Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C2/00-01(IS) (6 July 2000)

 


Decision No: C2/00-01(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCOME SUPPORT Appeal to the Social Security Commissioner on a question of law from a Tribunal's decision dated 16 April 1999
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the claimant against a decision dated 16th April 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Newry. That Tribunal had allowed an appeal against an Adjudication Officer's decision in relation to the Severe Disability Premium of Income Support. The Adjudication Officer had decided that the claimant was entitled to that premium from 16th October 1998 but that no arrears were payable prior to that date. The Tribunal awarded the premium from 21st September 1998 but disallowed any arrears prior to that date. It will therefore be seen that while the decision was technically an allowance of an appeal (in that the original Adjudication Officer's decision was varied) the claimant in fact did not succeed in the substantive element of his appeal.
2. The claimant set out his grounds of appeal on an OSSC1 form dated 22nd September 1999 and enclosures dated 13th October 1999. Mr Morrison of the Decision Making and Appeals Unit (acting for the Adjudication Officer) gave his observations on the appeal in a thorough and helpful letter dated 19th May 2000.
3. My decision is that the appeal is dismissed.
4. The background facts of the case were that the claimant had been in receipt of Income Support from 30th March 1992. Up until 16th December 1998 he remained in receipt of that benefit on foot of a decision dated 20th June 1994. He was also in receipt of the Severe Disablement Allowance and Disability Living Allowance (low rate mobility and middle rate care component). On 21st October 1998 the claimant was visited by an officer of the Department. He completed a form A2 at that time and in that form stated that no-one was caring for him on a regular basis. He was issued with a further form, an IS10 form (which is in fact a claim form for the Severe Disability Premium of Income Support) which was completed and received in the local office on the same date. That latter form confirmed that the claimant lived alone and that no-one was claiming Invalid Care Allowance for looking after him. This allowance had been in payment until and including 22nd March 1996. It was accepted that the Income Support Branch was not informed of this until 21st October 1998.
5. The Adjudication Officer on 16th December 1998 reviewed the decision awarding Income Support exclusive of the Severe Disability Premium under section 23(1)(b) of the Social Security Administration (Northern Ireland) Act 1992. He decided that the claimant was entitled to the Severe Disability Premium as part of his Income Support from 16th October 1998. No arrears were payable prior to that date. Section 23(1)(b) allows a decision to be reviewed on the grounds of a relevant change of circumstances. In this case that change was the cessation of Invalid Care Allowance.
6. The officer who made the submission and presentation to the Tribunal submitted that the arrears of the Severe Disability Premium should have been payable from 21st September 1998. This was under regulation 63 and 57 of the Social Security (Adjudication) Regulations (Northern Ireland) 1995, the provisions in force at the time. Regulation 63(1)(a) [the relevant part of that regulation] provides:-

"Except in a case to which regulations 57(2), (3) or (4) or

regulation 58 applies, and subject to paragraph (1A) [not

relevant to this claim] a determination on a claim or question

relating to income support shall not be revised on review under

section 23 of the Administration Act 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 one month before

the date on which the review was requested or,

where no request is made, the date of the review."

7. There is no doubt in this case that the date of both the review and of the IS10 form which could be considered as the request for review was 21st October 1998. There is also no doubt that unless the claimant could bring himself within one of the exceptions mentioned in the said paragraph he could not be entitled to Income Support for any period more than one month prior to the date of the review.
8. It is necessary therefore to consider the said exceptions.
9. Regulation 58 does not appear to be relevant in that it deals with cases to which section 69(1) of the Administration Act applied. These latter are cases known as "test cases" and the claimant's case is not one.
10. The relevant provisions therefore appear to be regulation 57(2), (3) and (4). It is only if the claimant comes within one of these exceptions that he can escape the limitations of regulation 63(1)(a) as regards back payments.
11. I set out regulation 57 so far as relevant below:-

"57.(1) In the case of a review to which either paragraph (2)

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

date from 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 23(1)(a), 28(2)(a), (4) and (5)(a) and 33(1)(a) of

the Administration Act, whether that decision was made before

or after the coming into operation of this regulation, where

the reviewing authority, that is to 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 (4), this paragraph applies to a review

of any decision under sections 23(2) and 28(2)(d) and (5)(c) of

the Administration Act, 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."

12. It will be seen that in order to enable a decision on review to have an effect from the earliest date from which benefit could have been awarded the claimant would have to come within paragraph 2 or 3. Paragraph 2 relates only to decisions under certain sections of the Administration Act. I set out section 23 thereof below:-

"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 Article

8(6) or 9(7) of the Jobseekers (N.I.) Order 1995.

(2) Any decision of an adjudication officer (other than

a decision relating to an attendance allowance, a disability

living allowance or a disability working allowance) may be reviewed,

upon the ground that it was erroneous in point of law, by an

adjudication officer or, on a reference from an adjudication

officer, by a social security appeal tribunal.

(3) Regulations may provide that a decision may not be

reviewed on the ground mentioned in subsection (1)(a) above unless

the officer or tribunal is satisfied as mentioned in that paragraph

by fresh evidence.

(4) In its application to family credit, subsection (1)

(b) and (c) above shall have effect subject to section 127(3) of

the Contributions and Benefits Act (change of circumstances not

to affect award or rate during specified period).

(5) Where a decision is reviewed on the ground mentioned

in subsection (1)(c) above, the decision given on the review -

(a) shall take effect on the day prescribed for that

purpose by reference to the date on which the relevant

change of circumstances is expected to occur; and

(b) shall be reviewed again if the relevant change of

circumstances either does not occur or occurs otherwise

than on that date."

13. In this case the review decision was made under section 23(1)(b) and was correctly so made. I agree with Mr Morrison's submission in that respect. It was not made under section 23(1)(a) which relates to review where a decision was given in ignorance of or based on a mistake as to a material fact. When the decision under review was made (i.e. on 20th June 1994) the Invalid Care Allowance was still in payment. The decision of 20th June 1994 was not therefore made in ignorance of or under a mistake as to a material fact.
14. Sections 28 and 33 of the Administration Act relate to Attendance Allowance and Disability Living Allowance and are not relevant to this case. Regulation 57(2) cannot therefore assist the claimant. Section 23(2) relates to review of decisions made in error of law. No error of law was made in the decision of 20th June 1994 and the review was not under section 23(2). Regulation 57(3) cannot therefore assist the claimant. As none of the circumstances in regulation 57(2), (3) or regulation 58 can assist the claimant he is caught by the provisions of regulation 63(1). The Tribunal was therefore correct in concluding that, bound as it was by those provisions, payment of benefit could not go back to a date more than one month before the date of the reviewing decision ie. 21st October 1998. In other words back payment could only be made from 21st September 1998.
15. I can trace no error in the Tribunal's decision in this respect.
16. The claimant has stated that his entitlement to Severe Disablement Premium is from 1992 not from 1996. In fact the entitlement to that premium would have been at its earliest from the cessation of the Invalid Care Allowance and therefore from 1996. However, because of the provisions of regulation 63 and 57 as set out above the Tribunal had no means of allowing the Severe Disablement Premium to be awarded for any date more than one month before the 21st October 1998. The Tribunal did not wrongly interpret regulation 57 as claimed by the claimant. For the reasons set out above its interpretation of that regulation was correct.
17. The claimant also states that he was not visited by an officer of the Department but informed by a clerk in his local Social Security Office that he should be in receipt of the premium. He states also that he did not request a review of his Income Support but was merely interviewed to update computer records due to the fact that the previous office was burned. No matter what the purpose of the original interview was, it appears to me that the Departmental Officer was quite correct to have the claimant complete form IS10. Had he not done this the claimant could not have obtained the Severe Disability Premium even from the date which he did do so. The officer was therefore correctly carrying out his function.
18. The claimant also complains that if the computers in the Department had been allied to their tasks he would or should have been made aware of his entitlements some years previously. I can understand the claimant's sense of grievance in that he appears to have not been made aware of the fact that he could have sought the Severe Disability Premium at an earlier date. However, the onus remains on a claimant to advise the Department of any changes in circumstances. Had the claimant earlier informed the Department that no one was looking after him on a regular basis the matter could have been looked at earlier. It is, however, to be hoped that future computer systems may ensure that Income Support is informed when Invalid Care Allowance ceases to be paid in respect of an Income Support recipient. However the provisions of regulations 63 and 57 meant that the Adjudication Officer and indeed the Tribunal could make no decision other than that which was made.
19. I can find no error of law in the decision either as set out by the claimant or in any other manner and I therefore dismiss the appeal.

(Signed): MOYA F BROWN

COMMISSIONER

6 JULY 2000