Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2002] NISSCSC C11/02-03(IS) (5 December 2002)

 


Decision No: C11/02-03(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 the decision of the Appeal Tribunal dated 8 April 2002 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Department, with the leave of the legally qualified member granted on 15 August 2002, against the decision of the Appeal Tribunal whereby it was held that the claimant's Income Support was to be increased from 17 November 2000 because of the birth of his son on 19 May 1999. I note with approval that the legally qualified member granted leave because a "potential error of law" was identified and accordingly modified the standard form (COMM12) used for the purpose which unfortunately suggests that, to grant leave, an actual "error of law" has to be identified.
2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. Although the appeal in this case is being conducted by the Department, the propositions and submissions put forward on behalf of the Department are in ease of the claimant. The claimant, however, has taken no active part in these proceedings.
4. The claimant has been in receipt of Income Support for himself, his wife and his son from 9 February 1999. Following a home visit on 17 December 2001 to the claimant in order that his claim for Income Support might be assessed, the claimant stated that a further child had been born on 19 May 1999 and at the relevant time he had informed Income Support Section. The claimant's Income Support was increased with effect from 11 December 2001 in respect of this child. The claimant then appealed against the decision only to increase his benefit from 11 December 2001.
5. On appeal the Tribunal allowed the claimant's appeal in so far as it decided that there should be an increase of Income Support from 17 November 2000. In the decision it was recorded that the time limit for making an application had been extended up to the maximum of 13 months under regulation 8 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 and that it accepted on the balance of probabilities that the claimant did report the birth of his son to Income Support Section shortly after the child's birth. The Tribunal did not state specifically what it meant by the word 'shortly'. The Tribunal also recorded that it was not practicable for the claimant to report the change of circumstances within the time limit of one month due to his wife's ill health and as a result it accepted that there were special circumstances for the late notification.
6. The Department has submitted that the Tribunal has erred in point of law in its application of regulation 8 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.
7. Regulation 7(2) of these regulations provides as follows:

"(2) Where a decision under Article 11 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision was made, the decision under Article 11 shall take effect –

(a) from the date the change occurred or, where the change does not have effect until a later date, from the first date on which such effect occurs where –

(i) the decision is advantageous to the claimant, and

(ii) the change was notified to an appropriate office within one month of the change occurring or within such longer period as may have been allowed under regulation 8 for the claimant's failure to notify the change on an earlier date;

(b) where the decision is advantageous to the claimant and the change was notified to an appropriate office more than one month after the change occurred or after the expiry of any such longer period as may have been allowed under regulation 8 –

(i) in the case of a claimant who is in receipt of income support or a jobseeker's allowance and benefit is paid in arrears, from the beginning of the benefit week in which the notification was made …."

Regulation 8 provides as follows:

8(1) For the purposes of regulation 7(2) and (9), a longer period of time may be allowed for the notification of a change of circumstances in so far as it affects the effective date of the change where the conditions specified in the following provisions of this regulation are satisfied.

(2) An application for the purposes of regulation 7(2) and (9) shall be made by the claimant or a person acting on his behalf.

(3) The application referred to in paragraph (2) shall –

(a) contain particulars of the relevant change of circumstances and the reasons for the failure to notify the change of circumstances on an earlier date; and

(b) be made within 13 months of the date the change occurred.

(4) An application under this regulation shall not be granted unless the Department is satisfied … that –

(a) it is reasonable to grant the application;

(b) the change of circumstances notified by the applicant is relevant to the decision which is to be superseded; and

(c) special circumstances are relevant to the application and as a result of those special circumstances it was not practicable for the applicant to notify the change of circumstances within one month of the change occurring."

8. As Mr Morrison of the Department has stated in written submissions dated 14 September 2002, for regulation 8 to apply it must first be decided that the change of circumstances (the birth of the child) was reported more than one month after the birth, then it must be decided what were the reasons for the late notification and, finally, it must be held, for the regulations to be applicable, that the notification was made within 13 months of the date the change occurred and, in the circumstances, it must be reasonable to grant the application.
9. As Mr Morrison has pointed out, in the reasons for the Tribunal's decision and the record of the proceedings the Tribunal has stated that on the balance of probabilities the claimant reported the change in his circumstances shortly after the birth of his child, who was born on 19 May 1999. The Tribunal has also stated that it was not practicable for the claimant to report the change within one month. It therefore appears that the Tribunal has accepted that the claimant did report the change outside the one month period and granted the application because special circumstances applied, namely the illness of his wife. Also, although it is not explicitly stated, it is clear from the wording of the Tribunal's decision that the Tribunal has accepted that the notification of the birth of the child was made within 13 months of the birth.
10. Mr Morrison has submitted there is an error in the Tribunal's decision in the following circumstances. Having accepted the conditions in regulation 8 were met the Tribunal ought to have decided that the claimant was entitled to the increase in his Income Support from the birth of his son and not from 17 November 2001. In deciding that the claimant was entitled to an increase in Income Support for the child from 17 November 2001 (13 months back from the date that the claimant was interviewed) the Tribunal, in Mr Morrison's submission, has clearly misapplied regulation 8 and in doing so has erred in law.
11. In accordance with regulation 7(2)(a) it seems to me that the relevant date is the date of the change of circumstances, namely the birth of the child, as the relevant change was on that date (regulation 7(2)(a)); and as the decision was advantageous to the claimant (regulation 7(2)(a)(i)) and as the appropriate office was informed of the change "within such longer period as may have been allowed under regulation 8 for the claimant's failure to notify the change on an earlier date" (regulation 7(2)(a)(ii)). In other words a supersession on the ground of change of circumstances advantageous to a claimant is effective from the date of the change, if the change is notified within a month (or such longer period as allowed under regulation 8), but is otherwise effective only from the date of notification. In the present case the Tribunal has not allowed for this specific provisions of regulation 7(2) and regulation 8 and has accordingly erred in law.
12. In the circumstances I allow the Department's appeal and set the Tribunal's decision aside. As I do not need to make fresh or further findings of fact, I give a decision which I consider the Tribunal ought to have given. Accordingly I substitute the Tribunal's decision dated 8 April 2002 with the decision that the claimant is entitled to Income Support in respect of his son, who was born on 19 May 1999, from that same date.

JOHN A H MARTIN QC

CHIEF COMMISSIONER

5 DECEMBER 2002