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[2001] UKSSCSC CIS_6249_1999 (06 August 2001)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/6249/1999

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL

ON A QUESTION OF LAW

INTERIM DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER: MR J MESHER

[ORAL HEARING]


 


INTERIM DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal is allowed. The decision of the Sutton C social security appeal tribunal dated 20 April 1999 is erroneous in point of law, for the reasons given below and I set it aside. It is expedient for me to give the decision on the claimant's appeal against the adjudication officer's decision dated 3 April 1998 (Social Security Act 1998, section 14(8)(a)(ii)). I can give an interim decision dealing with the period from 23 October 1995 to 24 February 1998, and I adjourn the decision dealing with the period from 25 February 1998 to 11 May 1998 for the provision of further evidence. My decision is:

(a) that the adjudication officer's decision of 5 May 1995 awarding the claimant income support at the urgent cases rate from and including 24 April 1995 falls to be reviewed on the ground of a relevant change of circumstances only with effect from 25 February 1998, so that the decision of 5 May 1995 remains operative for the period down to 24 February 1998 (Social Security Administration Act 1992, section 25(1)(b)); and

(b) that the decision as to whether the decision should be revised for any part of the period from 25 February 1998 to 11 May 1998 is adjourned for further evidence to be produced in accordance with paragraph 31 below.

2. The claimant, an Algerian national, arrived in the United Kingdom on 25 November 1994 and claimed asylum on 30 January 1995. His asylum claim has not yet been determined. He claimed income support on 27 April 1995. Because the claimant fell into the category of "person from abroad" for income support purposes, he was entitled only under the urgent cases provisions. On 5 May 1995 the adjudication officer awarded income support on that basis from 24 April 1995. On 6 October 1995 the claimant made a claim for income support for the period from 30 January 1995 to 23 April 1995. The claim was allowed and on 22 October 1995 arrears of £899.17 were issued to him.
3. Nothing was done about the claimant's running award of income support. Nor was anything done when he told a visiting officer on 23 October 1996 that he had £787.70 in a Lloyd's Bank account, the money he had received in arrears. Eventually, on 3 April 1998 an adjudication officer reviewed the decision awarding benefit and gave the decision that the claimant was not entitled to income support from 25 February 1998 because he had capital which extinguished entitlement. There is nothing in the papers before me to show why the date of 25 February 1998 was chosen or to show that any enquiry was made about the amount of capital which the claimant actually had at that date.
4. The claimant's solicitors appealed against that decision. Their letter dated 28 April 1998 reveals that the adjudication officer had assessed the claimant as having income of £798.75 per week. On 17 July 1998 an officer telephoned the solicitors, who confirmed that the claimant had had about £800 in his bank account as at 4 February 1996, which had been there since the arrears of income support were paid. Meanwhile, the claimant had made another claim for income support on 12 May 1998 in which he said he had no savings. This claim was disallowed because the claimant did not satisfy the new test introduced into the Income Support (General) Regulations 1987 from 5 February 1996 (not having claimed asylum on arrival) and could not have the old test still applied to him under the saving provision in the amending regulations (regulation 12(1) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996) as it was said that he was not entitled to income support urgent cases payments immediately before 5 February 1996. I deal in a separate decision (CIS/1418/2000) with the appeal against this disallowance.
5. The adjudication officer's written submission on form AT2 in the present case submitted that the correct decision should be that as a result of a review decision dated 3 April 1998 the claimant was not entitled to income support from 23 October 1995 because of the issue to him of arrears of income support amounting to £899.17 which was treated as capital and extinguished entitlement.
6. The submission relied on regulation 72(2) of the Income Support Regulations. The normal test of entitlement applies in urgent cases, of setting income against applicable amount, but regulation 71 provides special rules about the applicable amount in urgent cases and regulation 72 provides special rules about (according to its heading) the assessment of income and capital. As in force at the date of the adjudication officer's decision, regulation 72(2) provided:

"(2) The claimant's capital shall be calculated in accordance with Part V, but including any capital referred to in paragraphs 3 and, to the extent that such assets as are referred to in paragraph 6 consist of liquid assets, 6 and, except to the extent that the arrears referred to in paragraph 7 consist of arrears of housing benefit payable under Part VII of the Social Security Contributions and Benefits Act 1992, 7, 9(b), 19, 30 and 32 of Schedule 10 (capital to be disregarded) shall be taken into account in full and the amount of income support which would, but for this paragraph be payable under this regulation, shall be payable only to the extent that it exceeds the amount of that capital."

Paragraph 7 of Schedule 10 to the Income Support Regulations normally allows a disregard as capital of any arrears of an income-related benefit for 52 weeks from receipt.

7. The claimant's appeal was heard by the appeal tribunal on 20 April 1999 at the same time as his appeal against the disallowance of income support on his fresh claim from 12 May 1998. A letter dated 16 April 1999 from the claimant's solicitors was before the appeal tribunal, in which it was submitted that arrears of urgent cases rate income support should be disregarded. The appeal tribunal decided that the claimant was not entitled to urgent cases payments from 23 October 1995 as he had available capital which exceeded his applicable amount. The reasoning was that the arrears were transformed into capital on 23 October 1995 and that there was no provision to disregard such arrears; indeed regulation 72(2) specifically excluded such a disregard.
8. The claimant now appeals against that decision with the leave of a Commissioner. The appeal was not supported in the written submission dated 10 August 2000 on behalf of the Secretary of State (who has taken over the functions of adjudication officers). The claimant's solicitors made no observations on that submission. I directed an oral hearing to deal with the issues of the validity of regulation 72(2) and its interpretation, if valid. Neither the claimant nor his solicitors attended. The Secretary of State was represented by Mr Leo Scoon of the Office of the Solicitor to the Department of Social Security. I am grateful for Mr Scoon's helpful and even-handed submissions.

The validity of regulation 72(2)

9. The question whether regulation 72(2) is validly made is a difficult one. In paragraph 11 of decision CIS/4713/1998 I suggested that there was probably power in section 22(9)(d) of the Social Security Act 1986 (re-enacted as section 136(5)(d) of the Social Security Contributions and Benefits Act 1992). In the present case I need to examine the question in detail. There is no separate power in the primary legislation to make provision for urgent cases. The relevant powers must be found in the provisions on income and capital. Mr Scoon submitted that the power was found in section 136(5)(d) of the 1992 Act and did not rely on any other provisions, but I need to look at the others briefly.
10. Section 22(6) of the 1986 Act (now section 134(1) of the 1992 Act) provides:

"No person shall be entitled to an income-related benefit if his capital or a prescribed part of it exceeds the prescribed amount."

It might be thought that regulation 72(2), at least in part, excludes entitlement in urgent cases where a claimant's capital exceeds a prescribed amount, ie the applicable amount in the circumstances. But section 134(1) of the 1992 Act refers to "the prescribed amount", not "a prescribed amount". Regulation 45 of the Income Support Regulations prescribes the amount for the purposes of section 134(1). Section 134(1) does not authorise any further prescription of amounts, or the mechanism adopted in regulation 72(2). Nor do sections 21(7) or 22(7) of the 1986 Act (sections 134(4) and 136(2) of the 1992 Act.

11. The only remaining candidate is thus section 136(5)(d). Section 136(5) provides:

"(5) Circumstances may be prescribed in which--

(a) a person is treated as possessing capital or income which he does not possess;

(b) capital or income which a person does possess is to be disregarded;

(c) income is to be treated as capital;

(d) capital is to be treated as income."

Mr Scoon submitted that section 136(5)(d) authorises the basic rule in regulation 72(2), while section 136(3) (allowing income and capital to be calculated in such manner as may be prescribed) authorised the counting of assets not taken into account in normal cases.

12. It could be argued for the claimant that regulation 72(2) does not purport to treat capital as income, but simply lays down a rule directly regulating the effect of capital on entitlement, and so falls outside the power given by section 136(5)(d). However, regulation 72(2) achieves indirectly the practical result of treating the assets prescribed as if they are income. The value of the assets is to be set against the claimant's applicable amount in the same way as income. I have concluded that the substantial and practical effect of regulation 72(2) is within the power in section 136(5)(d). However, the limits of that power might influence the interpretation of regulation 72(2).

The interpretation of regulation 72(2)

13. A few specific points can be cleared out of the way. I do not need to consider the effect of Commissioner's decision R(SB) 4/89 on any general arguments about whether payments of arrears of periodical social security benefits are income or capital. That is because I am satisfied that the words of regulation 72(2), as in force down to 6 April 1998, were sufficient to bring the amount of any arrears of income support within its scope, whether they are properly to be treated under the general law as capital or income. It seems likely, however, that the governing principle is that, after the expiry of the period to which income is to be attributed, anything which is left in the claimant's hands is capital. The amendment to regulation 72(2) with effect from 6 April 1998 was to exclude payments of arrears of income support at the urgent cases rate from the effect of the provision (Social Security (Miscellaneous Amendments) Regulations 1998, regulation 19(1)). But even for the period from 6 April 1998 to 11 May 1998 assets deriving such arrears paid more than 52 weeks ago are still within the scope of regulation 72(2).
14. I have also considered carefully the argument that regulation 72(2) deals only with the amount of income support which is payable, not with entitlement to income support. If so, it could be said that in the relevant period the claimant was entitled to income support, on the setting of his income for urgent cases purposes (leaving aside the effect of regulation 72(2)) against his applicable amount for urgent cases purposes. The amount of his capital was below the limit in regulation 45 of the Income Support Regulations. Then regulation 72(2) would have the result that no income support was payable. In most circumstances, there would be no practical difference between a conclusion that the claimant was entitled to income support and a conclusion that the claimant was entitled, but no income support was payable. However, in the claimant's circumstances there would be a vital effect if he was entitled to urgent cases rate income support immediately before 5 February 1996 even though no such benefit was payable. He could then claim to be within the protection of the saving provision in the 1996 Regulations.
15. There is only very slight support for the distinction between entitlement and payability in section 124(5) of the 1992 Act (mentioned at the oral hearing), since that subsection only applies where there is entitlement for less than a week. In general, although there is occasional looseness of language, the questions of whether the conditions of entitlement are satisfied and of the amount of income support are, under the legislation, questions of entitlement. By requiring the taking into account of the amount of capital as if it were income in the calculation of the amount of income support, regulation 72(2) produces an effect on entitlement. The use of the word "payable" at the end of regulation 72(2) is merely descriptive of the practical result achieved. Thus I reject the argument on the distinction between entitlement and payability.
16. There remains the general interpretation of regulation 72(2) before the April 1998 amendment. At first sight, the existence of the balance in the claimant's bank account deriving from the arrears received on 23 October 1995 easily exceeding his applicable amount leads inevitably to the conclusion that the claimant was not entitled to income support at the urgent cases rate throughout that period that he possessed that asset. That is despite the fact that, looking back from 3 April 1998, it can be seen that if that conclusion had in fact been applied to the claimant from 23 October 1995 he would no doubt have had to use the arrears for living expenses. If they had been used up at the urgent cases rate applicable to him they would have lasted about 11 weeks in Mr Scoon's calculation. He would then have been able to claim income support again before 5 February 1996 and there seems no reason why, if he had no qualifying capital, he would not have become entitled again. The fact remains that for each week in the period the amount in the bank account exceeded the claimant's applicable amount.
17. I have considered very carefully whether any argument could be made for the claimant that the treating of capital as income entails attributing the amount to a period (as that is the nature of income) and that the arrears should only be taken into account for a period of the same length as that for which they were paid. The first part of that argument works. It is in the nature of income that it should be attributed to a period. But the second half does not work. Regulation 72(2) has the effect that any capital as defined which the claimant has in any week is to be treated as if it were income in that week. Once it has been decided that the provision was validly made, then it must be given effect. Regulation 72(2) in effect contains its own rule for attributing the whole amount to each successive week. I do not think that there is any room for regarding some part of the amount as having been used up by attribution to an earlier week.
18. Nor is there room for the invention of some kind of diminishing capital rule which would have the same effect, although Mr Scoon would not have objected if I could have found a legitimate method of doing that. If a claimant is fixed with notional capital under regulation 51 of the Income Support Regulations a diminishing notional capital rule is applied under regulation 51A, to reduce the amount by the amount of benefit which otherwise would have been paid in each week, and such a rule was applied by virtue of Tribunal of Commissioners' decision R(IS) 1/91 before regulation 51A was introduced. But it is one thing to apply such a rule to notional capital and another thing to apply it to actual assets which have existed throughout a period. Similarly, if income support at the urgent cases has been paid to a claimant because he had concealed the existence of capital and recoverability of an overpayment for a long period is ordered, account is taken of what the claimant would have had to spend if the income support had not been received (Social Security (Payments on account, Overpayments and Recovery) Regulations 1988, regulation 14). A person guilty of misrepresentation or failure to disclose does not necessarily have to repay the whole amount of benefit for the whole period that he had a disqualifying amount of capital. However, I repeat that there is no room for such a rule in the operation week by week of regulation 72(2) where a disqualifying amount actually has been possessed throughout.
19. Thus I was unable to support any of the routes suggested or supported by Mr Scoon at the oral hearing for limiting the effect of regulation 72(2). However, in considering the case a further possible argument occurred to me on which I sought further submissions.

The power to review and abuse of power

20. In March 2001 I asked for submissions about the following:

"2. The new point arises as follows. Section 25(1) of the Social Security Administration Act 1992 provided that an adjudication officer's decision "may be reviewed at any time" by an adjudication officer if specified grounds existed. It could then be argued that this conferred a power and not a duty. It would be said that in any ordinary circumstances a review should be carried out if a specified ground were found to exist, either because that was for the benefit of a claimant who had asked for a review or because of the general public interest in ensuring that the correct entitlement was reached in any particular case. However, it could be argued that a residual discretion existed in exceptional circumstances for an adjudication officer, or an appeal tribunal conducting a rehearing on appeal, not to review even though a specified ground did exist, for instance if the carrying out of the review would constitute an abuse of power.

3. In the circumstances of the present case an argument of abuse of power can plainly be made. On the assumption that regulation 72(2) of the Income Support (General) Regulations 1987 is validly made, if that regulation had been applied as soon as the payment of arrears of urgent cases rate income support was made to the claimant on 23 October 1995, he would have then had to live on that money until it ran out. It would have been accepted as having been used up legitimately within 11 or 12 weeks. That would have allowed the claimant to reclaim income support and (since there seems to have been no other obstacle to entitlement) become entitled to income support before 5 February 1996. He would then have come within the saving provision in regulation 12(1) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 and there would have been no gap in post-February 1996 entitlement such as that created by the decision issued on 3 April 1998. It could then be argued that it was an abuse of power to carry out a review both of past entitlement and as to a forward period so as to disadvantage the claimant severely in a way which would not have occurred if the legal provision relied on by the adjudication officer had been applied when it should have been.

4. I note, briefly, that:

(a) since there was no question of any overpayment being recoverable, the only practical consequence of a review decision for the past was to take the claimant outside the scope of regulation 12(1) of the 1996 Regulations;

(b) regulation 72(2) of the 1987 Regulations was amended with effect from 6 April 1998 so as to disregard assets consisting of arrears of urgent cases rate income support; and

(c) the argument set out above could be regarded as a refinement of the submission made to the appeal tribunal by the claimant's solicitors that the adjudication officer's decision of 3 April 1998 to review entitlement to income support from 23 October 1995 was "Wednesbury unreasonable" in view of its consequences."

21. The Secretary of State's submission in reply was that there was no discretion in section 25(1) not to carry out a review if a specific ground for review existed, and that, if it had been intended that the effects of a review could be considered, express provision would have been made. It was also submitted that a decision in accordance with the law could not be said to be Wednesbury unreasonable or irrational. No reply has been received from the claimant's solicitors despite a reminder.
22. I have concluded that the principle of the abuse of power is decisive in this case. First, the use of the word "may" rather than "shall" in section 25(1) of the Social Security Administration Act 1992 indicates the conferring of a power and not a duty. There can be cases in which the word "may" is to be interpreted as "shall", or more properly, I think, where the circumstances dictate that the power is one that should be exercised. That was so, for the reasons given in paragraph 2 of my direction, in virtually every review case. There is an obvious public interest in putting in place the correct decision on a claimant's entitlement, for the past as well as the future, and even in a case in which there is no question of any recovery of overpayments made in the past. It is therefore understandable that there appears to have been no discussion in any previous Commissioners' decisions of the distinction between a power and a duty. It has been assumed that if a ground of review existed, the review and consequent revision should be carried out. I suspect, though, that there have been a great many cases (like the present one) where an adjudication officer has been content to carry out a review as to future entitlement and has not sought to review a decision as to past entitlement, although a the change of circumstances was some time in the past. Such action has been sanctioned by Commissioners where nothing of any practical importance turned on the effective date of the review. In my judgment, there was a power to review where a ground under section 25 existed, not a duty.
23. It is therefore necessary to consider whether there has in any particular case been an abuse of the power, so that it has not been exercised lawfully. This is not the place for an essay on the principle of abuse of power. I need only refer to the chain of tax cases from Preston v Inland Revenue Commissioners [1985] AC 835, through R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545 to R v Inland Revenue Commissioners, ex parte Unilever plc [1996] Simon's Tax Cases 681 and to the comprehensive and much-discussed judgment of the Court of Appeal in R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622.
24. In the tax cases the essential question was whether the Crown, in the form of the Inland Revenue Commissioners, could resile from a representation about how they would treat a taxpayer. In Preston in the House of Lords, in the context of the Inland Revenue Commissioners having a statutory duty to assess and collect tax, Lord Templeman held that the court could direct them to abstain from performing their statutory duties or exercising their statutory powers if the unfairness entailed rendered the proposed action an abuse of power. There was found not to be an abuse of power in Preston because there had not been any agreement or representation that the Inland Revenue Commissioners would not re-open assessments for some past years if the taxpayer withdrew claims for certain allowances. However, in Unilever the Court of Appeal held that it would be an abuse of power for the Inland Revenue Commissioners to resile from a 20 year practice of allowing the taxpayer to claim allowances outside the prescribed time-limit. In Coughlan there was a magisterial review of the principles on the protection of legitimate expectations in public law, which recognised that the frustration of a legitimate expectation as to the outcome of a decision might be so unfair as to be an abuse of power.
25. In the present case it would have been an abuse of power for the adjudication officer on 3 April 1998 to have exercised the power to review the decision awarding the claimant income support at the urgent cases rate for the past as well as for the present from about that date. Taking into account the factors mentioned in paragraphs 3 and 4 of my direction, there was no purpose in carrying out such a review other than to disadvantage the claimant in relation to the protection under regulation 12(1) of the 1996 Regulations. That protection would not have been lost if the proper action had been taken at the time of the payment of the arrears. The source of the relevant sum of money, in arrears of benefit paid by the very office dealing with the income support claim, is also significant, as throughout the relevant period the adjudication officer had the information available on which to take the proper action. I do not need to impute any bad faith or deliberate intention to harm the claimant's interests to any official. I have no doubt that in the circumstances the unfairness to the claimant of exercising the power to review for the past would have been so extreme as to be an abuse of power.
26. Does it make any difference that the review of past entitlement was carried out by the appeal tribunal, a body independent of the Department of Social Security, the Benefits Agency and the adjudication officer? The appeal tribunal accepted the submission made to it on behalf of the adjudication officer, but even if it had acted of its own motion, I consider that it exercised the power of review unlawfully. I am not sure how far the unfairness from the frustration of a legitimate expectation is grounded on the failure of a particular authority to fulfil the expectation which it has itself created. However, as the cases show, the concept of abuse of power is broader than that of frustration of legitimate expectations. In the present case the abuse lies in the unfairness of the outcome to the claimant and the absence of any purpose which the exercise of the power to review could legitimately serve. That affects the appeal tribunal just as much as the adjudication officer.

The Commissioner's decision

27. For that reason the appeal tribunal erred in law and its decision must be set aside. It is expedient for me to substitute the decision on the claimant's appeal against the adjudication officer's decision of 3 April 1998. However, for the reasons explained below, I can only give an immediate decision on part, the main part, of the period in issue, and must adjourn to obtain further evidence in relation to the remaining period.
28. Applying the principles set out above, it would be an abuse of the power of review for any review to be carried out for a period before the adjudication officer took action. I have pointed out the gap between the date of the decision under appeal, 3 April 1998, and the date from which the revised decision was first made operative, 25 February 1998. I am prepared to assume that payment of benefit was suspended from 25 February 1998 before the decision was made on 3 April 1998. In such circumstances there would not be sufficient unfairness to prevent review from the earlier date. Thus I can give the decision that the adjudication officer's decision awarding the claimant income support at the urgent cases rate does not fall to be reviewed in relation to the period from 23 October 1995 to 24 February 1998.
29. It is then necessary to consider whether the decision awarding the claimant benefit should be revised on review (following the undisputed change of circumstances in October 1995) for the period from 25 February 1998 to 11 May 1998, the day before the fresh claim made and disallowed from 12 May 1998. The only obstacle to continuing entitlement is the amount of the claimant's capital which was to be treated as income week by week. There is a distinct lack of evidence on that point. That is a problem at the current stage of the case. The result of my decision on review is that the claimant's award of income support at the urgent rate remains operative as at 5 February 1996. Accordingly, he qualified for the protection of regulation 12(1) of the 1996 Regulations. And as I explain in my decision in the claimant's other appeal (CIS/1418/2000), the decision of the Court of Appeal in the Yildiz case must now be followed, so that a break in entitlement to income support after 5 February 1996 does not bring the protection of regulation 12(1) of the 1996 Regulations to an end. The whole period from the date on which I have decided that any revision could start (26 February 1998) down to 11 May 1998 must be considered on the basis that entitlement is not excluded on the ground that the claimant did not claim asylum on arrival in the United Kingdom. Thus, his actual resources week by week are crucial.
30. So far as one can tell from the papers, there was a failure on behalf of the Benefits Agency or the adjudication officer to investigate the actual amount of the claimant's capital after October 1996 and in particular in February 1998. But that might be excused as on the then current view of the effect of regulation 12(1) of the 1996 Regulations, the claimant would not have been entitled to benefit after 4 February 1996 even if his capital was nil. On the other hand, the claimant's solicitors have never expressly challenged the view that he had capital of £700 or so in February 1998. There is therefore a suspicion that, since the claimant did not make his new claim until 12 May 1998, he still had some money in his bank account until that date. Such assets, even if deriving from the payment of arrears, would continue to count despite the amendment of regulation 72(2) from 6 April 1998, because the disregard of such resources lasts only for 52 weeks after the payment of the arrears.
31. I have concluded that the fairest course is to adjourn my decision relating to the period from 25 February 1998 to 11 May 1998 in order to obtain evidence of the amount in the claimant's bank account for each week in that period and about what the money was spent on. The burden of proving that the revised decision should be adverse to the claimant lies on the Secretary of State. But it has been shown that the claimant possessed capital of £787.70 in October 1996. The practical burden is thus on the claimant to show that he no longer possessed that capital. Therefore I direct that the claimant or his solicitors are within one month from the date of issue of this decision to produce to the Commissioners' office the best evidence now available on the matters mentioned above, with any consequential submission they wish to make. The Secretary of State is to have a month from being sent a copy of that evidence and any submission, or the expiry of the time for doing so, in which to produce any further evidence and to make a submission on the effect on the claimant's entitlement to income support at the urgent cases rate week by week in the period remaining in issue.

(Signed) J Mesher

Commissioner

Date: 6 August 2001