PLH                                                                                 Commissioner's File:  CI 624/98

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL
ON A QUESTION OF LAW

[ORAL HEARING]

	Claim for:  	Disablement Benefit  (PD D4)	
	Appeal Tribunal:  	Liverpool SSAT
Tribunal date:	11 December 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	For the reasons given below the decision of the social security appeal tribunal given on 11 December 1997 was not in my judgment erroneous in point of law, and the claimant’s appeal against it must therefore fail.  
2.	I held an oral hearing of this appeal at which David Taylor, solicitor, appeared on behalf of the claimant and Jeremy Heath of the solicitor’s office, Department of Social Security appeared for the adjudication officer. The hearing had been directed as the ground put forward for this appeal has been raised in some other cases as well.
3.	The claimant is a man now aged 64 who spent much of his working life doing various docking and stevedoring jobs in the Liverpool docks.  In the tough and no doubt unpleasant conditions of this work before the arrival of containers and modern methods, he was often exposed to dusty cargoes such as fishmeal products, dyestuffs, bean dust and tea dust in the ship’s holds and warehouses where he had to work.  There is no dispute that this has left him in his later years with a condition known as allergic rhinitis which is prescribed industrial disease No. D4.  On 17 January 1997 a medical appeal tribunal confirmed that his nasal passages were permanently damaged by this condition and assessed him under the industrial injury and disease scheme as suffering from a 10% disablement for life. 
4.	In consequence, the claimant has been awarded reduced earnings allowance under para 11 Sch. 7 Social Security Contributions and Benefits Act 1992: the award having effect from the date he submitted a claim for this benefit on 23 September 1996, and also for the period of twelve months before that. For this purpose the adjudication officer accepted the claimant’s explanation, that he had only recently found out that his condition might entitle him to make a claim, as “good cause” for not having made one earlier. Under the regulations as they stood when he did make his claim, the extra twelve months was the maximum backdating that could have been allowed.
5.	In this appeal Mr Taylor, while accepting that under the regulations this is the limit stated in terms to be applicable to a claim made on 23 September 1996 as this one was, nevertheless argues on behalf of the claimant that I ought not to apply it. Instead I ought to hold that the regulations themselves are invalid as being contrary to the terms of the primary legislation, with the result that no cut‑off at twelve months back from the date of the actual claim is imposed; and the enquiry about whether the claimant had continuous “good cause” for not claiming earlier can range back much further, to the commencement of reduced earnings allowance itself on 1 October 1986, and the claimant should get retrospective benefit for the whole period back to then.  
6.	This was the only point pursued in the appeal. For clarity I should add that when the case was before the tribunal a further contention had been raised that the claimant’s retrospective entitlement should go back for even earlier periods before October 1986, so as to give him a similar benefit under s. 60 Social Security Act 1975 which was then known as “special hardship allowance”; but on the appeal to me that contention was quite rightly abandoned by Mr Taylor since on these facts it is unarguable, for the same reasons as those given in case CI 555/93, cited in the adjudication officer’s submission at pages 72-74 and not necessary to repeat here.
7.	Consequently the appeal stands or falls by the contention that the twelve month time limit imposed by the regulations on backdated claims for reduced earnings allowance contravened the enabling powers of the primary legislation.  As applicable at the date of this claim (23 September 1996) that limit is to be found in reg 19 Social Security (Claims and Payments) Regulations 1987 SI No. 1968 as amended with effect from 24 March 1996 by 1996 SI No. 425.  
8.	By that regulation, so far as material:
“(1) ...the prescribed time for claiming any benefit specified in column (1) of Schedule 4 shall be the appropriate time specified opposite that benefit in column (2)”
 [reduced earnings allowance being one of the benefits so specified, and the “appropriate time” in column (2) for claiming it a period of three months from the day of entitlement for which the claim is made]
“(2) Where the claimant proves that there was good cause, throughout the period from the expiry of the prescribed time for making the claim, for the failure to claim a benefit specified in column (1) ... before the date on which the claim was made the prescribed time shall, subject to ... paragraph ... (4A), to be extended to the date on which the claim is made. ...
 (4A) For the purpose only of determining the date from which benefit is to be payable, the prescribed time for claiming reduced earnings allowance shall not be extended so as to give entitlement to benefit for any period earlier than 12 months before the date on which the claim was made.”
9.	Thus under the regulation a claimant for reduced earnings allowance has an automatic right, if he otherwise qualifies for the benefit, to have it backdated for three months before the date of his actual claim. It can be further backdated if he manages to show that he had good cause throughout for not putting in a claim earlier, but this further backdating is limited to a maximum of twelve months before the making of the actual claim.  Mr Taylor did not dispute that this was what the regulation prescribed.
10.	The primary legislation under which the Claims and Payments regulations are made has not materially altered since they first appeared in their present form in 1987, in exercise of regulation making powers then in s.51 Social Security Act 1986. So far as material the relevant powers can now be identified in the 1992 consolidating legislation, in s. 5 Social Security Administration Act 1992:
“                      Claims and payments regulations
5 - (1)  Regulations may provide - 
(a)  for requiring a claim for a benefit to which this section applies to be made by such person, in such manner and within such time as may be prescribed; ...
(k)  for the day on which entitlement to such benefit is to begin or end; ...”
11.	I do not think it could be at all possible to argue that the provisions of regulation 19 of the Claims and Payments regulations referred to above fell outside the terms of section 5(1) and Mr Taylor did not seek to do so.  Instead, his argument that the regulation infringed the terms of the primary legislation was derived from what he said was the combined effect of ss. 1(1) and (2) of the Administration Act. So far as material these provide as follows:
“                   Necessity of claim
1. - (1)  Except  [in some cases that do not arise here] and subject to the following provisions of this section ... no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied -
(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this part of this Act; 
...
(2) Where under subsection (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it -
(a) if the benefit is a widow’s payment, she shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim is made or treated as made; and
(b) if the benefit is any other benefit except disablement benefit or reduced earnings allowance, the person shall not be entitled to it in respect of any period more than 12 months before that date ...”
12.	Mr Taylor accepted, as in my view he had to, that reduced earnings allowance is a benefit squarely within the provisions of s. 1(1) so that no entitlement to it can exist unless a claim for it has been made in the manner and within the time prescribed. But he founded his argument on the express exemption of disablement benefit and reduced earnings allowance from the absolute 12-month limit on retrospective claims imposed on benefits of other kinds by s. 1(2)(b).  This he said should be construed as a requirement in the primary legislation that any time limit to be prescribed for the purposes of s. 1(1) in relation to reduced earnings allowance must necessarily be of some period more than twelve months before the date of the actual claim. So construed, the primary legislation was obviously infringed by a provision such as reg 19(4A) which purports to limit any permissible extension for “good cause” in such a way as to allow backdating of claims for up to twelve months and no more; though he was prepared to concede that a prescribed limit of twelve months plus a single day would have been valid.
13.	I am bound to say that I find this an impossible reading of the primary legislation, and I accept Mr Heath’s submission that no such requirement is to be spelt out of it.  In my judgment, the plain words of s. 1(2) impose a purely negative limit on the Secretary of State’s ability to prescribe any longer backdating period than twelve months in relation to certain benefits. The fact that this negative limit is not also imposed by the primary legislation itself on disablement benefit or reduced earnings allowance does not in any way impose a positive obligation on the Secretary of State to exercise the powers given under ss. 1(1) and 5(1) in relation to those benefits so as to prescribe periods longer than twelve months.  Under s. 1(1) it is for the Secretary of State to prescribe what the time limits are to be.  The fact that he is given a maximum in some cases does not turn that into a minimum for the others, or for any cases at all.  
14.	For that very simple reason, I reject this appeal and decline to hold that the twelve month time limit for backdated reduced earnings allowance claims under reg 19(4A) of the Claims and Payments regulations as in force from 24 March 1996 was in any way invalid.  

(Signed)

P L Howell
Commissioner
11 December 1998

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:	CI 624/98

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER:	P L Howell QC

11 December 1998

Claimant		:	Joseph Kinsella

Claim for		:	Disablement Benefit (PD D4)

Tribunal			:	Liverpool SSAT

Tribunal Case No	:	6/06/97/04455

Tribunal date		:	11 December 1997