Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C12_07_08(IS)

Decision No: C12/07-08(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 4 June 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of a Commissioner, against the decision of the tribunal disallowing an appeal from a decision of a decision-maker to the effect that the claimant was not entitled to income support (IS) from 3 May 2006 to 7 December 2006 because a claim for that period made on 8 December 2005 was not made within the time limit for claiming.
2. I arranged a hearing of the appeal at which the claimant, who was present, was represented by Mrs Christine Robinson, while the Department was represented by Mr David McGrath of Decision Making Services.
3. The relevant factual background in relation to this case can be set out as follows. The claimant was in receipt of IS from 15 March 2004 on account of being incapacitated for work. On 29 June 2006 the incapacity benefits (IB) award of credits was disallowed from and including 31 October 2005 as the claimant's medical evidence had expired on 30 October 2005 and he had failed to attend a subsequent medical examination on 24 February 2006. In July 2006 the claimant requested a reconsideration of the disallowance decision and he enclosed further medical evidence. On 26 October 2006 the disallowance decision was revised and the claimant was awarded credits from 31 October 2005. In relation to his claim for IS the claimant was in receipt of this until 2 May 2006. On 2 May 2006 information was received from the Housing Executive that the claimant was no longer living at the address he had formerly been living in Portadown. Benefit was suspended from 2 May 2006 and, following no response to an enquiry regarding the change of address, IS was disallowed from 2 May 2006 by a decision dated 18 July 2006. On 8 December 2006 the claimant submitted a new application for IS and asked for back-dating to 3 May 2006 to be considered. On 3 January 2007 a decision-maker decided that the claimant's claim could not be back-dated to 3 May 2006. On 4 January 2007 a decision-maker awarded the claimant IS from 8 December 2006. On 12 January 2007 the claimant appealed the decision not to back-date his IS. This decision dated 3 January 2007 was reconsidered but not revised. Accordingly the claimant's appeal continued.
4. On appeal, the legally qualified panel member specifically recorded in his reasons for decision that "I am, though, confining myself to the application for backdating of Income Support from 03.05.2006 to 07.12.2006." The tribunal, in addition, found that, having considered the evidence and the rules for extending the time limits for claiming, the claimant was unable to benefit from these. Accordingly the tribunal upheld the decision of the decision-maker dated 3 January 2007.
5. In the written submissions prior to the hearing it became clear that the back-dating issue was the important point in this case. The relevant statute law is set out in regulation 19 and Schedule 4 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, which at the relevant time were in the following terms:

"Regulation 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.

…

(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 –

(i) he has learning, language or literacy difficulties, or

(ii) he is deaf or blind, and it was not reasonably practicable for him 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, which led the claimant to believe that a claim for benefit would not succeed;

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

(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 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 one month, to the date on which the claim is made, where –

(a) any one or more of the circumstances specified in paragraph (7) 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.

(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 or his partner was previously in receipt of another benefit, and notification of expiry of entitlement to that benefit was not sent to him or as the case may be, his partner, 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

(h) 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.

(i) in the case of a claim for a jobseekers allowance by a member of a joint claim couple where the other member of that couple failed to attend at the time and place specified by the employment officer for the purposes of regulation 6;

(j) the claimant was unable to make telephone contact with the appropriate office where he would be expected to notify his intention of making a claim because the telephone lines were busy or inoperative.

…

SCHEDULE 4

Prescribed times for claiming benefit

6. Income support. The first day of the period in respect of which the claim is made."
7. The claimant cannot rely on regulations 19(6) and (7) as these paragraphs are not relevant to the circumstances of this case. Also, the claimant cannot be assisted by regulation 19(4) and (5), (although, potentially, regulation 19(5)(a) which concerns communication difficulties is relevant) as the tribunal has set out the following in its reasons for decision:

"I am satisfied on speaking to the Appellant at the hearing, that he was able to understand and follow what was being said. He had also spoken previously on occasions to the Department who felt he could speak for himself and understand relevant issues. They turned down a previous application by his mother to be his Appointee.

I decided it was not proven by the Appellant/family that they could not have sought assistance with benefit issues and accordingly I disallowed the appeal."

Therefore it is clear that the legally qualified member came to a considered decision in relation to regulation 19(5)(a) matters and there is no error of law, implicit or explicit, in the tribunal's reasoning.

8. In relation to the possibility of regulation 19(5)(d), which concerns information given by an officer of the Department, being relevant, Mr McGrath has brought the following case to my attention, namely Commissioner's decision C10/00-01(IS) and, in particular, paragraph 12, where I stated, when dealing with the same legislation, as follows:

"Mr H also argued that Regulation 19(5)(d) was also potentially relevant on the separate grounds that the office of the Department dealing with the initial enquiry ought to have issued both Incapacity and Income Support claim forms. In so doing he relied on the Great Britain Decision of Mr Commissioner Levenson – CIS/1721/98. However, for the reasons stated in R1/01(IS), paragraph 32 and 42 (relying on CIS/417/98, a Great Britain Decision of Mr Commissioner Mitchell QC), I consider that a claimant cannot successfully rely on a failure to give guidance or information to satisfy Regulation 19(d) [sic], but must rely on information that was given. Therefore I conclude that the claimant cannot succeed on this ground on the facts of the present case."

It is clear that is has never been alleged by the claimant or his representative that the claimant was given any relevant information by an officer of the Department. In addition there is no evidence to suggest that any such information was given. Accordingly regulation 19(5)(d) is not applicable in this case.

9. However, Mr McGrath, as advocate for the Department, has very properly borne in mind his role as amicus curiae, and, accordingly, has submitted that the tribunal erred in its inquisitorial role by not investigating whether or not the fresh claim of 8 December 2006 should also have been treated as a request for a revision of the decision dated 18 July 2006. Mr McGrath submitted that the claimant's appeal to the tribunal was sufficiently broad to encompass both the termination of his previous award of IS and the refusal to begin the new award on 8 September 2006.
10. In particular he submitted that the claimant's award of IS was disallowed on 30 October 2005. His award of IS was dependent upon the conditions of IB being satisfied. Once his award of IB had been disallowed his award of IS should also have been disallowed from the same date. Consequently the decision to suspend and terminate his IS on 2 May 2006 was incorrect. He also submitted that, if the decision-maker dealing with IS had contacted the IB branch on 2 May 2006, the claimant's award of IS would have been disallowed. Unfortunately there was a breakdown in communication and this resulted in the claimant's award of IS being suspended and then terminated. Mr McGrath submitted that this was done incorrectly.
11. Mr McGrath also referred me to the Great Britain Commissioner's decision, reported as R(JSA)2/04. In particular, Mr Commissioner Rowland stated, when deciding a case concerning the equivalent Great Britain legislation, as follows:

"4. Where entitlement to jobseeker's allowance has ceased, it is open to a claimant to make a new claim. The effect of section 1 of the Social Security Administration Act 1992 and regulation 19(1) of, and paragraph 1 of Schedule 4 to, the Social Security (Claims and Payments) Regulations 1987 is that the new claim is generally effective from the date on which the claim is made, but regulation 19(4) and (6) enables a claim to be back-dated in certain limited circumstances.

5. In CJSA/2327/01, Mr Commissioner Jacobs made it clear that an award of jobseeker's allowance could be brought to an end under regulation 25 of the 1996 Regulations only by a decision of the Secretary of State to that effect. He further made it clear that, where a claimant had made a new claim which had been allowed from the date of claim and the claimant had appealed, contending that he was entitled to benefit in respect of the period between the date on which the first award had been terminated and the date from which the second award had commenced, the appeal should be treated as both an appeal against the decision terminating the first award and as an appeal against the decision making the second award.

6. The implication of that approach for the Secretary of State is that any request for benefit in respect of a period between the termination of one award and a new claim should be treated as both a request for revision or supersession of the termination of the old award and a request for the back-dating of the new claim."

12. Mr McGrath submitted that if the correct action had been taken by the Department, the claimant's award of IS should have been disallowed from the same date as his IB award. On 26 October 2006 the disallowance of IB was reconsidered and allowed from 31 October 2005. Accordingly, Mr McGrath submitted that the claimant's new application for IS dated 8 December 2006 should have been treated not only as a new claim but as a request for a revision of the termination of his IS award.
13. Mr McGrath pointed out that in the Departmental submission to the appeal tribunal, at part 8, it was stated that the decision-maker had considered the Great Britain Commissioner's decision CJSA/2327/01 and decided that the claimant's request for back-dating should also be treated as an application for revision or supersession of the termination of his previous claim. In addition, from the record of proceedings it is noted that the presenting officer stated that:

"Issue is new claim and whether it can be backdated."

The legally qualified member of the tribunal is noted as stating:

"The facts are set out in the Section 4 summary in the papers. I am, though, confining myself to the application for backdating of Income Support from 03.05.2006 to 07.12.2006."

14. Mr McGrath submitted that, while not adequately assisted by the presenting officer, the tribunal was on notice of the issue and accordingly failed in its inquisitorial role by not exploring whether or not the new application could be treated as a request for revision/supersession of the decision which terminated the claimant's award of IS.
15. In my view Mr McGrath is correct in his submissions. Accordingly I find that the tribunal's decision is not erroneous in law in respect of the issue of back-dating but the tribunal has erred in law by not fulfilling its inquisitorial role in relation to the issue of treating the new application as a request for a revision/supersession of the decision which terminated the claimant's award.
16. Accordingly I set the tribunal's decision aside.
17. I have considered the possibility of giving the decision that the tribunal ought to have given. However, Mr McGrath has convinced me that this is not possible as the issues that require decision were not laid or capable of being laid before the tribunal. Accordingly I direct that the matter be formally referred back to a fresh tribunal to consider the fresh claim of 8 December 2006 as a request for a revision of the decision dated 18 July 2006. I also direct the Department to prepare an addendum to its submission regarding the applicability of regulation 4 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 and to provide the tribunal with all the relevant evidence which to date has not been presented.
18. I understand from Mr McGrath that the Benefits Office will accept the claim form dated 8 December 2006 as a late application for revision of the decision dated 18 July 2006 and that IS will then be awarded for the period which is disputed. I also understand that this action will result in the tribunal not having to adjudicate on the matter as the appeal will lapse. However, these consequences are not a matter for direction by me and my formal decision is as set out at paragraphs 15 and 16 herein.

(signed): J A H Martin QC

Chief Commissioner

6 January 2009