CW-v-Department for Social Development (IS) [2010] NICom 114
Decision No:  C3/1011(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 15 January 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner, against the decision of a tribunal, confirming the decision of a decision-maker, to the effect that the claimant had received income support (IS) amounting to £7,155.87 for the period 11 May 2007 to 3 April 2009 and confirmed that this amount, which was included in the recoupment notice served on the claimant’s former employer, was correct.

2.	A hearing of this appeal took place at Craigavon Court on 21 September 2010.  The claimant, who was present, was represented by Mr Frank McCartan, Solicitor, of Con Lavery & Company, Solicitors, while the Department was represented by Mrs Ursula Rush of Decision Making Services.

3.	The claimant was awarded IS from 11 May 2007 on the grounds of incapacity for work.  He was not entitled to incapacity benefit (IB) due to insufficient contributions.  The claimant had been employed by RFD Limited until September 2003 when his employment was terminated.  He took proceedings before an industrial tribunal and an award was made of £53,500.  The claimant never resumed work after his dismissal and during the relevant period he was in receipt of different benefits, including IS.  The award made by the tribunal included an element of loss of income and as this figure exceeded the permitted maximum for entitlement to IS, the Social Security Agency sought recoupment from the award.  On 14 August 2009 a recoupment notice was issued to the claimant’s former employer requesting recoupment of £7,155.87, that being the amount of IS paid for the period 11 May 2007 to 3 April 2009.  This sum was paid by the appellant’s former employers and the cheque for the balance was sent to the claimant.  The claimant subsequently appealed against this recoupment on the grounds that he should have been getting IB and not IS when he was sick and that no recoupment could be made from IB.  The tribunal, decided that it had no authority to deal with anything other than an appeal against the amount of benefit to be recouped and, accordingly, disallowed the appeal as there was no dispute over the amount of IS paid.

4.	The tribunal gave the following reasons for its decision:

		“This appeal is disallowed for the following reasons: -

1.	A Social Security Appeal Tribunal has limited authority to deal with recoupment notices, which compel employers to recoup certain state benefits paid to an employee (or ex-employee) following an award made by an Industrial Tribunal.

2.	Quoting directly from Commissioner’s decision R(JSA) 3/03: - I quote “… The only recoupment question which an Appeal Tribunal has power to determine is whether a recoupment notice currently sets out the amount of Income Support or Jobseeker’s Allowance paid to a Claimant in respect of the prescribed period”.

3.	(The claimant) and Mr McCartan are not challenging the amount of Income Support the former received for the period 11.05.2007 to 03.04.2009, a sum amounting to £7155.87.

4.	This being the case, I confirm the sum in paragraph 3, for the period stated in same paragraph to be correct.

Appeal is disallowed.”

5.	The claimant then sought leave to appeal to a Commissioner.  On 26 March 2010 the legally qualified member, who was the sole member of the tribunal, granted leave to appeal to a Commissioner.

6.	Mr McCartan, who appeared on behalf of the claimant both at the tribunal hearing and before me, submitted that the tribunal erred by interpreting the relevant legislation too narrowly in so far that it restricted his grounds of appeal to one single matter, namely, the right of appeal against the amount of benefit to be recouped.  He also submitted that the tribunal erred by not allowing him to raise at the hearing the issue that the Department had breached regulation 8(5) and (6) of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996, by failing to serve the recoupment notice on his former employer within 21 days or as soon as practicable thereafter.

7.	The relevant recoupment legislation is set out in the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended.  Regulation 8 and regulation 10 are in the following terms:

“PART III
RECOUPMENT OF BENEFIT
…

Recoupment of benefit

8.—(1) Recoupment shall be initiated by the Department serving on the employer a recoupment notice claiming by way of total or partial recoupment of jobseeker’s allowance or income support the appropriate amount, computed, as the case may require, under paragraph (2) or (3).

(2) In the case of monetary awards the appropriate amount shall be whichever is the less of the following two sums—

(a) the amount of the prescribed element (less any tax or social security contributions which fall to be deducted therefrom by the employer), or

(b) the amount paid by way of or paid as on account of jobseeker’s allowance or income support to the employee for any period which coincides with any part of the period to which the prescribed element is attributable.

(3) In the case of remuneration under a protective award the appropriate amount shall be whichever is the less of the following two sums—

(a) the amount (less any tax or social security contributions which fall to be deducted therefrom by the employer) accrued due to the employee in respect of so much of the protected period as falls before the date on which the Department receives from the employer the information required under regulation 6, or

(b) the amount paid by way of or paid as on account of jobseeker’s allowance or income support to the employee for any period which coincides with any part of the protected period falling before the date described in sub-paragraph (a).

(4) A recoupment notice shall be served on the employer by post or otherwise and copies shall likewise be sent to the employee and, if requested, to the Secretary of the Tribunals.

(5) The Department shall serve a recoupment notice on the employer, or notify the employer that it does not intend to serve such a notice, within the period applicable, as the case may require, under paragraph (6) or (7), or as soon as practicable thereafter.

(6) In the case of a monetary award the period shall be—

(a) in any case in which the industrial tribunal at the hearing announces to the parties the effect of its decision as described in regulation 4(4), the period ending 21 days after the conclusion of the hearing or the period ending 9 days after the decision has been sent to the parties, whichever is the later, or

(b) in any other case, the period ending 21 days after the decision has been sent to the parties.

(7) In the case of a protective award the period shall be the period ending 21 days after the Department has received from the employer the information required under regulation 6.

(8) A recoupment notice served on an employer shall operate as an instruction to the employer to pay, by way of deduction out of the sum due under the award, the recoupable amount to the Department and it shall be the duty of the employer to comply with the notice.  The employer’s duty under this paragraph shall not affect his obligation to pay any balance that may be due to the employee under the relevant award.

(9) The duty imposed on the employer by service of the recoupment notice shall not be discharged by payment of the recoupable amount to the employee during the postponement period or thereafter if a recoupment notice is served on the employer during the said period.

(10) Payment by the employer to the Department under this regulation shall be a complete discharge in favour of the employer as against the employee in respect of any sum so paid but without prejudice to any rights of the employee under regulation 10.

(11) The recoupable amount shall be recoverable by the Department from the employer as a debt.”

Order made in secondary proceedings

9. …

PART IV
DETERMINATION OF BENEFIT RECOUPED

Provisions relating to determination of amount paid by way of or paid as on account of benefit

10.—(1) Without prejudice to the right of the Department to recover from an employer the recoupable benefit, an employee to whom a copy of a recoupment notice has been served in accordance with regulation 8 may, within 21 days of the date on which such notice was served on him or within such further time as the Department may for special reasons allow, give notice in writing to the Department that he does not accept that the amount specified in the recoupment notice in respect of jobseeker’s allowance or income support is correct.

(2) Where an employee has given notice in writing to the Department under paragraph (1) that he does not accept that an amount specified in the recoupment notice is correct, the Department shall make a decision as to the amount of jobseeker’s allowance or, as the case may be, income support paid in respect of the period to which the prescribed element is attributable or, as appropriate, in respect of so much of the protected period as falls before the date on which the employer complies with regulation 6.

(2A) The Department may revise, either on an application made for the purpose or on its own initiative, a decision under paragraph (2).

(2B) The employee shall have a right of appeal to an appeal tribunal constituted under Chapter I of Part II of the 1998 Order against a decision of the Department whether as originally made under paragraph (2) or as revised under paragraph (2A).

(2C) The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 shall apply for the purposes of paragraphs (2A) and (2B) as if a decision of the Department under paragraph (2A) were made under Article 10 of the 1998 Order and any appeal from such a decision were made under Article 13 of that Order.

(3) Where the Department recovers too much money from an employer under these Regulations it shall pay to the employee an amount equal to the excess.

(4) In any case where, after the Department has recovered from an employer any amount by way of recoupment of benefit, the decision given by the industrial tribunal in consequence of which such recoupment took place is set aside or varied on appeal or on a re-hearing by the industrial tribunal, the Department shall make such repayment to the employer or payment to the employee of the whole or part of the amount recovered as it is satisfied should properly be made having regard to the decision given on appeal or re-hearing.”

8.	Mrs Rush submitted that in recoupment cases it is only a decision made in accordance with regulation 10(2) or (2A) which carries a right of appeal to a tribunal.  This is the plain meaning of regulation 10(2B).  However any doubt on the point has been resolved by the decision of Mr Commissioner Bano in Great Britain decision R(JSA)3/03 when dealing with the equivalent legislation in Great Britain.  The Commissioner, at paragraphs 9 and 10 held that:

“9.	Regulation 10(2) of the 1996 Regulations formerly provided that where an employee had given notice to the Secretary of State that he did not accept that an amount specified in a recoupment notice was correct, the Secretary of State should forthwith submit the question to an adjudication officer and that “any question so submitted shall be for determination by an adjudication officer, a Social Security Appeal Tribunal and a Commissioner … ”.  However, paragraph 2B of regulation 10, as added by the Social Security Act 1998 Commencement No. 12 Order, refers to a right of appeal to an appeal tribunal against a decision made under paragraph (2), but omits any reference to a further right of appeal to a Commissioner.  I therefore directed further submissions from the parties on the question of whether the effect of the amendments was to remove the jurisdiction of Commissioners to deal with recoupment questions.

10.	I accept the Secretary of State’s submission that the amendments did not have that effect.  Section 14(1) of the Social Security Act 1998 confers a right of appeal to a Commissioner on a question of law from any decision of an appeal tribunal under section 12 of the Act.  Section 12 provides for a right of appeal to an appeal tribunal in respect of any decision of the Secretary of State under section 8 or 10 of the Act, and section 8(1)(c) provides for the Secretary of State “to make any decision that falls to be made under or by virtue of a relevant enactment”.  By section 8(4), those enactments include the Social Security Administration Act 1992, under which the provisions of the 1996 Regulations relating to decision making in recoupment cases were originally made.  The amendments to the 1996 Regulations were clearly intended to abolish the old free-standing system of appeals in relation to recoupment questions and to assimilate such appeals into the new system of decision making by the Secretary of State.  Having provided for such decisions to carry a right of appeal to an appeal tribunal as decisions made under section 8, I agree with the Secretary of State’s submission that it was unnecessary to provide expressly for a further right of appeal to a Commissioner.  However, for the reasons I have given, the only recoupment question which an appeal tribunal has power to determine is whether a recoupment notice correctly sets out the amount of income support or jobseeker’s allowance paid to a claimant in respect of the prescribed period, and, since an appeal to a Commissioner lies only on a question of law, I cannot imagine any circumstances in which a recoupment issue could again properly give rise to a Commissioner’s appeal.”

	This decision is authority for the proposition that there is no power for the Secretary of State (the equivalent of the Department in Great Britain) to take account of benefits which would have been paid but for the claimant’s dismissal, so as to reduce the amount of jobseeker’s allowance (JSA) which is recouped and the only question which can be brought before, and decided by, an appeal tribunal is the decision notifying the claimant of the amount of IS or JSA to be recouped.

9.	Mr McCartan also argued that the tribunal erred by not allowing the claimant to proceed with his argument that the Department was in breach of the legislation by not serving the recoupment notice within the time limits stipulated in regulation 8(5) and (6).  These subsections require the Department to serve a recoupment notice on the employer within 21 days from the conclusion of the hearing “or as soon as practicable thereafter”.  Mr McCartan relied on the fact, which has not been contested, that the Department, through the Social Security Agency, took four months to issue the required notice.  He submitted that this is a clear breach of the regulations especially as the agency had simply to calculate the amount of benefit which had been paid to the claimant during the relevant period.  He submitted that this could not possibly be considered to be “as soon as practicable”.

10.	I have considerable sympathy with the predicament that the claimant has found himself in in relation to these proceedings.  However, it seems to me that the tribunal (and, accordingly, a Commissioner) can only deal with matters within the tribunal’s jurisdiction.  The tribunal and a Commissioner, being creatures of statute, have no inherent jurisdiction to deal with matters, outside the ambit of the powers given to them by legislation.  This distinguishes the tribunal and the Commissioner from the High Court which has long been held to be able to exercise such powers in appropriate circumstances.  Therefore, if the claimant has a remedy, it is not before the tribunal or a Commissioner.  Mr Commissioner Bano at paragraph 12 of R(JSA)3/03 stated that compensation for losses arising out of the loss of entitlement to benefits “… cannot be given by adjustment of the amounts recovered from employers under the recoupment provisions.  The question of whether compensation can be given for such losses under the employment protection legislation is, of course, a matter for the tribunals concerned with that legislation to decide.”

11.	In the circumstances I conclude that the tribunal has not erred in law and, accordingly, I dismiss the claimant’s appeal.

(signed):  J A H Martin QC

Chief Commissioner

17 November 2010