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Neutral Citation Number:
Reported Number:	R(G)1/03
File Number:	CG 388 2002
Appellant:	Secretary of State for Work and Pensions v. Adams [2003] EWCA Civ 796
Respondent:
Judge/Commissioner:	Judge P. L. Howell Q.C.
Date Of Decision:	18/06/2002
Date Added:	05/07/2002
Main Category:	Revisions, supersessions and reviews
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Overlapping benefits - status of decisions on payability - whether supersession necessary to resume payment In February 1996 the claimant received a decision that he was entitled to invalid care allowance ("ICA") from 20 June 1995 but that, by virtue of regulation 4 of the Social Security (Overlapping Benefits) Regulations 1979 ("the Overlapping Benefits Regulations"), it was not payable because he was receiving incapacity benefit at a higher rate. Incapacity benefit was terminated with effect from 12 May 2000, but the ICA section were unaware of this and did not resume payment. The claimant, who was seeking to have his incapacity benefit reinstated, did not notify the ICA section until his incapacity benefit appeal had been finally turned down, when he returned a routine enquiry form to the ICA section. Payment of the allowance was then resumed with effect from 27 March 2001, the date the enquiry form was received. The claimant appealed, seeking payment from 12 May 2000. The tribunal agreed with the Secretary of State that the decision to resume payment was a supersession decision under section 10 of the Social Security Act 1998, and therefore subject to regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, by which such a decision has effect only from the date it was applied for. The Commissioner held that the decision to withhold payment was a decision under section 8 of the Social Security Act, but that to resume payment it was not necessary to supersede it under section 10. The Secretary of State's authority to withhold payment on the subsisting award of invalid care allowance had ceased when the claimant ceased to receive incapacity benefit at a higher rate, so that regulation 4 of the Overlapping Benefits Regulations no longer applied. The decision to resume payment fell to be made under section 8(1)(c) (a decision falling to be made under or by virtue of a relevant enactment) and should have been to the effect that invalid care allowance had been payable to the claimant from and including 12 May 2000, in accordance with his continuing entitlement. It was not subject to the restrictions applying to superseding decisions. The Secretary of State appealed to the Court of Appeal. Before the Court of Appeal it was common ground that both the suspension and restoration of the claimant's invalid care allowance involved a decision and not merely an administrative step. The single issue before the Court of Appeal was whether the decision to resume payment was a decision under section 10 or under section 8. Held, dismissing the appeal and affirming the decision of the Commissioner, that: 1. an "award" of benefit signifies an extant decision that the claimant is entitled to it, and unless there is some legal inhibition on payment of it, payment follows as of right: here there was no such inhibition after 11 May 2000 (paragraph 17); 2. it was more in conformity with the legislative scheme to regard the decision to resume payment as one under section 8 on a claim for a relevant benefit or falling to be made under the enactments which had so far created an entitlement but had inhibited payment, rather than as a decision under section 10 to supersede the decision not to pay while payment was inhibited (paragraph 18); 3. to allocate a decision to resume payment to section 10 or to place upon the claimant an onus to inform the Department of its own decision which could not be found in the legislation would penalise him for the Department's own failure to readjust the payments according to law and would tend to defeat the objectives of the scheme (paragraphs 19 and 20); 4. accordingly the claimant was entitled as of right to resumption of payment of his invalid care allowance with effect from 12 May 2000 because the decision to resume payment was one under section 8, and should have been given effect from that date.
Decision(s) to Download:	R(G) 1 03 final.doc