Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C4/99(IS) (1 July 1999)

 


Decision No: C4/99(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

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

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 22 October 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by Mrs H... for leave to appeal against a decision dated 22 October 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Omagh. I grant leave and with the consent of Mrs H... and the Adjudication Officer treat the application as an appeal and proceed to determine any issues arising thereon as though they arose on appeal. My decision is that the decision of the Tribunal is set aside as in error of law. I consider that this is a case where I should give the decision which the Tribunal should have given. My decision is that Mrs H...'s claim for Income Support is to be accepted as made on 12 January 1998.
2. Mrs H...'s grounds of appeal were set out in a letter dated 2 December 1998 from Messrs R H O'C… & Company Solicitors. The Adjudication Officer made observations on the appeal in his letter on 5 February 1998 and in essence supported the appeal.
3. The Tribunal had decided that Mrs H... was not entitled to Income Support from 12 January 1998 to 25 January 1998. This was a 2 person Tribunal, the Chairman therefore having the casting vote. It was recorded on the short form decision that there was a dissenting view as follows:-

"Adjournment would have been appropriate to enable appellant to

produce British Telecom record".

I am puzzled as to why this dissent was recorded on the short form decision as it appears from the full statement of facts and reasons that the decision to disallow the benefit from 12 - 25 January 1998 was unanimous.

The Findings of Fact included the following:- that the claim for Income Support was made on 26 January 1998, that the claimant had been in receipt of Jobseeker's Allowance till 10 January 1998 when she became unfit for work due to a broken ankle and claimed Incapacity Benefit, that on 11 February 1998 claimant requested backdating of her claim till 12 January 1998 when (she alleged) her daughter contacted the Social Security Office and was advised a claim form for Income Support was sent out.

The claimant's daughter had given evidence to the Tribunal that she had telephoned her mother's local Social Security Office on 12 January 1998 and asked about claiming Incapacity Benefit or Income Support and was told a form would be sent out. Included with the Tribunal papers was a letter from the claimant's daughter to the Social Security Office dated 12 January 1998 saying her mother would be claiming Sickness Benefit and Income Support for the next couple of months. There was no "date received" stamp on the letter.

The Tribunal made no specific finding of fact as to whether or not the telephone call of 12 January 1998 was actually made, nor the context of it nor when the letter of 12 January 1998 was received. It could perhaps be deduced from the reasons section of the decision that the Chairman (who had the casting vote in this case) accepted that the call was made and the letter dated 12 January 1998 was timeously posted. The Tribunal, in my view erroneously, did not seem to consider findings on these matters as relevant.

4. I consider that the Tribunal erred in law in several ways. It did not make adequate findings of fact on the following matters - whether or not the telephone call of 12 January 1998 was made to DHSS, the contents of that call (and in particular whether it constituted a notification of intention to claim) and the date when the letter dated 12 January 1998 was received. Findings of fact on these matters were necessary because of the provisions of regulation 6(1A)(b) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987. That provision states:-

"(b) where a properly completed claim form is received in an

appropriate office within one month of first notification of

intention to make that claim, the date of claim shall be the

date on which that notification is deemed to be made, or the

first day in respect of which the claim is made, whichever is

the later;"

5. Regulation 6(1A)(c) provides:-

"(c) a notification of intention to make a claim shall be deemed

to be made on the date when an appropriate office receives-

(i) a notification in accordance with regulation 4(5)."

6. Regulation 4(5) provides:-

"Where a person who wishes to make a claim for benefit and who

has not been supplied with an approved form of claim notifies

an appropriate office (by whatever means) of his intention to

make a claim, he shall be supplied without charge, with such

form of claim by such person as the Department may appoint or

authorise for that purpose."

7. Where therefore a person has not been supplied with an approved form of claim but gives notification by whatever means of an intention to make a claim, and if a properly completed claim form is received within one month of the first date of notification, then the date of claim is to be the date on which that notification is deemed to be made or the first day in respect of which the claim is made if later.
8. It can thus be seen that it was essential for the Tribunal to determine when first notification was made and that it erred in failing to do so.
9. It appears to me that first notification was made on the 12 January 1998, the date when the claimant's daughter telephoned the local DHSS office to inform them of her mother's intention to make a claim. It appears to me that this is supported by the letter dated 12 January 1998, though I am not certain of the date when that letter was received. Accepting then that 12 January 1998 is the first notification this also appears to be the first date in respect of which the claim was made. It is not disputed that a properly completed claim form was received on 6 February 1998 (and treated as received on 26 January 1998). The provisions of regulation 6(1A)(b) indicate that in these circumstances the date of claim is to be the date when notification is deemed to be made ie. on 12 January 1998.
10. That being so it is not necessary to extend the prescribed time for claiming, the claim being in fact timeously made.
11. I therefore allow the appeal and substitute for the Tribunal's decision my decision as set out above at the final sentence of paragraph 1.

(Signed): M F Brown

COMMISSIONER

1 July 1999