification from the department of the numerous confusing, inaccurate or contradictory documents issued to them about their various entitlements to carer’s allowance, retirement pension, income support and pension credits; all of which are to some extent bound up with one another.  There was no dispute that his wife was entitled to carer's allowance from 19 May 2003 under an award decision dated 18 August 2003, but they were not satisfied that the payment of this allowance had been correctly dealt with.  Her appeal was against a further decision dated 11 November 2003 which had purported to stop payment of it altogether, but their dissatisfaction extended to the amounts unpaid over the whole period of the award from 19 May 2003, and they had made that clear both before and at the tribunal hearing.  Consequently they were not happy that the tribunal chairman's decision stopped short at simply confirming that nothing was payable from 10 November 2003 onwards, and did no more than comment that as regards the period before that they ought to take advice, as the department's reasons for refusing to pay anything at all seemed “improbable, far from obvious and inadequately explained”.  
     5.     	For his part Mr Heath agreed that even with all his knowledge and the resources of the department available to him, he was still unable to give a complete explanation to show that the payment of the claimant’s carer’s allowance from 19 May 2003 had been correctly dealt with.  Moreover the decision and departmental submission before the tribunal appeared to be based on one or more obvious factual errors affecting that period.  Nevertheless while he very fairly accepted that an inquiry into the correctness of what had been done as regards the period before 11 November 2003 would have been within the proper scope of the tribunal’s jurisdiction on the appeal, he submitted the chairman could not be faulted for not exercising the jurisdiction as regards that earlier period as for the purposes of section 12(8)(a) Social Security Act 1998 it was not an “issue raised by the appeal” and he was therefore not obliged to deal with it.
     6.     	Despite those submissions and the experience of this particular chairman I have reached the conclusion that he must here have misdirected himself as to the potential scope of the appeal before him and erred in finding that it was, as he put it “sufficient to determine the appeal” merely to confirm that nothing was payable to the claimant on account of her carer’s allowance from 10 November 2003 onwards.  The decision which triggered that appeal was one in which the Secretary of State had purported to “supersede” the earlier one of 18 August 2003 awarding benefit, but only as regards payment from the later date.  However the claimant’s husband told me, and I accept, that at the hearing he had drawn attention to obvious errors by the department in the decision of 18 August 2003, and argued in effect that if it was being looked at again this ought to have included the position about payment for the period before 1 September 2003 as well: none of the £647.25 for that period had been paid, and the decision of 18 August 2003 did not show a proper basis for withholding it.  
     7.     	That the claimant’s husband did raise the issue of payment for this earlier period, and complained about the stopping of the £647.25 on the basis of departmental documents showing considerable confusion and at least one obvious error, is borne out by the tribunal chairman’s note and his statement of reasons at page 36, where he records his own concern about the position before 1 September 2003 and notes a basic error in the assumptions apparent on the face of the departmental documents; namely that the claimant had been in receipt of her own retirement pension since 1 March 2003, when she had not even reached pensionable age as she only reached 60 on 26 August 2003.  
     8.     	In that context it was in my judgment an error for the chairman as an inquisitorial tribunal not to give some form of decision on the complaints raised about the £647.25 for the period before 1 September 2003, or at least give an explanation of why he did not consider the power or necessity existed to do so.  I acknowledge that, as Mr Heath pointed out, the original notice of appeal at page 2 did not specifically identify the period before 1 September 2003 as a separate issue the appellant was asking the tribunal to consider, but equally the general complaints it makes about the inadequacy of the carer’s allowance payments are not in any way confined to the period after that date.  It could not be right to adopt too literal or formalistic an approach to the meaning of “issue raised by the appeal” in a context such as this, where it is agreed the tribunal’s jurisdiction did extend to the treatment of the earlier period and the correctness of withholding the £647.25 was disputed clearly enough at the hearing if not before.
     9.     	For those reasons, I allow the appeal and set aside the tribunal’s decision; and the question now is what should be put in place of it.  The substance of the decision under appeal, as set out in the Secretary of State’s submission to the tribunal at page 1B, was to discontinue from 10 November 2003 any payment of carer’s allowance to the claimant in respect of her continuing entitlement to that benefit from 19 May 2003: 
“We cannot pay you from 10/11/03. This is because the amount of Retirement Pension you get is more than the amount of Carer’s Allowance we could pay you”.  
However as already noted that decision is expressed to be one “superseding” a decision already given on 18 August 2003 on the claim itself which had also dealt with the question of payment from the commencement of the award on 19 May 2003 onwards; and it is as I have said agreed by Mr Heath on behalf of the Secretary of State that the question of whether that decision ought to have been altered or corrected in some different way, or from some different date, from that chosen in the decision of 11 November 2003 which looked at it again was within the proper scope of the appeal to the tribunal against that later decision.  I think that is right, whether or not a decision altering or correcting a previous one on a question of “payability” under a continuing award, as distinct from a question of entitlement to benefit, is correctly described as a “superseding” decision under section 10 of the 1998 Act, or as a further free-standing decision by the Secretary of State under section 8(1)(c) not subject to the time and procedural constraints of “supersession” as held by the Court of Appeal in R(G) 1/03 Secretary of State v Adams [2003] EWCA Civ 796.  Consequently the whole question of the payability of the benefit from 19 May 2003 can properly be reconsidered; and there is plainly a case for doing so, since the decision letter of 18 August 2003 reflects two obvious departmental errors, and further documents produced by the department itself show the withholding of £647.25 in terms of the letter to be unjustified.  
     10.     	The decision letter of 18 August 2003 at page 29 informed the claimant that:
“We are pleased to tell you that your claim for Carer’s Allowance (CA) has been successful.  The details of your award are as follows: 
You are entitled to £43.15 a week from 19/05/2003.  
We can only pay you £16.82 a week from 01/09/2003.  This is because you get Retirement Pension at £26.33 a week.  £647.25 has been taken out of the amount you are owed from 19/05/2003 to 31/08/2003.  This is because your partner has been paid an increase for you.
We cannot pay you any arrears of CA.  This is why we cannot make a payment.
[There then followed a calculation of the carer’s allowance due to the claimant for the 15 weeks from 19 May to 31 August 2003 at the weekly rate of £43.15, totalling £647.25, after which was written:]
 “Less deductions of:  Retirement Pension paid to you [sic] during the period you are due CA arrears    Total £647.25 (You do not owe this money – it has already been deducted from your CA arrears.)  Total due £0.00”.  
     11.     	In fact, this letter and the later one of 11 November 2003 which superseded it were both based on materially incorrect information provided within the department, from the pensions section to the carer’s allowance section.  As pages 10 to 15 of the appeal bundle show, the carer’s allowance section was first incorrectly told that the claimant was already on retirement pension of £26.33 a week in August 2003, then that she had been on retirement pension of £46.35 a week from 1 March 2003, and finally that her retirement pension had started at £26.33 a week but then been increased to £46.35 a week on 10 November 2003.  None of that information was true.  The claimant had not been paid, and had not had any entitlement to, any retirement pension at all during the period before 1 September 2003, for the simple reason that she only attained pensionable age on 26 August 2003 and 1 September was the start of the first benefit week after that date.  From 1 September 2003, she became entitled as already noted to retirement pension in her own right at the full category B basic rate of £46.35 a week, by virtue of her own contributions topped up to the extent needed by those of her husband; see the computer calculation of her entitlement at page 17. This entitlement was eventually paid to her belatedly in a lump sum initial payment covering 21 weeks on 28 January 2004 as shown on page 31.  There never was a time at which she was separately paid or entitled to £26.33 a week, and there never was a “change of circumstances” on 10 November 2003 to justify “superseding” the original award letter of 18 August 2003 in the way the Secretary of State purported to do in the decision under appeal; on the true facts at the date of that decision, it plainly did need correcting, though in a different way.  
     12.     	As regards the period from 1 September 2003 onwards there is no dispute that the claimant's retirement pension was payable to her at the full rate of £46.35 a week.  It must follow that she was not entitled to receive any additional payment on account of her £43.15 carer’s allowance for the weeks from that date onwards, since both pension and carer's allowance are basic weekly insurance benefits to provide an amount towards subsistence, and under the national insurance scheme only one helping of such benefit is payable per person per week (the bigger of the two, if concurrent benefit entitlements overlap, but not a double ration): see the overlapping benefits provision cited above.  The first correction needed was therefore to say that no payments were due in respect of her carer's allowance from that date. 
     13.     	As regards the period before 1 September 2003 the evidence is still confused, and I am not able to give a finding in terms of actual amounts; though what can be said with certainty is that the deduction of £647.25 imposed by the letter of 18 August 2003 must have been wrong, either totally or at least in part.  The actual ground stated in the calculation at the end of that letter, that £647.25 of retirement pension had been paid to the claimant herself from 19 May to 31 August 2003, was of course completely wrong and could not have justified deducting anything: she was never paid or entitled to any such pension as she did not turn 60 until 26 August.  
     14.     	If one takes instead the quite different ground stated earlier in the letter that “your partner has been paid an increase for you”, it is still the case that the £647.25 deduction cannot be right. There is a provision in regulation 5 Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 SI No. 664 (not cited to me) which permits amounts already actually paid to a partner by way of increases of benefit for a claimant as a dependant for some period, to be offset against arrears of entitlement later payable to the claimant in her or his own right under a subsequent award of benefit for the same period.  However it is by no means clear from the departmental documents produced to me that this provision is applicable to this claimant at all; and even if it were, it could not on the department’s own figures have justified deduction of as much as £647.25.  
     15.     	The “increase” in question here is the adult dependant’s increase to which the claimant’s husband (who was on a reduced category A retirement pension at all material times) was entitled in respect of the claimant under section 83 Social Security Contributions and Benefits Act 1992.  That ought to have been paid to him as an increase on his own retirement pension during the period before she became a pensioner in her own right on 1 September 2003, and the tribunal chairman at the hearing appears to have understood and noted at page 33 that he was getting it.  However the claimant’s husband at the hearing before me was clear that this was a misunderstanding and he had not in fact been receiving such an increase; as apparently confirmed by the departmental letter in evidence before the tribunal at pages 61 to 62 (dated 18 November 2004, from a Mr A Stenhouse) expressly agreeing that the increase did not appear to have been paid.   
     16.     	If that was the case, then no offset under regulation 5 of the payments on account regulations cited above could have been properly applied to stop payment of the £647.25 otherwise due to the claimant on 18 August 2003.  The Secretary of State’s right of offset under that regulation depends on there having been an actual payment of the  increase to the claimant’s partner which has already taken place before the date of a later determination awarding benefit to the claimant in her own right.  Moreover the offset is only available to the extent of the amounts actually paid, so that even if the claimant’s husband had received some increase on his own pension for his wife before the award of 18 August 2003 was made, that still did not prove the whole of the arrears of £647.25 then due to her could be witheld: to know how much was available for offset, details of actual payments would be needed.  In fact, the department’s own calculations (from another appeal, produced to me at page 19 of the supplemental bundle) show the increase to which the claimant's husband would have been entitled on his own basic pension (which was at 91% of the full rate) was only £42.18 a week, about a pound a week less than the carer's allowance payable to her for the same period: so even if he had received this increase at the right time and the offset therefore applied, it would still not mean she lost the whole £647.25 as the letter of 18 August 2003 purported to decide.
     17.     	In those circumstances I give a substituted decision in the terms set out above, and remit the case to the Secretary of State for him to confirm once and for all what if anything was actually paid to the claimant’s husband for a dependant’s increase before 18 August 2003, and to correct or revise the decision about the amount payable to her on account of her carer's allowance for the periods before and after 1 September 2003 accordingly.  It is I think best for the Secretary of State himself to make the corrections and revisions needed as he has the power to do under section 8 of the 1998 Act, but in view of what has happened before I give the claimant leave to reapply to me for any supplemental directions or decision needed to clear the case up if a final determination to resolve what, if any, amount is still due to her has not been notified to her by the Secretary of State, with an adequate explanation, within one month of the issue of this decision.  I have not addressed any question of any possible consequential effects on (or from) the income support or pension credit payable to the claimant’s husband over the same period as her carer's allowance as that is not before me on this appeal.

(Signed)
P L Howell
Commissioner
11 May 2005