Decision No:  C8/06-07(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 20 August 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application by the claimant for leave to appeal against a decision dated 20 August 2004 of an appeal tribunal sitting at Magherafelt.  That tribunal disallowed the claimant’s appeal against a supersession decision of the Department dated 20 February 2004 to the effect that the claimant was to be treated as capable of work from 1 September 2003 to 8 February 2004 (both dates inclusive) because he worked and that work did not fall under permitted work rules because he had not given the Department the required notice.  

2.	The claimant is represented by Ms Little of Counsel instructed by Mr McVeigh of the Citizens Advice Bureau.  The Department is represented by its Decision Making Services branch.  I held a hearing of the appeal at which Ms Little attended and at which Mr McNamara attended to represent the Department but at which the claimant did not attend.  I grant leave and with the consent of both representatives treat the application as an appeal and proceed to determine any questions arising thereon as if they arose on appeal.  My decision is given in the final paragraph.

3.	The background to the case is that the claimant, a 46 year old general assistant, became unfit for work on 1 September 2003 and claimed incapacity benefit (IB) by reason of depression and anxiety.  He was sent an information pack by the Department which informed him about any work which could be done and that he was to inform the Department within 42 days if he worked.  This pack did not indicate that he must so inform the Department in writing.  In September or October 2003 the claimant telephoned the Department to enquire about permitted working.  It appears he had had an appointment for some 3 years which provided him with a small amount of intermittent work.  It provided him with work around that time and he told the Department of this. It appears to have been accepted by the tribunal that he was advised that he could work for 16 hours for the first 6 months and to contact the Department again after 6 months.  He was not advised that he had to give notice in writing when he started work.  When he contacted the Department in February 2004 pursuant to the earlier instructions he was given a form to complete which gave the required written notification that he was working.  The decision of 20 February 2004 was then made and revised by the decision of 9 April 2004.  The claimant appealed to the tribunal which, as mentioned above, disallowed his appeal.

4.	I have had the benefit of several written submissions in this matter both from the Department and from Mr McVeigh.  I have also had the benefit of argument at hearing from Mr McNamara and Ms Little.  I am grateful to all the representatives for their considerable assistance in this matter.  Much of the argument made by Ms Little centred round whether or not the relevant decision-maker had discretion to extend the time to give written notice of working and if so whether the refusal to exercise any such discretion amounted to an action which was ultra vires.  

5.	The other limb of her argument was to the effect that if the decision-maker had no such discretion to extend time then part of regulation 17(1E) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 was ultra vires as violating the claimant’s rights under Article 1 of Protocol 1 of the European Convention on Human Rights.  

6.	There was also argument (based on decision CIS/6249/1999 of Mr Commissioner Mesher in Great Britain) (directed by me) as to whether or not the Department’s (and hence the tribunal’s) exercise of its discretion to supersede the decision awarding IB was an abuse of power.  There was also argument (also directed by me) as to whether the conduct of the Department Official who indicated that written notice of working was not required when first approached by the claimant could be considered as a waiver of the requirement for written notice and if so the effect of any such waiver.

7.	The submissions are voluminous.  Many are set out on the papers and I do not propose to set them out again here save where it is necessary to explain my decision.

	The domestic legislation

8.	The IB legislation is to the effect that a person shall not be entitled to IB unless incapable of work (Social Security Contributions and Benefits (Northern Ireland) Act 1992, section 30A).  A person is to be treated as capable of work on each day of any week commencing on Sunday during which he or she works unless the work falls into any of the categories of exempt work and is done within prescribed limits.  (Social Security Contributions and Benefits (Northern Ireland) Act 1992, Section 167D).  Work is any work which a person does, apart from work as a councillor, whether or not it is undertaken in expectation of payment, apart from care of a relative or domestic tasks carried out in that person’s home (Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995, regulation 16(2)).

9.	The categories of exempt work are set out in regulation 17 of the said regulations.  Only one category appears relevant to the claimant, that set out in regulation 17(1)(a)(iv).  No other category has been raised or is apparent.  That category is defined thus in regulation 17(1):

“(a)	work in respect of which the required notice is given, and –

to which paragraph (1A) applies;”

	The only area in dispute relates to the “required notice” requirement.  “Required notice” is defined in regulation 17(1E) which so far as relevant, provides:

”the required notice” means, in relation to work referred to in any of heads (i) to (iv) of paragraph (1)(a), notice to the effect that the person is undertaking, or is about to undertake the work, given in writing to the Department by that person or another person acting on his behalf –

(b)	in the case of work referred to in paragraph 1(a)(iv), no later than the end of the period of 42 days which begins with the day on which the work begins;”

	It is common case that the claimant did not give the required notice within the required time.

The supersession legislation

10.	The relevant provisions are contained in Article 11 of the Social Security (Northern Ireland) Order 1998 which provides that certain decisions of the Department relating to benefit entitlement (it was common case that this decision was one) “may be superseded by a decision made by the Department, either on an application made for the purpose or on the Department’s own initiative.”

11.	Supersession can take place only in prescribed cases and circumstances.  The prescribing regulations are the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  Regulation 6 is the relevant provision and provides that a decision under Article 11 may be made on the basis that the decision to be superseded (inter alia) (a) is one in respect of which -

(i)	there has been a relevant change of circumstances since the decision was made.

	The application of the legislation in this case

12.	The Department decided that the claimant’s working was a relevant change of circumstances.  No-one has contended at any stage that it was not.  He was awarded benefit by a decision dated 15 September 2003 and commenced work some time around the end of September 2003.  There was a relevant change of circumstances.

13.	Ms Little contended that the relevant decision-maker had discretion to extend the time within which written notice had to be given and that the refusal to exercise that discretion amounted to an action which was ultra vires.  I find some inherent inconsistency in a submission that a refusal to exercise a discretion is ultra vires.  Implicit in the concept of a discretionary power is that it may or may not be exercised so it is difficult to see how the refusal to exercise such a power can be ultra vires.

14.	Ms Little did concede that, on the face of it, the legislation gave no discretion to the decision-maker to extend the category of exempt work to include work of which notice was given outside the prescribed time.  The concession was correctly made.  She then relied on a line of authorities – McClean and others v Kilpatrick and others 2003 NI14; Re Misbehavin’ Ltd 2005 NICA 25 and R v City of Chester and Others ex parte Quietlynn Ltd and Re Robinson 2002 – NI 206 as authorities for her argument that the time limit of 42 days was not mandatory.  She submitted that to interpret it as such was contrary to the rights of the claimant under the European Convention on Human Rights.  She submitted that to protect the fundamental human rights of those involved in the scheme permitting therapeutic work to be done while continuing to receive IB there had to be a power to extend the time limit.  She argued that the claimant’s Convention rights meant that the legislation had to be read as if such a discretion existed, that the legislation was ultra vires if no such discretion existed.  Ms Little submitted further that the provision requiring written notice within 42 days operated as a means of withdrawing benefit which interfered with the claimant’s rights to peaceful enjoyment of his property under Article I of Protocol I to the Convention.

15.	I consider there is no merit in the submission based on Article I of Protocol I.  There is no inbuilt Convention right to any State benefit.  A State is not obliged to provide benefit.  The right to benefit only arises when the conditions therefore (which are provided under domestic legislation) are satisfied.  In this case they were not so satisfied.  The claimant was not entitled to the benefit because he worked and his work did not fall within the categories of exempt work.  The basic rule in relation to IB is that those who work are not entitled to it.  The benefit is, after all, an incapacity for work benefit.  There are exceptions to this basic rule but they relate only to certain categories of work.  The relevant category here includes that the work be work of which the required notice is given.  Working on the assumption that the domestic law requirement of written notice within 42 days is valid, there is no entitlement to IB if work is done which does not come within an exempt category.  Article I of Protocol I is not therefore invoked, there being no property to enjoy.  The claimant is not being asked to repay benefit incorrectly paid.  His benefit entitlement is merely being determined according to the applicable statutory conditions of entitlement.

16.	As regards whether the 42 day period can be extended.  It is quite apparent to me that on the domestic legislation it cannot be extended.  The “required notice” is part of the definition of the relevant exempt work category.  The domestic legislation affords no power to extend this limit.

17.	I do not accept Ms Little’s submission that the 42 day period is a means of withdrawing benefit.  Rather it is a means of permitting benefit to be paid to someone who is working in certain categories of work.  There is no right to benefit to those who are working in non-exempt categories so there is no interference with a right under the Convention.  Those who work in non-exempt categories of work simply do not fulfil the conditions of entitlement to IB.  

18.	Ms Little has cited various cases in support of her argument that a discretion can and should be read into the scheme.  As I understand it she based her argument on the need for a discretion to extend the 42 day time limit on an interference with a fundamental human right under the Convention.  As I have indicated above I consider that no such right existed.  The claimant had no right to benefit if he was working other than in an exempt category of work.  He did not satisfy the conditions of entitlement to the benefit. He was working a non-exempt category so there was no such entitlement.  No right existed to be paid IB unless the conditions of entitlement to it were satisfied.  They were not in this case.  There was therefore no need for the tribunal to consider reading in any discretion to extend time and it did not err in not so doing.

19.	Even, however, had there been any such right, I consider that the 42 day period for giving written notice is a reasonable one.  To protect the public purse and avoid abuse of the scheme the Department is entitled to stipulate that notice of work be given close to the time of commencement. This scheme is an exemption from a reasonable general rule that those who work are not entitled to IB (which is a benefit paid on the basis of incapacity for work).  A discretion to extend the category of exempt work is not necessary to comply with the Convention.

20.	I come then to deal with the submission on the Department’s discretion as to whether or not to supersede its decision awarding benefit to the claimant.  It appears that supersession was on the basis that there was a relevant change of circumstances.  Article 11 provides that a decision “may” be superseded where one of the prescribed circumstances arises.  There is no doubt one arose here – the claimant started work after the decision was given.  This was a relevant change of circumstances.  There is also no doubt that the Department has a power, though not an obligation, to supersede.  However it must exercise its discretion judiciously.

21.	I considered arguments (based on decision CIS/6249/1999 and other cases) as to whether the exercise of the discretion to supersede was an abuse of power in this case.  I conclude that it was not.  It appears that the claimant was given wrong advice by a member of staff in the Department and consequently he did not give written notice that he was starting work.  That, however, does not mean that an erroneous decision on benefit entitlement should remain in place.  The Department does have a discretion as to whether to supersede or not.  It can hardly, however, be said to be an abuse of power for that discretion to be exercised so as to put a correct decision in place.  This case is different from the numerous cases cited in argument to me.  This is not a matter of practice or policy or of a promise made.  It is a matter of entitlement or non-entitlement according to statutory provisions.  I do not altogether share the views in CIS/6249/1999 but it is in any event distinguishable from this case in that the unfairness in the Department’s exercise of its statutory powers on the facts of this case is not so extreme that it outweighs the public interest in ensuring that correct entitlement is reached.  Here there is no question of bad faith, merely a mistake made by a Departmental official.  Any legitimate expectation on the part of the claimant cannot extend to an expectation that he be deemed entitled to benefit where the conditions of entitlement to it are not met.  Here also there is no question of recovery of benefit mistakenly paid.

22.	In short this is not an instance of abuse of power, merely one of mistake by a Departmental official.  Neither a tribunal nor a Commissioner has any jurisdiction to deal with whether or not the claimant has any redress in relation to that.  It is a matter for the courts.

23.	At my request, also, there were submissions made as to whether the exchange of information between the claimant and the mistaken Departmental official could be deemed to be a waiver of the condition of requirement for written notice.  I am satisfied that the said official simply had no power to waive a statutory requirement.  Mr Toner is correct when he submits that the notice in question is a substantive entitlement issue.  It forms part of what constitutes an exempt work category (C77/98(IB)).  It is much more than a mere procedural requirement.  As such it is not a question of a time limit which can be mandatory or discretionary.  Rather it is a question of whether or not work is within a defined category.

24.	As regards the question of estoppel, I am in agreement with Mr Toner that it cannot be argued here that the Department is estopped from putting in place a correct decision on benefit entitlement.  As Lord Wolff stated in Davies v Social Security Commissioner (reported as an appendix to R(SB)4/91):

“There is also the difficulty that, although the matter can be dressed up in a different way, what Mr Davies is contending is that the estoppel would give him a claim against the Department for benefit to which he would not otherwise be entitled …  As is always said in these matters, estoppel can act as a shield but it cannot act as a sword, and in effect Mr Davies would be relying on the estoppel as a sword in order to get money from the Department to which he would not otherwise be entitled.”

25.	Here, while I am satisfied that the claimant acted honestly at all times, he cannot rely on mistaken advice by a Department official to allow him to continue to have entitlement to a benefit to which he is not entitled.  I am not concerned here with any recovery of benefit wrongly paid.

26.	It gives me no pleasure to dismiss this appeal.  The claimant has acted honestly at all times.  However, he did not satisfy the conditions for entitlement to the benefit because he did not give the “required notice” and his work therefore did not come within an exempt category.  The Department was entitled to put the correct decision on entitlement in place and it was not an abuse of power for it to do so.  The tribunal and a Commissioner are concerned only with the narrow questions relating to whether or not the original awarding decision should be superseded and if superseded whether or not there was entitlement to the benefit.  The tribunal’s decision on these matters is not in error of law.

27.	It may be that the claimant has another remedy in the courts.  It may also be that the Department may consider an ex gratia payment.  Neither of these matters is within the jurisdiction of a tribunal or a Commissioner.  The appeal is dismissed.

(signed):  M F Brown

Commissioner

23 October 2006