DECISION OF THE SOCIAL SECURITY COMMISSIONER
- My decision is that the decision of the Chippenham appeal tribunal, held on 24th January 2002 under reference U/03/205/2001/00135, is not erroneous in point of law.
The appeal to the Commissioner
- This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a district chairman of tribunals. The Secretary of State does not support the appeal.
- Case management directions were given by Mr Commissioner Powell. As Mr Powell is ill, the case has been transferred to me for determination.
The claim
- On 15th December 2000, the claimant made a claim for an invalid care allowance in respect of her husband.
The effective date of the award
- An award was made, but only from 19th March 2001.
- The reason for that date was that it was the first date on which the claimant had been present in Great Britain for 26 weeks out of the previous 12 months: see regulation 9(1)(c) of the Social Security (Invalid Care Allowance) Regulations 1976. She and her husband had been in the Falkland Islands from 14th July 1998 to 14th September 2000. He was posted there as a member of the Defence Procurement Agency.
Was the claimant's husband a serving member of the armed forces?
- In order to obtain an award from an earlier effective date, the claimant has argued that her husband was a 'serving member of the armed forces'. If he was, he and his wife were treated as present in Great Britain for the time they were in the Falkland Islands: see regulation 9(3)(a) of the 1976 Regulations.
- Regulation 9(3)(a) adopts the definition of 'serving member of the armed forces' used in the Social Security (Contributions) Regulations. The provision actually refers to the 1975 Regulations. However, that must be read as a reference to the 1979 Regulations: see sections 17(2)(a) and 23 of the Interpretation Act 1978. (In fact, there is no material difference between the 1975 and 1979 Regulations, or for that matter the most recent 2001 Regulations.)
- The relevant part of the definition reads:
'"serving member of the forces" means a person (not being a person mentioned in Part II of Schedule 3 to these regulations) who, being over the age of 16, is a member of any establishment or organisation in Part I of Schedule 3 to these regulations (being a member who gives full pay service) but does not include any such person while absent on desertion'.
- It is not necessary to set out the list in Part I of Schedule 3. It consists of the regular forces and their reserves. Nor is it necessary to set out Part II of the Schedule; the claimant does not rely on it.
- There is no doubt in my mind that the claimant's husband is not a member of the regular or reserve forces. I do not understand the claimant to argue that he is. Her argument is based on section 116 of the Social Security Contributions and Benefits Act 1992. This provides that:
'(1) … a person who is serving as a member of Her Majesty's forces shall, while he is so serving, be treated as an employed earner, in respect of his membership of those forces, for the purposes-
(a) of Parts I to V and this Part of this Act; and
(b) of any provision of the Administration Act [the Social Security Administration Act 1992] in its application to him as an employed earner.
'(3) For the purposes of Parts I to V and this Part of this Act, Her Majesty's forces shall be taken to consist of such establishments and organisations as may be prescribed … being establishments and organisations in which persons serve under the control of the Defence Council'.
- The claimant's argument is that her husband served under the control of the Defence Council and, therefore, was a serving member of the forces. I assume for the sake of argument that her husband was under the control of the Defence Council. However, I reject her argument for two reasons.
- First, it misunderstands what section 116(3) provides. That subsection limits the scope within which regulations may prescribe the establishments and organisations that constitute the forces. It limits it by providing that only those in which persons serve under the control of the Defence Council may be prescribed. But that does not mean that anyone who does serve under the control of that Council is thereby a serving member of the forces. In order to acquire that status, the person must also be a member of one of the establishments or organisations prescribed. The claimant's husband is not.
- The second flaw in the claimant's argument is its reliance on section 116. I doubt whether that section is relevant at all. It is correct that invalid care allowance is constituted under section 70 in Part III of the 1992 Act, which is covered by section 116. It is also correct that the predecessor to that section in the Social Security Act 1975 provided the statutory authority under which Schedule 3 of the 1979 Regulations was made. However, section 116 makes provision in respect of the status or capacity as an employed earner, which is irrelevant to invalid care allowance. The invalid care allowance legislation only adopts by reference the same definition that is used under section 116. That does not make the terms of the section itself relevant.
The Ministry of Defence's compensation scheme
- The claimant is correct that the legislation applies less favourably to her and her husband that it would if her husband was a serving member of the forces. However, the Ministry of Defence is aware of that and has a discretionary compensation scheme that allows it to make a payment equivalent to the benefit lost. This is referred to in the specialist advice given to the decision-maker that is contained in the papers. I do not know if the claimant has made an application under that scheme.
| Signed on original |
Edward Jacobs
Commissioner
27th June 2002 |
