Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C9/00-01(IS) (12 February 2001)

 


Decision No: C9/00-01(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 27 March 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the Department against a decision dated 27^th March 2000 of a Tribunal sitting at Belfast. That Tribunal had allowed the claimant's appeal against a decision of a decision maker dated 18^th January 2000. The decision maker had decided that the claimant was not entitled to Income Support for the period from 9^th November 1999 to 28^th November 1999. The basis of the decision was that the claim for that period which was made on 15^th December 1999 was not made within the time limit for claiming. In the view of the decision maker that time limit could not be extended because the claimant did not satisfy the criteria as laid down in the Regulations.
2. The factual background of the case was that the claimant who had been in receipt of Jobseekers Allowance, was paid that Allowance up to and including 8^th November 1999. On 9^th November 1999 he became ill and submitted a claim to Incapacity Benefit which was received on 22^nd November 1999. He stated that he wished to claim from 9^th November 1999. Having received no money, on 29^th November 1999 the claimant attended the Incapacity Benefit Branch at Castle Court and after an enquiry about his claim he was issued with an Income Support claim form which he completed and returned on the same day to Corporation Street Social Security Office.
3. On 6^th December 1999 his Jobseekers Allowance claim was terminated from 9^th November 1999 as he had failed to attend for signing on 22^nd November 1999.
4. On 15^th December 1999 the claimant's Income Support claim was assessed and the benefit awarded from 29^th November 1999. On 16^th December 1999 the claimant requested that his Income Support claim be backdated to 9^th November 1999. On 12^th January 2000 the decision maker considered the claimant's backdating request and gave the decision of 18^th January 2000. Another decision maker reconsidered the matter but was unable to change the original decision. The claimant having appealed, the matter then proceeded to the Tribunal.
5. The Tribunal allowed the claimant's appeal. It decided that the time for claiming could be extended under regulation 19(4) and 19(5)(b) of the Claims and Payments Regulations (Northern Ireland) 1987. It further decided that the claimant was entitled to Income Support for the period 9^th November 1999 to 28^th November 1999.
6. The Department sought leave to appeal and I granted leave. A hearing was not requested and having perused the papers in the case I am satisfied that I can decide the matter without a hearing. The grounds of appeal are contained in the letter dated 11^th September 2000 from Mrs McAllister of the Decision Making and Appeals Unit of the Department. In response to my request Mrs McAllister also made observations by letter dated 27^th November 2000 on the relevance of regulation 55 of the Jobseekers Allowance Regulations (Northern Ireland) 1996 to this appeal. I am grateful to Mrs McAllister for her assistance in this matter. Unfortunately the claimant did not respond to correspondence in the case despite being given an opportunity to make comment on both the above letters.
7. Mrs McAllister's grounds for appeal were that the Tribunal had erred in law by misconstruing both case law and statute law namely:-

Commissioners' Decisions C12/98(IS) and C15/98(IS) and

Regulation 19(5)(b) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.

8. It was not in dispute before the Tribunal and is not in dispute before me that Income Support was not claimed prior to 29^th November 1999. It also appears that the claimant was awarded benefit from that date.
9. As Mrs McAllister states it appears that the Tribunal concluded that regulation 19(4) and (5)(b) of the said Claims and Payments Regulations was satisfied and allowed the appeal. As part of its reasons the Tribunal distinguished C12/98(IS), a decision of the Chief Commissioner in Northern Ireland, being of the view that that decision had no real bearing on the present case. It considered that decision C12/98(IS) was one where the Tribunal had erred in law by failing to deal appropriately with whether or not the claimant in that case had sufficiently difficult mental health problems to be unable to seek assistance from another person to make a claim. It therefore considered that there was no relationship to the present case.
10. As regards decision C15/98(IS) (a decision of my own) the Tribunal considered that it did have bearing on the claimant's appeal. It accepted that I had stated that the phrase "reasonably practicable" in regulation 19(4) meant "reasonably able to be done". The Tribunal however reasoned that that decision only defined the word "practicable" but did not consider in depth the meaning of the word "reasonably". The Tribunal proceeded to interpret "reasonably" as "doing something in a manner which is logical or obvious or carrying out an action with moderate or justifiable beliefs". Finding that the claimant delayed making a claim for Income Support mainly because no-one at Castle Court advised him that he should make a claim for Income Support at the same time as the claim for Incapacity Benefit, the Tribunal stated: -

"The Decision Maker may argue that it was [the claimant's] ignorance of the law which made him delay in making his claim for Income Support. I accept it was partly ignorance of the law, but a much more important factor was that [the claimant] was not given correct information by a member of staff which would enable him to make a reasonable choice: - was there another benefit he could claim or should claim, and if so, did he wish to claim this other benefit?

So although it was "practicable" that [the claimant] could have made a claim for Income Support when he made his claim for Incapacity Benefit I find that it was not reasonably practicable, that is, it was not an action that was obvious or logical to do, because he – [the claimant], had had assurance from a Social Security Office staff member that his original claim was sufficient to obtain benefit."

11. The Tribunal further stated that the appeal was allowed under regulation 19(4) and regulation 19(5)(c) [subsequently corrected to 19(5)(b) on the decision notice] [my italics].
12. I should state that having perused the record of the Tribunal proceedings and the papers before the Tribunal, I am unable to find any evidence that [the claimant] had ever stated that he had any assurance from a Social Security Office staff member that his original claim was sufficient to obtain benefit. It appears that the original claim referred to is the one for Incapacity Benefit. Indeed the evidence from the claimant was that on 8^th November 1999 a friend drove him to his doctor's where he obtained a Med 3 sick line and form SC1 and his friend posted these forms, at the claimant's request to Castle Court. He also got this friend to post off his Job Seekers Allowance booklet as he was unable to work. He also obtained an IB50 form at Castle Court. The claimant's evidence was that a female member of staff in Castle Court actually filled in the form for him and he signed the form. In reply to the Tribunal's questions the claimant stated that that member of staff had said nothing about Income Support and had given him no advice about going to a Social Security Office to obtain a form for Income Support. He gave evidence that he had made two enquiries about his entitlement to Incapacity Benefit but had got no answer and eventually after three weeks without money he went in person to Castle Court and was then told about Income Support. I can find no evidence, as I stated above, that the claimant was ever told that Incapacity Benefit was the only benefit he could obtain or indeed that he would obtain Incapacity Benefit.
13. In reaching a conclusion of fact for which there was no evidence, the Tribunal has erred in law.
14. The legislation under which this matter was considered was regulation 19 of the said Claims and Payments Regulations. The provisions of those Regulations are set out hereunder: -

"19.-(1) Subject to the following provisions of this regulation, the prescribed time for claiming any benefit specified in column (1) of Schedule 4 is the appropriate time specified opposite that benefit in column (2) of that Schedule.

(2) The prescribed time for claiming the benefits specified in paragraphs (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.

(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 –

(b) he has learning, language or literacy difficulties; or

(c) he is deaf or blind,

and it was not reasonably practicable for the claimant 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 or of the Board which led the claimant to believe that a claim for benefit would not succeed; [my underlining]

(e) the claimant was given written advice by a solicitor or other professional adviser, a medical practitioner or 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; [my underlining]

(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) the claimant was prevented by adverse weather conditions from attending the appropriate office.

(6) In the case of a claim for income support, jobseeker's allowance, family credit or disability working allowance, where –

(a) the claim is not made within the time specified for that benefit in Schedule 4, but is made within one month of the expiry of that time; and

(b) the Department considers or the Board considers that to do so would be consistent with the proper administration of benefit,

it may direct that the prescribed time for claiming shall be extended by such period as it considers or they consider appropriate, subject to a maximum of one month, where any of the circumstances specified in paragraph (7) applies.

(7) The circumstances referred to in paragraph (6) are –

(a) the appropriate office where the claimant would be expected to make a claim was closed and alternative arrangements were not available;

(b) the claimant was unable to attend the appropriate office due to difficulties with his normal mode of transport and there was no reasonable alternative available;

(c) there were adverse postal conditions;

(d) the claimant was previously in receipt of another benefit and the notification of expiry of entitlement to that benefit was not sent to him before the date on which his entitlement expired;

(e) in the case of a claim for family credit, the claimant had previously been entitled to income support or jobseeker's allowance ("the previous benefit"), and the claim for family credit was made within one month of expiry of entitlement to the previous benefit;

(f) except in the case of a claim for family credit or disability working allowance, the claimant had ceased to be a member of a married or unmarried couple within the period of one month before the claim was made;

(g) during the period of one month before the claim was made a close relative of the claimant had died, and for this purpose "close relative" means a partner, parent, son, daughter, brother or sister; or

(f) 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.

(8) This regulation shall not have effect with respect to a claim to which regulation 21A(2) of the Income Support (General) Regulations (Northern Ireland) 1987 (treatment of refugees) applies."

15. The Tribunal considered that regulation 19(5)(b) assisted the claimant. From the claimant's own evidence it does appear that he was ill but equally it appears that he was able to obtain assistance in making his claim for Incapacity Benefit and there was no evidence that the same would not have applied to his ability to make a claim for Income Support had he known that Income Support was available to him. The rightness or otherwise of the Tribunal's view that regulation 19(5)(b) assisted him is therefore a matter which must be considered and in the circumstances this depends on whether its interpretation of the phrase "reasonably practicable" was correct.
16. Mrs McAllister submitted that the Tribunal had failed to explain why, if the claimant's illness was such as to prevent him from making a claim himself (although she did not concede that point) it was not practicable for him to have sought assistance, thereby relieving him of the duty placed upon him at the outset to seek that assistance.
17. As regard C15/98(IS) Mrs McAllister submitted that the Tribunal had erred in law in interpreting the words "reasonably" and "practicable" separately and stated that the interpretation should have been of the phrase "reasonably practicable" as a whole.
18. She submitted that the phrase "reasonably practicable" in regulation 19(5)(b) referred to obtaining assistance from another person to make the claim and not to whether or not it was reasonable for the claimant to have made the claim himself due to some other reason. She referred me to decision CIS/2484/1999 as being of assistance. In that decision at paragraphs 13 and 14 the Commissioner dealt with the interaction between the various provisions contained in regulation 19(5).
19. I agree with Mrs McAllister that the Tribunal Chairman has erred in the interpretation of the phrase "reasonably practicable". Regulation 19(5)(b) sets out one of the conditions which can lead, if other conditions are fulfilled, to an extension of time for claiming the condition is that "the claimant was ill or disabled, and it was not reasonably practicable for him to obtain assistance from another person to make his claim".
20. I am in agreement with Mrs McAllister that the Tribunal was wrong in that it interpreted "reasonably" separate from the remainder of the phrase which it qualified i.e. "practicable for him to obtain assistance from another person to make his claim". Had the legislature wished to give the construction which the Tribunal gave to the phrase "reasonably practicable" it would, in my view, have used a word other than "practicable". The use of the word "practicable" in the present context indicates to me that it is the ability to obtain assistance to make the claim that is the relevant factor. The Tribunal has essentially applied the word "reasonably" not to the practicability of obtaining assistance to make the claim but to the claimant's knowledge of whether or not a claim was needed. It has erred in law in that respect.
21. I requested Mrs McAllister to provide me with observations on regulation 55 of the Jobseekers Allowance Regulations, she did this by letter of 27^th November. Essentially Regulation 55 allows a claimant to be treated as capable of work for up to two weeks in certain circumstances and for purposes of Jobseekers Allowance.
22. I have considered GB decision CIS/2107/1998 referred to by Mrs McAllister in her observations of 27^th November. This is a decision of Mr Commissioner Williams in Great Britain. At paragraph 6 thereof the Commissioner states: -

"When, as here, a claimant with a clear entitlement to jobseeker's allowance reports sickness or disability causing incapacity for work (certified by the general practitioner) promptly to the local social security office, asks for and follows official advice about how to claim, and fills in all the claim forms he is asked to fill in, and yet still finds a gap in his benefit entitlement, he is in my view fully entitled to appeal, as this claimant did against the gap in benefit. If he does so, that is, at least at first sight, an appeal against any and every decision by an adjudication officer or the Secretary of State that creates the gap in benefit. When he does so, all the decisions relevant to that gap may need to be reconsidered on appeal, starting with the first."

23. I am reluctant to express a concluded view on Commissioner Williams decision as I have not received argument from the claimant. It is not necessary, because of the particular circumstances in this claim that I do so. My views on Commissioner Williams' decision are not concluded. However, it does not appear to me that there is any right of appeal against a "gap" in benefit. The right of appeal is in relation to a decision. Article 13 of the Social Security (Northern Ireland) Order 1998 provides for the right of appeal. It applies to "any decision of the Department under article 9 or 11" [my underlining]. It gives (with the exception of statutory sick pay or statutory maternity pay) the right of appeal to "the claimant and such other person as may be prescribed" and it provides also that: -

"nothing in this paragraph shall confer a right of appeal in relation to a prescribed decision or a prescribed determination embodied in or necessary to a decision."

24. Against that background I do not see that there is any provision for appealing against a "gap" in benefit entitlement. Appeals must be against a particular decision.
25. I am strengthened in this view by the Regulations made in relation to the procedure to be followed on appeals and in respect of which the enabling power is paragraph 6 of schedule 4 of the said Order. Those Regulations are entitled the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 and provide at regulation 33 for the manner in which appeals are to be brought. Regulation 33(1) provides for the appeal to be in writing either on a form approved for the purpose by the Department or in such other format as the Department accepts, to contain particulars of the grounds on which the appeal is made and to contain sufficient particulars of the decision to enable it to be identified [my underlining]. Regulation 31 which provides for the times within which appeals are to be brought provides that, with certain exceptions, an appeal is to be brought within one month of the date of notification "of the decision against which the appeal is brought".
26. These indicate to me that it is only against particular decisions that appeals can be brought. Rights of appeal and the regulations governing procedure are provided for under different provisions of the 1998 Order. However, the relationship between the two and even more importantly the clear provisions of Article 13 lead me to the albeit tentative view that an appeal must be made against each decision.
27. This does not of course answer the question as to whether or not an appeal expressed to be made against one decision can be treated as made against another. However, the decisions against which an appeal is brought must be clearly identifiable unless the Department is prepared to treat the form as satisfying the requirements of regulation 33(1). It can do this under Regulation 33(4) but only where the form includes sufficient information to enable the appeal to proceed. In this particular case Commissioner Williams' views do not appear relevant, as the claimant did not wish to appeal any termination of his Jobseekers Allowance nor is there any indication that he wished to appeal the decision on Incapacity Benefit. It therefore does not seem correct that his appeal against one decision should either at first sight or at all be treated as an appeal against all decisions covering the "gap" period even if I accepted Commissioner Williams' views.
28. As regulation 55 relates to Jobseekers Allowance and the appeal before me relates to Income Support I am not therefore of the view that it can assist the claimant in this case. I do not know the length of time for which the claimant remained incapable of work but it does appear that same exceeded the two-week period so I am not certain whether there would be any point in the Department treating him as capable under the said regulation 55. The matter not being before me it appears unnecessary that I consider it further.
29. I set the decision of the Tribunal aside as in error of law because (a) it reached a conclusion without evidence and (b) it misinterpreted the phase "reasonably practicable". It seems to me that this is a case where I can give the decision which the Tribunal should have given. My decision is that the claimant is not entitled to Income Support for the period 9^th to 28^th November 1999 inclusive as he has not brought himself within regulation 19(4) or (5) of the said Claims and Payments Regulations. I am in agreement with Mrs McAllister that the claimant, had he appreciated that a claim could have been made, could have obtained the assistance of his friend to make that claim, he having obtained that assistance to make the claim for Incapacity Benefit. I consider that it was reasonably practicable for him to obtain that assistance. It certainly was not proven that it was not. There is no indication in the evidence that any of the other circumstances in regulation 19(5) apply and consequently I am unable to extend the time for claiming.
30. It does appear, however, that the claimant may have lost out on benefit to which he would have been entitled had he made the claim and that there has been a breakdown in the normal procedures for advising a claimant in relation to the availability of other benefits. While the Department has no obligation to offer advice it does seem to me that this may be a case where an ex gratia payment could be considered. The matter is not however one for me but for the Department.

(Signed):

MOYA F BROWN

COMMISSIONER

(Dated): 12 FEBRUARY 2001