Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C5/99(IS) (21 February 2000)

 


Decision No; C5/99(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

Appeal to the Social Security Commissioner

on a question of law from the decision of

Newry Social Security Appeal Tribunal

dated 27 November 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against a decision of the Tribunal whereby it was held that the claimant was not entitled to Income Support from 24 July 1998 to 24 August 1998.
2. The Tribunal, made the following findings of fact material to its decision:-

"1. The Tribunal accept, as facts, the facts outlined at paragraph 5.1-5.5 in the Summary of Facts in the attached written submissions prepared by the Adjudication Officer.

[5. FACTS OF THE CASE:

5.1 [Claimant] is a single man aged 19 who resides

in his mothers household.

5.2 On 25.08.98 [claimant] requested form A1 to

claim Income Support. The completed form was received

on 28.8.98. ... He stated he was sick from 24.7.98 and

prior to this he was claiming Jobseekers Allowance to

23.7.98. At Part 8 of the form [claimant] requested his

claim backdated to the 24.7.98 as he was in the Royal

Victoria Hospital seriously ill. He had claimed

Incapacity Benefit on 24.7.98 but had not been notified

until 25.8.98 that he was not entitled to that benefit.

He had no money for the last five weeks and was still

submitting medical evidence for broken pelvis and

cracked cheekbone.

5.3 On checking Departmental records it was confirmed

that [claimant] had been paid Jobseekers Allowance to

23.7.98. ... A letter had been received advising JSA

that [claimant] was claiming sickness benefit from

24.7.98 following a car accident. ...

[Claimant] had claimed Incapacity Benefit from 24.7.98

and due to insufficient contributions was not entitled

to that benefit. Form IB35 notification of disallowance

was issued on 25.8.98. ...

5.4 The Adjudication Officer considered [claimant's]

request and decided that he was not entitled to Income

Support for the period 24.7.98 to 24.8.98. The decision

was issued on 04.09.98.

5.5 On 27.10.98 [claimant] appealed the decision. ...]

2. Having heard from and seen the appellant's mother, the

tribunal find her to be an honest and credible witness.

The Tribunal accept her evidence that she telephoned her

local Social Security Office to make enquiries about

entitlement to benefits following the inability of her

son to claim due to illness following a serious car

accident. The Tribunal accept her evidence that she was

advised by a representative of the Social Security Office

for her son to claim Incapacity Benefit. The Tribunal

also accept her evidence that she was not given advice or

information about any other benefits.

3. The Tribunal accept that, due to his illness following

his car accident, the appellant was unable to deal with

his own claims to benefit.

4. On 25 August 1998, the appellant was informed that he was

ineligible for Incapacity Benefit. On that date he made

a claim to Income Support and asked for claim to be

backdated on 24 July 1998."

The claimant made it clear in his grounds of appeal to the Tribunal that he had been unconscious in hospital for a long period and that following this he was unable to handle any of his personal affairs because of his injuries.

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

"The Adjudication Officer has accepted that the appellant's

claim to Income Support, made on 25 August 1998, was made in

a manner which complies with Regulation 4(1) of the Social

Security (Claims and Payments) Regulations (Northern Ireland)

1987 and that the date of claim for the purposes of Regulation

6(1) of the same Regulations is 25 August 1998. The Adjudication

Officer also accepts that the issue which arises in this appeal

is whether the time for claiming can be extended to 24 July 1998.

Under Regulation 19(1) and Schedule 4 of the Social Security

(Claims and Payments) Regulations (Northern Ireland) 1987, the

prescribed time for claiming Income Support is the first day of

the period in which the claim is made. Under Regulation 19(4)

of the Social Security (Claims and Payments) Regulations (Northern

Ireland) 1987, the prescribed time for claiming Income Support

may be extended, where any of the circumstances specified in

paragraph (5) of Regulation 19 applies, or has applied to the

appellant, and, as a consequence, the appellant could not

reasonably have been expected to make the claim earlier.

The Tribunal does not agree that the circumstances outlined in

Regulation 19(5) of the Social Security (Claims and Payments)

Regulations (Northern Ireland) 1987, applies or has applied to

the appellant. The Tribunal is of the view that, although the

appellant was ill, sub-paragraph (b) does not apply to him. The

tribunal is of the view that it was reasonably practicable for

the appellant to obtain assistance from another person to make

his claim. Indeed, the appellant had obtained such assistance

from his mother in his earlier, abortive claim to Incapacity

Benefit.

Sub-paragraph (d) does not apply to the appellant. That

sub-paragraph relates to the situation where an Officer of the

Department positively, but erroneously, gives information to a

claimant, and does not cover an omission to give information.

The tribunal is of the view that there is no positive duty on

the Department to give information to claimants regarding their

entitlement to benefit. Accordingly the prescribed time for

claiming Income Support, cannot, in the case of the appellant,

be extended."

4. The unanimous decision of the Tribunal was in the following terms:-

"Appeal disallowed.

The Appellant is not entitled to Income Support from 24 July

1998 to 24 August 1998."

5. The Chairman of the Tribunal made the following record of proceedings:-

"All of the attached written submissions were considered.

Mrs Toner

[presenting officer]: I have nothing to add. It is a claim for

backdating. Did consider Regulation

19(5). Was ill. Claim was made to

sickness benefit and notification to

Jobseekers. It could have assisted.

Mr Brady

[claimant's 6.3. [Claimant's mother] rang the local

representative]: office to say that he was in an accident

and to find out what to do. She was told

to get certificates and claim incapacity.

She should have been told that a claim to

Income Support should have been made.

Rang to tell him that he was incapacitated.

Was told to write in an inform Jobseekers.

Told to get certificates. Contacted local

office to find out which benefit to claim.

Social Security Agency had been contacted.

[Claimant's mother]: I contacted them on 30th. I asked what to

do. Said to get certificates. I heard

nothing back. Rang after a month. Got out

in six weeks.

Mrs Toner: Date when it was accepted from. Common

problem. Don't give full story. No way of

knowing an entitlement to Income Support.

Difficult to know. Receptionist does not know.

Advise them to claim appropriate benefit.

Mr Brady: Nothing more.

Mrs Toner: No."

6. The claimant sought the leave of a Chairman to appeal to a Commissioner on the following grounds:-

"I wish to apply for leave to appeal to the Commissioner. The

Tribunal have given no reason as to why, having accepted that I

was ill, Regulation 19(5) did not apply.

I did obtain assistance from my mother for an earlier claim but

no mention was made by the Department of Income Support which

led to the problem in the first place."

7. The claimant was granted leave to appeal by the Chairman on 20 May 1999.
8. The legislation relevant to this case is set out in the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 and in particular the following regulations:-

"Making a claim for benefit

4. ..........

(1A) In the case of a claim for income support or

jobseeker's allowance, the claim shall -

(a) be made in writing on a form approved by

the Department for the purpose of the

benefit for which the claim is made; and

(b) unless any of the reasons specified in

paragraph (1B) applies -

(i) be made in accordance with the

instructions on the form; and

(ii) include such information and

evidence as the form may require

in connection with the claim.

.............

Date of claim

6. ...............

(1A) In the case of a claim for income support -

(a) subject to the following sub-paragraphs,

the date on which a claim is made shall

be the date on which a properly completed

claim form is received in an appropriate

office, or the first day in respect of

which the claim is made, whichever is the

later;

(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;

(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), or

(ii) a defective claim.

(3) In the case of a claim for income support, family

credit, disability working allowance, a social

fund payment for maternity or funeral expenses,

jobseeker's allowance or expenses incurred in

cold weather, where the time for claiming is

extended under regulation 19 the claim shall be

treated as made on the first day of the period in

respect of which the claim is, by reason of the

operation of that regulation, timeously made.

............

Time for claiming benefit

19. .............

(4) Subject to paragraph (8), in the case of a claim

for income support, jobseeker's allowance, family

credit or disability working allowance, where the

claim is not made within the time specified for

that benefit in Schedule 4, the prescribed time

for claiming the benefit shall be extended,

subject to a maximum extension of 3 months, to the

date on which the claim is made, where -

(a) any of the circumstances specified in

paragraph (5) 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.

(5) The circumstances referred to in paragraph (4)(a)

are -

(a) the claimant has difficulty communicating

because -

(i) he has learning, language or

literacy difficulties, or

(ii) he is deaf or blind,

and it was not reasonably practicable for

him to obtain assistance from another

person to make his claim;

(b) except in the case of a claim for

jobseeker's allowance, the claimant was

ill or disabled, and it was not reasonably

practicable for him to obtain assistance

from another person to make his claim;

(c) the claimant was caring for a person who

is ill or disabled, and it was not

reasonably practicable for the claimant

to obtain assistance from another person

to make his claim.

(d) 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;

(e) the claimant was given written advice by

a solicitor or other professional adviser,

a medical practitioner, a Health and

Social Services Board, or by a person

working in a Citizens Advice Bureau or

similar advice agency, which led the

claimant to believe that a claim for

benefit would not succeed;

(f) the claimant or his partner was given

written information about his income or

capital by his employer or former employer,

or by a bank or building society, which

led the claimant to believe that a claim

for benefit would not succeed;

(g) the claimant was required to deal with a

domestic emergency affecting him and it

was not reasonably practicable for him to

obtain assistance from another person to

make his claim; or

(h) in the case of a claim for disability

working allowance, the claimant had

previously been entitled to income support,

jobseeker's allowance, incapacity benefit

or severe disablement allowance ("the

previous benefit"), and the claim for

disability working allowance was made

within one month of expiry of entitlement

to the previous benefit."

It is perhaps worthy of note that there is no mention of reasonably held ignorance of entitlement as a ground for seeking backdating of a claim. Therefore a claim can only be backdated by the existence of at least one of the limited set of circumstances listed in regulation 19(5).

9. Therefore in this case an obvious issue arose, namely whether or not any of the circumstances set out in Regulation 19(5) applied to the claimant.
10. By letter dated 29 November 1999 Mrs Hall, on behalf of the Department, made the following succinct and relevant submissions:-

"1. [The Claimant's] grounds of appeal are that the tribunal

gave no reason as to why, having accepted he was ill, regulation

19(5) of the Social Security (Claims and Payments) Regulations

(NI) 1987 ("the Claims and Payments regulations") did not apply.

He stated that he had obtained assistance from his mother in

relation to his incapacity claim, but she was not advised to

claim income support by the Department.

2. The decision of the Northern Ireland Chief Commissioner in

C12/98(IS) concerned a case similar to the instant case. A young

man had obtained assistance from his mother to make a claim for

incapacity benefit. The claim was later disallowed, as the

contribution conditions were not satisfied. He then made a late

claim for income support and wanted his claim backdated as he

considered that the provisions of regulation 19(5)(b) of the

Claims and Payments Regulations were satisfied.

The Chief Commissioner gave his views on regulation 19(4)(b) and

(5)(b) of the Claims and Payments Regulations. He stated at

paragraph 11:

"It is important to remember that there are two hurdles to

overcome ... namely (i) it has to be shown that it was not

reasonably practicable for him to have obtained assistance

from another person to make his claim (regulation 19(5)(b))

and (ii) as a consequence the claimant could not have reasonably

been expected to claim earlier (regulation 19(4)). "Reasonably

practicable for him to obtain some assistance" accordingly must

mean something other than can "reasonably have been expected to

make the claim earlier", otherwise there would be no need for

the two sub-paragraphs to consist of different terminology in

qualifying reasonableness."

The Chief Commissioner also held that regulation 19(5)(b) places

an obligation on the sick or disabled person to seek assistance

with a claim unless it is not practicable to do so.

3. In the instant case, [the claimant] stated in his grounds of

appeal that he had been unconscious for a long period. I would

submit, respectfully, that it would not be "practicable" for a

person in an unconscious state to seek assistance with a claim.

I submit also that the tribunal should have investigated the

period of unconsciousness. By not determining the extent of

[the claimant's] injuries, the tribunal had insufficient

evidence on which to base its decision and consequently erred

in law (R(SB) 11/83).

4. In C12/98(IS), the Commissioner decided that the tribunal had

erred in law. It did not explain why it was not practicable for

the claimant to seek assistance with a claim for income support

when he had received assistance to make a claim for incapacity

benefit. Although [the claimant's] mother had made a claim for

incapacity benefit on his behalf, I would submit that this should

not be taken into account in this case. If it is accepted that

he was unconscious and unable to claim, any action taken by [the

claimant's] mother would have been without his knowledge. If

it is accepted that it was not reasonably practicable for [the

claimant] to obtain assistance while he was unconscious, and his

mother had not taken any action, he would not be penalised. It

would seem unfair if his mother's attempt to assist resulted in

lost benefit.

5. Conclusion

To conclude, I submit that the tribunal erred in law by not

investigating the extent of [the claimant's] injuries, particularly

whether and for how long he was unconscious. There was

insufficient evidence on which to base its decision. If the

Commissioner agrees with the above submission, I would suggest

that he might remit the case to a tribunal to investigate the

extent of [the claimant's] injuries at the time of his accident,

in particular whether and for how long he was unconscious."

11. No further submissions were made either by the claimant or on his behalf by his representative although an opportunity to make any additional comments was given to the claimant and his representative, Mr Brady.
12. In my view, the Tribunal exercising its inquisitorial functions, ought to have investigated the nature and extent of the claimant's injuries, and in particular whether or not he was unconscious as he has alleged, before deciding whether regulation 19(5)(b) was applicable. It seems to me self-evident that, if the claimant was unconscious at the relevant time, it could not have been "reasonably practicable for him to obtain assistance from" his mother "to make his claim". If, as it appears, the claimant's mother had made a claim for Incapacity Benefit at a time when it is possible that the claimant was unconscious, for the reasons stated by Mrs Hall I consider that this should not be taken into account. The reason for this is that if he was unconscious and was unable to make the appropriate claim, any action taken by his mother must have been in fact without his knowledge. As Mrs Hall has pointed out, if it was accepted that it was not reasonably practicable for the claimant to obtain assistance while he was unconscious and his mother had not taken any action the claimant would not have suffered any penalty. Therefore it cannot be appropriate that the claimant's mother's attempt to assist her son by making a claim on his behalf for Incapacity Benefit should penalise the claimant in his attempt to obtain Income Support.
13. It is necessary, in my view, in these circumstances for a Tribunal to investigate in particular the length and the extent of any alleged unconsciousness on the claimant's part. It is clear that there was not sufficient evidence before the Tribunal to come to any reasonable decision on this issue but, exercising its inquisitorial functions, the Tribunal ought to have dealt with this matter. In the circumstances I hold that the Tribunal erred in law by not so doing.
14. Accordingly I find that the Tribunal's decision was erroneous in point of law. I therefore allow this appeal. In the circumstances I set the Tribunal's decision aside and refer the case back for redetermination by a freshly constituted Tribunal which should have regard to my views expressed in this decision.

(Signed): J A H Martin

CHIEF COMMISSIONER

21 February 2000