[2005] UKSSCSC CIS_2445_2005 (03 October 2005)

CIS/2445/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	 For the reasons given below, I grant the claimant leave to appeal, I allow the appeal, I set aside the decision of the Fox Court Tribunal given on 20 April 2005 and I substitute my own decision.  That decision is that the decision of the decision maker issued on 3 September 2004 is set aside and the claimant’s claim for income support is remitted to the secretary of state to determine on the basis that the claimant was at all times a prescribed person under paragraph 7(a) of Schedule 1B of the Income Support (General) Regulations 1987.

2.	 I held an oral hearing of this supported application for leave to appeal at which the claimant was represented by his son and the secretary of state was represented by Mr. Leo Scoon.  It was agreed that if I granted leave to appeal I should also decide the appeal on the basis of the submissions made to me.

3.	The claimant had been in receipt of incapacity benefit for some time, when, in May 2004 a form IB50 was issued to him.  It was alleged that despite reminders he had failed to return it, and on 7 July 2004 a decision maker decided that for that reason the claimant should be treated as capable of work from that date.  On 20 July 2004 the claimant appealed against that decision, and that appeal was allowed on 14 February 2005.  It was common ground at least before me that in those circumstances the supersession decision in relation to incapacity benefit made on 7 July 2004 had been set aside and that as a result he was throughout a person who was incapable of work for the purposes of paragraph 7(a) of Schedule 1 of the 1987 Regulations.

4.	 Meanwhile, on 14 July 2004 an A1 claim form for income support had been issued to the claimant.  It was returned completed on 27 July 2004, but on 3 September 2004 a decision maker rejected the claim on the grounds that he was not a prescribed person, stating that income support could not be paid whilst the claimant’s incapacity benefit appeal was ongoing.  The decision was subsequently reconsidered but not changed, and the claimant appealed.

5.	 I note that there is nothing in the decision of 3 September 2004 to suggest that any consideration had been given as to whether the claimant might fall within any of the other prescribed categories of persons entitled to income support.  Thus it appears possible on the limited facts before me that paragraph 8 or paragraph 16 of  Schedule 1B might have applied in this case.  

6.	 The claimant’s appeal against the decision of 3 September 2004 was heard on 20 April 2005.  The tribunal was informed that the appeal against the incapacity benefit supersession decision had been successful on 14 February 2005, and indeed commented that from that date at least the claimant would come within paragraph 7 of Schedule 1B on any fresh claim for income support made on or after that date.  The effect of the successful appeal was that the supersession decision must have been set aside, so that the claimant remained entitled to incapacity benefit as if the supersession decision had not been given.  It is not clear why the tribunal considered that, despite this, the claimant was not a prescribed person for the purpose of his claim for income support.

7.	 The tribunal did consider whether the claimant fell within paragraph 24 of Schedule 1B, concluding that he did not, but did not consider whether any of the other paragraphs applied to him.  Paragraph 24 relates to a person who is appealing adverse determinations for the purposes of section 171B and 171C of the Social Security Contributions and Benefits Act 1992 “the 1992 Act”) for the period prior to the determination of his appeal.  The tribunal correctly concluded that this provision did not assist the claimant because the adverse incapacity decision that he was appealing was made for the purposes of section 171A of that Act.  It may be that the tribunal was misled into thinking that because there was a special provision in respect of those appeals and none in respect of the appeal which had been pursued in this case, then even though the incapacity benefit appeal in this case had been successful, the claimant could not claim income support in respect of the intervening period.

8.	 If so, that is an incorrect conclusion.  Paragraph 24 applies, subject to certain conditions, to bring within the scope of income support appellants in certain cases, so that they can receive income support even while their appeal are pending, and even though they ultimately lose the appeal.  There is no equivalent provision in relation to the incapacity appeal brought by the claimant in this case.  Unless he could be brought within some other paragraph of Schedule 1B, therefore, the claimant could not have been awarded income support while his incapacity appeal was pending.  It could either be refused, leaving him to bring an appeal the success of which would depend on the success of his other appeal, or, perhaps more satisfactorily, it could be left to await the outcome of the appeal.

9.	 In this case the outcome of the incapacity appeal, as the secretary of state accepts, was that the claimant was held to have been at all relevant times a person who fell within paragraph 7(a) of Schedule 1B as being incapable of work in accordance with the provisions of Part XIIA of the 1992 Act and the regulations made under it.

10.	 The tribunal erred in law in failing to take into account that the incapacity benefit supersession decision had been set aside with the result that the claimant’s entitlement to incapacity benefit in the relevant period had been established.  If and insofar as the tribunal may have been influenced by section 12(8)(b) of the Social Security Act 1998 to disregard the incapacity benefit appeal decision as having been circumstances not obtaining at the time the decision appealed against was made, there are at least two answers.  First, the incapacity benefit supersession decision relied on by the income support decision maker was not final and binding until the opportunity to appeal had gone.  Entitlement is to be determined by reference to all the facts at the time, including the facts which could ultimately lead to the appeal tribunal allowing the incapacity benefit appeal.  Secondly, if that is not the case, the only appropriate course for the decision maker to take, assuming that the claimant did not fall into some other category of prescribed person, would have been to adjourn the decision until the outcome of the incapacity benefit appeal was known.

11.	 A sensible practical course in a case of this sort would seem to be for the two appeals to be listed together, with the incapacity benefit appeal being heard first, and the chairman then dealing with income support appeal in the light of the result of the incapacity benefit appeal.

12.	 For the reasons given, the appeal is allowed and I make the order set out in paragraph 1 above.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		3 October 2005