England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOCIAL SECURITY APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Monday 12th March, 2001

1. LORD JUSTICE MUMMERY: This is an adjourned application for permission to appeal and an application for an extension of time in which to appeal.
2. The background to the application is this. On 11th February 1997 the applicant made an application for job seeker's allowance as from the beginning of September 1996. On 24th April 1997 the adjudication officer decided that the applicant was entitled to the allowance from 11th February 1997, but not from an earlier date due to the delay in making the claim. The applicant then appealed to the Social Security Appeal Tribunal in relation to the claim back to the beginning of September 1996. She made her appeal by a letter of 22nd December 1997. In the letter she said:

"... I did not have the prior knowledge that I could claim benefit even though my husband was given an initial stay of 12 months in the country. This was originated when during the period when I was processing my husband's stay in this country. I received a letter from the British High Commission [in] Lagos referring to HC395 paragraph 281 (VI) stating that I should not obtain public funds (see attached). This was the information I actually received and depended upon and did not go into public funds so as not to go against the law.

The truth was only revealed when I went to the Citizens Advice Centre on 11th of February, 1997 for a different issue ... where the issue of benefit was brought up, and revealed that I was entitled to Income support/benefit even though my husband had not been given a permanent stay."

3. Attached to the letter – which also stated that the applicant believed she was entitled to this benefit as her husband had now received his permanent stay in this country - was the letter from the British High Commission in Lagos of 30th April 1996.
4. The applicant's appeal was heard on 9th February 1998 and was unanimously dismissed. The applicant did not attend the hearing.
5. In the summary of grounds the Tribunal said this:

"Unfortunately, [the applicant] got it into her head that she could not claim on account of her husband and the limitations on his leave to be the country. She should reasonably have attended the interview that she had arranged in September 1996. That would not have involved her in anything dishonest. She need only have given a truthful account of the family circumstances and ask for a ruling. Ignorance is not good cause when enquiries, as in this case, should reasonably have been made."

6. In the reasons the Tribunal then stated this:

"1. The Tribunal accepted that [the applicant] was ignorant about her rights. She had, however, by means of getting the earlier claim form had it in mind to claim.

2. It is well settled that ignorance of one's rights does not constitute good cause for late claiming. It can only do so if it is reasonable for the individual concerned to have made no enquiries at all in the belief that there was nothing to enquire about."

7. The Tribunal concluded that the applicant could not reasonably leave herself in ignorance and good cause was not established.
8. There was then an appeal to the Social Security Commissioner. Deputy Commissioner Mark dismissed the appeal on 1st October 1999. On 2nd December 1999 he refused permission to appeal.
9. The applicant wrote a letter on 14th December 1999 to the Civil Appeals Office headed "request for leave to appeal to the Court of Appeal". The letter stated:

"I hereby request from the Court of Appeal leave to appeal to the Court of Appeal.

The reasons for this request is that not enough evidence/facts were used to support the full statement of the decision made by the Commissioner."

10. She went on to repeat that she had acted and depended upon material facts from the British High Commission that she was not to have recourse to public funds, which made her have nothing to enquire about. She attached to the letter a copy of the Commissioner's decision and a copy of the Tribunal's decision. She did not mention in the letter that she had made an unsuccessful application to the Commissioner for permission to appeal.
11. The Civil Appeals Office replied on 17th December that the order from the Social Security Commissioner dated 1st October 1999 required permission to appeal before an appeal could be lodged, and said this:

"In the first instance, you should return back to Social Security Commissioner and make an application for `permission to appeal to the Court of Appeal'.

Following the outcome of this application you should forward a copy of an order made to this office as soon as possible thereafter so that we might assist you further."

12. The applicant wrote again on 20th December 1999 referring to the letter of the Civil Appeals Office of 17th December and said:

"I have already applied for `permission to appeal' from the Social Security Commissioner to which a response has been made.

I do believe that this is sufficient for you to assist me further. If not, please let me know."

13. She attached a copy of the order refusing permission to appeal.

"I will be expecting a quick reply."

14. She did not receive any reply from the Civil Appeals Office. Unfortunately, it was not until 19th October 2000 that her application for permission to appeal was received in the Civil Appeals Office. She says until that time she was not in a position to pay the court fee. She made the application for permission as soon as possible after she had sufficient funds.
15. This application came before Ward LJ on 6th December. He adjourned it for the Secretary of State to explain the absence of any reference in the decision of the Tribunal to the letter from the British High Commission dated 30th April 1996.
16. The consequence of that was that a skeleton argument and chronology was submitted on behalf of the Secretary of State for Social Security submitting that the decision of the Commissioner dismissing the appeal was justified, and that there was no error in the determination of the Tribunal that the applicant had failed to show good cause for failing to claim job seeker's allowance for the period from September 1996 to 17th February 1997. Detailed arguments are then set out by reference to the relevant dates and events.
17. This morning, just before the hearing, I was supplied with a further skeleton argument and chronology, this time prepared by Mr McMorrow who has been instructed to act as the applicant's counsel. I have heard submissions from him criticising the way in which the Tribunal dealt with the question of good cause.
18. As to the legal position, he referred me to the notes to the regulation 19 of the Social Security (Claims and Payments) Regulations 1987. He drew my attention particularly to the notes relating to good cause, referring to the general proposition that ignorance of the law is not itself a good cause for delay in claiming.
19. He then referred to the decisions quoted on page 421 of Bonner (from which the extract from the regulations is taken) saying that there is a difference between a case where a claimant positively believes that he is not entitled to claim and a case where he simply does not know of the possibility of entitlement; indicating that in the latter case that ignorance of the law is no excuse is more apt. He also referred to the notes on page 426, under the heading "Conclusion", where it says this:

"None of the propositions set out in these notes (or the cases cited in support of them) are really more than the application of the general test of good cause re-affirmed in R(S)2/63 to particular situations. In cases of difficulty it cannot be stressed too much that it is vital to make clear and full findings of fact on all the circumstances relevant to the particular claimant's situation in order to test the reasonableness of the claimant's conduct in relation to the late claim. The test of reasonableness is a matter for the judgment of the adjudicating authority and can only be properly made once all the relevant facts are found."

20. Having listened to Mr McMorrow's submissions and to submissions from Mr Forsdick I am satisfied that this is a proper case for granting an extension of time for appealing and for granting permission to appeal.
21. As to the prospects of success on the appeal, I am satisfied that there are real prospects of success. It does not seem to me that the findings of fact made in the decision of the Tribunal on 9th February 1998 are so full and clear that it can be said, with confidence, that the applicant did not have a good reason for the delay. I am particularly affected by the fact that it was prominent in the applicant's application letter of 22nd December 1997 that she had received information in the letter of the British High Commission dated 30th April 1996 and acted on her interpretation of that letter until she went to the Citizens' Advice Bureau on 11th February 1997.
22. This letter is not referred to in the Tribunal's statement of material facts and reasons for its decision, either in the summary at the beginning of the decision or in its findings of fact or in the reasons for their decision that she had not established good cause.
23. I fully appreciate the point made by Mr Forsdick that the onus was on the applicant to establish good cause, and that she did not make things any easier for herself or for the Tribunal by not attending the hearing before the Tribunal. Nevertheless, I do find the absence of any reference to what was regarded by the applicant as a crucial document as raising a sufficiently significant doubt about that decision to justify granting permission to appeal.
24. I think also that this is a case where I should grant an extension of time for appealing. Although it can be pointed out on the documents that a year had passed from the making of the Deputy Commissioner's decision refusing the appeal to the arrival of the application for permission in the Civil Appeals Office on 19th October 2000, it is quite clear from the correspondence that the applicant acted promptly after the Commissioner had dismissed her appeal and dealt with the Civil Appeals Office query about their understanding – which turned out to be a misunderstanding – as to an application to the Commissioner for permission to appeal. The delay which then occurred has, I think, been sufficiently explained by reference to the applicant's financial difficulties in relation to absence of sufficient funds.
25. Permission to appeal is granted and the time for appealing is extended.
ORDER: Applications for permission to appeal and an extension of time granted; permission to serve an amended notice of appeal, if so advised, within 14 days; the appellant to serve a new skeleton argument within 14 days; the respondent to serve a skeleton argument in reply 14 days thereafter. (Order not part of approved judgment)