Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C2/03-04(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABLEMENT BENEFIT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 18 June 2003
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with my leave, against a decision of the appeal tribunal sitting at Belfast on 18 June 2003 ("the appeal tribunal"). That decision is erroneous in point of law because the appeal tribunal gave inadequate reasons for its decision and failed to deal with submissions which the claimant had made to it. However, I substitute my own decision to like effect. The claimant's appeal against the decision referred to in the next paragraph fails.
2. The claimant appealed to the appeal tribunal against a decision, given on 9 October 2002, that she was not entitled to disablement pension from 3 December 1996 to 16 January 2002 (both dates included). This was because a claim for that period, which was made on 17 April 2002, was not made within the prescribed time limit for claiming.
3. The appeal tribunal dismissed her appeal. Its reasons for doing so were as follows. "Claim was not made within the prescribed time limit and there is now no provision to extend the time for claiming for good cause."
4. The claimant is a married woman who was born on 7 April 1955. Until she was medically retired in June 1999, she worked as a social security officer for the Social Security Agency. It is accepted that, on 20 August 1966, she suffered what is known as an industrial accident at her place of work. According to paragraph 1 of the Department's submissions to the appeal tribunal on the facts of the case, she attended a meeting at which she was subjected to abuse by her manager. As a consequence, she suffered mental problems which led to her leaving her employment in 1999. To anticipate, she made a claim for industrial injuries disablement benefit on 17 April 2002. On 4 September 2002, a decision maker gave the following decision:

"I accept that the accident on 20/08/96 was an industrial accident as follows: -

[The claimant] attended a meeting at which she was subjected to abuse by her manager.

Social Security (Northern Ireland) Order 1998 Article 29 (6)."

5. The claimant was medically examined on 3 October 2002. The medical adviser who examined her was of the opinion that the accident had caused "chronic anxiety state" and that there had been a relevant loss of faculty. He assessed the resulting disablement at 15% for the period from 20 August 1996 to 20 August 2004. That was a provisional assessment. On 9 October 2002, two decisions were made by the Department. The first of these accepted the views of the medical adviser that, as a result of the industrial accident, the claimant was suffering from a severe anxiety state. The degree of disablement was provisionally assessed at 15% for the period from 3 December 1996 (being 91 days after the accident (excluding Sundays)and the earliest date possible) to 20 August 2004. That decision, which was in the claimant's favour, has not been appealed. The second decision, which she has appealed, is that set out in paragraph 2 above. The practical effect of the two decisions is that the claimant has been awarded a disablement pension from 23 January 2002 to 24 August 2004. This means that her claim has been backdated for three months but no further. The claimant appeals against the refusal to backdate beyond three months although the period she is concerned about is that from 24 April 1998, when she ceased to receive a salary, to 22 January 2002.
6. I shall come to her grounds in a moment. At this stage it is appropriate to deal with two matters. The first is that the claimant has been an adjudication officer. As such, it would have been part of her duties to learn about the rules for applying for the various available social security benefits. Indeed, in addition to her professional knowledge, she herself made an earlier claim for industrial injuries disablement benefit in May 1986. The claimant says, and I accept, that as a consequence of the incident on 20 August 1996, her mental state was such that she was no longer able to make use of the knowledge which she once possessed. Secondly, I am aware, because the claimant herself says so, that she is also in dispute with the Department as to the terms on which her employment with that body ceased. However, that is not a matter in respect of which I have any jurisdiction. That being so, it would be inappropriate for me to attempt to set out the details of that other dispute even if I was conversant with them which, apart from certain matters referred to in the papers, I am not.
7. I begin by setting out the relevant legislation. Section 1(1) of the Social Security Administration (Northern Ireland) Act 1992 provides, subject to certain exceptions which are not relevant for present purposes:

"… no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied –

(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or

(b) he is treated by virtue of such regulations as making a claim for it."

This provision was inserted in order to counteract the decision of the House of Lords in Insurance Officer –v- McCaffrey [1984] 1 WLR 1353. Regulation 4(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, provides:

"(1) Every claim for benefit other than a claim for income support or jobseeker's allowance shall be made in writing on a form approved by the Department for the purpose of the benefit for which the claim is made, or in such other manner, being in writing, as the Department may accept as sufficient in the circumstances of any particular case."

The prescribed time limit for claiming is three months. As stated, the claim for industrial injuries disablement benefit was not made until 17 April 2002. The claim was backdated three months but that, says the Department, is the maximum possible.

8. The claimant's case is set out in her written submissions to the tribunal. The relevant passages are as follows. The emphasis is the claimant's:

"My claim was disallowed under Reg. 4.

"Regulation 4(1) of the Social Security (Claims and Payments) Regulations (NI) 1987 provides that every claim for benefit shall be made in writing on a form approved by the Department for the purpose of the benefit for which the claim is made, or in such other manner, being in writing, as the Department may accept as sufficient in the circumstances of any particular case."

I respectfully ask the panel to consider the following points in relation to Reg.4.

I did make a claim for Industrial Injuries in April 1998.

I made it in writing.

I made it on a form approved by the Department.

I submitted the claim form to Incapacity Benefit Branch in 1998.

The form for Incapacity Benefit had two questions regarding Industrial Injuries, which indicated that the person completing the questions with a "yes" answer would have follow up action.

When completing this form I amended the two questions (copy contained in department's submission). When I did this in 1998, I deleted the word "accident" as I did not feel that what had happened to me was an accident (it was in my opinion deliberate). I deleted the word disease, as I did not feel that I had a disease. You will I hope, note from the copy contained in the department's submission that it does not say "we will only send you the leaflet if you have not amended the wording." !!!!!!!!

Incapacity Benefit Branch failed to follow up my claim for Industrial Injuries. Given that I was suffering from a mental illness, and involved in a legal dispute with my former employer, there have been long periods during my illness that I have not even had the energy or inclination to wash or dress myself.

I am asking the panel to accept that my claim does satisfy Reg. 4 "in such other manner, being in writing, as the Department may accept as sufficient in the circumstances of any particular case" and to direct the department to accept that it was sufficient in the circumstances."

9. The claimant says that she completed and submitted a form SSC1 in October 1997 and a form SSP1 in April 1998. These forms related to incapacity benefit. The first cannot now be found. Form SSP1 has been found. On page 11 the claimant was asked two questions. The first of these was "Do you think you are sick because of an accident at work while working for an employer?" The second asked "Do you think you are sick because of an industrial disease caused by conditions at work while working for an employer?…" The form went on to indicate that if the answer to either of these questions was "yes" then "We will send you leaflet NIL6 Industrial Injuries Disablement Benefit. This will tell you about the benefit and how to claim it". Now, "Accident" or "Industrial Accident" and "Industrial Disease" are extremely important concepts for the purposes of the Industrial Injuries Disablement Benefit. These expressions have defined meanings which extend beyond their normal, everyday, meanings. Unfortunately, with the intention of being precise but thinking primarily of the expressions everyday meanings, the claimant amended both questions before answering "yes" to them. She deleted the words "accident" and "an industrial disease caused by" so that, in effect, she says that she was "sick because of work while working for an employer" and she said she was "sick because of conditions at work while working for an employer". The removal of the words "an accident" and "an industrial disease" caused her answers to be viewed differently than they would have been if these words had appeared in the questions. The practical result was that no leaflet NIL6 was sent to her nor was she sent any other forms to enable her to claim industrial injuries disablement benefit.
10. The Department responded to the claimant's submissions in the following terms:

"4. Leaflet NIL6 should have been issued to [the claimant] regardless of the fact that amendments had been made on the form SSP1.

5. However, I continue to submit that the onus was on [the claimant] to make the claim for disablement benefit or at least to make enquiries about her possible entitlement to the benefit as held by both Northern Ireland and Great Britain Commissioners."

11. The claimant's appeal was dismissed very simply in the terms set out in paragraph 3 above. The appeal tribunal did not refer to or deal with the arguments set out in the claimant's submissions and which are quoted above. For this reason I granted the claimant leave to appeal when her application for leave came before me. It is now common ground that the appeal tribunal erred by either failing to consider her submissions or, if it did in fact do so, failing to record that it had done so. I therefore allow the appeal and set aside the decision of the appeal tribunal.
12. That brings me back to the claimant's grounds of appeal. It is a statutory rule that no person shall be entitled to any benefit unless in addition to any other conditions he makes a claim for it in accordance with the regulations. The onus of making a claim is on him or her. The manner of doing so is set out in regulation 4(1). The claimant's case is that she has satisfied that regulation. She says that she did make a claim for industrial injuries disablement benefit in April 1998, and that she made it in writing on a form approved by the Department. The form she is referring to is the form SSP1 which she submitted to the incapacity benefit branch at the beginning of April 1998. That document was undoubtedly a form which had been approved by the Department. However, it had only been approved for the purposes of incapacity benefit and not for the purposes of industrial injuries disablement benefit. Different forms had been approved for that benefit and those forms asked different questions tailored to the latter benefit.
13. The claimant seeks to say that her April 1998 claim for incapacity benefit can be held to satisfy regulation 4(1) "in such other manner, being in writing, as the Department may accept as sufficient in the circumstances of any particular case". The decision whether to accept a claim for one benefit as being a sufficient claim for another is a matter for the Department. It is well established law that if the Department is not prepared to accept a particular piece of writing then the appeal tribunals have no jurisdiction in the matter. See the decisions of Commissioners in Great Britain in R(U)9/60 and R(S)1/63. Accordingly, if the Department does not accept the SSP1 claim form as extending to industrial injuries disablement benefit, then I have no jurisdiction to interfere.
14. Further, in my judgement the SSP1 form cannot be construed as extending to this benefit. This is because of the words in the form to which reference has been made. Namely, the words: "You may be able to get Industrial Injuries Disablement Benefit. We will send you leaflet NIL 6 Industrial Injuries Disablement Benefit. This will tell you about the benefit and how to claim it". These words make it quite clear that if the claimant wished to claim industrial injuries disablement benefit she would have to make a separate claim on another claim form.
15. The claimant is aggrieved that she was not sent leaflet NIL 6. That is perfectly understandable although the reason why she was not sent it was her desire for precision. This led her to make amendments to the wording of the form which resulted in the leaflet not being sent to her. While the failure to send her the leaflet was regrettable it does not detract from the fact that the responsibility for claiming any particular benefit rests with the person seeking that benefit. The Department tries to be helpful by assisting applicants in various ways – such as sending them information. However, mistakes do happen and sometimes the right leaflets are not sent out. Every case depends on its facts but, as a general rule, a failure by the Department to supply information does not absolve an applicant for benefit from making a claim. I see nothing in the present case which takes it out of that general rule.
16. The claimant, in response to the Department's submissions to the Commissioner, lodged observations setting out much of the history of the matter. She is also extremely critical of the way her employers, who were the Social Security Agency, dealt with her. Nevertheless, although her employers were who they were, she was still required to make a claim but did not do so until April 2002. Further, since the claim was made then it fell to be dealt with under the current regulations and not under the previous ones which allowed a degree of backdating for what was known as continuous good cause. She also refers to her dispute with the Department and to its relationship to the appeal before me. I fully understand her sense of grievance. However, my powers are limited. I am only concerned with her appeal against the decision of 9 October 2002 refusing to backdate beyond three months. I must decide that appeal in accordance with the law and have no jurisdiction to deal with other matters.
17. For these reasons I allow the appeal but give the decision which I do in paragraph 1 above.

(signed):J P Powell

Deputy Commissioner

19 October 2004