Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C12/99-00(IS) (22 June 2001)

 


Decision No: C12/99-00(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCOME SUPPORT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 26 April 1999 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, by the Department, with leave of the Chairman, against a decision dated 26^th April 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Craigavon. That Tribunal had allowed the claimant's appeal in connection with his claim for Income Support. The Tribunal held that the time limit for claiming Income Support could be extended to 5^th January 1999 to cover the period from 5^th January 1999 to 21^st January 1999 by the application of regulation 19(4) and (5)(d) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987. The Tribunal decision overturned a decision of an Adjudication Officer (now known as a Decision Maker) that the claimant was not entitled to Income Support for the period 5^th January 1999 to 21^st January 1999.
2. For purposes of clarity I set out in full the Tribunal's findings of fact in this matter. They are as follows:-

"1. The claimant is aged 48 and lives with his mother.

2. He had been on Jobseeker's Allowance and on 5^th January 1999 he went to his local Social Security office at Limavady and advised a member of staff that he had a sick line from his doctor. He indicated he was on Jobseeker's Allowance and wanted to sign off as he was unfit for work. The member of staff took his details and completed the back of his sick note saying they would send it off to Castle Court. He was not asked to complete any forms but was given the impression by the member of staff that a benefit claim was being made on his behalf by forwarding the sick note in relation to his sickness. As he thought an appropriate claim was being processed it would be superfluous to claim repeatedly.

3. On 20 January 1999 the claimant received a letter from Castle Court returning his sick line. The claimant then returned to his local office and completed claim forms for Incapacity Benefit and Income Support. On the 22 January 1999 he was awarded Income Support from the 22 January 1999."

3. I also set out the Tribunal's reasons for decision, again for clarity's sake. These are:-

"The issue before us is whether the time for claiming Income Support can be extended from 5 January 1999 to 21 January 1999, the claim being received on the 22 January 1999. The extension of time is governed by Regulation 19(4) and (5) of the Social Security (Claims and Payments) Regulation (Northern Ireland) 1987. One of the circumstances at (5) must have applied and because of it the claimant could not reasonably have been expected to claim earlier. As a general point the circumstances in 19(5) are drafted very narrowly though as yet there is no body of case law.

We do not feel the claimant was prevented through illness from claiming. This is clearly evidenced by the fact that on the 5 January 1999 he actually attended his local office. His claim form refers to hepatitis and there is no evidence his mental faculties were affected.

We do feel the claimant is assisted by 19(5)(d), vis, he was given information by an officer of the Department which led the claimant to believe a claim for benefit would not succeed. We are primarily influenced by what appears to have happened when the claimant attended his local office on 5 January 1999 as outlined in his letter of 3 February 1999. In essence he turned up with a sick note and indicated that he wanted to sign off Jobseeker's Allowance as he was sick. Had a member of the Jobseeker's Allowance Section done no more than assist him in signing off Jobseeker's Allowance we feel 19(5)(d) does not assist. It is sometimes said that the Departmental staff are under no obligation to give advice. Whilst there may be no obligation an unhelpful stance is hardly in the proper spirit of the Agency's function. Given the narrow wording of 19(5)(d) however it would appear if Departmental staff are unhelpful by giving no information other than mechanically carrying out the request to terminate a Jobseeker's Allowance claim time cannot be extended. In the present case the counter clerks did more than simply terminate Jobseeker's Allowance claim. The clerk took the claimant's details, took his sick line from him and said she would send it to Belfast. The impression we get is that the claimant turned up and indicated he was going off Jobseeker's Allowance as he was unwell and turned to the counter staff for help. He then was given the impression not only that his Jobseeker's Allowance was being terminated but that a sickness related claim was being processed on his behalf. There is no evidence that he was given misinformation or specifically told he was not entitled to Income Support. By the clerk's conduct however he was led to believe a claim by reason of his sickness had been put in motion. By implication he was under the impression all that needed to be done had been done. Whilst it is not argued he was specifically told he was not entitled to Income Support we believe 'information' in 19(5)(d) covers a course of conduct by Departmental staff. Once the claimant received the letter back from the Incapacity Section he acted promptly by going back to his local office."

4. The Department's grounds of appeal were set out in letters dated 30^th September 1999 and 3^rd December 1999 from Mrs McAllister of the Decision Making and Appeals Unit. I am obliged to Mrs McAllister for her helpful submissions and considerable work in this case. The claimant has not responded to the opportunities given to him throughout to comment on the Department's submissions. He has in fact been paid the Income Support in question for the period from 5^th to 21^st January 1999 inclusive so perhaps the lack of response is understandable.
5. The grounds of appeal were that the Tribunal had misconstrued regulation 19(5)(d) of the above mentioned regulations. Regulation 19(1) provides that there are to be prescribed times for claiming benefits specified in Column 1 of Schedule 4 to those Regulations. The prescribed time for claiming Income Support is "the first day of the period in respect of which the claim is made."
6. Regulation 19(4) provides that subject to paragraph (8) (which has no relevance to this claim, being related to refugees) the prescribed time for claiming Income Support shall be extended, subject to a maximum extension of three months, to the date on which the claim is made where:-

(a) any of the circumstances specified in paragraph 5 of the regulations applies or has applied to the claimant; and

(b) as a consequence the claimant could not reasonably have been expected to make the claim earlier.

7. It appears that the only circumstance set out in the said paragraph 5 which could have had application was paragraph (d) which was as follows:-

"the claimant was given information by an officer of the Department which led the claimant to believe that a claim for benefit would not succeed."

8. In Mrs McAllister's submission the Tribunal had concluded that the conduct of the clerk in the local office led the claimant to believe that a claim for sickness benefit had been put in motion and although the Tribunal accepted that the claimant was not misinformed regarding any entitlement to Income Support the Tribunal allowed the appeal. It recorded:-

"Whilst it is not argued he was specifically told he was not entitled to Income Support we believe "information" in 19(5)(d) covers a course of conduct by Departmental staff."

9. Mrs McAllister submitted that while it was conceded that by the clerks conduct the claimant was led to believe that a claim for Incapacity Benefit had been put in motion, this conduct could not be said to have led the claimant to believe that a claim to Income Support would not succeed.
10. In Mrs McAllister's submission it was particularly relevant that the claimant had sufficient contributions to qualify for Incapacity Benefit and that any entitlement to Income Support was in addition to that benefit and not in lieu of it. Consequently the action taken to forward the claimant's medical certificate to Incapacity Benefits Branch was in fact correct.
11. Mrs McAllister accepted that it would have been helpful for the clerk to have either given the claimant the necessary Incapacity Benefit claim form at the time he attended to hand in his sick line or to suggest an alternative means of obtaining that form. This did not, however, result in any loss of Incapacity Benefit because the claim was subsequently made within the prescribed time limit for claiming that benefit i.e. three months.
12. Mrs McAllister further conceded that in order to satisfy regulation 19(5)(d) it was not necessary to be told specifically that if a claim for a benefit were to be made it would not succeed although undoubtedly this would satisfy the test. The requirement was that information be given which in turn led the claimant to conclude that any claim for the relevant benefit could not succeed. She submitted that "benefit" in regulation 19(5)(d) must relate to the benefit that had been claimed late. Additionally whether a person could rely on regulation 19(5)(d) would depend on the information that had been given. She submitted that each case must be considered on its own merits and that the test was an objective one i.e. given the particular information what would a reasonable person have concluded.
13. Mrs McAllister further submitted that the Tribunal had taken the view that if Departmental staff were unhelpful in giving no information other than mechanically carrying out the request, in this case to terminate a Jobseeker's Allowance claim, then the time could not have been extended.
14. She submitted that while Departmental staff should aim to be as helpful as possible the ultimate onus for making a claim rested with a claimant. Relying on decision R(S)8/81 she submitted that it was not unreasonable to expect a claimant to provide details of what benefit he was currently in receipt of and to take reasonable steps to claim the appropriate benefit. This could well involve asking for a specific direction from Departmental staff. If that direction steered the claimant away from the appropriate route then regulation 19(5)(d) should apply. Otherwise the implication would be that Departmental staff would be wary of giving any information at all in case they would fall foul of the regulation. That approach would seem to defeat the purpose of regulation 19(5)(d).
15. In relation to the present case, in Mrs McAllister's submission, the situation might have been different had the claimant's contribution record been deficient and he had been paid Income-based Jobseeker's Allowance on that basis. However that was not the position in this case. The claimant had a sufficient contribution record and Income Support was awarded in addition to rather than instead of Incapacity Benefit. Given that situation it was difficult to see how the clerk's conduct, even if it did constitute information for purposes of regulation 19(5)(d), could have led the claimant to conclude that a claim for Income Support if made at that time would not succeed.
16. With regard to the Tribunal's conclusion that the scope of information in regulation 19(5)(d) was wide enough to extend to the conduct of Department staff, Mrs McAllister submitted that in the absence of any specific definition "information" should be given its everyday meaning and was defined in the Shorter Oxford English Dictionary as "a thing told; knowledge". "Conduct" on the other hand was defined as "mode of behaviour".
17. In Mrs McAllister's submission conduct did not necessarily involve telling in the sense of imparting knowledge and could simply be the manner in which a person behaves. Whilst it would be accepted that at times claimants could be given a particular impression by the behaviour of Departmental staff, she submitted that this was subjective and would vary from person to person because one person's perception may be different to that of another.
18. Based on the above Mrs McAllister submitted that conduct was different to information and was therefore outside the scope of regulation 19(5)(d).
19. She therefore submitted that the clerk's conduct i.e. taking and forwarding the claimant's sick line to Incapacity Benefits Branch was solely related to the claim for that benefit and that this action could in no way have led the claimant to believe that any claim to Income Support would not succeed. She further submitted that the scope of "information" in regulation 19(5)(d) did not extend to the conduct of the Departmental staff. In deciding to the contrary and that regulation 19(5)(d) assisted the Tribunal had erred in point of law.
20. In subsequent correspondence Mrs McAllister referred me to certain decisions of Commissioners in Great Britain. These were decisions CIS/2428/1999 (a decision of Mr Commissioner Williams), CIS/4354/1999 (a decision of Mr Commissioner Mesher), CIS/4490/1998 (a decision of Mr Commissioner Angus).
21. At my request, by letter of 6^th February 2001, Mrs McAllister supplied a further submission in light of the recent decision of a Tribunal of Commissioners in Northern Ireland in C3/00-01(IS)(T). Mrs McAllister submitted that at paragraph 35 of that decision the Tribunal of Commissioners considered what constituted "information" for the purpose of regulation 19(5)(d) and concluded that the giving of such information required the transfer of factual data from an officer to a claimant, either orally or in some written or similar form.
22. In addition at paragraph 40 the Tribunal of Commissioners in relation to the case before it stated:-

"We note also that the information must lead to belief that a claim for benefit would not succeed. It is not enough that the information left him in ignorance of the possibility of claiming another benefit, it must have actually have led him to believe that a claim would not succeed."

23. On the base of this Mrs McAllister conceded that conduct might incorporate the transfer of data so that information could be said to have been given. However she submitted that this may not necessarily be the case and that conduct could simply be the way in which a person behaved and therefore might not involve data being transferred. She submitted that in order to decide whether information had been given for the purposes of regulation 19(5)(d) it was necessary to make clear what the data was that had been transferred.
24. She further submitted that in the present case and applying the principles laid down by the Tribunal of Commissioners in C3/00-01(IS)(T) the only transfer of factual data from the officer of the Department to the claimant was that the claimant was advised that his sick line would be passed on to Castle Court. Therefore, even if the claimant could be said to have had a belief that any claim to Income Support would not have been successful, it was difficult, in Mrs McAllister's submission, to see how such a belief could have resulted from the information given to him by the officer of the Department to whom he spoke on 5^th January 1999.
25. Mrs McAllister accepted that had the officer of the Department to whom the claimant spoke informed him that he should not claim Income Support because the only benefit available to him was Incapacity Benefit (the type of situation envisaged by the Tribunal of Commissioners at paragraph 37 of the said decision), then that would be information that could have satisfied regulation 19(5)(d). This however was not the factual situation in the present case as recorded by the Appeal Tribunal. While it could perhaps be argued that the information given to the claimant left him in ignorance of the need to claim Income Support, the Tribunal of Commissioners had concluded that this would not satisfy regulation 19(5)(d).
26. Based on the above Mrs McAllister concluded by submitting that the Tribunal had erred in law firstly by stating in general terms that "information " in regulation 19(5)(d) extended to cover the conduct of Departmental staff without specifically addressing what factual data had been transferred from the specific officer of the Department to the claimant. Secondly she submitted that the Tribunal had erred by deciding that the claimant was given information by an officer of the Department that led him to believe that a claim to Income Support would not succeed, and accordingly that regulation 19(5)(d) was satisfied.

REASONS

27. The Tribunal has accepted that the claim for Income Support was made on 2^nd January 1999. It was therefore a late claim and benefit could only be paid for a date prior to the date of claim if the claimant could establish that he fell within one of the circumstances in regulation 19(5). The Tribunal has correctly identified the only possible applicable part of that regulation as being regulation 19(5)(d). The Tribunal considered that the claimant did fall within regulation 19(5)(d). The Tribunal's finding on this matter does not specifically identify what was the "information" given by an officer of the Department which led the claimant to believe that a claim for benefit would not succeed. There is no finding that any information was given to the claimant in this case other than that the member of staff in the local Social Security Office stated that he would send off the sick note to Castle Court. The Tribunal has found that the claimant was "given the impression by the member of staff that a benefit claim was being made on his behalf by forwarding the sick note in relation to his sickness." The Tribunal has further concluded that as the claimant thought an appropriate claim was being processed it would be superfluous for him to claim repeatedly. The Tribunal has also concluded:-

"There is no evidence that he was given misinformation or specifically told he was not entitled to Income Support. By the clerk's conduct however he was led to believe a claim by reason of his sickness had been put in motion. By implication he was under the impression all that needed to be done had been done. Whilst it is not argued he was specifically told that he was not entitled to Income Support we believe "information" in 19(5)(d) covers a course of conduct by Departmental staff."

28. In decision C3/00-01(IS)(T) the Tribunal of Commissioners decided that the giving of information required the transfer of factual data from an officer to a claimant. The information which the claimant was expressly given in this case was that the clerk was forwarding his medical certificate to Incapacity Benefit. It does not appear that he was told that a claim was being made on his behalf whether for Incapacity Benefit or for Income Support. The conduct of the clerk in taking the medical certificate from him may have led him to believe that a claim for benefit was being made on his behalf. However no factual data was transferred by this action. The only factual data transferred was the information that the medical certificate was being sent to Incapacity Benefit.
29. It appears to me that it was not that information but the absence of any further information which led to the claimant not claiming Income Support.
30. It does not appear to me that the Tribunal properly addressed the question of what information was given and whether that information (as opposed to the absence of further information) led to the belief that a claim for Income Support would not succeed. I set the decision aside as in error of law for that reason.
31. For example, had the claimant been told,

"I am forwarding your sick line to Castle Court. Income Support should also be considered."

it is highly unlikely that he would have thought a claim for Income Support would not succeed. Yet the factual data transferred would have been the same. It was not the data transferred but the absence of further information or advice which caused him to fail to claim.

32. However, the statutory language is more restrictive than that. To come within Regulation 19(5)(d) the claimant must have been given information "which led him to believe that a claim for benefit would not succeed." Mere ignorance of the possibility of claiming any other benefit (which appears to have been the case here) would not be enough. There must have been a belief based on the information given that a claim would not succeed. The possibility of claiming Income Support must have been considered, however briefly, and dismissed as unlikely to succeed.
33. With the one reservation set out below I agree with Mr Commissioner Mitchell QC in Great Britain decision CIS/417/99 that: -

"a claim for benefit" in regulation 19(5)(d) clearly means, in the context of the regulation, a claim for the benefit in issue, in this case income support. The information given must therefore be such as to lead the claimant to believe that a claim for that benefit would not succeed."

34. My reservation is that Regulation 19(5)(d) may not necessarily mean that the possibility of claiming Income Support by name must have entered the claimant's mind and been dismissed as considered unlikely to succeed because of the information given. It does, however, mean that at the least the possibility of claiming that benefit, albeit not by name, has been addressed and considered unlikely to succeed. For example had the clerk said "you would not be eligible for any other benefits than Incapacity Benefit", this might have been enough to satisfy Regulation 19(5)(d). There was no need to name Income Support as such.
35. However it is not enough if the possibility of claiming other benefits was not even addressed. In this case there is no indication that the claimant even considered claiming any other benefit and therefore no indication that he held any belief that a claim for such benefit would not succeed.
36. In this case did the information given expressly i.e. that the medical certificate was being sent to Castle Court, or by conduct i.e. the receiving and sending off of the certificate without anything further, transfer any factual data to the claimant?
37. The Tribunal finds that the claimant was given the impression "that a benefit claim was being made on his behalf by forwarding the sick note in relation to his sickness. As he thought an appropriate claim was being processed it would be superfluous to claim repeatedly."
38. The Tribunal further states, "By implication he was under the impression all that needed to be done had been done."
39. That may well be correct but it appears that the claimant thought that he was claiming Incapacity Benefit as the appropriate benefit not that his claim for that benefit would not succeed. If he thought it would not succeed there would have been little point in him claiming.
40. It may also be correct that the claimant genuinely thought that no other benefits were available to him. How did he form that impression? Was it from the information given or from the fact that no additional information was given.
41. The Tribunal has concluded that the "clerk's conduct" led the claimant to believe that "a claim by reason of his sickness had been put in motion". The Tribunal states:-

"There is no evidence that he was given misinformation or specifically told he was not entitled to Income Support."

42. The Tribunals findings of fact as to the clerk's conduct were that the clerk took the claimant's details "and completed the back of his sick note saying they would send it off to Castle Court." He then sent off the form. That was the conduct.
43. The conduct of the clerk gave no other information than was given in his statement.
44. It may be that from that information the claimant formed the impression that a claim was being made on his behalf. It may also be that he formed the impression that no other benefits were available to him. However it must be asked whether that latter impression was based on any information given by the clerk.
45. It does not appear to me that it was. Rather it was based on an absence of further information or advice. Had the clerk told him "I am sending your certificate off to Castle Court and you should also consider claiming income support" it is unlikely the claimant would not have claimed Income Support. However the information given by the clerk would have been no different, it would just have been accompanied by advice. In this case the clerk gave no information at all about the possibility of claiming Income Support by name or otherwise.
46. Moreover to satisfy regulation 19(5)(d) it is necessary that the information given leads a claimant to believe that a claim for benefit (in this case Income Support) would not succeed. That seems to me to involve, at the very least, some judgment as to the likely success of claiming other benefits which must include (though not necessarily by name) Income Support. In this case that possibility was never addressed. It was the absence of advice to consider claiming any other benefits rather than the information actually given which led to the claimant doing nothing further. The information given did not lead to the claimant even considering claiming any other benefit let alone thinking that a claim to such a benefit would not succeed.
47. The claimant may have thought no other benefits were available because the clerk did not mention them. That was an understandable view to form. It was, however, based on the absence of any further information or advice and that, unfortunately, does not fall within the plain meaning of regulation 19(5)(d). It is the information given which must lead to the view that a claim for the relevant benefit would not succeed, not the absence of further information or advice.
48. I share the views of Mr Commissioner Mitchell in CIS/417/98 where he states, "In my judgment to be relevant, the belief of a claimant for the purposes of paragraph (5)(d) of regulation 19 must arise from the information given and not, as the tribunal suggest, from a failure to give some other guidance."
49. As regards the other decisions cited my views are given without the benefit of any submissions by the claimant and must be read against that background. CSIS/256/99 appears to be based on a concession (not made here) that there was a notification of an intention to make a claim prior to that claim being made and that that was sufficient to indicate an intention to claim Income Support. I am not convinced that the words "a claim" in regulation 4(5) should be given a different meaning than in regulation 19(6)(1A) so that notification of an intention to make a claim for any benefit would thereby qualify under regulation 19(6)(1A)(c)(i). It seems to me that the reference in regulation 4(5) to the form of claim (and approved forms being essential for Income Support and Jobseekers Allowance) must mean that notification of intention to claim a particular benefit is required to comply with regulation 4(5).
50. As regards regulation 19(5)(d) the decision is distinguishable from the present as in this case the claimant was given correct information in relation to Incapacity Benefit. Decisions CIS/1721/1998 and CIS/2077/1998 are also distinguishable on this basis.
51. More fundamentally, however, I share Mr Commissioner Mitchell's view as indicated above as to the closely defined circumstances in which regulation 19(5)(d) can assist and for the necessity for reliance to be placed on information rather than on its absence.
52. I set the Tribunal's decision aside as in error of law because, on its findings, the Tribunal's conclusion that the information given led the claimant to think that a claim for Income Support would not succeed, was not open to it.
53. I consider that this is a case where I can give the decision which the Tribunal should have given.
54. My decision is that the Decision Maker's appeal succeeds and that the claimant is not entitled to Income Support for the period of 5 January 1999 to 21 January 1999 (inclusive).
55. I would add that I am driven to the above conclusion with some reluctance. While the fundamental duty of ascertaining his rights and claiming the appropriate benefit rests on a claimant, it is an undesirable situation when the fullest information is not given to a claimant by Departmental staff. While I do appreciate that all counter clerks are not experts on the benefit system and cannot be expected to go probing in detail into individual circumstances, a general practice of recommending Incapacity Benefit claimants to consider claiming Income Support (perhaps by supplying an information leaflet), should not be difficult to enforce. In this particular case, in any event, I am glad to see that the claimant was paid the relevant Income Support and trust that there is no intention to try to recoup same.

(Signed):M F BROWN

COMMISSIONER

22 JUNE 2001