Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C13/96(IS) (25 September 1997)

 


Decision No: C13/96(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 Appeal to the Social Security Commissioner on a question of law from the decision of the Downpatrick Social Security Appeal Tribunal dated 8 February 1996 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which upheld the decision of an Adjudication Officer to limit the arrears payable to the claimant of income support to 12 months.
2. The Social Security Appeal Tribunal which heard claimant's appeal against the decision to limit the payment of arrears records that the Presenting Officer began by saying -

"Panel can ignore the figures states to front of submission papers.

Issue today is the award of Disability Living Allowance to

claimant's wife and the period for which arrears of income support

can be paid. This is the sole issue."

The Tribunal held that arrears of income support could only be paid for maximum period of 12 months and found the following facts:-

"1. Claimant's wife Mrs McL( was awarded Disability Living

Allowance payable from 11 March 1993. Although Mr McL...

was in receipt of income support at this time, he did not

report of the award of this new benefit to Income Support

Branch - as he was told to do so in the instructions in his

income support booklet.

2. In August 1995 a routine assessment of claimant's benefit was

carried out and on the review form claimant said his wife was

in receipt of Disability Living Allowance from date stated

above. Income Support Branch checked this fact out, confirmed

it was correct and advised claimant he was now allowed an

increase of benefit - a disability premium was to be added to

his income support as his wife was on Disability Living

Allowance. Income Support Branch said they could, in line

with the law allowing arrears of income support to be back

dated, pay the arrears from 29 August 1994 - one full year

before they were aware of this change of circumstances.

3. The panel are quite satisfied that had best office procedure

been put into practice in Disability Living Allowance section

as recommended in the internal guidance rules, then this

entitlement of disability premium could have been picked up

by Income Support Branch and paid since March 1993. This

however did not happen and the award of Disability Living

Allowance to claimant's wife was only made known to income

support branch in August 1995 during a routine assessment

of benefit.

4. The important fact to note however is that internal guidance

procedure from one benefit department to another is simply

guidance - not absolute law. There is no statutory provision

which says one benefit department MUST by law, tell another

department, even one closely connected such as Disability

Living Allowance section and Income Support Section, about

any particular decision made.

By law the onus is still with the claimant to report any change

which might effect benefit to the relevant department. The

claimant failed to report the change that occurred in 1993

(that his wife was in receipt of Disability Living Allowance

from 11 March) until 29 August 1995 when an adjustment was madeto his benefit, awarding him a disability premium. The

regulations say this can only be paid in arrears unless there

are special circumstances such as set out in Regulation

64A(2)(b).

5. The panel do not accept there were special circumstances such

as Mr McVeigh has relied upon in regulation 64A(2)(b). There

was no reason to have a review until the Department here made

aware of a change in circumstances which warranted a review.

They were told of a change in circumstances on 29 August 1995,

therefore could only review from that date. In accordance

with the law, arrears of income support were allowed to be

backdated for 12 months to 29 August 1994."

and gave reasons for their decision as follows:-

"Income Support section could only review claimant's benefit if they

were made aware of a change of circumstances (or a change in the

law). They were made aware of a change of circumstances on

29 August 1995 and very properly adjusted claimant's income support

awarding a disability premium, the award being backdated 12 months

1994, the maximum allowed under income support rules.

We do not accept that regulation 64A is relevant in this particular

case, see point 4 in Findings of Fact.

It is accepted that claimant has lost out on a disability premium

from March 1993 to August 1994 because the law says the onus is on

the claimant - not another benefit branch, to report a change in

circumstance.

If Disability Living Allowance had carried out their best office

procedure as recommended in internal guidelines this would not

have happened. It would be a simple thing to attach a form to

new awards of Disability Living Allowance saying - "let us know

at once if you or your partner receives Income Support - you may

be entitled to an additional disability premium.""

3. Claimant sought leave to appeal on the grounds that the Tribunal erred in law as follows:-

"At the Tribunal my representative argued that the normal 12

months restriction on backpayment of income support under reg.69

of the Social Security (Adjudication) Regulations (NI) 1987 could

be avoided in my case by the operation of reg.64A of the same

regulations. These regulations had been superseded at the time

of the decision which was before the tribunal by regs. 63 and 57

of the Social Security (Adjudication) Regulations (NI) 1995 which

are of the same effect.

Reg. 57(2)(a) and reg.57(2)(b) cover the situation where review

is sought in circumstances, respectively, where an adjudication

officer had specific evidence before him at the time of making

the decision under review yet failed to take it into account,

and where there was documentary evidence in the possession of an

officer of the Department at the time the decision was made but

he failed to submit it to the adjudication officer.

In my respectful submission, the standard procedures of the DLA

Branch in effect at the time would have required the issue of a

DLA 70 form to the local social security office where the income

support claim was determined. This confirms an award of DLA

in children's cases where the claimant has notified the DLA branch

that income support is in payment on the relevant DLA claim form.

The claimant's DLA claim form of 6 March 1993 notified DLA Branch

that income support was in payment.

I submit that on the balance of probabilities there are two factual

situation which could have arisen in my case. Either no DLA 70

form was issued by the DLA Branch, although they had documentary

evidence of receipt of income support, or else a DLA 70 was issued

but not taken into account by the adjudication officer in income

support. In my respectful submission the former situation is

covered by reg.57(2)(b) and the latter by reg.57(2)(a).

I respectfully submit that on the facts of the case the tribunal

have erred in law on the face of the record by misinterpreting

the effect of reg.57 in coming to the decision which they reached

or in the alternative have reached an irrational decision on the

evidence."

The Chairman of the Tribunal refused leave to appeal and an application was made to the Commissioner who granted leave to appeal.

4. The Adjudication Officer upon receiving a copy of the application for leave responded as follows:-

"I agree with the comments made by the claimant's representative in

relation to the relevant legislation which should have been used,

i.e. The Social Security (Adjudication) Regulations (Northern

Ireland) 1995, regulations 63 and 57. Those regulations superseded

the Social Security (Adjudication) Regulation (Northern Ireland)

1987. I submit however that the tribunal did not err in law in

using the 1987 regulations as the 1995 regulations were consolidated

regulations and as pointed out in the appeal to the Social Security

Commissioner both sets of regulations have the same effect.

The evidence before the tribunal was that the Income Support section

of the Social Security office first became aware of the fact that

Mrs McL(was awarded Disability Living Allowance on

29 August 1995. There is no evidence to suggest that the Income

Support section were in possession of form DLA 70 as indicated

in the grounds of appeal, in fact in the evidence recorded the

presenting officer accepted that the usual Departmental procedures

for DLA branch notifying the relevant social security office of

awards of DLA was not adhered to in this case. I submit that

the tribunal were correct in finding that the onus is on the

claimant to report any change to the relevant office and that

the claimant failed to do so. In decision number C15/95(IS) the

Chief Commissioner found that:

disclosure of a material fact relating to income support to the

unemployment section of a Social Security Office is not a

disclosure to the proper section or to the proper official

Although the Commissioners decision was in relation to an

overpayment of income support, I submit that it is relevant to

all matters relating to the onus on claimants reporting changes

in their circumstances. I submit therefore that although

Mrs McL( did report in her claim for DLA that her husband

was in receipt of Income Support, that was not sufficient

disclosure for Mr McL( to notify the proper section or the

proper official of the change in his circumstances i.e. the

income support section. I further submit that any failing on

a branch of the Department to report awards of benefit to

other branches does not detract from the onus on the claimant to

report changes. I finally submit that the tribunal were correct

in determining that arrears could only be paid for a maximum

of 12 months."

5. I arranged an oral hearing at which the claimant was represented by Mr Stockman of the Law Centre (NI) and the Adjudication Officer was represented by Mrs McRory. Mr Stockman reiterated his grounds of appeal and drew attention to the fact that there was a letter to claimant's wife in May 1993 telling her that she had been awarded DLA from 11 March 1993. He said that claimant notified the local office that his wife was in receipt of invalidity benefit in August 1995 and argued there were grounds to review the decision on the grounds of ignorance of a material fact that the wife had been awarded DLA, which brought into play regulation 57(2) (these are the replacements regulations for regulation 64). Mrs McRory said that the Tribunal failed to identify the decision under review, but even if it had then regulation 63 still applied. She did not accept that regulation 57(2) was applicable and argued that there was an onus on the claimant to report the change of circumstances.
6. I have considered all that has been said and I have read all the documents. The relevant regulations is former regulation 64A(2)(b) which has now been replaced by regulation 57 which is in similar terms. The relevant portion of Regulation 64(A) read:-

"64A(2) This paragraph applies to a review of any decision under

sections 100A(2)(a) and (4), 104(1)(a) and 104A(1)(a) of the

1975 Act(a) (review on grounds of ignorance of, or mistake as to,

some material fact), whether that decision was made before or

after the coming into operation of this regulation, where the

reviewing authority, that is to say the adjudication officer or,

as the case may be the appeal tribunal, is satisfied that -

(a) .............

(b) the evidence upon which it is relying to revise the decision

under review is a document or other record containing such

evidence which at the time of making the submission to the

authority which was then to determine the claim or question,

the officer of the Department who made the submission had in

his possession but failed to submit;"

The relevant portion is 64A(2)(b) and relates to evidence in a document which an officer of the Department who made the submission had in his possession but failed to submit (to the authority which was then to determine the claim or question) and it is interesting to note that the Presenting Officer at the Tribunal is recorded as having said:-

"Regulation 64A(2)(b) says that special circumstances only arise

if there was a document or other evidence in existence and an

officer of the Department, who was carrying out the review had

this in his possession but failed to submit this. It is not

the Department in general as Mr McVeigh suggests - in this case

the Disability Living Allowance Branch - it is a particular person

who, realising there is or are good reasons for review, fails to

take into account that information which he had in his possession."

7. It is not surprising that this matter has got as far as it has if that is the interpretation by the Department of 64A(2)(b). Clearly it does not relate to the officer who is carrying out the review and has the document in his possession - it is someone other than the person who is carrying out the review who has the document, who had it in his possession at the time of making the submission to the authority which was then to determine the claim but failed to submit it. Therefore it is not the person carrying out the review who had (but failed to submit) the document. The failure to submit the document arises at the time the claim is being determined, not the review.
8. In the instant case the document was the award of DLA to claimant's wife and the Department had in its possession that document. They had it in their possession from 1993. I am satisfied that this case got bogged down in attempting to discover whether or not claimant was obliged to notify the Department of a change of circumstances and whether or not he fulfilled his obligation. It is not related in any way to the obligation to report a change. This regulation stands alone and independent of regulation 32 which limits the payment of arrears. This regulation 64A (now 57) relates to a document which was in existence when the claim was being determined. It was in the possession of an officer of the Department who made the submission to have the claim determined and he failed to submit it. That is the evidence upon which it is now relying to revise the decision under review.
9. The Tribunal considered whether or not simple guidelines were statutory provisions or whether they were absolute law. These matters were totally irrelevant. This case is concerned with the payment of arrears only. It is not disputed that claimant was entitled to these arrears. What is disputed is that payment cannot be made past a certain point. However, payment can be made past a certain point if regulation 64A is applicable. I am quite satisfied that there is evidence that a document existed in the possession of an officer of the Department when the question was being determined and which he failed to submit but which is now being used and relied upon to revise the decision under review. I am satisfied that grounds existed for a review from 11 March 1993, the date claimant's wife received Disability Living Allowance. I therefore allow the appeal and set aside the decision of the Tribunal. I am satisfied this is a proper case in which to give the decision the Tribunal should have made. My decision is that claimant is entitled to all arrears of the extra disability premium on his income support from 11 March 1993.

(Signed): C C G McNally

COMMISSIONER

25 September 1997