CIB 3734 2002

DECISIONS AND DIRECTIONS OF THE SOCIAL SECURITY COMMISSIONER 

A	I grant the claimant’s application to set aside the decision of the deputy Commissioner on 4 July 2003 made in this appeal: regulation 31(1)(a) of the Social Security Commissioners (Procedure) Regulations 1999. With the assent of both parties, I set aside that decision.

B	I allow the appeal by the Secretary of State for Work and Pensions against the decision of the Blackburn appeal tribunal on 29 May 2002. With the assent of both parties, I set it aside.

C	With the assent of both parties, I take the decision that the tribunal should have taken: Social Security Act 1998, section 14(8) . This is:

The case is referred to the Secretary of State to consider if there should be a revision of the decision of the Secretary of State made on 22 May 1998 (the decision under appeal in this case) in the light of subsequent developments and in particular the letter from the Employment Service of 17 October 2001 indicating that 33 credits of unspecified identity be added to the contribution record of the claimant for the tax year 1994-95.

D	The Secretary of State is directed to inform the Commissioner of the outcome of the consideration of revision of the decision of 22 May 1998 including the terms of any revision of that decision: Social Security Act 1998, section 9 and Social Security and Child Support (Decisions and Appeals) Regulations 1998, regulation 3. The Secretary of State may also wish to consider whether it is necessary to refer the question of contributions and credits to the Inland Revenue in accordance with regulation 11A of the Social Security and Child Support (Decisions and Appeals) Regulations 1998.   

E	The appeal is adjourned pending the decision of the Secretary of State whether there should be a revision and, if so, in what terms and any necessary consideration of a reference to the Inland Revenue.       

F	For the avoidance of doubt, if the Secretary of State revises the decision in the claimant’s favour, this appeal lapses but the claimant has a fresh right of appeal against the revised decision. If the Secretary of State does not revise the appeal, then the matter is to be referred back to me for further consideration.

REASONS FOR THESE DECISIONS AND DIRECTIONS 

The hearing before me 

1	I held an oral hearing of the application and appeal at Bury County Court on 2 December 2003. The claimant attended and was represented by Mr Kasim. The Secretary of State was represented by Miss S O’Reilly of the Office of the Solicitor to the Department for Work and Pensions, together with Miss H Sawyer, a Departmental expert on contribution questions and Mr T Lawton of the Adjudication and Constitutional Issues Department of the Department for Work and Pensions.

The application to set aside the decision of the deputy Commissioner 

2	The claimant applied to set aside the decision of the deputy Commissioner. He did so because the deputy Commissioner did not have before him the letter of the Employment Service dated 17 October 2001. The deputy Commissioner stated in his decision that he reached his conclusion in the case with some regret. In view of the terms of his decision it is clear that if the deputy Commissioner had had that letter before him, he probably would have reached a different view to the view he did reach. Given also the terms of directions issued in this case, it is in my view just to set aside the decision under regulation 31(1)(a) of the Social Security Commissioners (Procedure) Regulations 1999 because the deputy Commissioner was not aware of that document. 

The appeal against the decision of the tribunal

3	The appeal against the decision of the tribunal was by the Secretary of State, permission to appeal having been granted by a tribunal chairman. In my view, the Secretary of State was right that the decision of the tribunal was inadequate. As I expressed that view at the oral hearing after exploring the issues with both parties, I do not give a full reasoned decision on this issue. For the purposes of this decision, I am happy to follow and adopt that part of the decision of the deputy Commissioner 
that deals with the inadequacy of the tribunal decision (paragraphs  3 to 5 of that decision). 

4	I also accept and adopt the decision of the deputy Commissioner on the point made by the secretary of state's representative about the constitution of the tribunal. Like him, I am not satisfied that it was not properly constituted (paragraph 6 of his decision).

The appeal against the decision of the Secretary of State
 
5	The decision of the Secretary of State under appeal was based on the view of the decision maker that the claimant did not satisfy the second contribution condition for incapacity benefit in respect of his claim treated as made on 11 May 1998. It was accepted, and has never been in dispute, that the first contribution condition was satisfied.

6	Several points must be clarified before the second contribution condition can be determined in a case such as this. The first is that the contribution conditions must be met by reference to two consecutive past tax years. Which past tax years depends on the benefit history of a claimant. I accept the submission of the Department’s expert in this case that the proper years to be taken into account are 1993/4 and 1994/5 and not later years. This is because the claim for incapacity benefit is linked to the previous claim made by the claimant for jobseeker’s allowance. As this was not disputed, I record that position without detailed analysis. 

7	Miss Sawyer, a departmental expert, told me that – taking into account the letter - the claimant, in her view, satisfied the contribution conditions for 1993/94. There were a total of 50 credits including two training credits. I accept that. 

8	With regard to 1994/95 Miss Sawyer was unable to tell me whether the 33 credits awarded in the letter of 17 October 2001 (the letter of the Employment Service of 17 October 2001 produced since the decision of the deputy Commissioner), when taken together with  the 19 credits already on the claimant’s record, did or did not satisfy the contributions conditions for that year. It was not clear from that letter whether the contributions were to be treated as contributions paid, as training credits, or as credits while the claimant was not working. Consequently, she was not able to tell me that the contribution conditions for the year had been met. But she accepted that she was also not able to tell me that they had not been met. This would depend, for example, whether one or more of those credits should be properly be regarded for the purposes of this claim as a training credit.      

9	That evidence raises a series of questions of difficulty. If it were maintained that the contributions were to be treated as paid contributions, it could be argued that any dispute should be resolved by reference to the Secretary of State for onward reference to the Inland Revenue and, if necessary, the tax appeal authorities under section 8 of the Social Security Contributions (Transfer of Functions) Act 1999 and regulation 11A of the Social Security and Child Support (Decisions and Appeals) Regulations 1998 , rather than one to be decided under the Social Security Act 1998 and section 17 of the 1999 Act. This was because there appears to have been no formal determination of the Revenue of any contribution issue within its jurisdiction during the appeal. 

10	If it were argued that the question was one to be decided on the existing documentation, it raises the question of the power of a statutory tribunal to deal with an extra statutory decision (as a Commissioner has power only to take such decision as a tribunal can take). And it is not now possible to refer the matter back to the Employment Service for clarification as it no longer exists. However, the relevant powers of the Employment Service now rest with the Secretary of State. Further, behind these issues lay the possible need to clarify the claimant’s status at the relevant times, a matter which still seems unclear and has not been determined by formal decision in the course of the appeal.

11	In light of the above, and in the interests of securing an expeditious solution to the problems raised by the claimant’s claim, I suggested to the parties that the most expedient course of action was to refer the matter to the Secretary of State. After a short adjournment, they agreed this course of action. The Secretary of State has a general power, though rarely used, to consider and revise any decision under appeal: regulation 3(4A) of the Social Security and Child Support (Decisions and Appeals) Regulations 1998.

12	 The Secretary of State is requested to consider the status of the credits said to be awarded in the letter of 17 October 2001,  and to decide on the nature and extent of the concessionary credits awarded in that letter in the context of this appeal. He is asked to do so in the context of the unusual background of this case and the failure to clarify the claimant’s status. I cannot direct the Secretary of State to take a revision decision, but I make the request with an expression of hope that the Secretary of State can reach a decision that gives full effect to that letter and to the claimant’s claim, so avoiding the inevitable delay that will arise in dealing with the difficult jurisdictional questions that this appeal otherwise raises with regard to that letter.        

								David Williams
								Commissioner

								3 December 2003
[Signed on the original on the date shown]