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Cite as: [1990] UKSSCSC CIS_278_1989

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[1990] UKSSCSC CIS_278_1989 (05 June 1990)

R(IS) 5/91

Mr. D. G. Rice CIS/278/1989

Appointment – appointment to act for invalidity benefit purposes – whether effective for income support purposes

The claimant is a married man who suffered permanent brain damage in an accident. Supplementary benefit was in payment from November 1970 to September 1981; invalidity benefit (IVB) was then awarded and entitlement to supplementary benefit ceased ("the invalidity benefit trap".) The claimant's wife, who in practice did virtually everything for the claimant, formed the view that any person in receipt of IVB could not also qualify for supplementary benefit. The legislation was changed in November 1983, removing the preventive effect, but the claimant's wife did not become aware of the change.

The claimant's wife applied on 21 January 1988 to be appointed by the Secretary of State to exercise on her husband's behalf any rights he might have under certain Acts as specified on the application form. Supplementary benefit was not in payment at the time, nor, due to the wife's misunderstanding, was a claim to that benefit in contemplation.

A claim to income support was made on 20 October 1988 by the claimant's solicitor and following an award from that date a claim to have the award backdated to 11 April 1988 was made, also by the solicitor, on 31 January 1989. The adjudication officer refused to backdate on the ground that continuous good cause for delay had not been shown by the wife in her capacity as the claimant's appointee. On appeal, the social security appeal tribunal upheld the adjudication officer's decision.

Held that:

although appointments to act made since 11 April 1988 under the Social Security Act 1986 by virtue of regulation 33 of the Social Security (Claims and Payments) Regulations apply to both income support and contributory benefits, at the relevant time separate appointments were required (paras. 7-8);

the claimant was not in receipt of, or contemplating claiming, supplementary benefit on 21 January 1988 and the appointment was accordingly made only in respect of invalidity benefit pursuant to regulation 28(1) of the Social Security (Claims and Payments) Regulations 1979 (para. 8);

in the absence of an appointment pursuant to regulation 26(1) of the Supplementary Benefits (Claims and Payments) Regulations 1981 there can be no deemed appointment in respect of income support (pursuant to regulation 6 of the Income Support (Transitional) Regulations 1987) (para. 8);

the tribunal erred in law in considering the conduct of the claimant's wife in determining whether there had been continuous good cause for the delay since she was not his appointee for supplementary benefit purposes (para. 11).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

For the reasons hereinafter appearing, the decision of the social security appeal tribunal given on 20 April 1989 is erroneous in point of law, and accordingly I set it aside. I direct that the appeal be reheard by a differently constituted tribunal who will have regard to the matters mentioned below.

This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 20 April 1989. The claimant's representative asked for an oral hearing, a request which was acceded to. At that hearing the claimant, who was not present was represented by Mr. R. Jones, a solicitor of the Supreme Court, whilst the adjudication officer appeared by Mr. J. M. Reid of the Chief Adjudication Officer's Office. I am grateful to both of them for their most helpful submissions.

On 7 August 1970 the claimant had the misfortune to be involved in a traffic accident leading to serious head injuries. This resulted in permanent brain damage. He was in receipt of supplementary benefit from November 1970 to 23 September 1981, after which he was awarded invalidity benefit and ceased to be entitled to supplementary benefit. At the time of the award of invalidity benefit the claimant was caught by what was sometimes known as the "invalidity benefit trap". The effect of this was that he did not qualify for supplementary benefit at the long term rate, which would have produced a higher income than invalidity benefit. As a result of this "trap" the claimant's wife, who in practice, in view of the claimant's mental condition, manages his financial affairs, conceived the view that any person on invalidity benefit could not obtain supplementary benefit. However, unbeknown to her the "invalidity benefit trap" was abolished in November 1983. She did not receive any notification from the Department informing her of the change in the law.

There would appear to be no direct evidence bearing on the claimant's ability to comprehend financial and business matters, but his health on any footing is extremely poor. He is, I understand, in receipt of attendance allowance; he attends daily at Whitchurch Hospital, except weekends, being taken there by ambulance. He is constantly in receipt of drugs, his wife administering them to him in the morning and at night and throughout the weekends. The hospital gives him drugs at lunchtime on weekdays and also an injection on each Tuesday. He requires constant attendance by an adult and his wife, amongst other things, washes and shaves him, helps him to dress and do his buttons up, and ensures that while he is in the lavatory he does not lose his balance and fall. She also cuts up all his food. The claimant has very poor bladder control with all the difficulties that arise therefrom. It should also be said, for completeness, that the claimant's wife, apart from having to look after her husband, herself suffers from poor health, and since June 1988 she has been vomiting and has had to attend the University Hospital of Wales where migraine was diagnosed. She has also to bring up a "backward" daughter.

In January 1988 the claimant's wife decided it would be more convenient, for the purposes of obtaining her husband's invalidity benefit, if she were appointed to act on his behalf by reason of his incapacity. Accordingly, on 21 January 1988 she completed form BF56 asking to be appointed by the Secretary of State to exercise on behalf of her husband "any right which he/she may have under the above Acts". The Acts referred to were the "Social Security Acts", "Supplementary Benefit Acts", "Child Benefit Act" and "Industrial Injuries and Diseases (Old Cases) Act". In other words, the form of the appointment sought was couched in the most general of terms. As at 21 January 1988 the Social Security Act 1986 had not come into operation. The Social Security Act 1975 and the Supplementary Benefits Act 1976 still applied. Mr. Jones informed me that the only benefit in contemplation, when the claimant completed form BF56, was invalidity benefit. At that time, the claimant was not in receipt of supplementary benefit, and because of the misunderstanding entertained by the claimant's wife there was no contemplation of a possibility of applying for supplementary benefit. Accordingly, when the Secretary of State made the appointment asked for, it only related to invalidity benefit and did not apply to any other possible benefit under the Acts referred to on the form.

Anyone looking at the form might be forgiven for supposing that the claimant's wife had made application for appointment to exercise on behalf of her incapacitated husband all rights of every kind which he might have under the relevant Acts. And he might also be forgiven for concluding, from the statement made on the same form by an official of the local office that the appointment was authorised, that the Secretary of State had made the appointment in the very general terms seemingly asked for. However Mr. Jones explained, and Mr. Reid agreed with his explanation, that although the form was expressed in the widest of terms, it was not the practice of the Secretary of State to make an appointment generally but to limit the appointment to a specific benefit. Although this is not apparent from the form, Mr. Jones drew my attention to the fact that in the application part there was a reference to the national insurance number of the claimant but no reference to any notation referring to any supplementary benefit claim.

More important, he pointed out that any appointment for purposes of supplementary benefit had to take effect under regulation 26(1) of the Supplementary Benefit (Claims and Payments) Regulations 1981 [SI 1981 No. 15251. Supplementary benefit had since been replaced by income support, and regulation 33(1) of the Social Security (Claims and Payments) regulations 1987 [SI 1987 No. 1968] was now the relevant statutory provision under which appointments were made, whether in respect of income support or national insurance benefits. However, any appointment properly made under regulation 26(1) in respect of a claim for supplementary benefit was deemed, for the purposes of income support, pursuant to regulation 6 of the Income Support (Transitional) Regulations 1987 [SI 1987 No. 1969], to be an appointment made under regulation 33 of the later regulations. Accordingly, if in the present case there was a valid appointment under regulation 26 of the 1981 Regulations it would be regarded as an effective appointment for a claim for income support. But Mr. Jones contended that there never had been an appointment under regulation 26 for the purposes of claiming supplementary benefit and accordingly there could be no deemed appointment in respect of a claim for income support. Mr. Jones emphasised that an appointment under regulation 26 for claiming supplementary benefit could only be made if a claim for such benefit was actually on foot or was at least in contemplation. The opening words of regulation 26 read as follows:

"26.- (1) In the case of any person by whom or on whose behalf a claim has been made or to whom benefit is payable or who is alleged to be entitled to benefit, if he is for the time being unable to act and either . . ."

Mr. Jones contended that the words "alleged to be entitled to benefit" showed that the claim to supplementary benefit, if not actually made, had at least to be in contemplation, and in the present instance, for the reasons already given, the claimant's wife believed throughout that there was no possibility of entitlement to supplementary benefit, and therefore throughout had no intention of bringing such a claim. No one had suggested that the claimant himself was capable of conceiving the possibility of mounting the claim.

Mr. Jones reinforced all that he had said by referring me to paragraph 10 of the decision of a Tribunal of Commissioners R(SB) 9/84 where the following passage appears:

"Although the application form (BF56) is common to applications under all of the statutes concerned there is no common appointment (or statutory provision for such) and separate appointment is made by the Secretary of State as and when a question of entitlement to any benefit under one or other of the relevant Acts is raised. A person appointed to act in connection with a benefit under the provisions of the Social Security Acts and Regulations [i.e. those before the coming into operation of the Social Security Act 1986 and the Regulations thereunder] is therefore not regarded by the Secretary of State as holding an appointment to exercise any rights on behalf of the claimant under the Supplementary Benefits Act. Such a person is for supplementary benefit purposes therefore no different from any other unappointed person until specifically appointed for the purpose and in our opinion the proposition that liability is not to be imputed to the claimant for delay by such a person remains applicable."

Moreover, Mr. Reid did not challenge Mr. Jones' analysis of the position and the facts on which he relied, all of which were before the tribunal. It follows that the appointment made on 21 January 1988 was in respect of invalidity benefit, pursuant to regulation 28(1) of the Social Security (Claims and Payments) Regulations 1979 [SI 1979 No. 628] and not in respect of supplementary benefit, pursuant to regulation 26(1) of the Supplementary Benefit (Claims and Payments) Regulations 1981. It also follows from this that there could be no deemed appointment in respect of income support.

In October 1988, whilst being consulted by the claimant's wife about the possibility of lodging a claim for mobility allowance, Mr. Jones entertained the view that the claimant was in any event entitled to income support. Accordingly, on 20 October 1988 he wrote a letter to the local office of the Department, asking that his letter be treated as a claim. On 4 November income support was awarded from 20 October 1988. However, on 31 January 1989 Mr. Jones wrote a further letter requesting a review of the award, so that there might be a back-dating to 11 April 1988. He contended that by virtue of the claimant's brain damage there was continuous good cause for delay covering the period between 11 April 1988 and 20 October 1988. On 6 February 1989 the adjudication officer refused such review on the ground that there had been no continuous good cause shown for the delay.

In due course the claimant appealed to the tribunal who in the event upheld the adjudication officer. The tribunal proceeded on the basis that the claimant's wife had been appointed to act on his behalf under an omnibus appointment which applied inter alia in respect of any claim for supplementary benefit, whether then in existence or not, such appointment taking effect as from 21 January 1988, that by virtue of regulation 6 of the Income Support (Transitional) Regulations 1987 such appointment was deemed to be an appointment under regulation 33 of the Social Security (Claims and Payments) Regulations 1987, and that in determining whether there had been continuous good cause for the delay it was the conduct of the claimant's wife, and not the claimant, that was relevant. In the view of the tribunal, the claimant had not established that she had good cause for her delay.

Unfortunately, the initial premise on which the tribunal proceeded, namely that there had been a valid appointment for purposes of supplementary benefit made on 21 January 1988, and continued by virtue of regulation 6 of the Income Support (Transitional) Regulations 1987 in respect of income support, was erroneous. For the reasons already given, there never was an appointment for the purposes of any claim for supplementary benefit, and consequently there was no appointment deemed to be in existence for the purposes of any claim for income support. The tribunal erred in finding that there was a general appointment. The tribunal can be forgiven for reaching their erroneous conclusion. As has already been explained, the wording of the appointment, which was in response to an omnibus request, would seem on the face of it to relate to any claim of any sort under the social security legislation. Moreover, the tribunal had not been referred to R(SB) 9/84. But however, understandable the error might be, it was still an error, and an error of law - the tribunal were not entitled to reach the conclusion they did and as a result the rest of the tribunal's decision, which depended upon it, cannot stand. Indeed, there was simply no evidence to suggest that there was a specific appointment for purposes of claiming supplementary benefit. It follows that I must set aside the tribunal's decision as being erroneous in point of law, and direct that the appeal be reheard by a differently constituted tribunal.

The problem which will face the claimant at the new hearing is whether or not he can establish good cause for delay between 20 October 1988, when a claim for income support was lodged on his behalf, and 31 January 1989 when a request was made on his behalf for back-dating to 11 April 1988. It could be said that, although good cause had been shown up to 20 October 1988, from thence onwards the management of his financial affairs had been unequivocally taken over by his wife, with the aid of Mr. Jones as the claimant's solicitor, and it was incumbent upon her to show that, after putting on foot the claim of 20 October 1988, she had good cause, continuously up to 31 January 1989, for not seeking back-dating. It would seem not to be in dispute that the claimant himself was incapable of mounting a claim, either initially or by way of a review, and it would appear that his financial affairs had devolved on his wife (or conceivably on Mr. Jones as his solicitor). His position would seem to be similar to that of the nun in a closed religious order (R(S) 2/51), who had entrusted her affairs to the Prioress:

"She is in the same position as a person who has an agent appointed to exercise on her behalf any rights to which she may be entitled, because she is unable to act for herself. In such cases, it is the agent who has to show, in the case of a late claim for benefit, that there was good cause for the agent's failure to make the claim before the date on which the claim in fact was made."

I have considered whether I could conveniently substitute my own decision for that of the tribunal. However, I accept the submissions of Mr. Jones, from which Mr. Reid did not dissent, that I do not really have enough information as to the circumstances surrounding the claimant's wife on the basis of which I could properly determine whether or not she had good cause for her delay. Accordingly, I direct that the appeal be reheard by a differently constituted tribunal.

I allow this appeal.

Date: 5 June 1990 (signed) Mr. D. G. Rice

Commissioner