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[1991] UKSSCSC CSB_1331_1989 (29 January 1991)

R(SB) 10/91

Mr. M. J. Goodman CSB/133/1989

29.1.91

Review – limitation of payment – whether clear mistake of fact or law in not reviewing award when claimant required to sign quarterly

The claimant was 53 years old when his employment ceased in July 1985. He signed as available for work at the Unemployment Benefit Office and was put on to quarterly signing in September 1986. In November 1988 the adjudication officer decided that he was not exempt from the requirement to be available for employment under regulation 6 of the Supplementary Benefit (Conditions of Entitlement) Regulations 1981. On appeal the tribunal decided that because of his age the claimant came within the conditions of regulation 6(e), by analogy as allowed by regulation 6(u), and was not therefore required to register for employment. However, the tribunal backdated the payment of the long term scale rate only for 52 weeks from the date of the application for review. They decided that the period of revision was limited by regulation 69 of the Social Security (Adjudication) Regulations 1986 and that this limitation could not be removed because regulation 72 of the Adjudication Regulations did not apply. The claimant appealed to a social security Commissioner against the refusal to apply regulation 72 and to back-date the award more than twelve months.

Held that:

the administrative action of putting the claimant on to quarterly signing could not, of itself, initiate a review for the purposes of considering regulation 6(e) and (u) (para. 9);

regulation 72(l)(a) of the Social Security (Adjudication) Regulations 1986 refers only to clear mistakes of fact or law arising because an officer has failed to arrive at a decision or take some action that he is obliged to do as part of his duties (para. 11);

regulation 72(l)(a) of the Adjudication Regulations does not impose a general duty on the officer constantly to keep all cases under review in order to see whether or not a particular provision might apply, even when that provision may be beneficial to the claimant.

The appeal was dismissed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I dismiss the claimant's appeal against the decision of the social security appeal tribunal dated 22 June 1989 as that decision is not erroneous in law: Social Security Act 1975, section 101 (as amended).

This is an appeal to the Commissioner by the claimant, a man born on 24 September 1931 and thus aged 57 at the date of the social security appeal tribunal's decision on 22 June 1989 against which appeal is now made. The appeal was the subject of an oral hearing before me in Liverpool on 11 January 1991 at which the claimant attended and was represented by Miss J. Fewtrell of the claimant's local Welfare Rights Service. The adjudication officer was represented by Mr. M. Palin of the Office of the Solicitor to the Departments of Health and Social Security. I am indebted to Miss Fewtrell and to Mr. Palin for their assistance to me at the hearing.

The appeal is against the unanimous decision of a social security appeal tribunal dated 22 June 1989 which allowed the claimant's appeal from a decision of the local adjudication officer issued on 14 November 1988, to the effect that the claimant was not exempt from the requirement to be available for employment, by virtue of any of the provisions of regulation 6 of the Supplementary Benefit (Conditions of Entitlement) Regulations 1981. The tribunal held that the claimant did in fact come within regulation 6(e) by analogy, as permitted by regulation 6(u). That was because of the claimant's age and was by reference to a decision of a tribunal of Commissioners in R(SB) 5/87.

However, the tribunal backdated the payment of the long-term scale rate only to 10 August 1987 i.e. 52 weeks back from the date of the application for review made by the claimant on 10 August 1988. That was in accordance with the limitation under regulation 69 of the Social Security (Adjudication) Regulations 1986.

The tribunal rejected a contention on behalf of the claimant that there should be back-dating of the long-term scale rate of supplementary benefit, not merely back 52 weeks from the application for review made on 10 August 1988, but further to 2 June 1987 (the earliest possible date on the facts of this case, under regulation 7 of the above cited Conditions of Entitlement Regulations).

That contention was made on the basis that the normal twelve months limitation on back-dating contained in regulation 69 of the above cited adjudication regulations should not apply on the facts of this case, because of regulation 72 of the Adjudication Regulations providing, so far as is relevant, as follows:

"Exemption from limitations on payment of arrears of benefit

(1) Subject to paragraph (2) [not relevant to this case] nothing in this section shall operate so as to limit the amount of benefit or additional benefit that may be awarded on a review of a decision if the adjudicating authority making the review is satisfied either –

(a) that the decision under review was erroneous by reason only of a mistake made, or of something done or omitted to be done by an officer of the Department of Health and Social Security or of the Department or Employment acting as such, or by an adjudicating authority or the clerk or other officer of such an authority, and that the claimant and anyone acting for him neither caused nor materially contributed to that mistake, act or omission; or

(b) [not relevant to this case]."

The tribunal gave as their reasons for decision:

"Since the claim [i.e. application for review] was made on 10 August 1988 there is no difficulty in back-dating entitlement to payment of long term scale rate 52 weeks to 10 August 1987. For further back-dating of payment it is necessary to consider adjudication regulation 72, and 72(a) in particular is argued for him. However, the tribunal is not satisfied that it has been shown that the Department made any mistake or act or omission for the purposes of 72(a). It is relevant to this context that he had had a period of employment finishing in July 1985 and was pursuing job interviews. While in retrospect it can be concluded that there were no realistic prospects of employment on account of his age, it does not appear to the tribunal that there was an error on the part of the Department at the time in not taking action on its own initiative to reconsider the possibility of Conditions of Entitlement regulation 6 in relation to [the claimant's] claim for benefit. Further, it is relevant that the significant decision R(SB) 5/87 was not published until well into 1987, clarifying the law on a question of the 'age' grounds of analogy. The tribunal has not been persuaded that the fact of quarterly signing from September 1986 or the fact of [the claimant's] age (he was 50 in September 1981) constituted grounds on which his case should have been reviewed by the Department on its own initiative, [the claimant] himself having taken no action directly or indirectly to suggest to the Department that there was a possible entitlement to long-term scale rate. The tribunal therefore finds that the requirements of 72(a) are not met for such [sic] as to cause entitlement to payment of long term scale rate for any period before 10 August 1987. The case for back-dating entitlement before 10 August 1987 has not therefore in the tribunal's view been established by the evidence."

It is against that refusal to apply regulation 72(a) of the Adjudication Regulations and to back-date the award more than twelve months that the claimant appeals. Miss Fewtrell, reiterating detailed written arguments put forward by her on the application for leave to appeal and on the appeal itself, stressed that instructions to adjudication officers in the "Adjudication Officer's Guide" were not to impose the requirement to be available for employment if there existed any of the circumstances specified in that manual. The adjudication officer was instructed to give consideration to not imposing the requirement if a claimant was handicapped by "age itself i.e. 50 or over for men or women, in an area where it is known that job opportunities for people of that age are very limited" (Guide - para. 15459). Consequently Miss Fewtrell contended that the Department should of their own accord, when once they put the claimant on to quarterly signing in September 1986, have reviewed the case to consider whether the claimant was exempt from the requirement for availability under any of the paragraphs of regulation 6 of the Conditions of Entitlement Regulations. She pointed to regulation 6(a) (exemption for single parent) and stressed that the Department would very likely activate that of its own accord. But that is of course a simple matter, not needing any additional enquiries of the claimant, unlike e.g. regulation 6(e) and (u). I do not consider the comparison is valid.

On the other hand, the adjudication officer in a written submission dated 18 January 1990, reiterated by Mr. Palin at the hearing before me, contended that there was no duty on the part of the department when notified by the Unemployment Benefit Office of the quarterly-signing to review the claimant's position. Mr Palin, cited paragraph 16 of reported decision R(I) 1/71: where the Commissioner had stated that "those who contend that the award should be cancelled or varied on review must show that there are valid grounds for review". He also referred to a statement in paragraph 6 of unreported Commissioner's decision on file CSSB/1/1988 to much the same effect. Miss Fewtrell contended that decision CSSB/1/1988 was not really relevant in this context in that it was largely concerned with other matters e.g. what is meant by accidental error in the context of setting aside a decision. I do not agree with that. I consider that paragraph 6 of decision CSSB/1/1988 is directly relevant but in any event quite independently I come to the same conclusion as the learned Commissioner, on my own appraisal of the facts and law involved. The mere administrative action of putting the claimant on to quarterly signing could not of itself, give rise to any case for involving regulation 6(e) and (u), or for the Department to initiate a review for that purpose.

In my judgment the social security appeal tribunal in its carefully reasoned decision, with its record of decision completed in exemplary detail on form AT3, arrived at the correct conclusion and there was no error of law involved. I agree with what the Commissioner said in CSSB/1/1988 when he said:

"As I read them section 5 of the Supplementary Benefits Act 1976 and regulation 6 of the Conditions of Entitlement Regulations are designed to provide a standard condition of being available for employment to recipients of supplementary benefit, unless or until a recipient seeks its removal, and that on sufficient grounds. The onus is thus clearly on the recipient, that is to say the claimant. To suppose otherwise would, I consider, make the scheme of section 5 of the Act and regulation 6 virtually unworkable."

In my judgment, where regulation 72(1)(a) of the above cited Social Security (Adjudication) Regulations 1986 refers to a decision under review being "erroneous by reason only of a mistake made, or of something done or omitted to be done by an officer of the Department of Health and Social Security . . ." etc., that refers only to clear mistakes of fact or law in relation to an actual issue in a given case at a time when the officer of the relevant Department etc. was actively required by his duties under the social security legislation to arrive at a decision or take some administrative act. It certainly does not impose a general duty on the officers etc. of the Department of their own accord constantly to keep all cases under review in order to see whether or not any particular exempting regulation might apply. The wording of regulation 72(1)(a) does not in my judgment bear that construction and to hold otherwise would be to place an impossible burden upon officers of the Department etc.

Date: 29 January 1991 (signed) Mr. M. J. Goodman
Commissioner