Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC A10/95(IS) (25 August 1995)

 


A10/95(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INCOME SUPPORT Application by the above-named claimant for leave to appeal to the Social Security Commissioner on a question of law from the decision of Belfast Social Security Appeal Tribunal dated 15 June 1994 DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against the decision of Belfast Social Security Appeal Tribunal; whereby it was held that he was entitled to income support from 1 October 1993 to 23 March 1994. The Appeal Tribunal recorded that the appeal was disallowed; but their decision represented a partial success for the claimant, who was appealing from the Adjudication Officer's decision that he was not entitled to income support from 2 June 1993 to 23 March 1994 because he had not shown continuous good cause throughout that period for his failure to claim before 24 March 1994.
2. Briefly the facts are that in 1993 the claimant's business as a self-employed builder ran into serious difficulties, which eventually caused him to cease work. He did not however claim income support until 24 March 1994. In his claim form he stated that he had last worked on 30 May 1993 in self-employment and he requested that benefit be back-dated for the period 2 June 1993 to 23 March 1994. The reason which he gave for not claiming for this period was that he did not know that he could do so, because he was self-employed. Subsequently, he made a statement on 11 April 1994 in which he said that he had not worked from June 1993. He further stated that he was under the impression that, as a self-employed person, he would not be entitled to benefit and that it was his accountant who had advised him to claim income support.
3. In the light of the information at his disposal, the Adjudication Officer on 13 April 1994 decided that the claimant was not entitled to income support from 2 June 1993 to 23 March 1994, because he had not shown continuous good cause for his failure to claim before 24 March 1994.
4. In his appeal against the Adjudication Officer's decision the claimant maintained that in June 1993 he had been informed by an Official of the DHSS to whom he had spoken on the telephone that he could not claim income support for 26 weeks after stopping work.
5. At the hearing before the Appeal Tribunal the claimant explained that, between June and October 1993 he had been finishing off old work, while at the same time looking for new work; but that there had been no income coming in. He repeated his assertion that his reason for not claiming benefit at the proper time was that he had been incorrectly informed by a girl in the Department of Health & Social Services that he could not claim until 26 weeks after he ceased self-employment. While not making any concessions, the Presenting Officer pointed out that, if the claimant had indeed stopped work in June 1993, and had been incorrectly informed that he could not claim benefit for 26 weeks, this might excuse his failure to claim until January 1994; but could not constitute continuous good cause for the delay in claiming throughout the whole of the period before the date on which the claim was made: ie 24 March 1994.
6. The Tribunal's findings of fact were recorded as follows:-

" Mr O phoned the Department of Health and Social Services

about his benefit entitlement in June 1993. He formed the

understanding that he could not get benefit till 6 months after

he ceased work and so did not claim. He ceased self-employed

on 30 September 1993."

As stated in paragraph 1 above, the Tribunal's decision was:-

"Appeal disallowed.

Mr O... is entitled to Income Support from 1 October 1993 -

23 March 1994."

The Tribunal's reasons for decision were:-

"We accept that Mr O... did telephone Department of Health

and Social Services in June 1993, his evidence is confirmed

by that of Mr M…. Mr O... may have misunderstood the

advice given. We consider that in such a situation, where a

genuine misunderstanding occurred and the claimant, having

made enquiries, was left in a situation where he thought he

was unable to obtain benefit till 26 weeks from ceasing

work, good cause has been shown.

We do not consider there was any entitlement to benefit

prior to 1 October 1993 when Mr O... ceased self-employed

work."

7. The grounds upon which the claimant now seeks leave to appeal against the Tribunal's decision are set out in a letter from him dated 17 June 1994 and a letter dated 10 October 1994 from his Accountants, McK M & C of B The claimant has expressed surprise that the Tribunal reached the conclusion that he stopped work in October 1993 rather than in June, and appears to be under the impression that it was immaterial which date was applied. The Accountants have difficulty in understanding why, if the Tribunal accepted that there was good cause for the claimant's failure to claim before 24 March 1994, he was not awarded benefit from 1 June 1993. They further complain that the Tribunal failed to explain their comment "we do not consider there was any entitlement to benefit before 1 October 1993 when Mr O... ceased self-employed work", and it is suggested that this conflicts in some way with the Adjudication Officer's submission on the effect of good cause for delay in claiming benefit.
8. I am not greatly surprised that the claimant and his Accountants are somewhat confused by the outcome of this appeal. Having persuaded the Tribunal that he had been misled into believing that he could not claim income support for 26 weeks after stopping work as a self-employed builder, the claimant might well have expected that the Tribunal would also accept that he stopped work in June 1993 rather than in October. What has not been understood, however, is that if the Tribunal had found as a fact that the claimant had stopped work in June 1993, it would not have been open to them to award the claimant income support for any period prior to the date of claim, which was 24 March 1994. This is because, on the claimant's case, he might have had good cause for failing to claim until the expiration of 26 weeks from the date on which he stopped work; but that would only have taken him up to a date in January 1994 and he would not have been able to establish continuous good cause right up to the date of claim. If on the other hand he was found to have worked until October 1993 and the explanation for his delay in claiming until 24 March 1994 was accepted, the Tribunal could back-date his claim until the date on which he stopped work. On those facts there would have been continuous good cause for the delay throughout the whole of the intervening period. In other words, in order to reach such a conclusion the Tribunal had first to be satisfied that the claimant stopped work at some time later than June 1993 and on the evidence I consider that they were fully justified in fixing upon 30 September 1993 as the appropriate date. Having so found, income support could not be awarded for any earlier date, as it is a benefit which is not available to employed or self-employed persons.
9. The claimant's application for leave to appeal to the Commissioner was refused by the Tribunal Chairman and having considered the matter I have also decided to refuse it. Firstly and most importantly I am of the opinion that there is nothing to suggest that the Tribunal's decision was erroneous in point of law. It was a question of fact when the claimant stopped work, and as I have said, I consider that on the information at their disposal the Tribunal were fully justified in deciding upon 30 September 1993 as the appropriate date. There is, however, the further point that if the claimant did manage to persuade another Tribunal that he in fact stopped work in June 1993, the inevitable result would be the loss of his award of income support from 1 October 1993 to 24 March 1994. I have no doubt that the claimant will be better off to accept the limited success of his appeal rather than to have this application for leave to appeal granted. For the reasons given leave to appeal is refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

25 August 1995