MJG/SH/LB/4

					Commissioner’s File:  CIS/15611/96	

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal against the decision of the social security appeal tribunal dated 25 January 1996 as that decision is erroneous in law and I set it aside.  My decision is that, in relation to the claim for income support made on 27 September 1995, the claimant is entitled (in ascertaining his applicable amount) to the disability premium:  Social Security Administration Act 1992, section 23.

2.	This is an appeal to the Commissioner by the claimant, a man aged 57 at the relevant time.  The appeal is against the unanimous decision of a social security appeal tribunal dated 25 January 1996, which dismissed the claimant’s appeal and held that, in relation to the claim for income support made on 27 September 1995, the claimant was not entitled to the disability premium specified in paragraph 11 of Schedule 2 to the Income Support (General) Regulations 1987, S.I. 1987, No. 1967 (“the 1987 Regulations”).  That was because the claimant, though previously entitled to the disability premium, had been in prison from 26 May to 22 September 1995. The tribunal’s decision was that that period of imprisonment necessitated the claimant starting again ‘from square one’ on being released from prison, having to be incapable of work from the day of release from prison (22.9.95) for the 364 days required by paragraph 12(b)(ii)(bb) of Schedule 2 to the 1987 Regulations (as substituted by S.I. 1995 No. 482 as from 13 April 1995), before he could once more be entitled to the disability premium.

3.	The social security appeal tribunal, in dismissing the appeal, gave the following reasons for their decision,

“1.	For [the claimant] to be entitled to the disability premium of income support he has to be incapable of work for 364 days.

2.	[The claimant] was in receipt of income support due to incapacity [hypertension] up to the time he went into prison.  He was imprisoned from 26.5.95 to 22.9.95.

3.	Under regulation 3(1)(b) of the Social Security (General Benefit) Regulations 1982 [S.I. 1982, No. 1408] the payment of benefit is suspended during a period of imprisonment.  

4.	As the period of imprisonment here is greater than 56 days [the maximum period which does not cause an interruption of incapacity under paragraph 12(b) of Schedule 2 to the 1987 Regulations], [the claimant’s] claim is treated in effect as a new claim and he, therefore, has to serve a qualification period of 364 days before becoming entitled to the disability premium.”  (Words in square brackets inserted by me).

4.	Both the claimant’s representative and the adjudication officer now concerned, in their written submissions dated 27 February 1996 and 7 November 1996 respectively, submit that the tribunal erred in law (for the reasons which I set out below).  They contend that the true position is that the claimant’s imprisonment did not ‘break’ his entitlement to disability premium, though it is common ground that he would not be entitled to income support whilst in prison.  That is because section 113(1)(b) of the Social Security Contributions and Benefits Act 1992 provides that a person “shall be disqualified for receiving [income support] ... for any period during which the person ... is undergoing imprisonment or detention in legal custody.”  Moreover, paragraph 8(a) of Schedule 7 to the 1987 Regulations provides that the applicable amount for a prisoner (other than a remand prisoner) is “Nil”.  I should at this point add that those two provisions are the correct legislative basis for the non‑entitlement to payment of income support of a person in prison rather than regulation 3 of the Social Security (General Benefit) Regulations 1982, quoted by the tribunal. The 1982 Regulations are in fact concerned with certain limited exceptions from disqualification, not with the actual imposition of the disqualification.

5.	In paragraph 2 of written grounds of appeal dated 27 February 1996, the claimant’s representative submits,

“... there are no provisions which treat a person undergoing imprisonment or a period of legal detention as either capable or incapable of work.  It is further submitted that, as a person who had been determined to be incapable of work prior to 13 April 1995 and a person to whom the ‘all work test’ of incapacity for work applied at the date of claim, the claimant was not required to satisfy the all work test in order to be found to be incapable of work until he was actually assessed in accordance with that test so long as he provided evidence of incapacity for work which complied with the Social Security (Medical Evidence) Regulations 1976 [S.I. 1976, No. 615]; regulations 31(1) and (2) [of the] Social Security (Incapacity Benefit) (Transitional) Regulations 1995 [S.I. 1995, No. 310].  It is submitted that the tribunal erred in not applying the above provisions in relation to the claimant.”

6.	By a written submission dated 7 November 1996, the adjudication officer now concerned in effect agrees with this conclusion, pointing out that on and after 13 April 1995, in order to satisfy the condition of 364 days’ incapacity for work, a person has (under para. 12(1)(b) of Schedule 2 to the 1987 Regulations) to be continuously (subject to any gap not exceeding 56 days) for 364 days incapable or treated as incapable of work in accordance with the provisions of Part XIIA of the Social Security (Contributions and Benefits) Act 1992 (“Incapacity for Work”).  The adjudication officer consequently submits, 

“... subject to the claimant providing suitable medical evidence that he was incapable of work throughout the period of his imprisonment, on his release from prison on 22.09.95 the claimant’s applicable amount should have included a disability premium.”

7.	The adjudication officer then submits that I ought to remit the case for rehearing by another tribunal “with instructions that they consider and record any findings of fact concerning verification of the claimant’s incapacity for work.”  However, from all the written evidence before me this does not seem to be a contentious issue.  In written observations dated 19 November 1996, the claimant’s representative asks me to give my own decision, because “the Department has in its possession a Medical Certificate for 6 months from 1 May 1995.”  I have therefore given my decision as to entitlement in paragraph 1 above.  If it is considered that that part of my decision has been given under any mistake etc. as to a material fact, eg. as to the medical certification or any doubt to be cast upon it, then it is of course open to any party including an adjudication officer to apply for review of that part of my decision.

8.	Because I had some doubts on the correctness of the concurring submissions of the claimant’s representative and of the adjudication officer now concerned, I issued a Direction on 28 November 1996, the relevant parts of which read as follows, 

“Regulation 7(1)(c)(i) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983, S.I. 1983, No. 1598, provided that ‘for the purposes of ... sickness and invalidity benefit ... a day shall not be treated as a day of incapacity for work in relation to a person if it is a day in respect of which that person ... is disqualified for sickness or invalidity benefit.’  A person is thus disqualified if he is in prison (Social Security Contributions and Benefits Act 1992, section 113(1)(b)).  This rule would appear to have been incorporated for disability premium purposes by the pre‑April 13, 1995, version of the Income Support (General) Regulations 1987, S.I. 1987, No. 1967, Schedule 2, para. 12(1)(b).  Regulation 7(1)(c)(i) of the 1983 Regulations was revoked from 13 April 1995 by S.I. 1995, No. 829, but a similar rule (for incapacity benefit) is now to be found in regulation 4(1)(b) of the Social Security (Incapacity Benefit) Regulations 1994, S.I. 1994, No. 2946.  Is the rule in regulation 4(1)(b) of the 1994 Regulations similarly incorporated by the post‑April 12, 1995 version of Schedule 2, para 12(1)(b) of the 1987 Regulations, thus applying the rule to income support claims for a disability premium?”

9.	I have received written submissions in response to that direction from the adjudication officer now concerned and from the claimant’s representative, both dated 17 December 1996.  The adjudication officer’s submission reads as follows,

“This is my response to the Commissioner’s direction dated 28 November 1996.  The Commissioner asks whether regulation 4(1)(b) of the Social Security (Incapacity Benefit) Regulations 1994 applies to the post 12.4.95 version of Schedule 2, paragraph 12(1)(b) for income support disability premium purposes.  My submission is that regulation 4(1)(b) does not apply in this particular case.  The post 12.4.95 version of paragraph 12(1)(b) of Schedule 2 of the Income Support (General) Regulations [1987] provides that, 

“The claimant ... is incapable, or is treated as incapable of work in accordance with the provisions of Part XIIA of the Contributions and Benefits Act and the Regulations made thereunder (incapacity for work) ...”

The Incapacity Benefit Regulations relate specifically to incapacity benefit.  Regulation 4(1)(b) does provide that a day shall not be treated as a day of incapacity if it is a day of imprisonment or detention in legal custody.  In this case [the claimant] was not entitled to incapacity benefit.  If he had been so entitled, regulation 4(1)(b) would apply to him.  The days in prison would not be days of incapacity for work for the purposes of both incapacity benefit and the disability premium for income support.  I submit that the relevant regulations in this case are the Social Security (Incapacity for Work) [(General(] Regulations 1995 [S.I. 1995, No. 311].  These Regulations do not include a similar provision to regulation 4(1)(b) of the Incapacity Benefit Regulations.  As [the claimant] was not entitled to incapacity benefit he is only required to satisfy the conditions of the Incapacity for Work Regulations.  I submit that provided [the claimant] provides suitable medical evidence that he was incapable of work throughout his period of imprisonment, he will satisfy the conditions for the disability premium on his release from imprisonment.”

10.	The claimant’s representative submits as follows,

“It is submitted that the post‑12th April 1995 version of Schedule 2, paragraph 12(1)(b) [of the Income Support (General) Regulations 1987] makes entitlement to the Disability Premium dependent on either entitlement to statutory sick pay (but not incapacity benefit) or incapacity for work in accordance with the provisions of the Social Security Contributions and Benefits Act 1992 [Part XIIA] and the Regulations made thereunder.  It is submitted that whether or not the claimant is disqualified for receiving incapacity benefit is not relevant to qualifying for the Disability Premium.  Alternatively, regulation 4(1)(b) [of the] Social Security (Incapacity Benefit) Regulations 1994 [S.I. 1994 No. 2946] provides that for the purposes of incapacity benefit a day shall not be treated as a day of incapacity for work if it is ‘a day on which a person is disqualified for receiving incapacity benefit during a period of ... imprisonment or detention in legal custody, if that disqualification is for more than 6 weeks’.  It is submitted that this regulation specifically relates only to incapacity benefit and refers to ‘a day’ not being a day of incapacity.  There is no reference in Schedule 2, paragraph 12(1)(b) [of the] Income Support (General) Regulations 1987 to ‘days of incapacity’ only to a claimant being ‘incapable of work’ for ‘364 days’.  It is submitted that the fact that a claimant may be disqualified for receiving incapacity benefit does not prevent a day being part of the waiting period for the purpose of the Disability Premium.”

11.	There are minor differences between those further submissions of the adjudication officer and of the claimant’s representative but essentially they agree on the conclusion and the construction of the various Regulations.  After careful thought and investigation, I have come to the conclusion that those submissions (as also the earlier submissions) are correct and that the tribunal erred in law therefore in not correctly applying or interpreting the legislation.  However, they could hardly be blamed for that in view of the somewhat labyrinthine character of this branch of the legislation.  Consequently I have allowed the claimant’s appeal and given my decision in paragraph 1 accordingly.

12.	The claimant’s representative has at one stage asked for an oral hearing before the Commissioner.  However, as I have fully accepted the submissions of the claimant’s representative, supported by those of the adjudication officer, and the claimant has received the full remedy for which he has asked, there would appear to be no point in the holding of an oral hearing and I therefore formally refuse that request.

					(Signed)	M J Goodman
							Commissioner

					(Date)	3 February 1997