Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C5/96(IS) (8 April 1998)

 


Decision No: C5/96(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 by the claimant to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 11 October 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which disallowed the claimant's appeal against an Adjudication Officer's decision which decided that the claimant was only entitled to disability premium of income support back-dated to 22 March 1994 and not to 11 February 1992 on the grounds that the Adjudication Officer could not review the entitlement for any date prior to 22 March 1994.
2. On 24 March 1995 the claimant notified his Social Security Office that a person described as his partner, presumably the person with whom he cohabits, was in receipt of Disability Living Allowance. The Social Security Office then contacted the Disability Living Allowance Branch which confirmed that the allowance had been awarded from 29 May 1992. On 24 March 1995 the Adjudication Officer reviewed the previous Adjudication Officer's decision of 11 February 1992 in accordance with Regulation 69 of the Social Security (Adjudication) Regulations (Northern Ireland) 1987 and section 23(1)(b) of the Social Security Administration (Northern Ireland) Act 1992. The award of income support was revised for a 12 month period prior to 24 March 1995 and arrears of the disability premium were awarded from 22 March 1994. On 10 April 1995 the claimant requested that arrears of the disability premium be paid back to 29 May 1992. On receipt of this request for review an Adjudication Officer on 6 June 1995 disallowed this claim. The claimant appealed this decision on 23 August 1995.
3. On appeal the Tribunal found the following facts material to its decision:-

"Mr D... became entitled to Income Support from 11 February 1992,

claiming for himself and his partner Ms C… H... .

From 29 May 1992 Ms H... became entitled to Disability Living

Allowance, and as a consequence the Disability Premium became

relevant in the calculation of the level of Income Support, from

that date.

On 24 March 1995, Mr D... returned a routine claim form (A2)

issued on 15 March 1995. This form contained details of the

Disability Living Allowance award, and it was treated as a request

for review of the benefit.

Benefit was backdated for 12 months to 22 March 1994."

4. The Tribunal's decision was as follows:-

"Appeal disallowed.

The adjudication officer can review the award of Income Support

from 11 February 1992 on the grounds that there has been a material

change of circumstances, namely Mr D... 's partner's award of

Disability Living Allowance from 29 May 1992.

Mr D... is entitled to the Disability Premium of Income Support

from 22 March 1994 as the adjudication officer cannot review the

entitlement for any date prior to that date, being 12 months prior

to the request for review."

5. The Tribunal gave the following reasons for its decision:-

"This appeal is against a refusal to review the award of Income

Support beyond the 12 month period. The adjudication officer has

refused to review as Reg 64A of the Adjudication Regulations is

not satisfied.

Reg. 69 of the Adjudication Regulations states that:

Except in a case to which Regulation 64A(2) or (3) or Regulation

64B applies, a determination on a claim or question relating to

Income Support shall not be revised on review under Section 23

of the Social Security Administration Act so as to make income

support payable or to increase the amount of income support payable

in respect of any period which falls more than 12 months before the

date on which the review is requested.

The adjudication officer in considering Reg 64A believed that the

conditions did not apply on the facts of the case. The Tribunal

is of the opinion that the regulation is not relevant. The

paragraph is clearly limited to, in this case, cases where the

original decision is made in ignorance of, or was based on a mistake

as to, some material fact and not when there has been a relevant

change of circumstances. In this case the grounds for review are

that there has been a relevant change as to circumstances, namely

the claimant's partner's entitlement to Disability Living Allowance

as and from 29 May 1992. Mr D... was awarded Income Support from

11 February 1992. The decision to award the benefit at the level

paid was correct on the information then available to the

Adjudication Officer. There was a change of circumstances activating

the ability to review. It cannot be said that the decision in

February 1992 was made in ignorance of a material fact. Therefore

Reg 64A cannot apply.

In the circumstances there can be no backdating of extra entitlement

to Income Support in this case.

The Tribunal note the apparent breakdown in the DHSS's Internal

Notification System, when the Disability Living Allowance Section's

"yellow card" was not received by Income Support Section. It is

difficult to make any decision on the oral advice Mr D... says he

was given both by his local Social Security Office, and the "Benefit

Shop" at Castle Court. The adjudication officer has obviously made

an investigation into Mr D... 's allegations. A more thorough

investigation may be necessary, if the Department is considering

an extra statutory concession."

6. The claimant sought leave to appeal this decision. On 16 February 1996 the Chairman granted leave to appeal to a Commissioner.
7. The claimant's grounds of appeal set out by his solicitors were as follows:-

"GROUNDS OF APPEAL

(Decision relied on; CSIS 83/94)

We respectfully submit that the Social Security Appeal Tribunal

erred in law in finding that Regulation 69(1) and 64A of the Social

Security (Adjudication) Regulations 1986 were not relevant in this

case as the decision on the 11/2/1992 was not made in ignorance

of any material fact. Based on the Deputy Commissioner's decision

CSIS 83/94 we respectfully submit that the tribunal erred in their

interpretation of the law. For the purposes of Section 25(1)(a) of

Social Security Administration Act 1992 the Deputy Commissioner

stated that an Adjudication Officer may be stated to be "ignorant

of a material fact", although a fact is not then "existing".

We would submit that when a decision on payment of Income Support

was made on the 11/2/1992, the Adjudication Officer was ignorant

of the material fact that from the 29/5/1992, the claimant's wife

was entitled to high rate mobility and low rate care of D.L.A.

therefore also entitling a disability premium to be paid on the

Income Support award.

The Deputy Commissioner states this (sic) his reasoning applies to

cases which have not been treated with any proper diligence by

the adjudication authorities. We would contend that Mr D... 's

Income Support claim was not treated with such proper diligence

by the Social Security Agency.

The breakdown of the DHSS's Internal Notification System is not

issuing a "yellow card" to Income Support Section on the 29/5/1992

and again on the 27/4/1993 is one instance of the lack of the

proper diligence by the department.

A further instance is the fact that when Mr D... verbally informed

the box clerk at A… Social Security Agency of all

benefits that he was receiving it was not noted that he was in

receipt of D.L.A nor was he advised that he was entitled to a

payment of Disability Premium on his Income Support.

A further instance of lack of the proper diligence is the fact

that Mr D... only received one annual review form A2 between the

period of 11/2/1992 and 15/3/1995. Had these review forms been

issued on an annual basis as is departmental policy, the department

would have had a further opportunity to have been made aware of

the benefits that Mr D... was receiving and also those that he

was further entitled to.

To permit such delays and oversights by the department offends

against maxim nemo ex suo delicto meliorum suam conditionem facere

potest.

We would be obliged if you would consider the above submissions in

relation to our client's appeal. We would further be obliged if you

would allow us to make any oral representations on our client's

behalf when considering this appeal."

The latin maxim could loosely be translated as "no one should be able to profit from his own wrong."

8. Mr C McLaughlin on behalf of the Adjudication Officer made written representations opposing the appeal and, in particular, contended that the decision relied upon by the claimant's solicitors, namely CSIS/83/94 - a decision of Mr Deputy Commissioner J Mitchell - was wrongly decided and inconsistent with the decisions of Mr Commissioner J G Mitchell in CSSB/16/94 and Mr Commissioner Johnson in CIS/650/91. Mr McLaughlin also made it clear that the decision of Mr Deputy Commissioner J Mitchell was under appeal to the Scottish Court of Session.
9. In the circumstances the present appeal was not adjudicated upon until the appeal was heard in the Court of Session.
10. The decision of the Court of Session was given by the Lord Justice Clerk on 19 June 1997 (Chief Adjudication Officer v Combe), but unfortunately it was not drawn to the attention of the Office of the Social Security Commissioners until December 1997.
11. In light of all the circumstances and in particular the clear decision of the Court of Session I am satisfied that it is not necessary for an oral hearing to be arranged in this case, although I do note that no oral hearing was requested by the claimant's solicitors in any event.
12. Section 23(1) of the Social Security Administration (Northern Ireland) Act 1992 states as follows:-

"23-(1) Subject to the following provisions of this section, any

decision under this Act of an Adjudication Officer, a Social Security

Appeal Tribunal or a Commissioner (other than a decision relating

to an Attendance Allowance, a Disability Living Allowance or a

Disability Working Allowance) may be reviewed at any time by an

Adjudication Officer or, on a reference by an Adjudication Officer,

by a Social Security Appeal Tribunal, if -

a. the officer or tribunal is satisfied that the decision was given

in ignorance of, or was based on a mistake as to, some material

fact;

b. there has been any relevant change of circumstances since the

decision was given;

c. it is anticipated that a relevant change of circumstances

will so occur;

d. the decision was based on a decision of a question which

under or by virtue of this Act falls to be determined

otherwise than by an Adjudication Officer, and the decision

of that question is revised; or

e. the decision falls to be reviewed under section 57(4) or (5) of

the Contributions and Benefits Act."

13. Regulation 69(1) of the Social Security (Adjudication) Regulations (Northern Ireland) 1987 states as follows:-

"69.-(1) Except in a case to which regulation 64A(2) or (3) or

regulation 64B applies, a determination on a claim or question

relating to income support shall not be revised on review under

section 104 of the 1975 Act(a) so as to make income support

payable or to increase the amount of income support payable in

respect of -

(a) any period which falls more than 12 months before the date on

which the review was requested or, where no request is made,

the date of the review; or

(b) any past period which falls within the period 12 months

mentioned in sub-paragraph (a) and has been followed by

termination or interruption of entitlement to income support

and -

(i) the total amount of the increase would be ?5 or less; or

(ii) the grounds for review are a material fact or relevant

change of circumstances of which the claimant was aware

but of which he previously failed to furnish information

to the Department."

14. Regulation 64A(1), (2) and (3) states as follows:-

"64A-(1) In the case of a review to which either paragraph (2)

or (3) applies, the decision given shall have effect from the date

which the decision being reviewed had effect or from such earlier

date from which the authority which gave the decision being reviewed

could have awarded benefit had that authority taken account of the

evidence mentioned in paragraph (2) or not overlooked or misconstrued

some provision or determination as mentioned in paragraph (3).

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

under review is specific evidence which was directly relevant

to the determination of the claim or question and which the

authority which was then determining the claim or question had

before it at the time of making the decision under review but

failed to take into account;

(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; or

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

under review did not exist and could not have been obtained at

that time, but was produced to an officer of the Department

or to the authority which made the decision as soon as

reasonably practicable after it became available to the

claimant.

(3) Subject to paragraph (3A) this paragraph applies to a

review of any decision under section 100A(2)(d) and 104(1A) of the

1975 Act (review on grounds of error of law), whether that decision

was made before or after the coming into operation of this

regulation, where the adjudication officer or, as the case may be,

the appeal tribunal, is satisfied that the adjudication officer,

in giving the decision under review, overlooked or misconstrued

either -

(a) some statutory provision; or

(b) a determination of a Commissioner or the court,

which, had he taken it properly into account, would have resulted

in a higher award of benefit or, where no award was made, an

award of benefit."

15. Regulation 69 of the 1987 Regulations places a limit on the retrospective revision of a determination on a claim or question relating to income support. The normal rule is that such a determination cannot be revised on review so as to make income support payable or to increase the amount of income support payable in respect of "any period which falls more than 12 months before the date on which the review was requested or, where no request is made, the date of review". Of course this is subject to certain exceptions covered by other provisions in the Regulations including regulation 64A(2).
16. The question in this appeal is whether the claim for the disability premium was covered by paragraph (a) or by paragraph (b) of section 23(1) of the 1992 Act. In other words was the decision of the Adjudication Officer on 11 February 1992 "given in ignorance of ... some material fact", namely the receipt by the claimant's "partner" of disability living allowance from 29 May 1992; or was the receipt by the claimant's "partner" of disability living allowance from 29 May 1992 a "relevant change of circumstances since the decision was given".
17. The Court of Session case has decided this matter conclusively. The Lord Justice Clerk held that paragraph (a) of the GB equivalent to section 23(1) related only to facts in existence at the time of the decision which is subject to review. Accordingly it is impossible for an Adjudication Officer to be in ignorance of a fact which did not exist at the time of the decision. Paragraph (b) of the GB equivalent to section 23(1) related to facts which were not in existence at the time of the decision but came into existence at a later date, so providing a basis for the review of the decision as from that later date.
18. Applying the principles of the Scottish case to the present case, the claimant's "partner" was not in receipt of disability living allowance until 29 May 1992, and in the light of that change of circumstances the Adjudication Officer had revised the original decision on that basis. Such a revision of the amount of income support payable was not covered by regulation 64A of the 1987 Regulations but by regulation 69. Accordingly the period for which the revision could be made retrospective was limited to 12 months.
19. The complainant's solicitors and the Adjudication Officer were given an opportunity to make additional submissions in writing in light of the decision of the Scottish Court of Session in Chief Adjudication Officer v Combe. The claimant's solicitor made no further points other than to emphasis that an extra statutory payment could be made to the claimant to avoid any injustice that he may have suffered in the circumstances. Mr McLaughlin on behalf of the Adjudication Officer relied on the judgment of the Court of Session as supporting his original proposition and also submitted that an extra statutory payment is a matter for the Department and not for an Adjudication Authority.
20. In all the circumstances I am satisfied that the decision of the Tribunal is not erroneous in point of law. Accordingly I dismiss this appeal. In my opinion it is entirely a matter for the Department whether it decides that this is an appropriate case to make an extra statutory payment in all the circumstances as (1) a Commissioner, like any other Adjudication Authority, has no power to order such a payment, and (2) the facts are not so clear as to suggest that the Department was at fault through lack of proper diligence for it to be appropriate for me to make a recommendation for such a payment.

(Signed): J A H Martin

CHIEF COMMISSIONER

8 April 1998