[2023] UKUT 124 (AAC)

The claimant’s original reason for appealing to the First-tier Tribunal was to obtain the reinstatement of payments of contributory employment and support allowance. That issue did not need to be considered by the First-tier Tribunal, because it decided that the claimant had never lost his right to payments, but it arises again now that I have decided that the First-tier Tribunal erred in so deciding. Although this issue has not been addressed by the Secretary of State on this appeal, it is clear – even if partly only by inference – from her submission to the First-tier Tribunal what her position was then and I have no reason to think it is any different now.

She effectively argued that, because the claimant had lost his underlying entitlement to contributory employment and support allowance while he was in prison, payments could not be reinstated unless he was entitled to employment and support allowance after his release, and any question of such entitlement had to be determined in a new claim which would be for “new-style” employment and support allowance. One inference to be drawn was that, if she was right that the claimant had lost his entitlement to employment and support allowance, the First-tier Tribunal had no jurisdiction, when deciding the appeal before it against her decision of 18 January 2021, to consider the issue of his entitlement after his release. On the other hand, she had not been able to, or she considered that it was not appropriate to, make a formal decision on the purported new claim made by the claimant on 31 December 2020 until she had made her decision of 18 January 2021 as to the claimant’s entitlement to employment and support allowance under his previous award and any appeal against that decision had been determined.

Had the Secretary of State made her decision while the claimant was still in prison, but after he had been sentenced, I would accept her argument. Such a decision would have terminated the former award by way of supersession on the ground that there has been a change of circumstances that had the effect that the claimant was to be treated as having ceased to have limited capability for work and so lost his entitlement to employment and support allowance. Following such a termination of his award, it would indeed have been necessary for the claimant to make a new claim upon his release if he was to regain entitlement and therefore his right to receive payments, and his entitlement would then have been determined in that claim. The making of a claim is generally a condition of entitlement to employment and support allowance (see section 1(1) and (4)(ac) of the Social Security Administration Act 1992).

I am not sure why the Secretary of State delayed making her decision until the claimant had been released. It may simply have been because she was relying on the claimant to provide information as to the result of the criminal proceedings and he did not do so until he was released, in which case the suspension was permissible under regulation 16 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) but it need not have been for as long. The length of the delay does not appear to have been either required or permitted by regulation 161 of the 2008 Regulations (which is clearly derived from regulation 3 of the 1982 Regulations). A suspension under that provision generally lasts until the end of a claimant’s imprisonment or detention if the claimant is not disqualified for receiving payment. However, once the claimant in this case had been sentenced, it could be determined that he was not “excepted from the operation of section 18(4)(b) of the Act by virtue of the provisions of regulation 160(1), (4) or (6)”, so that the need for any suspension, and the power to maintain a suspension under regulation 161, came to an end and it could be decided that the claimant was disqualified for receiving payments. Once it became clear whether the period of imprisonment would last, or had lasted, for more than six weeks – which, in the present case, was obvious as soon as the claimant was sentenced – it could have been decided whether he also lost any underlying entitlement to contributory employment and support allowance.

In any event, because the claimant had been released by the time the decision was made in this case, it cannot be correct to say that he had to make a new claim in order to have his current entitlement determined. He had a subsisting award, albeit that payments under it were suspended, and the award could be terminated only on revision or supersession (under section 9 or 10 of the Social Security Act 1998 and regulation 3 or 6 of the 1999 Regulations). A decision that the award should be superseded because the claimant had not been entitled to contributory employment and support allowance during a period that had ended before the supersession decision was made cannot justify a decision that he had no entitlement during a later period or at the date of the decision merely because he had not made a new claim. A person who has a current award of a benefit cannot be expected to, and is neither obliged nor entitled to, make a new claim for the same benefit, even if payments have been suspended. A supersession decision must therefore determine entitlement up to the date of the decision itself without a new claim having been made.

Thus, in the present case, the Secretary of State erred in not determining within her supersession decision the claimant’s entitlement to contributory employment and support allowance between 22 December 2020 and the date of her decision. This must now be remedied save to the extent that that has already been done. It follows that the new claim for employment and support allowance, purportedly made on 31 December 2020, was both unnecessary and impermissible, and it should be ignored.

It may be that this error will prove to be academic, because it seems doubtful that the claimant satisfied both of the contribution conditions in Part 1 of Schedule 1 to the 2007 Act following his release. The relevant tax years in respect of which contributions had to have been paid or credited would, as I understand it, have changed as a result of one period of limited capability for work having come to an end and another one having started more than 12 weeks later. (Under regulation 145 of the 2008 Regulations, periods of limited capability for work that are separated by not more than 12 weeks are linked and treated as a single period.) Those tax years appear to be “the last two complete tax years before the beginning of the relevant benefit year”, which is “the benefit year which includes the beginning of the period of limited capability for work which includes the relevant benefit week”. The “benefit year” (as defined in section 21(6) of the Social Security Contributions and Benefits Act 1992 – see paragraph 3(1)(a) of Schedule 1 to the 2007 Act) is more or less the same as a calendar year, save that it starts on the first Sunday of the calendar year. The “relevant benefit week” is “the week in relation to which the question of entitlement to an employment and support allowance is being considered”. Because it appears that a new period of limited capability of work would have started when the claimant was released from prison, it appears that the relevant tax years would have been 2017-18 and 2018-19, while the claimant was in Romania, and so it seems unlikely that he would have actually paid sufficient National Insurance contributions in either of them so as to satisfy the first contribution condition. This appears to have been what the Secretary of State thought, although she did not make a formal decision. However, that contribution condition is relaxed in certain circumstances (see regulation 8 of the 2008 Regulations), and I have not explored whether any such relaxation might be relevant here.

There is also a further point. I am not aware of any reason why the subsisting award of “old-style” employment and support allowance should have been “converted” to an award of “new-style” employment and support allowance before 18 January 2021. If it remained “old-style”, the Secretary of State further erred in not considering the claimant’s possible entitlement to income-related employment and support allowance if he was not entitled to the contributory allowance (see my decision in LH v SSWP (ESA) [2014] UKUT 480 (AAC); [2015] AACR 14). That may again be academic as regards the period of the claimant’s imprisonment (as I suspect that his entitlement then was nil).

However, it may well not be academic as regards the period between the claimant’s release on 21 December 2020 and the date of the Secretary of State’s supersession decision, 18 January 2021, which was also the date from which universal credit was awarded. The fact that the claimant qualified for universal credit from the latter date suggests that he might have satisfied the conditions for income-related employment and support allowance immediately following his release, four weeks earlier.

I do not consider that I am in a position to determine any question of the claimant’s entitlement to employment and support allowance that has not already been decided by the Secretary of State, without giving the parties an opportunity to comment and provide further information, and there is no point in remitting such questions to the First-tier Tribunal without similarly requiring the Secretary of State to make a further submission as to what decision should be made. In these circumstances, the simplest and most proportionate approach for me to take – for the parties as well as for the Upper Tribunal and the First-tier Tribunal – is to leave the making of any outstanding decision to the Secretary of State. If the claimant is dissatisfied with the decision and considers it to be wrong, he will have a right to apply for revision (“mandatory reconsideration”), and then a fresh right of appeal to the First-tier Tribunal against the decision if he is still dissatisfied with it.