I don't think overpayments of transitionally protected IB, including increases, are legally recoverable under section 71 SSAA 1992.

To be recoverable, transitional IB would need to be a benefit as defined by section 122 SSCBA 1992. See section 71(11)(a)SSAA.

Section 122(1)defines benefit for these purposes as benefit under Parts II to V of the SSCBA.

Whilst ordinary IB falls within Parts II and IV of SSCBA, transitionally protected IB awarded under section 4 of the SS (IFW) Act 1994 seems to fall completely outside SSCBA. Hence, it doesn't appear legally recoverable.

My case on this was adjourned for the DWP legal dept to advise the DM. I have spoken to the DM today. She has received the legal advice and it appears they will be relying on a purposive interpretation of the legislation. This always smacks of desperation to me, although I am a literalist.

I've relied on CIB/3522/1997 where Commissioner Goodman rejected the argument that section 92 SSCBA applied to transitionally protected IB after 12 April 1995. It did not apply because whereas increases of IVB had fallen within Part IV SSCBA 92 as required by section 92, increases of transitional IB awards fell outside Part IV due to the repeal by section 4(2) SS (IFW) Act 1994 of the sections of the SSCBA dealing with IVB.

CIB/3522/1997 has been implicitly approved by a tribunal of Commissioners in CIB/2836/2002.

In a more recent decision , CSIB/695/04, Commissioner Parker cites with approval a decision by Deputy Commissioner Agnew, CSIB/501/03, in which he held that transitional long term incapacity benefit is not an award of incapacity benefit -

'I agree that 'shall have effect' in Regulation 17(1) of the Transitional Regulations means that the award falls to be treated 'as if it were an award of long-term incapacity benefit'. However, it is only to 'have effect' as, but it is not to 'become', incapacity benefit.'

If long-term incapacity benefit is not an incapacity benefit, as TomH says, it difficult to see that it comes under any other category detailed in Parts II to V of the Social Security Contributions and Benefits Act 1992.

Tom

In CSIB/695/2004 Commissioner Parker makes it clear that a transitional award of long term ICB does not convert an IVB decision into an IBC one.

Thus an award of transitional long term ICB is (in law) an award of IVB and not an award of ICB and is not, as you say, covered by parts 2-5 of the SSC&B Act. Sections 33 and 34 of the SSC&B Act (dealing with IVB) were repealed under schedule 2 of the 1994 Act.

Personally I do not have a problem with purposive constructions of legislation, in this case I just don’t see how this is applicable as IVB is either covered by the SSC&B Act or it isn’t.

Regards
Paul

We highlighted recently issued DWP guidance relating to CSIB/695/2004 in our 28 September rightsnet news story -

Supersession of transitional long-term incapacity benefit awards - New DWP guidance

Thanks for the decisions. I’d proceeded from the outset on the basis that “as if” in Reg 17 of the Transitional Regs was not the same thing as “is” although I hadn’t considered CSIB/501/03 or CSIB/695/04 .

My reading of CSIB/695/04 is simply that a transitional award of long term IB is just that, rather than, as Paul suggests “(in law) an award of IVB”. I accept, however, that a transitional award once properly superseded does, according to CSIB/695/04, revert to an award of IVB for which there is then no legal basis.

It’s perhaps the subject of a separate posting, but I have particular difficulty with the way the IB transitional regulations deal with certain increases for adult dependants.

It seems to me that when such awards are lost under Reg 24(7)(b) of the 1995 Regs, the legal basis of re-entitlement to a transitional increase may remain Reg 24(1), rather than what I think is the accepted position, namely, section 86A SSCBA 1992 and Reg 9 IB (Increases for Dependants) Regs 1994. That’s because the main entitlement to transitional IB under Reg 17 would not necessarily lapse when the transitional increase ceased under Reg 24(7)(b).

For example, X has a transitional award of long term IB which includes an increase for his wife (Y). Y’s earnings exceed the supposed earnings limit and X consequently loses his increase due to Reg 24(7)(b). They do not have children and so X is told that he’ll have to wait until Y is 60 until a new increase can be considered (Y is, say, 57 years old). When Y turns 60, what is the legal basis for awarding X an increase in respect of her?

Section 86A SSCBA 1992 simply refers to short-term and long-term IB, not to transitional awards. X would still have a transitional main award under Reg 17 of the 1995 Regs, rather than under section 30 SSCBA 1992.

I may well be wrong on this but, especially after reading CSIB/695/04, I think the basis of re-entitlement to an increase of a transitional award stays as Reg 24(1). And entitlement under that basis seems fixed in time or a matter of historical fact, ie if X in the above example once satisfied Reg 24(1)(b) then surely he must always do so until the law expressly prevents him re-applying under it. His entitlement will only then depend on Y’s wages eventually falling below the earnings limit. All Reg 24(7) arguably does is cease current entitlement - it says nothing about re-applying again under Reg 24(1).

This would put transitional IB claimants on the same footing as their standard IB counterparts whom, according to the DWP at least, never lose their entitlement to an increase (see the annotation to section 92 SSCBA 1992 in Vol.3 (Rowland).

I accept that the intention behind the Trans regs was to restrict the categories of new dependants. And Reg 24(6) of the 1995 Regs arguably implies that increases under Section 86A are possible for awards under Reg 17. However, on a true literal construction, there seems no legal basis other than Reg 24 for renewing a claim for a transitional increase.

I’m not sure where that leaves transitional claimants who have never received an increase under Reg 24(1) but who now could qualify for one were they not transitional claimants, eg suppose X above did not previously receive a Reg 24 increase but Y now turns 60?

CSIB/695/04 at para 31 confirms that there is no basis for IVB existing once Reg 17 entitlement is lost. But that’s for IVB only. Once entitlement under Reg 24(1) is lost, the criteria to allow a new transitional increase under Reg 24(1) appears to potentially remain because Reg 17 entitlement may continue and because the basis of entitlement under Reg 24 seems fixed in time.

I say “supposed” earnings limit above also because a strict literal construction of Reg 24(4) of the 1995 Regs would mean that Reg 9(1)(c) and (d) of the IB (Increases for Dependants) Regs 1994 would apply only, and Y above would clearly not fall into either of these (she wouldn’t fall into 9(1) (a) or (b) either should Reg 24(4) not have expressly excluded them already). And that’s crucial because Reg 9 defines dependants for the purposes of the earnings limits in Reg 10 of the 1994 Regs as a person who satisfies any of the sub paragraphs of Reg 9. Y is simply not a dependant for the purpose of Reg 10 because she falls outside Reg 9. She does not appear subject to an earnings limit. I suspect the tribunal have, before adjourning my ongoing case mentioned in my first posting, rejected this last argument no doubt using a purposive approach (I’m not so down on purposive approaches really – I suppose I’d scrape the bottom of the Hansard barrel if it was necessary to win).

I suppose what I’m saying is that X above should not wait until Y is 60 before asking for his increase back, provided Y’s wages are now below the limit.

I'd be interested in your comments. I'm prepared to accept that I may be way out with these additional arguments.