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[1997] UKSSCSC CIS_14342_1996 (24 March 1997)

R(IS) 21/98

Mr. R. J. C. Angus CIS/14342/1996

Review - arrears payable on official error - whether a purposive approach may be taken to regulation 57(2) of the Social Security (Adjudication) Regulations 1995

The claimant had an award of income support. His wife was awarded the lowest rate of the care component of disability allowance from 6 April 1992 with the consequence that from that date the claimant became entitled to the disability premium of income support, but the usual postcard was not sent by the Disability Living Allowance Unit informing the income support officer of that award. The decision awarding income support was twice reviewed, in February and May 1994, without the award of disability living allowance being taken into account. On 3 August 1995 the claimant's representative reported to the local office of the Benefits Agency that the claimant's wife had for some time been in receipt of disability living allowance. An adjudication officer reviewed the decision awarding income support on the grounds of change of circumstance and the 1994 review decisions on the grounds that they had been made in ignorance of a material fact but, whilst acknowledging that the award of disability living allowance had rendered the claimant entitled to the disability premium, restricted the backdating of the award of the premium to the period commencing 4 August 1994 applying the twelve month restriction under regulation 63 of the Social Security (Adjudication) Regulations 1995. The claimant appealed to the social security appeal tribunal on the ground that regulation 57(2) of those regulations applied and that therefore regulation 63 did not apply. The tribunal allowed his appeal on the basis of findings of fact that (i) the Disability Allowance Unit held a record of the award of disability living allowance and (ii) that the claimant had made disclosure of that award on several occasions to officers in the unemployment benefit office through which his income support was paid, and of their conclusion that those items of information should have been taken into account by the adjudication officer who had conducted the May 1994 review. They also considered that regulation 57(2)(a) probably applied as that information was specific information which the adjudicating authority had before it but had failed to take into account. The adjudication officer appealed to the Commissioner.

Held, allowing the appeal, that:

regulation 57(2)(a) and (b) are strict and clearly intended to limit the relaxation of the regulation 63 restriction on review to the two circumstances specified therein and that specification cannot be interpreted so as to allow for administrative failures;

the terms of regulation 57(2)(a) and (b) are not only strict but unambiguous in their strictness so as to preclude invoking Pepper v. Hart [1993] AC 593 as authority for going behind the regulations in order to decide whether or not the effect on the claimant of the literal interpretation of the provision reflects the policy underlying regulation 57.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the social security appeal tribunal dated 24 January 1996 is erroneous in law. I set that decision aside and, as empowered by section 23(7)(a)(i) of the Social Security Administration Act 1992, give the decision which I consider the tribunal should have given which is:

The adjudication officer's decision of 6 March 1992 falls to be reviewed in terms of section 25(1)(b) of the Social Security Administration Act 1992 and his decisions of 7 February 1994 and 12 May 1994 fall to be reviewed in terms of section 25(1)(a) of the 1992 Act.

The decision on review is that the claimant's applicable amount for income support purposes includes the disability premium from and including 4 August 1994.

The adjudication officer appeals, with the leave of the chairman, against the tribunal's decision that the appellant's income support applicable amounts includes the disability premium from 3 April 1992 to 3 August 1994.

This appeal and the appeal under reference No. CIS/11829/1996 which I heard with it both raise the issue of whether an unemployment benefit officer's record of information given to him by a claimant for income support is, for the purposes of regulation 57(2) of the Social Security (Adjudication) Regulations 1995, either evidence which was before the adjudication authority which made the income support decision under review or evidence in the possession of the officers in the Benefits Agency who submitted questions to that income support adjudication authority.

(1) The claimant was awarded income support on 6 March 1992. On 20 May 1992 his wife was awarded the lowest rate of the care component of disability living allowance from 6 April 1992 with the consequence that from that last mentioned date the claimant became entitled to the disability premium of income support. It seems that there was then a breakdown in the Benefit Agency's system in that the postcard which would normally be sent from the Disability Living Allowance Unit to the relevant income support officer informing him of the award of disability living allowance was not sent. The decision awarding income support was reviewed on 7 February 1994 and on 12 May 1994 but neither reviewing adjudication officer took account of the award of disability living allowance.

(2) On 3 August 1995 the claimant's representative, from whom the claimant had sought advice about claiming an increase in the level of disability living allowance paid to his wife, reported to the local office of the Benefits Agency that the claimant's wife had been in receipt of disability living allowance for some time. An adjudication officer reviewed the income support decision of 6 March 1992 on the grounds of change of circumstances constituted by the award of disability living allowance (section 25(1)(b) of the 1992 Administration Act) and reviewed the decisions of 7 February 1994 and 12 May 1994 on the grounds that they had been made in ignorance of the material fact that the claimant's wife was in receipt of the allowance (section 25(1)(a) of the 1992 Act). However, although the adjudication officer acknowledged that on 20 May 1992 the award of disability living allowance had rendered the claimant entitled to the disability premium of income support from 6 April 1992, he restricted his award of the premium to the period beginning 4 August 1994 because in his opinion regulation 63 of the Social Security (Adjudication) Regulations 1995 applied and he could not review any decision so as to award an increase in income support for a period beginning more than twelve months prior to the date of the request for the review. The claimant appealed on the grounds that regulation 64A(2) of the Social Security (Adjudication) Regulations 1986 (now regulations 57(2) of the 1995 Adjudication Regulations) applied and that, therefore, regulation 63 did not apply.

(1) Regulation 57(2) of the 1995 Adjudication Regulations states, in so far as relevant to this appeal:

"This paragraph applies to a review under sections 25(1)(a), 30(2)(a) and (4) and 35(l)(a) of the Administration Act (review for error of fact) of any decision, whether that decision was made before or after the coming into force of this regulation, where the reviewing authority, that is to say the adjudication officer or, as the case may be, the appeal tribunal, is satisfied that-

(a) the evidence upon which it is relying to revise the decision under review is specific evidence which the authority which was then determining the claim or question had before it at the time of making the decision under review and which was directly relevant to the determination of that claim or question but which that authority failed to take into account; or

(b) the evidence upon which it is relying to revise the decision under review is a document or other record containing such evidence which at the time of making the submission to the authority which was then to determine the claim or question, the officer of the Department of Social Security, the Department for Education and Employment, the former Department of Employment or the former Department of Health and Social Security who made the submission had in his possession but failed to submit; or

(c) ..."

(2) In so far as relevant to this appeal regulation 63(1) of the 1995 Regulations provides that:

"Except in the case to which regulation 57(2) or (3) or regulation 58 applies, a determination on a claim or question relating to income support shall not be revised on review under section 25 of the Administration Act so as to make income support payable or to increase the amount of income support payable in respect of-

(a) Any period which falls more than 12 months before the date on which the review was requested or, where no request was made, the date of the review; or

(b) ..."

(1) The social security appeal tribunal which heard the claimant's case found in fact that the Disability Living Allowance Unit held a record of the award of disability living allowance to the claimant's wife. The claimant's income support was paid to him through the local Unemployment Benefit Office. He had informed the officers dealing with his case in that office on several occasions that his wife was in receipt of disability living allowance. On each occasion that information had been recorded by the officer to whom it was given and on the strength of it the claimant had been excused from attending a restart course because it was accepted that he was spending part of his time in looking after his wife.

(2) On, the strength of those findings in fact the tribunal decided that the information held by the Disability Living Allowance Unit and by the local office of the Department of Employment should have been taken into account by the adjudication officer who made the income support decision of 12 May 1994. Also regulation 57(2)(a) of the 1995 Adjudication Regulations probably applied and that information was, therefore, specific evidence which the authority determining that income support question had before it but had failed to take into account. The tribunal concluded that regulation 63 did not, therefore, apply and awarded the disability premium with effect from 3 April 1992.

The adjudication officer now concerned, in his submission in support of the appeal, argues that the only grounds for reviewing the adjudication officer's decision of 6 March 1992 awarding income support would be the change of circumstances brought about by the award of disability living allowance on 20 May 1992. The latter award was ground for review under section 25(1)(b) of the 1992 Administration Act. As regulation 57(2) does not apply to reviews under section 25(1)(b) the regulation 63 restriction does apply and review of the March 1992 decision does not assist the claimant to obtain more than twelve months arrears of benefit. He further submits that the adjudication officer was correct to review the decisions of 7 February 1994 and 12 May 1994 under section 25(1)(a) of the 1992 Act on the grounds that those decisions were made in ignorance of the fact of the payment of disability living allowance to the claimant's wife. Accordingly, the question of the possible application of regulation 57(2) to those reviews arose but, in his submission, because neither the adjudication officers who made those decisions nor the officers submitting matters to them had the evidence in question, regulation 57(2) did not apply. He relied on Commissioner's decisions CIS/89/1993 and CSB/18/1994 which, in his view, make it clear that, for the purposes of regulation 57(2)(b), the officer in whose hands is held a document or record which should have been submitted to the adjudication authority has to be an officer concerned with the benefit in question.

In response to a direction from a nominated officer in the Office of the Social Security Commissioners the adjudication officer now concerned made a further submission on the significance of paragraph 11 of Commissioner's decision R(SB)2/91 in which it is recorded that the representative of the adjudication officer concerned in that case conceded that:

"The Department of Employment were the agents of the Department of Health & Social Security for the purposes of payment of supplementary benefit and provided there was currently a claim for supplementary benefit, information given to the unemployment benefit officer constituted information given to the supplementary benefit section of the Department of Health and Social Security ..."

The adjudication officer now concerned accepts that for the purposes of section 71 of the 1992 Act (recovery of overpayments of benefit resulting from misrepresentation or non-disclosure of material facts) the Benefits Agency has, because of the agency relationship with the Department of Employment, implied notice of any information affecting entitlement to income support imparted by a claimant to the unemployment benefit officer. However, he argues that the position is different under regulation 57(2)(b) because that regulation requires that the officer submitting to the adjudication authority must have in his possession evidence which he fails to submit. In addition to the precedents already cited he refers to Commissioner's decision CIS/7404/1995 which, like the others, emphasises that the relevant evidence must be in the hands of the officer concerned with the benefit in question.

(1) In response to the submissions by the adjudication officer the claimant's representative has lodged written observations in which she argues that the Commissioners' decisions cited by the adjudication officer in support of his argument are not directly in point. CIS/89/1993 concerned a claimant who had been in receipt of mobility allowance from 1985. He did not claim supplementary benefit and income support until 1987 and 1990. The adjudication officer who awarded the mobility allowance had, therefore, no reason to make any report to the officers dealing with supplementary benefit and income support. CSB/18/1994 concerned the birth of a second child to a claimant who was in receipt of supplementary benefit and who claimed a maternity payment in advance of the birth of the child. The Commissioner found against the claimant because although she had disclosed the pregnancy in the course of claiming the maternity payment she had at no time disclosed the birth which was the fact material to her claim for an increase in her right to supplementary benefit.

(2) As regards the adjudication officer's reliance on R(SB) 2/91 and R(SB) 54/85, the claimant's representative argues that there is no difference between information constituting disclosure for the purposes of section 71 of the 1992 Administration Act given to the Department of Employment as agents for the Benefits Agency and information constituting grounds for an increase in benefit imparted in the same way. Finally, CIS/7404/1994 is distinguishable from the claimant's case because the sick notes which were evidence of that claimant's entitlement to an income support premium were being submitted to the officers in the agency dealing with sickness benefit and severe disablement allowance whereas in this claimant's case the information in question was being submitted to an unemployment benefit officer who, as agent for the income support officer, was dealing with the income support claim.

I heard the appeal on 4 December 1996. The adjudication officer was represented by Miss C. Harold of the Office of the Solicitor to the Department of Social Security. The claimant was not present but he was represented by Mrs. R. Bell of Newcastle Welfare Rights Service. I am grateful to both Miss Harold and Mrs. Bell for their helpful oral submissions. I do not repeat those submissions in any great detail because they were in essence an expansion of the written arguments and, as will be seen from the following paragraphs, I think this appeal and the appeal under reference CIS/11829/1996 turn on a short point.

(1) Miss Harold outlined the legislative history of regulation 57 of the 1995 Adjudication Regulations. She drew attention to regulation 32 of the Social Security (Claims and Payments) Regulations 1985 which places on all claimants the duty of complying with the Secretary of State's requirements for information necessary for the adjudication of the claim. She referred to section 20 of the 1992 Administration Act which requires the Secretary of State to pass information with a potential as a ground for review to the adjudication officer "forthwith". She pointed out that the obligation to pass on the information "forthwith" could only arise at the time at which the information came into the hands of the Secretary of State.

(2) As regards the agency arrangement between the Benefits Agency and the Department of Employment Miss Harold reiterated the argument that there was a difference between information which the claimant had to provide in order to avoid a restriction on the payment of benefit and information which he was required to provide in order to avoid an overpayment of benefit. In the latter case there was a financial penalty on the claimant and the unemployment benefit officer was required to enter the information provided by the claimant on a form A9 and pass that form to the income support officer. There was no such formal arrangement for recording other information. In this claimant's case he had completed a form A2, a declaration as to whether there has been any change of circumstances affecting entitlement to benefit, but had failed to disclose the payment of disability living allowance on that form. She repeated the adjudication officer's reference to Commissioner's decision CIS/7404/1995 in which the Commissioner expressed the view that in common sense it must be that, for the purposes of regulation 57(2)(b), the evidence or record in question must be in the hands of the officer dealing with the benefit in question, not some other officer.

In response to Miss Harold's oral submissions Mrs. Bell distinguished her client's circumstances from those of the claimants concerned in the Commissioner's decisions cited by Miss Harold. In particular in CSB/18/1994 there was in fact no evidence in the hands of the relevant officer of the Department of Social Security at the material time. She referred to the Ophelia case on the destruction of documents and said that although there was no strong presumption in favour of a claimant when departmental records had been destroyed neither was there any presumption in favour of the department and the claimant's evidence had to be taken into account. The claimant's claim for income support was being dealt with under the Agency arrangement in the local Unemployment Benefit Office and the information which he had provided about the payment of disability living allowance had been recorded there. That record was therefore evidence which should have been taken into account when the decisions of 7 February 1994 and 12 May 1994 were made.

(1) The short point upon which this appeal turns is that the terms of regulation 57(2)(a) and (b) are strict and clearly intended to limit the relaxation of the regulation 63 restriction on review to the two circumstances specified therein. That specification cannot be interpreted so as to allow for departmental or interdepartmental arrangements or to allow for administrative failures.

(2) Regulation 57(2)(a) enacts that the evidence in question must be specific evidence which was before the adjudication officer concerned. That does not include evidence which should have been before the adjudication officer but in fact was not. On the facts found by the tribunal neither the evidence of the award of disability living allowance held by the Disability Living Allowance Unit nor the evidence of that award which the claimant gave to the unemployment benefit officer was, at the time at which the decisions of 7 February 1994 and 12 May 1994 were made, before the adjudication officer who made those decisions. Regulation 57(2)(b) specifies as the officer whose failure to submit evidence to an adjudication authority will result in the relaxation of the regulation 63 restriction the officer who made the submission to the relevant adjudication authority. That does not include any other officer who should, on account of a departmental or interdepartmental arrangement or for any other reason, have passed evidence to the officer who made the submission but did not.

My conclusion is that the tribunal has made an understandable attempt to mitigate the effects of the strict terms of regulation 57(2)(a) and (b) on the claimant but in so doing it has misinterpreted that provision. Those terms are not only strict but unambiguous in their strictness. One cannot, therefore, invoke Pepper v. Hart [1993] AC 593 as authority for going behind the regulations to the policy papers in order to decide whether or not the effect on the claimant of the literal interpretation of the provision reflects the policy underlying regulation 57. Accordingly, it was not open to the tribunal, and is not open to me, to temper the wind to the claimant by taking a purposive approach to the interpretation of the regulation as it applied to his case.

For the foregoing reasons the adjudication officer's appeal succeeds. My decision is in paragraph 1 above and, as the facts of the case are not in dispute, it includes the decision which the tribunal should have made.

Date: 24 March 1997 (signed) Mr. R. J. C. Angus

Commissioner