Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C2/99-00(WB) (13 January 2000)

 


Decision No: C2/99-00(WB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 WIDOWS BENEFITS
Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 11 January 1999
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application, by the claimant for leave to appeal against a decision dated 11 January 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. That Tribunal had disallowed claimant's appeal against a decision issued on 27 October 1998 of an Adjudication Officer. The Adjudication Officer had decided that the claimant was not entitled to a widow's payment because the claim made on 27 July 1998 was in respect of a death which occurred on 10 February 1998 and there was no entitlement to widow's payment in respect of the death occurring more than 3 months before the date of claim. The Adjudication Officer also decided that claimant was not entitled to Widowed Mothers Allowance from 10 February 1998 to 26 April 1998 (both dates inclusive). This was because the claim made on 27 July 1998 was not made within the three months time limit for claiming. The claimant's appeal to the Tribunal covered both aspects of this decision.
2. Claimant set out her grounds of appeal on an OSSC1 (NI) form dated 30 March 1999. Observations on the appeal were made by Central Adjudication Services, representing the Adjudication Officer, by letter dated 26 August 1999. By letter of 27 August 1999 Ms Slevin on behalf of the claimant, set out her further arguments.
3. I held a hearing of the application which was attended by Ms Slevin and by Ms McRory of Central Adjudication Services. At hearing I granted leave to appeal and with the consent of both representatives treat the application as an appeal and proceed to determine the application as an appeal.
4. In essence Ms Slevin's submission was two fold:-

1. That the provisions of section 1(2)(a) and section 3 of the Social Security Administration (NI) Act 1992 when read together provide for a time limit of 12 months for claiming Widows Benefit and for extending this time limit where death is difficult to establish.

2. That the time limits set out in regulation 19(2) and (3) of the Social Security (Claims and Payments) Regulations (NI) 1987 for claiming Widow's Benefits are ultra vires and therefore void and invalid as they are inconsistent with section 1(2)(a) and section 3 of the above Act.

5. Ms Slevin conceded that the said Claims and Payments Regulations (hereinafter called "the Regulations") were made under section 5(1) of the said Administration Act but submitted that the three months time limit for claiming Widow's Benefit contained in regulation 19 thereof was ultra vires section 5(1) as it was inconsistent with section 1(2)(a) and section 3 of the said Act.
6. Mrs McRory opposed the appeal. She stated that section 1(2)(a) of the said Act contained no power to make Regulations, that power being contained in section 5(1)(a). She submitted that the power under the said section 5(1)(a) was a very wide one and that regulation 19 was intra vires of that power. In her views the reduction in the 12 months time limit to three months introduced by the Social Security (Miscellaneous Amendments No.2) Regulations (NI) 1997 was permissable within section 5 and was not ultra vires of section 1.
7. Mrs McRory accepted that section 1(2)(a) had not been amended to take account of the new three months time limit but submitted that that was not fatal to the outcome and that the Tribunal had not erred in law in failing to take into account. Section 1(2)(a) not being a regulating power could not make regulation 19 ultra vires.
8. Mrs McRory also highlighted the negative formulation of section 1(2)(a). She stated that this provisions did not give a right to entitlement for a period of 12 months but prevented entitlement being established in respect of a death occurring more than 12 months before the date of claim. She acknowledged that the introduction of a reduced three months time limit in effect made section 1(2)(a) redundant but it did not put into question the vires of the said regulation 19.
9. The relevant legislation is contained in sections 1(1) and 1(2)(a), 3 and 5(1)(a) of the said Act and in regulation 19(2) and (3) of the said Regulations.
10. Those legislative provisions are as follows:-

"1.-(1) Except in such cases as may be prescribed, and subject

to the following provisions of this section and to section 3

below, no person shall be entitled to any benefit unless, in

addition to any other conditions relating to that benefit being

satisfied -

(a) he makes a claim for it in the manner, and within the time,

prescribed in relation to that benefit by regulations under

this Part of this Act; or

(b) he is treated by virtue of such regulations as making a claim

for it.

...

(2) Where under subsection (1) above a person is required to make

a claim or to be treated as making a claim for a benefit in order

to be entitled to it -

(a) if the benefit is a widow's payment, she shall not be

entitled to it in respect of a death occurring more than

12 months before the date on which the claim is made or

treated as made; and

(b) if the benefit is any other benefit except disablement

benefit or reduced earnings allowance, the person shall

not be entitled to it in respect of any period more than

12 months before that date,

except as provided by section 3 below.

...

3.-(1) This section applies where a woman's husband has died, or

may be presumed to have died, and the circumstances are such that -

(a) more than 12 months have elapsed since the date of death

(whether he died, or is presumed to have died, before or

after the coming into force of this section);

(b) either -

(i) the husband's body has not been discovered or

identified or, if it has been discovered and

identified, the woman does not know that fact;

or

(ii) less than 12 months have elapsed since she first

knew of the discovery and identification of the

body; and

(c) no claim for any of the widowhood benefits, that is to say -

(i) widow's benefit,

(ii) an invalidity pension under Article 17 of the

Pensions Order, or

(iii) a Category A retirement pension by virtue of

paragraph (5) of that Article,

was made or treated as made in respect of the death by the

woman before 14th August 1990 (the date of the coming into

operation of Article 8 of the Social Security (Northern

Ireland) Order 1990, which inserted in the 1975 Act section

154C, the provision of that Act corresponding to this section).

(2) Where this section applies, notwithstanding that any time

prescribed for making a claim for a widowhood benefit in respect of

the death has elapsed, then -

(a) in any case falling within paragraph (b)(i) of subsection (1) above where it has been determined -

(i) under subsection (1)(b) of section 18 below on a claim

made by the woman; or

(ii) under section (4) of that section on the submission of

a question by her,

that her husband had died or is presumed to have died; or

(b) in any case falling within paragraph (b)(ii) of subsection (1)

above where the identification was made not more than 12 months before the woman first knew of the discovery and identification

of the body,

such a claim may be made or treated as made at any time before the expiration of the period of 12 months beginning with the date on

which that determination was made or, as the case may be, the date

on which she first knew of the discovery and identification.

(3) If, in a case where a claim for widowhood benefit is made or

treated as made by virtue of this section, the claimant would, apart

from subsection (2) of section 1 above, be entitled to -

(a) a widow's payment in respect of the husband's death more than

12 months before the date on which the claim is made or treated

as made; or

(b) any other widowhood benefit in respect of his death for a period

more than 12 months before that date,

then, notwithstanding anything in that section, she shall be entitled

to that payment or, as the case may be, to that other benefit

(together with any increase under section 80(5) of the Contributions

and Benefits Act).

...

5.-(1) Regulations may provide -

(a) for requiring a claim for a benefit to which this section

applies to be made by such person, in such manner and within

such times as may be prescribed;

(b) for treating such a claim made in such circumstances as may be prescribed as having been made at such date earlier or later

than that at which it is made as may be prescribed;

(c) for permitting such a claim to be made, or treated as if made,

for a period wholly or partly after the date on which it is

made;

(d) for permitting an ward on such a claim to be made for such a

period subject to the condition that the claimant satisfies the requirements for entitlement when benefit becomes payable under

the award;

(e) for a review of any such award if those requirements are found

not to have been satisfied;

(f) for the disallowance on any ground of a person's claim for a

benefit to which this section applies to be treated as a

disallowance of any further claim by that person for that

benefit until the grounds of the original disallowance have

ceased to exist;

(g) for enabling one person of act for another in relation to a

claim for a benefit to which this section applies and for

enabling such a claim to be made and proceeded with in the name

of a person who has died;

(h) for requiring any information or evidence needed for the

determination of such a claim or of any question arising in

connection with such a claim to be furnished by such a person

as may be prescribed in accordance with the regulations;

(i) for a claim for any one benefit to which this section applies

to be treated, either in the alternative or in addition, as a

claim for any other such benefit that may be prescribed;

(j) for the person to whom, time when and manner in which a benefit

to which this section applies is to be paid and for the

information and evidence to be furnished in connection with the payment of such a benefit;

(k) for notice to be given of any change of circumstances affecting

the continuance of entitlement to such a benefit or payment of

such a benefit;

(l) for the day on which entitlement to such a benefit is to begin

or end;

(m) for calculating the amounts of such a benefit according to a

prescribed scale or otherwise adjusting them so to avoid

fractional amounts or facilitate computation;

(n) for extinguishing the right to payment of such a benefit if

payment is not obtained within such period, not being less than

12 months, as may be prescribed from the date on which the right

is treated under the regulations as having arisen;

(o) for suspending payment, in whole or in part, where it appears to

the Department that a question arises whether -

(i) the conditions for entitlement are or were fulfilled;

(ii) an award ought to be revised;

(iii) an appeal ought to be brought against an award;

(oo) for suspending payment, in whole or in part, where an appeal is pending against the decision given in a different case by a

social security appeal tribunal, a Commissioner or a court, and

it appears to the Department that if the appeal were to be

determined in a particular way an issue would arise whether the

award in the case itself ought to be revised;

(p) for withholding payments of a benefit to which this section

applies in prescribed circumstances and for subsequently making withheld payments in prescribed circumstances;

(q) for the circumstances and manner in which payments of such a

benefit may be made to another person on behalf of the

beneficiary for any purpose, which may be to discharge, in whole

or in part, an obligation of the beneficiary or any other

person;

(r) for the payment or distribution of such a benefit to or among

persons claiming to be entitled on the death of any person and

for dispensing with strict proof of their title;

(s) for the making of a payment on account of such a benefit -

(i) where no claim had been made an it is impracticable

for one to be made immediately;

(ii) where a claim has been made and it is impracticable

for the claim or an appeal, reference, review or application relating to it to be immediately

determined;

(iii) where an award has been made but it is impracticable to pay the whole immediately;

(t) for treating any payment on account made by virtue of paragraph

(s) above as made on account of any benefit to which this

section applies that is subsequently awarded or paid."

Regulation 19 so far as relevant provides:-

"19(2) The prescribed time for claiming any benefit specified in

paragraph (3) is 3 months beginning with any day on which, apart

from satisfying the condition of making a claim, the claimant is

entitled to the benefit concerned.

(3) The benefits to which paragraph (2) applies are -

(a) child benefit

(b) guardian's allowance

(c) graduated retirement benefit;

(d) invalid care allowance;

(e) maternity allowance;

(f) retirement pension of any category;

(g) widow's benefit; and

(h) except in a case to which Section 3(3) of the

Administration Act applies, any increase in any

benefit, other than income support or jobseeker's

allowance, in respect of a child or adult dependant."

11. It will be seen from a reading of section 1(1) above that except in prescribed cases (and it was agreed that no prescribed cases were relevant in this case) and subject to the following provisions of sub-section 1 and to section 3 no one was to be entitled to benefit unless they claimed for it within the time and in the manner prescribed or were treated by virtue of Regulations as making a claim. Section 1(2) is a bar to entitlement more than 12 months before the date on which a claim is made or treated as made, the only exception being Disablement Benefit and Reduced Earning Allowance and cases within section 3 of the Act. Section 3 relates to late claims for Widowhood Benefit where death is difficult to establish. It was agreed that there had not been any difficulty in establishing the death of claimant's husband and therefore section 3 could not directly assist her.
12. Regulation 19 of the Claims and Payments Regulations was agreed to be made under section 5 of the Act. That section provides at sub-section 5(1)(a):-

"Regulations may provide -

(a) for requiring a claim for a benefit to which this section

applies to be made by such person, in such manner and

within such time as may be prescribed."

Section 5(2) provides that section 5 is to apply to certain benefits and these include "benefits as defined in section 121 of the Contributions and Benefits Act". That includes Widow's Payment and Widowed Mothers Allowance.

13. On the face of it therefore section 5 permits the Regulations under regulation 19 to be made and to be applied to Widowed Mothers Allowance. It would only be if the provisions of section 1 or section 3 rendered the terms of regulation 19 ultra vires in so far as they related to Widow's Benefits that I could declare the Regulation ultra vires. In this connection it is notable that section 1(2) is negative in its formulation. It does not prescribe that there shall be entitlement up to 12 months after the relevant dates. It simply prevents there being entitlement after the 12 months have expired. While therefore it could be argued that section 1(2) is superfluous in relation to those benefits where the time limit for claiming cannot be extended beyond three months or at all, the Regulations made under section 5 could not be said to be ultra vires the provisions of section 1(1) and (2).
14. In addition as Mrs McRory stated section 1(2) does appear to be linked to section 3. Section 3 applies in certain circumstances where more than 12 months have elapsed since the date of death, but death has been difficult to establish. Section 3(2) allows claims to which it applies to be treated as made in a certain period -

"... notwithstanding that any time prescribed for making a claim

for a widowhood benefit in respect of the death has elapsed."

It also provides that where a claim for Widowhood Benefit is made or treated as made by virtue of section 3 and where a claimant would "... apart from subsection (2) of section 1 above, be entitled to ... widowhood benefit ... more than 12 months before that date, then, notwithstanding anything in that section ..." the claimant should be entitled to the benefit.

15. It was agreed that there had been no difficulty in establishing death in this particular case. The relevance of section 3 appears to me to be that it acknowledges times prescribed for making a claim for Widowhood Benefit and it also acknowledges section 1(2) as a bar to entitlement. It does therefore seem that the said section 3 contemplates time limits for claiming being made by Regulations and does not contemplate section 1(2) making a time limit for claiming.
16. Ms Slevin may be correct that there is no real point in section 1(2) in relation to claims for Widow's Benefit where there is no provision for an extension of time. That does not, however, mean that the legislator did not envisage separate provisions for time limits by Regulations and it does not also mean that the time limit and the bar to entitlement must be co-extensive.
17. I do not consider that regulation 19 was ultra vires the provisions of section 1 and 3 of the said Act and I do not consider that section 1(2)(a) and 3 of the said Act provide for a time limit of 12 months for claiming Widow's Benefit.
18. I must therefore dismiss the appeal. I understand that claimant has been informed that she is to receive an ex-gratia payment for her loss of Widowed Mother's Allowance and Widow's Payment, but the payment cannot be made

until the appeal process is exhausted. I hope that this payment can be made as soon as possible.

(Signed): M F Brown

COMMISSIONER

13 January 2000