6701

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DECISION OF THE SOCIAL SECURITY COMMISSIONER

Case=20 Reference: CJSA/3979/1999

Starred Decision=20 No.: 67/01

1. The claimant's appeal is allowed. The decision of the = Reading=20 social security appeal tribunal dated 9 April 1998 is erroneous in = point=20 of law, for the reasons given below, and I set it aside. The case = is=20 referred to an appeal tribunal constituted under the Social = Security Act=20 1998 for determination in accordance with the directions given in=20 paragraphs 28 to 31 below (Social Security Act 1998, section=20 14(8)(b)).

2. This case involves only a few weeks of benefit, now=20 unfortunately quite a long time ago. However, it raises rather = difficult=20 issues of principle and it is perhaps not surprising that there = have been=20 confusions about the proper approach.

3. The claimant was in receipt of income support as an = unemployed=20 person. The latest decision on the award seems to have been made = with=20 effect from 13 April 1995 (page 8). In October 1996 that award was = converted into an award of income-based jobseeker's allowance = (JSA) from=20 the first benefit week beginning on or after 7 October 1996 "and=20 continuing until such time as he fails to satisfy, or in respect = of which=20 he ceases to be treated as satisfying, any condition of = entitlement to a=20 jobseeker's allowance" (Jobseeker's Allowance (Transitional = Provisions)=20 Regulations 1996, regulation 7(1)).

4. On 3 September 1997 the claimant was interviewed by an = investigating officer of the Benefits Agency. At the interview he = admitted=20 that he had done work in the past which he had not declared and = had most=20 recently worked on a casual self-employed basis for a particular = market=20 research firm. He signed a statement to that effect. He also = signed this=20 declaration on page 19 of booklet ES40:

"I wish the last day of my JSA claim = to be=20 Wednesday 3.9.97"

In the box on page 18 headed "If your claim for JSA is = stopping for=20 some other reason please tell us why in the box below" was=20 written:

"I no longer wish to sign, as I have = been=20 working".

5. There is some dispute whether the claimant attended = the=20 Jobcentre on 10 September 1997 or on 17 September 1997 and whether = he was=20 prevented from signing or did not sign because of confusion about = the=20 situation. What is clear is that he made a new claim for JSA on a = form=20 signed on 9 October 1997 in which it was expressly stated that he = wished=20 to claim from 3 October 1997. Benefit was awarded from that=20 date.

6. A letter dated 11 September = 1997 was=20 sent to the claimant from the Jobcentre, headed "Your claim for=20 Jobseeker's Allowance". The first two paragraphs are:

    "We have looked at your claim again = following a=20 recent change.

     I am sorry to tell = you that=20 we cannot pay Jobseeker's Allowance from 04/09/97. This is=20 because:

    you do = not want=20 to claim Jobseeker's Allowance any more."

6. This letter was not part of the = documents=20 supplied to the social security appeal tribunal (SSAT). The first = page was=20 produced as part of the application for leave to appeal to the=20 Commissioner, but no more. Thus I do not know who signed the = letter in=20 what capacity and whether any adjudication officer's decision was=20 attached.

7. In a letter dated 30 October 1997 from Basingstoke = Citizens=20 Advice Bureau (the CAB) an appeal was made "against your decision = that=20 [the claimant] was not entitled to JSA from 4/9/97 because he did = not want=20 to claim JSA any more". It was said that during the interview on 3 = September 1997 the investigating officer "stopped his benefit even = though=20 he had told her he was unemployed at the time, and had no other = source of=20 income". By this time an overpayment decision had been issued for = the=20 period from 2 June 1995 to 13 August 1997. Information dated 5 = September=20 1997 from the market research company showed the last date of work = as 27=20 July 1997.

8. The appeal was treated as an appeal against an = adjudication=20 officer's decision issued on 11 September 1997. On the form AT2 = the=20 decision was set out as follows:

"[The claimant] is not entitled to Jobseekers Allowance = from=20 4.9.97 to 2.10.97 as he does not satisfy the conditions of=20 entitlement."

The adjudication officer's written submission on the form = AT2 was=20 that no claim for benefit existed for that period, as the previous = claim=20 was brought to an end by the claimant's statement of withdrawal on = 3=20 September 1997. There was also a mention of having failed to = attend the=20 Jobcentre to sign on, but the basis of the submission was the = absence of a=20 claim.

9. The claimant attended the SSAT hearing on 9 April 1998 = with a=20 representative from the CAB and gave evidence. The investigating = officer=20 also gave evidence. According to the chairman's note of evidence = the=20 claimant's evidence was that at the interview on 3 September 1997 = he was=20 told before he signed the statement and declaration that if he = continued=20 to sign on, more investigations would be made, but that if he = signed off=20 there would be no investigations. The officer's evidence was that = she had=20 invited the claimant to consider whether to continue signing on. = The notes=20 made by the CAB representative after the hearing suggest that the = evidence=20 went further. The notes are that the officer's evidence was that = she had=20 suggested that the claimant should sign off because he had = admitted to=20 working for other companies before the most recent market research = company=20 and if he continued to claim she would have had to investigate = those as=20 well. The representative's notes also included that the officer = had said=20 that she had not asked the claimant whether he was working at the = time of=20 the interview, but that the adjudication officer on review had = assumed=20 that he was.

10. The SSAT disallowed the appeal. Its decision on the = decision=20 notice was:

"[The claimant] is not entitled to JSA from 4.9.97 to = 2.10.97 as=20 he does not satisfy the conditions of=20 entitlement."

The summary of grounds was as follows:

"Having read all the documents and given full = consideration to=20 the oral evidence bearing in mind his age, education, work = experience=20 and knowledge of the system we find nothing to contradict the = AO's=20 decision."

No full statement of findings of fact and reasons has = been=20 produced, as the requests from the adjudication officer and the = CAB were=20 made outside the 21-day limit.

11. The CAB applied for leave to appeal on the claimant's = behalf,=20 on the grounds that his withdrawal of his claim was invalid as it = was made=20 under duress and based on incorrect advice from the investigating = officer=20 and that the adjudication officer's decision might have been = different if=20 he had not wrongly assumed that the claimant was working at the = time of=20 the interview. I granted leave to appeal on 14 September 2000, = after=20 having considered written submissions which I had = directed.

12. The representative of the Secretary of State, in the=20 submissions dated 14 April 2000 and 18 October 2000, supports the=20 claimant's appeal. The main point of substance was put this way in = paragraph 8 of the submission of 14 April 2000:

"8. In my submission, the tribunal has erred in law in = upholding=20 the adjudication officer's decision that the award previously = subsisting=20 in the claimant's favour fell to be terminated from 4.9.97 on = the ground=20 that the claimant had said that he no longer wished to claim. A = claim=20 cannot be withdrawn once it has been adjudicated on: see = regulation 5(2)=20 of the [Social Security (Claims and Payments) Regulations 1987], = R(U)=20 2/79 (paragraph 10), and R(U) 7/83 (paragraph 7). Furthermore, = in my=20 submission, it is not possible for a claim that has been treated = as made=20 for an indefinite period to be converted to a definite period = claim for=20 the purposes of regulation 17(3) of the Claims and Payments = Regulations.=20 The scope of a claim is established at the outset of a claim = (R(IS)=20 8/95, Appendix, paragraph 4) and cannot be altered = retrospectively by=20 subsequent events; rather relevant changes of circumstances = after an=20 award is made fall to be dealt with by way of review under = sections=20 25(1)(b) or (c) of the [Social Security Administration Act = 1992]. In=20 following the adjudication officer's decision, the tribunal has = applied=20 a false proposition of law."

13. In the submission dated 18 = October=20 2000, in answer to some questions which I had posed when granting = leave to=20 appeal, the Secretary of State's representative maintained the = view that a=20 statement that the claimant no longer wished to claim was not a = change=20 which ended entitlement without a review. It was also submitted = that this=20 was not a relevant change of circumstances because it did not in = itself=20 raise any question about the claimant's entitlement to benefit. = There=20 would have to be some evidence that some condition of entitlement = was not,=20 or was not going to be, satisfied. On the failure to sign on, = attention=20 was drawn to the specific provisions in regulations 23 to 30 of = the=20 Jobseeker's Allowance Regulations 1996 (the JSA Regulations), but = it was=20 submitted that where a claimant stated in advance that he was not = going to=20 sign on it could be anticipated that good cause for not signing on = would=20 be not shown under regulation 27. Review could then be justified = under=20 section 25(1)(c) of the Social Security Administration Act 1992. = It was=20 submitted that the case should be remitted to a new appeal = tribunal for=20 rehearing on the question of whether the conditions of entitlement = for JSA=20 were satisfied from 4 September 1997, as there could be further = review=20 under section 25(5)(b) if the anticipated change of circumstances = did not=20 occur.

14. The CAB in reply submitted that the anticipated = change of=20 circumstances ground could not apply to displace the specific = provisions=20 in the JSA Regulations. It was submitted that there were no = grounds to=20 terminate the claimant's JSA claim and no mechanism by which the = claim=20 could legitimately have been terminated.

15. I cannot accept the submissions of either party. = Before I=20 explain why not, I should state briefly where I agree with the = Secretary=20 of State that the SSAT went wrong in law.

16. The decision notified on 14 = September=20 1997 could not possibly have been in the form set out on form AT2. = An=20 adjudication officer on that date could not possibly have known = that the=20 claimant was going to make a new claim for JSA with effect from 3 = October=20 1997. I have no doubt that, as was submitted for the Secretary of = State,=20 what was written on form AT2 was a "reconstruction" from computer = records.=20 Since, when the submission was written, it was known that the = period in=20 issue ended on 2 October 1997, that was mistakenly added to the = decision.=20 The practice of reconstructing decisions (and, even worse, = "improving"=20 them) in the drafting of written submissions to appeal tribunals = is wrong=20 and should stop. One of its consequences is that there are dangers = in=20 appeal tribunals confirming or adopting an adjudication officer's = or a=20 decision-maker's decision, when what is written on the AT2 may not = be the=20 same as what was actually decided. In the present case, since the = SSAT set=20 out the terms of its own decision separately, and there was no = doubt about=20 the period in issue on the appeal, I would not find an error of = law in=20 leaving it unclear which of a number of decisions had been = adopted.=20 However, as a matter of good practice appeal tribunals should = investigate=20 the circumstances where there is a suspicion that the decision = under=20 appeal has not been accurately reproduced in the = documents.

17. Where the SSAT did go wrong was in resting its = decision on the=20 non-satisfaction of the conditions of entitlement to JSA. There = was=20 perhaps some confusion in the written submission to the SSAT about = whether=20 the withdrawal of the claim was said to operate independently of = any=20 consideration of the conditions of entitlement set out in the = specific JSA=20 legislation. Nor was there any attempt in that submission to = grapple with=20 the question of whether entitlement could be brought to an end = without the=20 identification of a ground of review. The SSAT's decision did not = resolve=20 the confusion and did not (in a situation where the point was in = doubt)=20 identify the legal basis of the decision which it made. That was = an error=20 of law which requires the setting aside of its = decision.

18. I am satisfied that that error can be identified in = the absence=20 of a full statement of findings of fact and reasons. Where there = is no=20 such statement, a Commissioner cannot consider the adequacy of = findings of=20 fact or reasons, since there was no obligation on a chairman to = supply an=20 adequate statement on the decision notice. However, in the present = case=20 there was a more fundamental failure to identify a legal basis for = the=20 decision made by the SSAT.

19. I can now turn to the main = points in=20 the submissions on behalf of the Secretary of State. There is = obviously=20 force in the submission quoted in paragraph 12 above. Regulation = 5(2) of=20 the Claims and Payments Regulations does indeed provide that a = person may=20 withdraw a claim at any time before a determination has been made = on it,=20 and paragraph (1) provides that a claim can be amended under the = same=20 condition. The provision about withdrawal did not appear in the = previous=20 form (1979) of the Claims and Payments Regulations applying to=20 contributory benefits. It appeared for the first time in the 1987=20 Regulations. In Commissioners' decisions R(U) 2/79 and R(U) 7/83 = it had=20 been held that, in accordance with basic legal principles, a claim = for=20 benefit could not be withdrawn once it had been adjudicated on, at = least=20 in the circumstances of those cases (see the careful statement in=20 paragraph 10 of R(U) 2/79, quoted below). That general rule must = be=20 accepted, but its limits must also be established.

20. In R(U) 2/79 the claimant = claimed=20 unemployment benefit on 8 December 1995. On 11 February 1996 a = decision=20 was made that he was not entitled for the period from 8 December = 1995 to 4=20 February 1996 as he did not satisfy the contribution conditions. = On a=20 further claim on 3 May 1976 the claimant did satisfy the = contribution=20 conditions, but a question arose as to his entitlement to = earnings-related=20 supplement. If he was treated as having made a claim for benefit = in=20 respect of days before 5 January 1976 he was not entitled to the=20 supplement. The Commissioner held that "a person such as the = claimant in=20 the present case" was not entitled in his appeal to the = Commissioner to=20 withdraw his claim for the period from 8 December 1975 to 4 = February=20 1976.

21. In R(U) 7/83 the claimant made a late claim for = unemployment=20 benefit for the period from 1 July 1980 to 5 August 1981 as well = as for a=20 forward period from 6 August 1981. An appeal tribunal found good = cause=20 back to 1 January 1981. Since that date fell within the benefit = year=20 starting on 6 January 1980, the relevant contribution year was = April=20 1978/April 1979, in which the claimant did not satisfy the = contribution=20 conditions. She appealed to the Commissioner seeking to have the = period of=20 good cause reduced. The Commissioner held that that was an abuse = of the=20 appellate procedure:

"[H]aving made a claim for a specific period and having = had that=20 particular claim adjudicated on, it was not open to her to = withdraw it=20 (R(U) 2/79) and substitute for it another period=20 altogether."

Nor could she achieve that result indirectly by appealing = against a=20 decision which was favourable to her and asking for a less = favourable=20 decision.

22. There is no reason to doubt the results of both those = decisions. Where the claimant was seeking, after a decision had = been made,=20 to withdraw a claim for a period before the date of the decision, = basic=20 legal principles would point against allowing such a withdrawal. = But that=20 does not necessarily apply where a claimant seeks to withdraw a = claim=20 prospectively, not retrospectively, or to put it another way, = seeks to=20 withdraw a future period from the claim. That was the approach = adopted by=20 the Tribunal of Commissioners in paragraph 11 of its decision in = R(S)=20 1/83. The Tribunal was concerned with cases where an open-ended = claim had=20 been disallowed and the decision was under appeal. It held that = the=20 submission of a new claim in such a period did not automatically = terminate=20 the running of the original claim, but that that could happen in = certain=20 circumstances. Thus where:

"there has been no adjudication under the original = claim upon the=20 period covered by the new claim, the termination of the running = of the=20 original claim could be regarded as effected by the withdrawal, = express=20 or implied, of that period of claim from the original=20 claim."

23. That approach gives rise to = no=20 difficulties in the circumstances the Tribunal of Commissioners = was=20 considering. Although the original claim had been adjudicated on, = the=20 disallowing decision would cover only the period from the date of = claim=20 down to the date of the decision. Thus, there was nothing in the = principle=20 against the existence of two decisions for overlapping periods = (see R(I)=20 9/63) to prevent a new claim being made and the period of the new = claim=20 being withdrawn from the original claim. To that extent, there is = a=20 qualification to the principle laid down in R(U) 2/79 and R(U) = 7/83. But=20 can a similar qualification apply where there has been an award of = benefit=20 for an indefinite period?

24.     I accept that the nature of = the=20 original claim sets the nature of the award, as I said in decision = R(IS)=20 8/95. If the original claim is for an indefinite period, so that = the award=20 is for an indefinite period, I do not think that the claim can = later be=20 converted into one for a definite period. The original claim = cannot be=20 unmade or amended. If the running of the award was to be stopped = it had,=20 by virtue of section 60(1) of the Social Security Administration = Act 1992,=20 to be by the operation of the provisions on the review of = decisions=20 (although the result may not be the same under the new regime of = the=20 Social Security Act 1998 in cases of relevant changes of = circumstances:=20 see CI/1132/2000). However, it does not necessarily follow from = that that=20 a claim cannot be withdrawn for a prospective period even though = there is=20 a current indefinite award. In a sense there has already been an=20 adjudication on that period, through the making of the indefinite = award,=20 but only in a fairly technical sense. If a claimant unequivocally = says=20 that he wishes his claim to stop at the current date or that he = wishes to=20 withdraw his claim for the future, why should that not be given = effect?=20 Some regard should be had for the autonomy of claimants. If a = claimant=20 freely chooses to renounce a claim for the future (I come back to = freedom=20 of choice below), does that not remove the basis for the = continuance of=20 the award of benefit? I conclude that even where there is a = current award=20 of benefit, a claimant may withdraw a claim on a prospective=20 basis.

25.     The nature of an = existing award=20 on an indefinite basis (or a definite award extending into the = future) and=20 the finality of the decision making that award have importance at = the next=20 stage. In my judgment, under the Social Security Administration = Act 1992=20 regime, such an award could not be brought to an end automatically = by a=20 prospective withdrawal of the claim. There is too much danger of = abuse for=20 such an approach to be adopted. There had to be some formal and = proper=20 mechanism to bring the existing award to an end. The only = mechanism=20 available was that of review. However, it seems to me that a = withdrawal of=20 a claim for the future (once that is accepted as legally = permissible) is a=20 relevant change of circumstances within section 25(1)(b) of the = Social=20 Security Administration Act 1992, because the basis on which any = award of=20 benefit could rest has been removed. I reject the submission to = the=20 contrary for the Secretary of State. And if that ground of review = is made=20 out, revision of the decision making the award has to follow. The=20 particular advantages of requiring a revision on review to bring = the=20 existing award of benefit to an end are that there had to be a = decision of=20 an adjudication officer against which the claimant had a right of = appeal=20 and that on such an appeal the question of whether there had in = fact been=20 a genuine withdrawal of the claim could be=20 examined.

26.     In approaching that = last=20 question, the first task would be to construe the words which are = said to=20 constitute a withdrawal of a claim. There may be circumstances in = which=20 the words used do not, properly construed, constitute a withdrawal = or an=20 expression of intention to bring a claim to an end. However, in = the=20 present case, the words used were unequivocal. It must therefore = be asked=20 whether there is any factor which deprives what on its face is a=20 withdrawal of the claim of its apparent effect. Such a conclusion = could=20 not be reached lightly. The sort of factors which I have in mind = would=20 include the inducement of the withdrawal of the claim by fraud,=20 misrepresentation of fact or law, or duress. I have not had any=20 submissions on this point and it would be wrong for me to attempt = to lay=20 down any precise or exhaustive rules. The factors mentioned above = are only=20 examples and other factors may be relevant in other circumstances = (eg most=20 obviously in cases where claimants are vulnerable for some reason = or not=20 fully capable of dealing with their affairs). The essence, in my = judgment,=20 is that an ostensible withdrawal of a claim should not be given = effect=20 where it would be wrong for it to be treated as a genuine = expression of=20 the claimant's intention at the time. Nothing which I say below = should be=20 taken as detracting from that central principle or from the need = to=20 consider each case on its own circumstances.

27. I should though, subject to = that=20 qualification, give some general guidance to the new appeal = tribunal which=20 will have to conduct a rehearing. Since I have stressed the = general=20 principle involved, I have refrained from any analysis of the = meaning of=20 any particular factors, or reference to concepts from other areas = of law.=20 I have specifically mentioned misrepresentations of law, because = it seems=20 to me that it might be wrong to give effect to a withdrawal of a = claim=20 induced by a representation that past concealment of material = facts by a=20 claimant means that there can be no current entitlement to = benefit. And=20 the notion of duress can extend beyond physical threats or = pressure to=20 include illegitimate threats of other kinds, but it will be a = matter of=20 judgment when such threats are sufficient to undermine the = genuineness of=20 the claimant's expression of intention. In some circumstances, an=20 important line may need to be drawn between passivity or omission = by=20 another person (eg in omitting to correct a mistaken impression = formed by=20 a claimant) and positive acts such as the making of = misrepresentations or=20 threats. It must also be the case that the mere realisation by a = claimant=20 after the event that he has acted unwisely will fall a long way = short of=20 showing that a withdrawal of a claim is not to be given=20 effect.

The Commissioner's decision and directions = to the=20 new appeal tribunal

28. For the reason given in paragraph 17 above, the = SSAT's decision=20 of 9 April 1998 must be set aside as erroneous in point of law. I = have=20 concluded that I cannot substitute a decision because there are = issues of=20 fact still to be decided on which it is fair to give the parties = the=20 opportunities to put forward further evidence and submissions.=20 Accordingly, I refer the case to an appeal tribunal constituted = under the=20 Social Security Act 1998 and regulation 36(6) of the Social = Security and=20 Child Support (Decisions and Appeals) Regulations 1999 for = determination=20 in accordance with the directions below. No-one who was a member = of the=20 SSAT of 9 April 1998 is to be a member of the new appeal tribunal. = The new=20 appeal tribunal will not be bound in any way by any findings made = or=20 conclusions expressed by the SSAT of 9 April 1998.

29. The new appeal tribunal must = first=20 determine whether the decision notified in the letter dated 14 = September=20 1997 was made by an adjudication officer. The Secretary of State = should=20 provide to the new appeal tribunal the best evidence available on = that=20 issue, if possible including a full copy of that letter. If that = is not=20 produced, then the claimant or the CAB should produce a full copy = if it is=20 available. If it emerges that there was no decision by an = adjudication=20 officer, but rather a notification of administrative action on = behalf of=20 the Secretary of State, there will be nothing against which a = valid appeal=20 could be before the new appeal tribunal. But by the same token = there will=20 have been no decision validly bringing the indefinite award of JSA = to an=20 end on 3 September 1997. If the Secretary of State then did not = wish to=20 make payment for the period from 4 September 1997 to 2 October = 1997, he=20 would need to take action to supersede the existing decision under = the=20 powers available under the Social Security Act 1998.

30. If there was a decision of an = adjudication officer notified on 14 September 1997, the new appeal = tribunal must address the issues of review and revision, adopting = the=20 approach set out in paragraphs 24 to 27 above. The new appeal = tribunal=20 will need to make clear findings of fact as to exactly what = happened and=20 was said at the interview on 3 September 1997. If it were to be = found that=20 the investigating officer went no further than inviting the = claimant to=20 consider whether to continue signing on, it would be difficult to = find any=20 factor vitiating the withdrawal of the claim. If it were to be = found that=20 the investigating officer had given the claimant the alternatives = that he=20 described in his evidence to the SSAT of 9 April 1998, then the = new appeal=20 tribunal would need to consider whether there was such a factor. = These are=20 of course not the only two factual possibilities and the new = appeal=20 tribunal must consider all the evidence and all its relevant = findings of=20 fact.

31. If the new appeal tribunal = concludes=20 that the claimant did withdraw his claim for JSA on 3 September = 1997, then=20 it may revise the existing decision in relation to the period from = 4=20 September 1997 to 2 October 1997. If the new appeal tribunal = concludes=20 that the claim was not to be treated as having been withdrawn, = there=20 cannot be review and revision on that basis. But it will have to = go on and=20 consider the questions of whether the claimant failed to attend = the=20 Jobcentre on a day specified in a notice under regulation 23 of = the JSA=20 Regulations and whether entitlement therefore ceased on some date = before 2=20 October 1997 under the provisions of regulations 25 to = 30.

J Mesher

Commissioner

21 May 2001