UK Social Security and Child Support Commissioners' Decisions

HL/SH/CW/3

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/2057/1998

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

MR COMMISSIONER H LEVENSON


 


1. This appeal by the claimant succeeds. In accordance with the provisions of section 23(7)(a) of the Social Security Administration Act 1992 I set aside the decision made by the social security appeal tribunal on 21 January 1998. I substitute my own decision. This is to the effect that the claim for income support in this case was made on 1 April 1996 and the prescribed time for claiming income support for the period from 1 January 1996 is extended to 1 April 1996. I remit to the adjudication officer the question of actual entitlement to income support on this basis.
2. The claimant was born on 20 September 1979. She had learning difficulties and while she was at school a statement of special educational needs was issued. In the words of the tribunal "she has a mental capacity well below average and many serious health problems including deafness in one ear and partial deafness in the other". While at school it appears that she had been supplied with relevant literature about claiming benefit on leaving school but, as found by the tribunal, "she can read but it is open to speculation as to how much she understands". On 20 September 1995 the claimant reached age 16. She was living with her parents I am not sure when she left school but it was not until 1 April 1996 that she claimed income support. On her claim form, in answer to the question as to why she had claimed income support she answered "disabled - aged 16". In the circumstances, I find that to indicate an intention to make the claim from her 16th birthday. Income support was awarded from 1 April 1996, the date on which the claim form was submitted. It was not until 30 June 1997 that the claimant's mother requested (on behalf of the claimant) that income support be backdated to the claimant's 16th birthday, and it was not until 30 September 1997 that the claimant provided her own signature to this effect. On the same date the adjudication officer refused to backdate the award and on 1 December 1997 the claimant appealed to the social security appeal tribunal against the decision of the adjudication officer.
3. The tribunal considered the matter on 21 January 1998 and confirmed the decision of the adjudication officer. In addition to the findings to which I have referred, the tribunal found that the claimant had difficulty communicating because of learning difficulties and also found that "surrounded as she was by a supportive family, we believed that her family should have taken the initiative in a matter as important as her entitlement to benefit and found out when she might be entitled to claim". On 16 April 1998 the chairman of the tribunal refused the claimant's application for leave to appeal to the Social Security Commissioner against the decision of the tribunal. The claimant now appeals by leave of Mr Commissioner Mesher given on 3 August 1998. The adjudication officer now concerned with the matter supports the appeal to the extent of agreeing that the decision of the tribunal was made in error of law, but suggested I substitute my own decision to the same effect as that of the tribunal.
4. By virtue of the provisions of regulation 19(1) of and Schedule 4 to the Social Security (Claims and Payments) Regulations 1987 the prescribed time for claiming income support is the first day of the period in respect of which the claim is made. However, regulation 19(4) provides that (subject to an exception which is not relevant in this case) where a claim for income support is not made within the time specified, the prescribed time for claiming shall be extended, subject to a maximum extension of three months, to the date on which the claim is made, where any of the circumstances specified in paragraph 19(5) applies or has applied to the claimant and as a result of those circumstances the claimant could not reasonably have been expected to make the claim earlier. Regulation 19(5)(a) specifies as one of those sets of circumstances that:-

" (a) The claimant has difficulty communicating because -

(i) he has learning, language or literacy difficulties; or

(ii) he is deaf or blind,

and it was not reasonably practicable for the claimant to obtain assistance from another person to make his claim."

5. The adjudication officer now concerned with the matter supports the appeal on the basis that the tribunal has not adequately explained its decision. Details of this approach are given in paragraph 11 of the adjudication officer's submission of 3 September 1998. However, I allow the appeal on the basis that a more fundamental error was made by the tribunal. The tribunal's view was that it was incumbent on the claimant's family, being a supportive family, to take the initiative in arranging for the claim for income support to be made. However, nobody has been appointed to act on behalf of the claimant and as a general principle it is wrong to impose an obligation on a third party without clear statutory authority. In my view, the wording of regulation 19(5)(a) deals with whether it was reasonably practical for the claimant to seek assistance from another person to make the claim, not whether it was reasonably practicable for another person to take the initiative in offering assistance. It is for this reason that I set aside the decision of the tribunal as having been made in error of law.
6. It is now over three years since the claim was made and further evidence has accumulated on the file. I deem it expedient to substitute my own decision. I have explained why in my view the appropriate date of claim is 1 April 1996. I accept the findings of the tribunal in relation to the claimant's own ability. These findings have been reinforced by letters of 19 October 1998 and 23 October 1998 from the community psychiatric nurse, although of course these letters were written after the tribunal hearing. In my view the claimant comes within regulation 5(a)(i) and possibly also within (ii), and it was not reasonably practicable in the circumstances of this case for her to obtain assistance from another person to make her claim. As a result the claimant could not reasonably have been expected to make the claim any earlier than she did make it. However, as I have indicated above, the maximum period by which the time for claiming benefit can be extended is three months. If the claim was made on 1 April 1996, the effect of this is that benefit cannot be backdated earlier than 1 January 1996.
7. However, for the above reasons this appeal by the claimant succeeds to the extent that I have indicated.

(Signed) H Levenson

Commissioner

(Date) 16 April 1999