Sunday, March 2, 2014

SSTAG in exile blog site - Social Security Tribunal latest...

Another Social Security Tribunal hearing....

The latest Social Security Tribunal hearing on 27 February was open to the public. The applicant was asked outside the room if he objected to the public being present and he confirmed that he had no objection. So yours truly attended and can report as follows.

The dispute with the Social Security department arose because the applicant had been awarded a 10% long term incapacity award for a shoulder problem. This amounted to a lump sum payment of about £1300 for the period from October 2013 to March 2015.

He had previously been awarded a similar 10% award and received the money without any difficulty but since then has been claiming Income Support and he has another ongoing 70% award, paid as a regular payment (not a lump sum) with his Income Support, for kidney failures (for which he receives dialysis).

He is 52 year of age and unable to work (but the 10% award was made without any further Medical board examination. It was based upon previous information as the applicant explained to yours truly after the hearing).

Unfortunately, having accepted the £1300 and used it to settle some outstanding debts ( including a loan of £800 towards his parents’ funeral etc and a JEC bill) the Social Security department decided that it should be treated as “income” and duly proceeded to re-claim it ( except for 6% “disregard”) from his Income Support award.

The result is that the applicant is no better off. The 10% award has actually created problems because he has settled debts which could have been spread over time and the money used for other essential purposes.

The letters from the SS Department were discussed in some detail – were they clear enough? Did the applicant understand what they said etc?

In fact the SS law had been changed in 2011, presumably under Francis Le Gresley’s direction – so that Long Term Incapacity awards (LTIA) were no longer to be treated as “capital” for Income Support assessment purpose but were considered as “income”. The applicant’s original award at 10% was “capital” but the current one was “income” and so was clawed back...

The applicant explained how he was unaware of this and would have had the award paid on a regular basis instead of a one off lump sum if he had known.

But the SS Department explained that a 10% award must be taken as a lump sum – it cannot be paid with Income Support like the 70% award.

There is no discretion either – the SS Department must pay the money out too because the law demands it. In other words the applicant cannot refuse to receive it (unless appealing against the decision itself) although there is a bit of a grey area if the money is paid out and the applicant then appeals within the 3 months period allowed...

The SS Officers explained that there was some discretion available to them regarding redundancy payments or where a property value diminished to become a “negative equity” but in this case there were no exceptional circumstance and it was a common place occurrence. Many others have been treated in the same way they explained...

All due notifications had been made they said and there was no reason to change the decision (which had been confirmed by the Second Determining Officer in accordance with the Department’s own internal reconsideration process).

The Decision and other things.

The Tribunal members -  Chair Advocate Thacker with Mrs S Le Monnier and Mr A. Hall - agreed and rejected the appeal. There were no exceptional circumstances.

They did though raise the question of the  letters sent out by the SS Department  and whether these needed to be phrased more clearly and they did advise the applicant that the Minister does have an ultimate discretion to reconsider or change decisions and that he could approach him.

As is usual, the Tribunal’s findings will be sent to the Department – but what happens to all such decisions is a mystery to yours truly. There does not seem to be an archive for the public to look at or to enable such important decisions to be analysed and discussed.

It is the usual “Jersey way” of sloppy and incomplete administration...

The Tribunal hearing lasted about 45 minutes and the decision was delivered after a short retirement. It was well conducted and the applicant presented his simple case well.

There was one other person present in the “public” seats who appeared to be an observer for the SS Department. No “accredited media” attended.


  1. I have done some time-consuming research on this. Tracking changes in the Income Support legislation has proved to be really complex (more about the reasons for this in a separate post) but it seems to me that LTIA was definitely treated as income (rather than capital) going right back to the start of the Income Support scheme in January 2008 when your good friend (!) Senator Routier was Minister. Proof of this appears in the Income Support Policy Guidelines, issued by Routier in February 2008, which lists LTIA amongst 9 Social Security benefits that are “included as income for the income support calculation”. During 2009, Deputies Pitman and Southern asked Minister Gorst a string of questions on this subject. Here is one such example from 16th June 2009, where Gorst confirms that the cost of completely disregarding LTIA and Invalidity Benefit would be £10 million and that, in his opinion, if this were to be the case, “individuals receiving contributory benefits and Income Support would be much better off than those on Income Support who were employed”:

  2. However, although it may or may not be relevant in the case of this appellant, prior to the introduction of Income Support, some of the benefits which were later merged into Income Support treated LTIA differently. For example, LTIA was excluded as income for family allowance purposes. Those people who were receiving family allowance at the start of the Income Support Scheme would have continued to receive ‘protected payments’ under transitional provisions for some time after that date, meaning that LTIA would have continued to have been disregarded until the protected payments were phased out.

    Regarding your reference to a change in the law in 2011, I could not find one other than a measly rise from 5% to 6% in the level of the amount of LTIA that is disregarded for the purposes of assessing Income Support entitlement. However, this actually came into force on 1st October 2010 and can be viewed in paragraph 5 (c) of the Order below:\htm\ROFiles\R%26OYear2010%2fR%26O-091-2010.htm

  3. One of the reasons it was so difficult for me to track changes to the legislation revolves around the fact that the LTIA disregard is covered by ministerial Order rather than Regulations. The latter have to be adopted by the States Assembly and are therefore easier to track, as one can search for relevant propositions and amendments on the States Assembly website. There is little ambiguity about what has been approved. However, this is far from the case with Orders as they are not subject to any oversight or scrutiny by the Assembly. The Minister can change the law alone, without having to notify anyone in advance. Most amendments of this nature can take effect within a week so there is no opportunity for any States Member to question or challenge the Order.
    Even worse, there appear to be no firm rules as to how the Minister chooses to report the decision he has just made under ‘Ministerial Decisions’ on I have come across examples where successive Social Security Ministers have left out certain key details from their report on concerning legislative changes that they have just made by Order. They have also failed to include a link to the Order on which would allow us to see exactly the full extent of law changes that have just been made. Last year I contacted the website to report this problem, but I don’t blame them.
    To prove what I mean, let us track how Gorst went about increasing the LTIA disregard from 5% to 6% in 2010. First, he included his intention to increase certain disregards in P.77/2010 (lodged 8 June 2010/ debated 20 July 2010). In that report he stated, amongst other things, that he intended to increase the LTIA disregard from 5% to 8%. However, as that came under the scope of Ministerial Order, the States could not actually vote for that and strictly speaking, he did not even have to inform them that he was planning to do that. The only bits of P.77 that the States had the power to adopt related to amendments to the REGULATIONS, which they duly did.

    Then on 28th August 2010, while the States was in summer recess, Gorst quietly made a Ministerial Decision to enact the changes he had previously informed the States he was going to make. However, the details of this decision as reported on are very vague. There is no attached report and the reasons for the decision fail to include the precise amounts of changes to the disregards that he is making. There is also no hyperlink included to the Order on Here is the way the decision was reported:

    And here, after much searching by myself, is the actual corresponding piece of legislation on which came into effect on 1st October 2010:\htm\ROFiles\R%26OYear2010%2fR%26O-091-2010.htm

    This shows that whereas Gorst had initially informed the States Assembly that he intended to increase the LTIA disregard to 8%, he eventually chose to increase it to only 6%. Some of the other disregards have also changed from his original intentions. There is no suggestion that Gorst broke the rules here. Quite simply, the reporting requirements relating to Ministerial Orders are WIDE OPEN TO ABUSE BY THE EXECUTIVE. I am sure you can see that under the existing system, it is very easy for a Minister to hide certain key details of a law change he has just made that might provoke controversy or an adverse public reaction. It is also possible for him to officially tell the States in a proposition that he intends to make certain changes to legislation by Order but then enact slightly different changes without any possibility for the States to stop the changes coming into effect.

    I know this is all very long-winded but I hope someone out there who bothers to read this will agree with me that the States Assembly needs to take greater control over Ministerial Decisions to stop potential abuses of executive power.

  4. SSTAG needs a guide to the Social Security labyrinth - do you have a relevant blue badge?

  5. You may be wondering why so few Income Support cases get as far as an appeal hearing at the Social Security Tribunal. Here are some possible reasons:

    1) The Judicial Greffe, which has administered the appeals system since about 2010, seems to be extremely keen to re-direct appellants away from the Social Security Tribunal - whose decisions are binding on the Social Security Department and can be appealed on points of law to the Royal Court - and onto the Complaints Board, whose decisions can be completely ignored by the Social Security Minister with no legal consequences.

    This is what happened in the case of Mr. B***** last year, whose case was eventually heard before the Complaints Board, which found that the Department's decsion to classify a lump sum 'severance' payment entirely as earnings on the basis of the letter from the appellant's former employer without further investigation of the facts was unjust (see R.142/2013 on States Assembly website). In his response (see R.156/2013), Minister Le Gresley simply ignored the Board's decision. It was also revealed in his response that Mr B***** had initially lodged an appeal to the Registrar of Tribunals but "stated to the Registrar that he was not disputing the way the Department had calculated his Income Support claim. He was in fact disputing the statement that the Department had not received his former employer's letter on the date that he said he had provided it. He was therefore advised by the Registrar that his appeal did not fall under the remit of the Social Security Tribunal as this was an administrative issue rather than a legislative one."

    Without knowing Mr B***** and having no inside information about the details of how he came to be persuaded to opt for the far more public and intrusive option of a Complaints Board hearing, I consider that the Registrar took advantage of his lack of access to independent legal advice to persuade him that he had no choice but to withdraw his appeal to the SS Tribunal. They have apparently told him that 'administrative' complaints cannot be heard by the Tribunal, yet all administrative decisions must conform to the general common law priniciples of administrative law. For example, the Tribunal Chairman could reverse a decision of the Department if it was found to be procedurally unfair. An administrative decision could be deemed to be unlawful if it failed the doctrine of 'Audi alteram partem' (the claimant's right to a fair hearing) or 'Nemo judex' (the bias rule). It is therefore totally misleading and scandalous, in my opinion, for the Registrar to be advising appellants - as it definitely HAS been doing - that the Tribunal cannot deal with appeals against "the policies, processes or procedures of the Department" (a direct quote of the Assistant Judicial Greffier).

    2) According to the Registrar, the Tribunal no longer has jurisdiction over any appeal which the Social Security Department has settled for any reason prior to the Hearing. This gives the Department complete control over the claimant's appeal. Any appeal which the Department does not want to be heard in public by the Tribunal can be stopped by the Department reversing its decision. It is important to understand that this right to a hearing is lost even if the appellant still wants the case be heard by the Tribunal. Therefore the Department does not have to negotiate a settlement in any way with the appellant- it simply informs the appellant that it has reversed its decision and the appellant's right to a Tribunal hearing is automatically lost, whether he/she agrees with it or not.

  6. wish the Scrutiny Panel hearing Sen Bailhache today had read your comments re Ministerial Orders etc. As usual they lacked an expert - never mind a constitutional expert - to analyse the implications of Proposition 164 which will give greater powers to our Minister for International Relations...he would not allow me to interview him for further clarification but if these Ministerial powers don't get used within the year for purposes way beyond today's apparent intentions ... I will eat my mousemat....