NLO’N-v-Department for Social Development (IB) [2010] NICom 68

 

Decision No:  C11/10-11(IB)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCAPACITY BENEFIT

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 30 July 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. 

 

2.    The decision of the appeal tribunal dated 30 July 2008 is in error of law. The error of law identified will be explained in more detail below.

 

3.    Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

4.    I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

 

5.    My revised decision is that the appellant is not entitled to incapacity benefit (IB) from 22 January 2007 to 25 March 2007 (both dates included).

 

       Background

 

6.    On 7 August 2007 a decision-maker of the Department decided that the applicant was not entitled to IB from 22 January 2007 to 26 March 2007. Following a request to that effect, on 11 September 2007 the decision dated 7 August 2007 was looked at again but was not changed. An appeal against the decision dated 7 August 2007 was received in the Department on 12 October 2007.

 

7.    A first oral hearing of appeal took place on 9 January 2008. Following an application to that effect, on 20 March 2008, the legally qualified panel member (LQPM) set aside the decision of the appeal tribunal.

 

8.    The substantive appeal tribunal hearing took place on 30 July 2008. The appeal tribunal disallowed the appeal, and confirmed the decision dated 7 August 2007. On 8 October 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 10 October 2008, the application for leave to appeal was refused by the LQPM.

 

       Proceedings before the Social Security Commissioner

 

9.    On 20 November 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners. On 30 December 2008 observations were sought from Decision Making Services (DMS) and these were received on 29 January 2009. DMS opposed the application on its merits but raised an issue concerning the validity of the appeal tribunal hearing. Observations were shared with the appellant on 6 February 2009. A further submission was received from the applicant on 5 March 2009.

 

10.   On 25 June 2009, I directed an oral hearing of the application. On 15 September 2009 a further submission was received from the appellant’s representative, the Law Centre (Northern Ireland), which was shared with DMS on 2 November 2009. On 23 November 2009 a submission in response was received from DMS which was shared with the appellant and her representative on 2 December 2009. On 17 December 2009 yet another submission was received from the appellant’s representative which was shared with DMS on 6 January 2010.

 

11.   The oral hearing of the application took place on 18 February 2010. At the oral hearing, the appellant was represented by Mr Hatton from the Law Centre (Northern Ireland), and the Department was represented by Mr McGrath of the DMS section. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

       Errors of law

 

12.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

13.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

       The jurisdictional issue

 

14.   In the initial observations on the application for leave to appeal, Mr McGrath submitted that the applicant’s letter of appeal against the decision of the Department had been received outside the statutory time limits for making such an appeal. Further, Mr McGrath submitted that there had been no application for an extension of the statutory time limit for appealing and that the matter had not been considered by either the Department or by the appeal tribunal. Mr McGrath submitted that this raised a question concerning the jurisdiction of the Social Security Commissioner to consider the application for leave to appeal.

 

15.   Following receipt of additional information from TAS, in the form of a Form AT37, Mr McGrath conceded, in his further written observations dated 23 November 2009, that Incapacity Benefits Branch had accepted that the appeal was duly made and that, accordingly, he would resile from the original contention that there had been no valid appeal.

 

       The appeal tribunal’s decision

 

16.   As was noted above, the decision under appeal to the appeal tribunal was a decision of the Department dated 7 August 2007, in which a decision-maker decided that the applicant was not entitled to IB from 22 January 2007 to 26 March 2007. On 30 July 2008, the appeal tribunal disallowed the appeal, and confirmed the decision dated 7 August 2007.

 

17.   In his original substantive submission in connection with the application for leave to appeal, Mr Hatton submitted that it was accepted that the appellant’s claim to IB had been received in the Department on 27 June 2007. Further, the prescribed time limit for claiming IB, set out in Schedule 4 of the Social Security (Claims and Payments) Regulations (NI) 1987 is ‘… the day in respect of which the claim is made and the period of 3 months immediately following it.’ Mr Hatton submitted that:

 

‘In our view, it is not a simple 3 month time limit, where one would take the date of claim and count backwards 3 months. There is also provision for “The day in respect of which the claim is made”. As a result, the claim should have been treated as made on 26 March 2007, which allows for the day the claim is made and then a further 3 months. If the claim was made on 26 March 2007, then (the claimant) should be entitled to payment from the date of claim. She should therefore be entitled to one day’s additional payment for the 26 March 2007 and the tribunal erred in law by finding that she was not entitled “from 27.1.07 until 26.3.07 (inclusive)”.’

 

18.   In response to this submission, Mr McGrath observed that:

 

‘In the decision CIB 2805-2003 the Commissioner dealt with such a query involving the prescribed time for claiming for claiming Incapacity Benefit.

 

At paragraph 7 it states,

 

“The Secretary of State submitted that “in order to qualify for incapacity benefit from 25/12/2001 a claim would have to be made on or before 24/03/2002”.  I do not agree with that submission as it deprives the claimant of two days.  The phrase in Schedule 4 paragraph 2 is “The day in respect of which the claim is made and period of 3 months immediately following it”.  This is a peculiar phrase and not the normal type of time phrase usually found in statutory provisions; e.g. 3 months “from” a date or “within” 3 months from a date or 3 months “after” a date.”

 

The Commissioner then continues and at paragraph 8 states,

 

In Dodds v Walker [1981] 1 WLR 1027, Lord Diplock said at 1029:

“My Lords, reference to a "month" in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since (1808) 15 Ves.Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.”

Lord Diplock goes on to note the exceptions when a date is running from 31^st of a month to a corresponding month ending on 30^th or the end of February. Therefore on any interpretation, a period of three months from 25 December 2001 ends, not on the 24^th, but on the 25^th.  However, I consider the phrase used in Schedule 4 paragraph 2 goes further.  The prescribed time for claiming incapacity benefit is “the day in respect of which the claim is made”, so the claimant gets the day of the claim.  The claimant also gets “and period of 3 months immediately following it”.  I read this to mean that there must be a full 3 months immediately following the day in respect of which the claim is made.  Taking the approach in Dodds the day immediately following the 25^th December is 26^th December and a full three months then runs from 26^th December 2001 to 26^th March 2002.  This is similar to the approach taken to a time limit “after” a date, where the date itself is not counted and the time period commences at the first moment of the following day; Stivens v Reynolds & Co (1891) 18 R 422. “

 

Therefore I would submit that if following the above Commissioners decision that (the claimant’s) date of claim should have been 26-3-07 i.e. the day the claim is made 26-3-07 and a further 3 months 27-3-07 to 27-6-07.’

 

19.   Mr McGrath thought that that was not the end of the matter, however. He added that:

 

     ‘However in the reported decision R(IB) 4/02 it is stated ,

 

“within one month”

15. The next issue is when “within one month” ends. In the first submission, the Secretary of State’s representative drew attention to CIS/550/1993 and R(S) 6/63, and accepted those authorities as establishing, in my view correctly, that “month” means “calendar month”, and that the period of a month does not include the date of notification itself. That is consistent with the general view taken in the law, as evidenced by rule 6.7 of the Civil Procedure Rules and the case of Radcliffe v. Bartholemew [1892] 1 QB 161, to which I drew attention in my directions. The period under regulation 53(4) is a clear calendar month. In other words, if the decision notice was sent on 24 July, the application is properly made if made by the end of 24 August. I express concern that the standard form leaflet sent in this case appears to imply that the month starts on the day of giving the decision, not the day after giving the decision, as the Secretary of State accepts.

I would submit that a calendar month therefore refers, in the above decision, to 25^th July to 24^th August, as the day of notification is not being included.

 

Applying this to the instant case I would submit that if the date of claim is accepted as 27^th March then the further 3 (calendar) months would run from 28^th March 07 to 27^th June 2007 which the day the claim was received within the Department.

 

Accordingly I would submit that in accepting that the guidance contained within the Commissioners decision R(IB) 4/02  that the Tribunals decision is correct.’

 

20.   CIB/2805/2003 was, in fact, decided by a Deputy Commissioner but nothing of substance turns on that.

 

21.   In a further response to that submission, Mr Hatton submitted that the law was correctly stated in CIB/2805/2003 and that the decision in R(IB) 2/04 did not assist in the construction of the legislative provision relevant to the case.

 

       Analysis

 

22.   It is accepted by everyone that the appellant’s claim form to IB was received in the Department on 27 June 2007.

 

23.   Regulations 6(1), 19(1) and Schedule 4 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 provide that:

 

Date of claim

 

6.—(1) Subject to the following provisions of this regulation or regulation        6A, the date on which a claim is made shall be—

 

        (a) in the case of a claim which meets the requirements of regulation 4(1), the date on which it is received in an appropriate office;

 

Time for claiming benefit

 

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.

 

 

SCHEDULE 4                                           Regulation 19(1)

 

 

Prescribed times for claiming benefit

 

 

Description of benefit                                                       (1)	Prescribed time for claiming benefit                                  (2)
1. Jobseeker’s allowance.	The first day of the period in respect of which the claim is made.
2. Incapacity benefit or severe         disablement allowance.	The day in respect of which the claim is made and the period of 3 months immediately following it.

 

24.   What is at issue in the instant case is the proper interpretation of the rule ‘the day in respect of which the claim is made and the period of 3 months immediately following it’, and the proper application of that rule to the appellant’s circumstances. Although Schedule 4 is set up in terms of outlining the prescribed times for claiming benefit, the rules are, in effect, concerned with the back-dating of claims already received.

 

25.   In my view, it is difficult to argue with the analysis of the Deputy Commissioner at paragraph 8 of CIB/2805/2003. The linking word ‘and’ in the phrase ‘the day in respect of which the claim is made and the period of 3 months immediately following it’ has to mean that a claimant must get the day of the claim and a full three months immediately following the day in respect of which the claim is made. The analysis is also representative of a pragmatic approach to the interpretation of what the Deputy Commissioner describes as a ‘peculiar’ and ‘not normal’ phrase within the time limit rules in connection with claims to social security benefits.

 

26.   I have considered what was said by the Commissioner in R(IB) 4/02. The analysis in that decision is related to the time limits set out in a rule in connection with appeal tribunal procedures. Further, it is concerned with the interpretation of the phrase ‘within a month’ contained within that procedural rule. That is different to the wording of the time limit rule set out in Schedule 4 to the of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987. In my view, the analysis in R(IB) 4/02 is confined to the specifics of the rule which was under consideration in that case and, accordingly, be distinguished. Conversely, the reasoning in CIB/2805/2003 is related to the specific provision at issue in the instant case, and, accordingly, is to be accepted and preferred.

 

27.   Applying the principles in CIB/2805/2003 to the facts of the present case, the Department was wrong to determine that the appellant was not entitled to IB from 22 January 2007 to 26 March 2007 (both dates included). In turn, the decision of the appeal tribunal to confirm the decision of the Department was in error of law.

 

       Disposal

 

28.   The decision of the appeal tribunal dated 30 July 2008 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

29.   I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

 

30.   My revised decision is that the appellant is not entitled to IB from 22 January 2007 to 25 March 2007 (both dates included).

 

 

(signed):  Kenneth Mullan

 

Commissioner

 

 

 

6 July 2010