CIB 3645 2002
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 05 April 2004 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIB 3645 2002 |
| Subject Matter | Human rights law |
Decision
- We allow the Secretary of State’s appeal and set aside the tribunal’s decision of 23 April 2002 as having been made without jurisdiction. The consequence is that the Secretary of State’s decision of 21 August 2002 (superseding the original awarding decision) stands.
Introduction
- This is an appeal by the Secretary of State against a decision of the Bradford Appeal Tribunal made on 23 April 2002, which purported to allow the claimant’s appeal against a decision of the Secretary of State of 21 August 2001 under Article 13(2) of Schedule 1 to the Social Security (Jamaica) Order 1997 (SI 1997 No 871) (“the Jamaica Order”). The Secretary of State decided that, when the claimant left Great Britain to go to Jamaica, he was not likely to be permanently incapable of work and that, accordingly, was not exempt from the general disqualification for receiving benefit whilst absent from Great Britain under Section 113 of the Social Security Contributions and Benefits Act 1992 (“the Contributions and Benefits Act”). On that basis, the Secretary of State superseded his earlier decision awarding incapacity benefit, effectively bringing the claimant’s receipt of that benefit to an end.
- Before us, the Secretary of State submitted that the tribunal’s decision was wrong in law on three grounds namely:
(i) The tribunal did not have jurisdiction to entertain the claimant’s appeal (the primary ground of appeal to us).
(ii) Even if the tribunal had jurisdiction to hear the appeal, it erred in substituting its own decision as to the likelihood of permanent incapacity, rather than confining itself to deciding whether the Secretary of State’s opinion (that the likely permanent incapacity was not established) was irrational.
(iii) Even if the tribunal had the jurisdiction to hear the appeal and substitute its own decision for that of the Secretary of State, the tribunal’s decision (that the claimant was likely to be permanently incapable of work when he left Great Britain) was not one to which it could properly have come on the evidence.
- The hearing of the appeal was held on 29 and 30 January 2004 at which the Secretary of State was represented by Mr Philip Sales of Counsel (instructed by the Solicitor to the Department of Work and Pensions), and the respondent claimant was represented by Mr Daniel Kolinsky of Counsel (instructed by Mr Stewart Wright, Legal Officer to the Child Poverty Action Group). The Commissioners are grateful to all of the legal representatives for their assistance.
The Background
- The claimant was born in Jamaica on 11 June 1950. He moved to Great Britain in 1984, and was employed by a local authority as a minibus driver and helper at a care centre for the elderly. In February 2000, he became incapable of work because of depression and, from April, received statutory sick pay.
- After his period of entitlement to sick pay expired, it was followed by an award of incapacity benefit from 10 October 2000. In the absence of any evidence to the contrary, the parties agreed that, by virtue of Regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968, as amended), this award was probably made for an indefinite period. However, the claimant’s continued entitlement to this benefit was dependent upon his satisfying the all work test (now the personal capability assessment), although, in the usual way, under Regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No 311, as amended), he was initially treated as satisfying that test pending assessment. In any event, although it is not clear whether he actually underwent a medical examination, following a reference to Benefits Agency Medical Services, on 25 November the claimant was assessed as satisfying the all work test. Following that assessment, on 29 November 2000 a decision maker on behalf of the Secretary of State decided that the benefit should continue, recording this decision as a “refusal to revise” the original decision awarding benefit.
- In the meantime, at the request of his employers, the claimant had been seen by a psychiatrist, who advised that the claimant’s depression could improve with support and psychiatric treatment, but that a return to work with the council would exacerbate his disorder. On the basis of that opinion, the council’s occupational health physician advised that the claimant was unable to perform the duties for which he had most recently been employed, and that that situation was likely to be permanent. He recommended ill health retirement, and the claimant’s employment was terminated in accordance with that advice, on 27 November 2000.
- On 23 November (two days before his all work test assessment), the claimant informed the Benefits Agency that he was going to Jamaica on 27 November for health reasons, indicating that he intended to return in September 2001. The claimant did, indeed, leave Great Britain for Jamaica on 27 November 2000.
- In common with some other benefits, incapacity benefit is generally payable only whilst the claimant is present in Great Britain. Disqualification for receipt of benefit for persons absent from Great Britain is imposed by Section 113(1) of the Contributions and Benefits Act, which provides:
“Except where regulations otherwise provide a person shall be disqualified for receiving any benefit under Parts II to V of this Act [which includes incapacity benefit], … for any period during which the person:
(a) is absent from Great Britain; …”.
- Therefore, as a person is taken as being present in Great Britain on the day he leaves, under the general rule of Section 113, the claimant would have been disqualified for receiving his incapacity benefit from and including 28 November 2000.
- However, there are a number of exceptions to this general rule, two of which are relevant in this case.
- First, Article 2 of the Social Security Benefit (Persons Abroad) Regulations 1975 (SI 1975 No 563, as amended) (“the Persons Abroad Regulations”) provides that a person shall not be disqualified for receiving any benefit in respect of incapacity by reason of being temporarily absent from Great Britain for any day falling within the first 26 weeks of his absence, if he satisfies one of three conditions (set out in Regulation 2(1)(b), (bb) and (c)) and the Secretary of State certifies that it is consistent with the proper administration of the Social Security Act that the Section 113 disqualification should not apply. One of the conditions (Regulation 2(1)(c)) is that the claimant is on the day on which the absence began, and had been for the past 6 months continuously been, incapable of work.
- In this case, the Secretary of State accepted that the claimant’s absence was temporary and Regulation 2(1)(c) was satisfied, and he gave the appropriate certificate that disqualification under Section 113 should not apply. This gave the claimant exemption from the disqualification from the day after he left Great Britain (28 November 2000), for 26 weeks (i.e. to 28 May 2001). The claimant duly received incapacity benefit to that date - but, by its nature of providing a temporary exception, the Persons Abroad Regulations could not assist the claimant beyond 28 May 2001.
- Thereafter, to avoid disqualification under Section 113, the claimant had to rely upon a second potential exception, namely that provided by Article 13(2) of Schedule 1 to the Jamaica Order. The statutory basis of this exception is as follows.
- Sections 179 of the Social Security Administration Act 1992 (“the Administration Act”) confers a power to make Orders in Council to modify Section 113 in order to give effect to reciprocal agreements with countries outside the United Kingdom. Section 179 provides:
“(1) For the purpose of giving effect
(a) to any agreement with the government of a country outside the United Kingdom providing for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of legislation to which this section applies, or
(b) to any such agreement as it would be if it were altered in accordance with proposals to alter it which, in consequence of any change in the law of Great Britain, the government of the United Kingdom has made to the other government in question,
Her Majesty may by Order in Council make provision for modifying or adapting such legislation in its application to cases affected by the agreement or proposed alterations.
(2) An Order made by virtue of subsection (1) above may, instead of or in...
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