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Neutral Citation Number:
Reported Number:	R(IB)1/09
File Number:	CIB 3542 2007
Appellant:
Respondent:
Judge/Commissioner:	Judge D. Williams
Date Of Decision:	17/06/2008
Date Added:	27/06/2008
Main Category:	Contributions and credits
Main Subcategory:	contribution conditions
Secondary Category:
Secondary Subcategory:
Notes:	Contributions and credits – which government department should decide a dispute about the application of the Earnings Factor Regulations – which tribunal should decide an appeal about such a dispute The claimant disputed a decision by the Secretary of State for Work and Pensions that he did not satisfy the contribution conditions for his claim for incapacity benefit. The initial dispute was about a mistake by his employers but in the course of the proceedings an issue was raised about the application of the Social Security (Earnings Factor) Regulations 1979 (the 1979 Regulations). Before the Commissioner it was agreed between the Secretary of State and Her Majesty’s Revenue and Customs (HMRC) that the tribunal had erred as to which decisions were social security decisions and which were tax decisions. The Commissioner in his decision set out the correct way to handle a dispute about the application of the 1979 Regulations to a claim for incapacity benefit. Held, allowing the appeal, that: 1. it is for the National Insurance Contributions Office of HMRC to decide any question about the contribution record of a claimant for incapacity benefit (paragraph 7(a)); 2. any challenge to that decision on either an issue of fact or a question of law goes to a tax tribunal , not a social security tribunal . If an appeal involving a question about a claimant’s contributions comes before a social security tribunal, then the social security tribunal must apply regulation 38A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This requires it to adjourn the appeal and refer the matter to the Secretary of State for onward reference to HMRC for decision. The tribunal may decide the appeal only after a decision has been received from HMRC (paragraph 7(b)); 3. it is for the Secretary of State for Work and Pensions to decide any question about the interpretation and application of the 1979 Regulations to the individual contribution record of any claimant for incapacity benefit (paragraph 7(c)); 4. if a claimant disputes the decision of the Secretary of State on any issue of fact or law arising under the 1979 Regulations, then that dispute is to be decided by a social security tribunal. This includes any dispute about calculating the earnings factor attributable to a claimant under those regulations. If necessary, it is the task of the tribunal itself to check any disputed calculations (paragraph 7(d)). The Commissioner referred the matter back to the Secretary of State to consider the appellant’s claim in the light of his decision.
Decision(s) to Download:	R(IB) 1_09 bv.doc