Social security case law

SS v. Department for Communities (JSA) [2021] NI Com 29 (C1/21-22)

Background

The claimant was awarded JSA from October 2013. It subsequently came to light that he had undertaken some work while receiving JSA. In April 2015, the Department decided that the claimant had been overpaid JSA for the period 26 February 2014 until 27 July 2014. The Department further decided that the claimant failed to disclose that he was working and that he actively misrepresented his position to the Department. On this basis, the overpayment was recoverable from the claimant. The claimant’s appeal to the tribunal was unsuccessful and he appealed to the Social Security Commissioner.

Legal issue

The issue on appeal was whether it was lawful for the Department to disentitle the claimant to JSA for a four month period on the basis of earnings he received for work done over seven discrete weeks.

Article 5 of the Jobseeker’s Order (NI) 1995 (‘1995 Order’) provides that a claimant is only entitled to JSA where their income does not exceed the set applicable amount for that claimant.

Chapter II of the Jobseeker’s Regulations (NI) 1996 (‘1996 Regulations’) provides for the calculation of income for the purpose of Article 5. Regulation 93 provides:

’93 – (1) For the purposes of Articles 5(1) (the income-based conditions)…the income of a claimant shall be calculated on a weekly basis –
(a) by determining in accordance with this Part, other than Chapter VI (capital), the weekly amount of his income,…’

Regulation 94 provides that where a claimant receives a monthly payment, the payment has to be taken into account over a period from the date of the payment to the date on which the next monthly payment would be due, whether or not it is actually paid.

The claimant’s case was that he only worked sporadically during the four month period from February 2014 until July 2014 and was normally unemployed. He argued that applying the 1995 Order and 1996 Regulations to his case meant that the Department was attributing his monthly earnings to weekly periods when he had not in fact worked. The claimant submitted that each week’s earnings should be assessed in its own right for that week. He argued that if he had been paid weekly, he would have retained entitlement to JSA throughout the whole four month period.

The claimant argued that the fact that he was paid monthly rather than weekly had a disproportionate effect on him compared to a person paid on a weekly basis. He submitted that the consequences of the 1995 Order and 1996 Regulations are unfair, overly punitive and that the legislation should be set aside.

Decision

The Commissioner acknowledged that the claimant’s arguments are similar to those made in recent decisions relating to Universal Credit.

He referred to R(Johnson) v. Secretary of State for Work and Pensions [2020] EWCA Civ 778, in which the Court of Appeal in England and Wales addressed the situation where a claimant who was paid monthly received two monthly payments in the same one month assessment period. This was due to pay day falling on a weekend or bank holiday. The Court of Appeal decided that the rule requiring both payments to be taken into account in one assessment period was so irrational as to be unlawful. The decision of the Court led to the passing of the Universal Credit (Earned Income) (Amendment) Regulations (NI) 2020.

The Commissioner also referred to R(Pantellerisco) v. Secretary of State for Work and Pensions [2020] EWHC 1944 in which a claimant was paid four weekly, but had a monthly assessment period. The effect of taking into account the claimant’s four weekly payment in a monthly assessment period was that she was subject to the benefit cap. If the claimant’s income had been calculated on a monthly basis, the cap would not have applied. Garnham J decided that failure to provide the claimant with an exception to the benefit cap was irrational and unlawful.

The Commissioner acknowledged that there are other cases in which the court has decided that how the Government works out income or liability on a weekly or monthly basis is not irrational. He referred to the decision of Knowles J in R(Caine) v. Department for Work and Pensions [2020] EWHC 2482.

In the claimant’s case, the Commissioner decided that there is nothing inherently irrational about a monthly payment being calculated on a weekly basis for the purpose of a claim to a weekly benefit such as JSA.

The Commissioner observed that the claimant’s argument that his income should be assessed weekly is in fact a double edged sword. That is because for one week in February 2014, his weekly income actually exceeded his applicable amount. If his income had been assessed for that week, his entitlement to JSA would have ceased and would not have continued without a fresh claim. This contradicts the claimant’s submission that his entitlement to JSA continued for the whole four month period.

The Commissioner also stated that even if the claimant’s income was assessed on a weekly, rather than a monthly basis, he was still under an obligation to disclose his work to the Department.

The Commissioner disallowed the claimant’s appeal.

For a full copy of the Judgment: click here