Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C14/02-03(IS)(T) (20 May 2003)

 


Decision No: C14/02-03(IS)(T)

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 November 2001
DECISION OF THE TRIBUNAL OF COMMISSIONERS
1. This is an appeal, by the claimant, leave having been granted by Mrs Commissioner Brown, against a decision dated 8 November 2001 of an Appeal Tribunal sitting at Belfast. That Tribunal had disallowed the claimant's appeal against a Departmental decision dated 20 June 2001. The Tribunal decided that the claimant was not entitled to Income Support for the period 7 February to 19 March 2001 as his claim for that period was made on 19 June 2001. With regard to the period 7 February 2001 to 18 March 2001 the Tribunal held that this period fell outside the maximum extension period for late claims set out in regulation 19(4) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987. The day of 19 March, the Tribunal held to be within that time limit but the Tribunal held further that the claimant could not satisfy the condition in regulation 19(6) and (7) of those Regulations, so that the time for claiming Income Support could not be extended to cover that day.
2. The claimant appealed, the grounds of appeal being set out in an OSSC1 form dated 29 April 2002. The claimant's grounds of appeal merely reiterated his contention that he was unfit to work. Leave to appeal was not granted on these grounds as they did not indicate any arguable error of law. Leave was, however, granted as an arguable issue appeared to arise as to whether a decision was ever taken to end the claimant's original Income Support award and as to whether the Tribunal erred in not exploring further the claimant's contention that he was never told that his Income Support was being stopped.
3. Observations on the appeal were made by Mr Morrison of the Decision Making and Appeals Unit of the Department by letter dated 15 November 2002. The claimant wrote some comments on the copy of this letter which was sent to him and these comments were received in the Commissioner's office on 16 December 2002.
4. It was decided to hold an oral hearing of the appeal and, in accordance with Article 16(7) of the Social Security (Northern Ireland) Order 1998, the Chief Commissioner directed that the appeal be dealt with by a Tribunal of Commissioners. The hearing was attended by the claimant and the Department was represented at hearing by Mr McNamara of the above mentioned Unit.
5. The background facts to the case were that the claimant had been in receipt of Incapacity Benefit and had also been claiming Income Support on the basis of incapacity for work. His Incapacity Benefit claim was disallowed on 7 November 2000 when he was determined to be capable of work. The claimant did not appeal that decision. The Income Support office was notified by Incapacity Benefit Branch and a letter recalling the claimant's Income Support order book was issued on 8 November 2000. There is a question as to whether or not a decision was actually made on 19 November 2000 to terminate the Income Support award and we come to that later. It is not in dispute that the claimant was not notified of any such decision.
6. The Department submitted to the Tribunal that it had issued letters recalling the Income Support order book on 8 November 2000 and 14 November 2000 and had also had a stop notice put on the order book as the claimant had not responded to the letters. This was on 11 January 2001. The Department also stated that it had issued to the claimant a further letter dated 22 January 2001 recalling his order book. It was not in dispute that the claimant continued to cash the order book until the last payment date therein of 6 February 2001 and that the claimant reclaimed Income Support on 20 March 2001 and that he was paid Income Support from that date (his Incapacity Benefit had been reclaimed on 9 April 2001 and was backdated to 22 January 2001). On 19 June 2001 he claimed a backdated payment of Income Support to cover the period from 7 February 2001 to 19 March 2001. On this claim the claimant stated that his Income Support order book was returned as requested. The claimant at hearing before us stated that he had not received any request for return of the Income Support order book.
7. Mr McNamara produced information as to the making and content of the decision on 19 November 2000. This was part of a much larger computer printout indicating that the Income Support award had been terminated. It appears that in error a button was pressed on the Department's computer indicating that notification of the terminating decision need not be issued.
8. We accept that a decision was made dated 19 November 2000 to stop Income Support and accept also that this decision was not notified to the claimant.
9. We therefore have to decide whether or not the unnotified decision terminating Income Support was a valid decision. If it was not there was no need for any re-claim of that benefit. Mr McNamara submitted that the decision was valid. In this connection he referred to regulation 28(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999. He referred further to Article 13 of the Social Security (Northern Ireland) Order 1998. That Article gives rights of appeal to an Appeal Tribunal from decisions of the Department. Article 13(6) provides that a person with a right of appeal under that Article is to be given such notice of the decision and of his rights of appeal as may be prescribed. Regulation 28(1) of the said Regulations provides for a person with a right of appeal to be given written notice of any decision of the Department against which an appeal lies. The appeal rights are accorded to the relevant claimant and such other person as may be prescribed. Regulation 31(1)(a) provides for the times within which an appeal may be brought and the times begin to run from the date of notification of the decision against which the appeal is brought. On this basis Mr McNamara contended that the decision of 19 November 2000 terminating Income Support was a valid decision, that the claimant's appeal rights would begin to run from the date of notification, the decision not having yet been notified. This was in relation to the disallowance of Income Support on 19 November 2000. Mr McNamara conceded that the Department was under an obligation to inform the claimant of his appeal rights.
10. Mr McNamara submitted, as he had indicated in his observations of 15 November 2002, that the Tribunal had erred in law on the basis that it had not fulfilled its inquisitorial role by not exploring further whether or not the claimant had been notified that his Income Support award was terminated. Mr McNamara submitted that, by informing the Tribunal that he had never received notification that his original award had ended, the claimant had alerted the Tribunal to the fact that the award might still have been in existence. The Tribunal should have sought further information on this point and its not so doing was an error of law.
11. Unsurprisingly, apart from reiterating that neither he nor the post office (where he cashed his orders) had been notified of the termination of the Income Support award, the claimant had little to add. He stated that he was first notified that the benefit was stopped when he made a telephone enquiry in February 2001.
12. We conclude that a decision was made on 19 November 2000 to terminate the award of Income Support. We also conclude that that decision was valid. It was made by the Department and was a matter within the Department's jurisdiction (the termination of an award of benefit). Notification does not affect the validity of a decision. The claimant still has appeal rights against the decision of 19 November 2000 once notified. Mr McNamara submitted that these may not be of any great benefit to the claimant as the decision on Income Support would largely depend on the decision as to Incapacity Benefit and the claimant did not appeal that decision of which it appears he was notified. However, that is not a matter for us, it is a matter for the claimant as to whether or not he wishes to exercise his appeal rights and for the persons charged with deciding any such appeal to make the appropriate decision.
13. As we have found that a valid decision was made on 19 November 2000 we therefore find that the claimant's Income Support claim was terminated as of that date. That being so he had to reclaim benefit for the period from 19 November 2000. For part of that period he has never made a claim, this presumably being because he continued to cash his Income Support book until 6 February 2001. However, he did make a claim, on 19 June, for the period from 7 February 2001 to 19 March 2001. That claim was out of time.
14. The Regulations governing time limits for claiming and the power to extend these time limits is contained in the Social Security (Claims and Payments) (Northern Ireland) Regulations 1987. Regulation 19 and Schedule 4 thereof provide that the time for claiming Income Support is the first day of the period in respect of which the claim is made. In this case, the benefit should have been claimed on 7 February 2001, that being the first day of the period in respect of which the claim was made. There is power under certain circumstances to extend the time for claiming benefit. These circumstances are contained in regulation 19(6) and regulation 19(4) of the said Claims and Payments Regulations. Regulation 19(6) cannot assist the claimant as it permits an extension of time only up to a maximum of one month. Regulation 19(4) could not assist for the period 7 February 2001 to 18 March 2001 as it permits an extension of time only up to a three month period and (the claim not being made until 19 June 2001), the period 7 February 2001 to 18 March 2001 is outside that three month period. The day of 19 March 2001 is inside the period and time could be extended to cover that day if the claimant was within regulation 19(4). However, we consider that the Tribunal was correct in its determination that regulation 19(4) could not assist the claimant. This is because that regulation can only assist where regulation 19(5) applies and it does not apply to the claimant in this case.
15. Mr McNamara has indicated that in his view there was failure on the Tribunal's part to obtain information as to the termination of the Income Support claim on 19 November 2001. We are in agreement with him. The claimant had appealed on the grounds that he was not told his Income Support had been stopped. We are concerned that the submission to the Tribunal did not mention that there had been no written notification to the claimant of the fact that his previous Income Support claim had been terminated on 19 November 2001. The claimant had stated in his appeal form dated 22 June 2001 that he was not told that his Income Support had been stopped. This matter should have been explored by the Department and by the Tribunal which erred in law in not so doing.
16. We do not, however, set the Tribunal's decision aside for this error of law. It is an error that does not vitiate the decision. On the claim made on 19 June 2001, the Tribunal could have reached no other decision than that which it did. Were we to set the Tribunal's decision aside for the above mentioned error we would only be substituting our own decision to the same effect. The claimant was not entitled to have the claim made on 19 June 2001 backdated to cover all or part of the period 7 February 2001 to 19 March 2001. The Tribunal's decision was correct.
17. The decision of 19 November 2000 being a valid decision, a re-claim of benefit had to be made to cover the period 7 February to 19 March 2001. The claim on 19 June 2001 was for that period. That claim for that period was late and the time for claiming could only be extended up to a maximum of 3 months (regulation 19(4)). The entire period in question apart from 19 March 2001 was outside that limit. The time could only be extended to cover 19 March 2001 if the provisions of regulation 19(5) were satisfied. They were not. We do note that the claimant made an earlier claim for benefit dated 30 April 2001. We are not dealing with that claim (nor with whether it might be deemed to cover any period prior to 20 March 2001). We are dealing, as was the Tribunal, only with the claim on 19 June 2001.
18. As regards the decision of 19 November 2000 terminating the claimant's earlier Income Support award with effect from that date, the Department should, if it has not already done so, send to the claimant written notification of it in accordance with regulation 28(1).
19. For the reasons given above the appeal is dismissed.

(Signed) J A H MARTIN QC

CHIEF COMMISSIONER

(Signed) M F BROWN

COMMISSIONER

(Signed) J P POWELL

DEPUTY COMMISSIONER

20 MAY 2003