UK Social Security and Child Support Commissioners' Decisions

 


R(A) 1/92

Mr. M. J. Goodman CA/398/1989
20.3.91


Death of claimant – doctrine of relation back – whether application for review made after a claimant's death is rendered competent by a later grant of letters of administration

On 16 December 1988 Delegated Medical Practitioner maintained an earlier decision rejecting the claim for attendance allowance. The claimant had died on 21 January 1988. His wife had been acting on his behalf prior to his death. She had not been appointed to act for him under regulation 30 of the Social Security (Claims and Payments) Regulations 1987. She was appointed administratrix to the estate of the deceased claimant on 9 April 1990

Held that:

neither the application for a review of earlier delegated medical practitioner's decision nor an appeal to the Commissioner is to be regarded as analogous to actions in Court. The said regulation 30 headed "payments on death" is not exclusive but merely provides one mode by which matters may be proceeded with. Provided the Secretary of State gets a good receipt for any payment of benefit that may be made (as undoubtedly he would if the money were paid to an administrator under a Grant of Letters of Administration) then no problem exists. There is no reason why the doctrine of relation back already propounded by the Courts in cases of Grants of Letters of Administration should not apply to Social Security cases. The rules as to the issuing of writs to institute actions in Courts are of necessity strict and technical. They should not be applied to Social Security matters (para. 11). R(SB) 8/88 and R(SB) 5/90 approved (para. 10).

NB. Paras. 12-20 of the Commissioner's decision have not been reproduced as they relate solely to the factors of the particular case.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal on behalf of the deceased claimant's estate against the decision of the Delegated Medical Practitioner ("DMP"), for and on behalf of the Attendance Allowance Board ("the Board"), as that decision is erroneous in law and I set it aside. I remit the case to the Board or to another DMP: Social Security Act 1975, section 106 as (as amended).
2. This is an appeal to the Commissioner on behalf of the estate of a deceased claimant, a man who was born 23 April 1925 and who died on 21 January 1988. The appeal is brought on behalf of his estate by his widow acting under Grant of Letters of Administration dated 9 April 1990 (as to this see below).
3. The appeal was the subject of an oral hearing before me on 11 March 1991 at which the claimant's widow was present and was represented by Mr. R. Davison of the Hull Unemployment Advice Centre. The Secretary of State was represented by Mr. N. Butt, Counsel, of the Office of the Solicitor to the Departments of Health and Social Security. I am indebted to Mr. Davison and to Mr. Butt for their assistance to me at the hearing.
4. The first matter with which I have to deal is whether or not this appeal etc. was validly constituted in view of the death of the claimant on 22 January 1988. In response to a direction dated 23 November 1989 by a Nominated Officer, the Secretary of State by a written submission dated 3 January 1990 states:

"It is submitted on behalf of the Secretary of State that perusal of the file relating to the late [claimant's] claim to attendance allowance [dated 18 November 1986] does not reveal any documents authorising [the claimant's widow] to act on behalf of her late husband. The decision [of the DMP] under appeal is dated 16 December 1988. [The claimant] unfortunately died on 21 January 1988. Although [the claimant's widow] was acting on behalf of her late husband prior to his death, it is agreed that as she was not appointed to act on her husbands behalf under Regulation 30(1) of the Social Security (Claims and Payments) Regulations 1987 following his death, and no Grant of Probate or Letters of Administration was obtained, the [DMP's] decision of 16 December 1988 is a nullity. In accordance with paragraph 5 of R(SB) 8/88 such a decision is valid until set aside. It is respectfully submitted therefore that the decision of 16 December 1988 should be set aside by the Commissioner."

5. In a direction directing an oral hearing in this case I dealt with this matter as follows (direction dated 20 December 1990):

"On the issue of representation of the deceased's estate, reference should be made to R(SB) 8/88 and to a 'starred' decision on the file CSB/552/1989 starring number 22/90, (to be reported as R(SB) 5/90)."

6. At the hearing before me, Mr. Davison submitted that the principle in R(SB) 5/90 applied. That principle was stated by me (the author of that decision) in a "starring note" as follows:

"This decision ... holds that where an SSAT hears an appeal by a claimant who died before the hearing but whose estate is informally represented by eg a relative, then the subsequent obtaining of a Secretary of State's Appointment by that informal agent retrospectively validates the SSAT's proceedings (so interpreting para. 6 of R(SB) 8/88 with it's author's concurrence)."

7. On the other hand Mr. Butt submitted that the principle of R(SB) 5/90 was not applicable because in this case what was relied on was not an Appointment made by the Secretary of State (there having been no such Appointment) but was a Grant of Letters of Administration dated 9 April 1990 in favour of the claimant's widow as sole Administratix. Mr. Butt pointed out that the date of that Grant, 9 April 1990, was after the DMP's decision of 16 December 1988 and indeed after the appeal proceedings were initiated before the Commissioner.
8. Mr. Butt drew attention to the following passages from Halsbury's Law of England, 4^th Edition, Volume 17, paragraphs 733-734 and 737 (the case and statue references are not cited):

"The Administrator derives his title entirely from the Grant of Letters of Administration, and the deceased's property does not vest in him until the Grant, so he cannot make a lease or other disposition before the Grant. After the Grant of Administration the Administrator has, subject to the limitations contained in the Grant, the same rights and liabilities and is accountable in the same way as if he were the Executor of the deceased ... Until the Grant of Administration the intestate's personal estate and effects are vested in the President of the Family Division in the same manner and to the same extent as personal estate formerly vested in the Ordinary, and the real estate of a person dying intestate after 1925 is also vested. The President is not, however, a trustee for the purposes of the Trustee Act 1925; he has no duties, and the only means by which he can be divested of the deceased's property is by Grant of Administration.

In order to prevent injury being done to a deceased's person's estate without remedy, the Courts have adopted the doctrine that upon the Grant being made the Administrator's title relates back to the time of death. This doctrine has been consistently applied in aid of an administrator seeking to recover against a person who has dealt wrongfully with a deceased's chattels or chattels real. It is also applicable against a person dwelling wrongfully with a deceased's real estate. It cannot be applied, however to disturb the interests of other persons validly acquired in the interval or to give the Administrator title to something which has ceased to exist in the interval.

The doctrine of the relation back of an Administrator's title to the intestate's property to the date of the intestate's death cannot be invoked so as to render competent an action which was incompetent when the writ was issued..."

9. Mr. Butt submitted that the application for review that was dealt with by the DMP in his decision of 16 December 1988 and the appeal to the Commissioner should be both regarded as analogous to an action in court and that the doctrine of relation back of the administrator's title to the intestate's property to the date of death would not assist.
10. I note that in my decision in R(SB) 5/90, I did not refer to the situation where there was no Appointment but there was a Grant of Probate or of Letters of Administration. So far as Grant of Probate is concerned there is no problem. There the Executor's title derives from the Will and not from the Probate and he may begin proceedings as an Executor before Probate (see para. 5 of R(SB) 8/88). It follows therefore that such acts are valid at the time when done and the subsequent obtaining of a Grant of Probate is merely evidence of the Executor's title. In paragraph 5 of R(SB) 8/88, after referring to these rules as to Probate, the learned Commissioner said:

"An Administrator is in a somewhat different position. An Administrator derives his title entirely from the Grant of Letters of Administration. After the Grant of Administration the Administrator has, subject to any limitations contained in the Grant, the same rights and liabilities and is accountable in the same way as if he were being the Executor of the deceased. However in order to prevent injury being done to a deceased person's estate without remedy, the courts have adopted the doctrine that upon the Grant being made, the Administrator's title relates back to the time of death."

11. However, I do not consider that the application here for a review of the earlier DMP's decision or for that matter an appeal to the Commissioner are to be regarded as analogous to actions in court. Regulation 30 of the Social Security (Claims and Payments) Regulation 1987 headed "Payments on death" is not exclusive but merely provides one mode (a Secretary of State's Appointment) by which matters may be proceeded with. Provided, however, the Secretary of State gets a good receipt for any payment of benefit that may be made (as undoubtedly the Secretary of State would if the money were paid to an Administrator under the Grant of Letters of Administration) then no problem exists. I therefore see no reason why the doctrine of relation back already propounded by the Courts in cases of Grants of Letters of Administration should not apply to a case such as this. The rules as to the issuing of Writs to institute actions in court are of necessity strict and technical but I do not consider that in the present context they should be applied to social security matters. It follows that I reject the Secretary of State's written submission of 3 January 1990 and Mr. Butt's oral submissions at the hearing and hold that here the application for review and the appeal to the Commissioner were properly constituted and proceeded with by the claimant's widow.

(12.-20.) ... Paragraphs excluded.

Date: 20 March 1991 (signed) Mr. M. J. Goodman

Commissioner