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[2002] UKSSCSC CIS_5165_1998 (08 January 2002)

 
R(IS) 7/02


Mr. E. A. L. Bano CIS/5165/1998

8.1.02

Applicable amount – higher pensioner premium –entitlement to qualifying benefit ceased on attaining pensionable age –meaning of "remained continuously entitled to income support"

The claimant was entitled to long- term incapacity benefit. This ceased when she became 60 in January 1997 and became entitled to Category A retirement pension. On 11 September 1997 she claimed income support on the basis that she was entitled to have higher pensioner premium included in her applicable amount. She would not otherwise have been entitled to income support because of the level of her income. The claim was rejected on the ground that the claimant had not been continuously entitled to income support since her entitlement to long-term incapacity benefit ceased on account of payment of retirement pension as required by paragraph 12(1)(c) of Schedule 2 to the Income Support (General) Regulations 1987 and so did not satisfy the conditions for higher pensioner premium prescribed in paragraph 10 of Schedule 2. The claimant requested a review which was refused and her appeal against that decision was dismissed by the tribunal.

Held, dismissing the appeal, that:

1. the effect of section 1 of the Social Security Administration Act 1992 was that the claimant did not become entitled to income support until she made her claim on 11 September 1997 and so she was not continuously entitled to income support in the period after her entitlement to long-term incapacity benefit ceased and so was not entitled to higher pensioner premium (para. 7);
2. (obiter) paragraph 12(1)(c)(i) of Schedule 2 does not require a claimant to have been entitled to income support immediately before attaining pensionable age to be entitled to higher pensioner premium; the words "has since remained continuously entitled to income support" can only be read as referring back to the earlier words "entitlement to [incapacity] benefit ceased", CIS/4209/1997 followed (para. 10);
3. (obiter) a claimant falls within paragraph 12(1)(c)(i) if he ceases to be entitled to long-term incapacity benefit on attaining pensionable age and the words of the provision "ceased on account of the payment of a retirement pension" had to be read in that light (paras. 15 to 17);
4. (obiter) the concluding words of paragraph 12(1)(c) do not require an underlying entitlement to income support independently of higher pensioner premium before attaining pensionable age as a condition of entitlement to higher pensioner premium, CIS/4209/1997 not followed (para. 13).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
5. My decision is that the decision of the tribunal given on 7 August 1998 is not erroneous in point of law. Accordingly I dismiss the appeal.
6. This is an appeal, brought with the leave of the chairman, against the decision of the tribunal dismissing the claimant's appeal against a refusal to review a decision of the adjudication officer that the claimant was not entitled to income support. I held an oral hearing of the appeal on 26 October 2000, at which the Secretary of State was represented by Mr. Leo Scoon, of the Department of Social Security Solicitor's Office. Although the claimant did not appear and was not represented at the hearing, both her representative and Mr. Scoon made written submissions in accordance with directions which I gave at the hearing, and there have been further written submissions by both parties in response to directions given by me since the hearing took place.
7. The facts of the case are not in dispute. The claimant is a widow who had been in receipt of income support until 30 April 1996, when her entitlement ceased because her capital exceeded the prescribed amount. The claimant was also in receipt of long-term incapacity benefit, but on attaining the age of 60, on 11 January 1997, her entitlement to that benefit ceased by virtue of section 30A(2)(a) of the Social Security Contributions and Benefits Act 1992 and she became entitled to a Category A retirement pension. The amount of the claimant's retirement pension added to her tariff income exceeded her personal allowance for income support purposes by £1.23 per week, but on 11 September 1997 she claimed income support on the basis that she was entitled to have Higher Pensioner Premium included in her applicable amount, under paragraphs 10 and 12 of Part III of Schedule 2 of the Income Support (General) Regulations 1987. However, paragraph 12 makes it a condition of entitlement to the Premium that a claimant has been continuously entitled to income support since entitlement to long-term incapacity benefit ceased on account of payment of retirement pension, and the claim was rejected on the ground that the claimant only become entitled to income support when her claim for benefit was made.
8. Entitlement to income support depends on a claimant's applicable amount exceeding the claimant's income, and regulation 17(d) of the Income Support (General) Regulations 1987 provides for the aggregation in a claimant's applicable amount of:

"the amount of any premiums which may be applicable to him, determined in accordance with Parts III and IV of Schedule 2 (premiums)"

The relevant condition is in paragraph 10 of Schedule 2 of the 1987 Regulations, which, so far as material, provides:

"(1) Where the claimant is a single claimant or lone parent, the condition is that-

(a) he is aged not less than 80; or

(b) he is aged less than 80 but not less than 60, and

(i) the additional condition specified in paragraph 12(1)(a) or (c) is satisfied;

(ii) he was entitled to, or was treated as being in receipt of, income support and the disability premium was or, as the case may be, would have been, applicable to him in respect of a benefit week within eight weeks of his 60^th birthday and he has, subject to sub-paragraph (3), remained continuously entitled to income support since attaining that age.

(3) For the purpose of this paragraph and paragraph 12-

(a) once the higher pensioner premium is applicable to a claimant, if he then ceases, for a period of eight weeks or less, to be entitled to or treated as entitled to income support, he shall, on becoming re-entitled to income support, thereafter be treated as having been continuously entitled thereto;

(b) in so far as sub-paragraphs (1)(b)(ii) and 2(b)(ii) are concerned, if a claimant ceases to be entitled to or treated as entitled to income support for a period not exceeding eight weeks which includes his 60^th birthday, he shall, on becoming re-entitled to income support, thereafter be treated as having been continuously entitled thereto."

The "additional condition" which is relevant in this case is in paragraph 12(1)(c)(i) of Schedule 2, which provides:

"(c) the claimant, or as the case may be, his partner was in receipt of either-

(i) long term incapacity benefit under Part II of the Contributions and Benefits Act when entitlement to that benefit ceased on account of the payment of a retirement pension under that Act and the claimant has since remained continuously entitled to income support and, if the long term incapacity benefit was payable to his partner, the partner is still alive; or

(ii) ...

and, in either case, the higher pensioner premium or disability premium has been applicable to the claimant or his partner."

9. Although the claimant was not in receipt of income support when her entitlement to long-term incapacity benefit ceased, the claimant's representative submits that the claimant nevertheless "remained continuously entitled to income support" since her entitlement to incapacity benefit ceased because she satisfied the entitlement conditions set out in paragraphs 10 and 12 of Schedule 2 of the 1987 Regulations throughout the period until she made her claim. The Secretary of State contends that there was no entitlement to income support until a claim for benefit was made, on 11 September 1997, because section 1(1) of the Social Security Administration Act 1992 prevents entitlement to benefit in the absence of a valid claim.
10. The predecessor of section 1(1) of the 1992 Administration Act originally provided that "it shall be a condition of a person's entitlement to benefit that he makes a claim for it in the prescribed manner and in the prescribed manner and in the prescribed time", but in Insurance Officer v McCaffrey [1984] 1WLR 1353 the House of Lords held that under the equivalent Northern Ireland provision a claimant was entitled to benefit if he met the conditions of entitlement, even though no claim for benefit had been made. As a result of that decision, the provision was amended to the form in which it now appears in section 1(1) of the Social Security Administration Act 1992:

"(1) Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied-

(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or

(b) he is treated by virtue of such regulations as making a claim for it."

11. In McCaffrey the claimant's entitlement to a non-contributory invalidity pension after attaining pensionable age depended on her establishing that she had been entitled to such a pension immediately before attaining that age. The House of Lords held that under the terms of the former provision there was a distinction between "entitlement" and "a condition of a person's right to any benefit", so that the claimant, who satisfied the other conditions of entitlement, had been entitled to invalidity pension before attaining pensionable age notwithstanding her failure to make a claim until after that date. However, the provision was amended for the specific purpose of abolishing the distinction on which the decision in McCaffrey was based and restoring what had previously been assumed to be the position, namely, that entitlement is dependent on making a claim. I consider that I am therefore bound to uphold the Secretary of State's submission that the claimant in this case did not become entitled to income support until making her claim on 11 September 1997 and that, accordingly, she was not continuously entitled to income support in the period after her entitlement to long-term incapacity benefit ceased.
12. The Secretary of State's position has been that the claimant would only have remained continuously entitled to income support since attaining pensionable age if she had been entitled to income support immediately before attaining that age, and that position was contended for by Mr. Scoon at the oral hearing. The authority cited in support was CIS/4209/1997 in which the claimant was also entitled to income support only if she was entitled to have Higher Pensioner Premium included in her applicable amount, and had also made a claim for benefit only after attaining pensionable age. The appeal tribunal rejected a submission on behalf of the adjudication officer that paragraph 12(1)(c) required the claimant to have been entitled to income support before attaining pensionable age and Mr. Commissioner Goodman upheld the tribunal on that point, on the basis that the words "has since remained continuously entitled to income support" must refer back to the earlier words "when entitlement to [incapacity benefit] ceased on account of the payment of a retirement pension".
13. Although the Commissioner rejected the submission, which has been repeated in this case, that entitlement to Higher Pensioner Premium requires a claimant to have been entitled to income support immediately before attaining pensionable age, he went on to allow the adjudication officer's appeal on a different ground. The concluding words of paragraph 12(1)(c) of Schedule 2 impose a requirement that higher pensioner premium or disability premium has been applicable to the claimant, or the claimant's partner, and the Commissioner had directed submissions on two cases, CIS/5353/1995 and CIS/11293/1995, in which the meaning of "applicable" had been considered. The Commissioner came to the conclusion, however, that those cases were not of assistance, but that paragraph 12(1)(c) requires a claimant to establish continuous entitlement to income support since attaining pensionable age independently of entitlement to Higher Pensioner Premium:

"Having given the matter detailed consideration I have come to the conclusion that this particular line of inquiry does not really assist on the facts of the present case. I have noted with care the detailed written submissions of (the claimant's representative), who points out that Higher Pensioner Premium can only apply in the case of a woman without a partner, as from her 60^th birthday when she attains pensionable age and that for sub-paragraph 12(1)(c) to apply "...applicable must mean that the Higher Pensioner Premium applies from that date." I agree with that submission but there is still the difficulty as to whether or not it can be said that on the claimant's 60^th birthday Higher Pensioner Premium "has been applicable to the claimant" (concluding words of paragraph 12(1)(c)). The difficulty is that the arguments in this case in some ways are circular and it is rather like the old conundrum as to which comes first the cart or the horse. I have eventually come to the conclusion that what is meant by the somewhat obscure provisions is that, if on the changeover from Incapacity Benefit to Retirement Pension, the claimant is then "entitled to Income Support" (paragraph 12(1)(c)(i) of Schedule 2) then the Higher Pensioner Premium can normally be added to it provided there is a basic underlying entitlement to Income Support. In ascertaining whether there is that basic underlying entitlement one has to look at the facts as they actually are at the date of changeover. At the date of changeover here i.e. 29 July 1996 (two days after the claimant's 60^th birthday) the claimant had an applicable amount of her "personal allowance" (regulation 19(1) and Schedule 2 – Part I) but her income i.e. Retirement Pension and Works (Occupational) Pension exceeded that personal applicable amount. Therefore, to the question whether she had basic entitlement to Income Support the answer is no. It is not possible to take into account in the calculation at that point Higher Pensioner Premium because that is to assume an answer to the very question that is being asked. It is only if there was the basic entitlement at that date that one can then so to speak add on Higher Pensioner Premium. It follows that in dealing with the concluding words of paragraph 12(1)(c), "and, in either case, the Higher Pensioner Premium has been applicable to the claimant..." The answer is that in fact it was not applicable to the claimant". On her 60^th birthday she was not entitled to Income Support anyhow in the basic sense because her Retirement Pension and Occupational Pension were too great.

Consequently, I allowed the adjudication officer's appeal and reversed the tribunal's decision...I should add that I consider the question of construction in this case by no means straight forward but after considerable thought, I have come to the conclusions stated above."

14. I have no hesitation in agreeing with the Commissioner in CIS/4209/1997 that paragraph 12(1)(c) of Schedule 2 does not require a claimant to have been entitled to income support immediately before attaining pensionable age. Although the word "remained" carries a suggestion of having previously been entitled to income support, I agree that the words: "has since remained continuously entitled to income support" can only be read as referring back to the earlier words "entitlement to [incapacity benefit] ceased ... ". As the Secretary of State's representative submitted in his observations of 16 November 2000, the system of premiums is designed to ensure that particular needs are met through income support, and paragraph 12(1)(c)(i) of Schedule 2 specifies long-term incapacity benefit, which is paid to claimants suffering from physical or mental incapacity, as the pre-pension age benefit which qualifies a claimant for Higher Pensioner Premium. I can see no justification for reading into the paragraph an additional requirement that before attaining pensionable age a claimant should also have been entitled to income support.
15. I do, however respectfully differ from the Commissioner in CIS/4209/1997 on the issue of whether there must be an underlying entitlement to income support, that is, entitlement independent of entitlement to Higher Pensioner Premium, in order for paragraph 12(1)(c)(i) to be satisfied. The issue is unlikely to arise in practice, since a claimant who has not been in receipt of income support before attaining pensionable age will not normally have made a claim for that benefit, and will therefore be unable to satisfy the condition of entitlement that a valid claim for benefit has been made (which was a question apparently not considered in CIS/4209/1997.) However, there would appear to be nothing to prevent such a claimant from making a claim for income support in advance of attaining pensionable age under regulation 13 of the Social Security (Claims and Payments) Regulations 1987, or perhaps on the day of the claimant's birthday itself.
16. The Commissioner concluded in CIS/4209/1997 that an underlying entitlement to income support is necessary after a claimant attains pensionable age because he considered that otherwise the requirement that higher pensioner premium or disability premium has been "applicable" to the claimant or the claimant's partner could give rise to a circular condition of entitlement. In CIS/11293/1995, which is one of the cases on which the Commissioner directed submissions, the same Commissioner expressly dissented from CIS/5353/1995, and held that housing costs for which a claimant was liable as a joint mortgagor, but which the claimant had not actually met, were "applicable" to the claimant for the purposes of paragraph 5A of Schedule 3 of the 1987 Regulations. I agree that paragraph 12(1)(c) could create a circular condition of entitlement if the word "applicable" were taken as referring to entitlement to benefit which is hypothetical because no claim has been made, because then the claimant's entitlement to income support might depend on entitlement to Higher Pensioner Premium, whilst entitlement to Higher Pensioner Premium might itself depend on entitlement to income support. However, it seems to me that that difficulty does not arise if the term "applicable" refers to income support to which there is entitlement as a result of a valid claim having been made, since in such a case it will be necessary to investigate only if such entitlement is on the basis that the claimant's applicable amount, or the applicable amount of the claimant's partner, includes Higher Pensioner or Disability Premium.
17. In CIS/458/1992 Mr. Commissioner Rice rejected a submission that the term "applicable" in paragraph 12(1)(c) of Schedule 2 can be construed as applying to hypothetical events, and for the reasons I have given, I consider that a claimant is entitled to Higher Pensioner Premium only if there is in existence a valid claim for income support covering the period after the claimant attains pensionable age. I therefore see no need to construe the provision as requiring an "underlying" entitlement to income support and, in the rare case where a claimant was not entitled to income support immediately before attaining pensionable age, but has made a valid claim for income support covering the period since that date, I would therefore hold that it is not necessary for the claimant to have any separate entitlement to income support in order to qualify for Higher Pensioner Premium.
18. In his submission of 28 November 2000 the claimant's representative submitted that the claimant would, in fact, have been entitled to income support before attaining pensionable age because she would have been entitled to Disability Premium. Although I have expressed the view that entitlement to income support before attaining pensionable age is not necessary to satisfy the requirements of paragraph 12(1)(c) of Schedule 2, I have held that the claimant's claim fails because section 1 of the Social Security Administration Act 1992 prevented the claimant from satisfying paragraph 12(1)(c) of Schedule 2 of the 1987 Regulations. That was the basis on which the tribunal disallowed the claim and, since I have concluded that it was correct in law, I dismiss the appeal. It is, however, necessary to consider one further matter which arose in the course of considering the parties' submissions.
19. Paragraph 12(1)(c)(i) of Schedule 2 refers to entitlement to long-term incapacity benefit having ceased "on account of the payment of a retirement pension", but the payment of a retirement pension does not cause entitlement to incapacity benefit to cease. Under section 30A(5) of the Social Security Contributions and Benefits Act 1992, a person who has ceased to be entitled to short-term incapacity benefit by virtue of subsection (4) is entitled to long-term incapacity benefit in respect of any subsequent day of incapacity in the same period of incapacity "on which he is not over pensionable age.". Section 44 of the Contributions and Benefits Act confers entitlement to a Category A retirement pension on a person over pensionable age who satisfies the contributions conditions, but it is the attainment of pensionable age, and not the payment of retirement pension, which results in the cessation of entitlement to long-term incapacity benefit. If paragraph 12(1)(c)(i) is read literally, therefore, it can never apparently be satisfied. It is for that reason that I directed further submissions on the issue.
20. I set out the history of the provision in my Direction of 6 August 2001, and I consider it unnecessary to repeat it in detail here. The pre-pension age benefits which qualified a claimant for Higher Pensioner Premium when the 1987 Regulations were first drafted were mobility allowance and invalidity pension. The relevant requirement was that entitlement to either benefit had ceased "solely on account of the maximum age for its payment being reached", but the Regulation was amended with effect from 9 October 1989 by regulation 5 of the Income Support (General Amendment) Regulations 1989 so as to require that benefit had ceased "either on account of the maximum age for this payment being reached or the payment of a retirement pension under the Social Security Act". The Disability Living Allowance and Disability Working Allowance (Consequential Provisions) Regulations 1991, further amended the Regulation so as to require that "entitlement to that benefit (i.e invalidity pension) ceased on account of the payment of a retirement pension under the Social Security Act". The requirement was retained in substantially that form through subsequent amendments.
21. It seems clear that the intention of the provision in its various forms has been for a claimant whose entitlement to a specified benefit has ceased on grounds of age to qualify for Higher Pensioner Premium if the other qualifying conditions are satisfied. In relation to long-term incapacity benefit, the appropriate formulation of the condition seems to have been the form in which the provision was originally drafted, and it may be that the 1991 amendments accidentally retained the wrong one of the two alternative entitlement conditions introduced in 1989. However the intention of the provision is clear, and I am satisfied that a claimant falls within paragraph 12(1)(c)(i) of Schedule 2 if he or she ceases to be entitled to long-term incapacity benefit on attaining pensionable age.
22. For the reasons I have given, however, I dismiss this appeal.

(Date): 8 January 2002 (signed) E. A. L. Bano

Commissioner