UK Social Security and Child Support Commissioners' Decisions

 


[2004] UKSSCSC CIS_3230_2003 (09 January 2004)

CIS/3230/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Claimant, brought with the leave of the Chairman, against a decision of the Hull Appeal Tribunal made on 28 May 2003. For the reasons set out below I dismiss the appeal.
2. The Claimant is an elderly lady who, according to the submission of the Claimant's representative in support of the application for leave to appeal, suffers from memory impairment and confusion.
3. In January 2002 the Claimant entered residential care, initially on a temporary basis, but on a permanent basis from 3 March 2002.
4. In February 2002 the Claimant's daughter Rose was appointed as her appointee for social security purposes under reg. 33 of the Social Security (Claims and Payments) Regulations 1987.
5. On 6 March 2002 contact was made with the local social security office by or on behalf of the Claimant in order to claim income support. It is not clear from the papers before me who made this approach – it may have been someone on the staff in the care home, or it may have been Rose. A claim form was issued on that day.
6. On 2 April 2002 the completed claim form was received by the social security office. It had been completed by Rose, but the signature at the end was that of the Claimant. Further, contrary to the instructions on the form evidence of the amount of the Claimant's occupational pension was not enclosed with the form.
7. On 18 April 2002 the local office sent to Rose at her home address a form requesting verification of the amount of the pension and requesting that the form be signed by Rose herself as the Claimant's appointee.
8. On 1 May 2002 the form signed by Rose, together with the requested verification, was received by the local office.
9. According to the Secretary of State's submission to the Tribunal, on 8 May 2002 a decision was issued that, on the footing that the date of claim was 1 May 2002, there was no entitlement to income support as the Claimant's income exceeded her applicable amount.
10. The issue relating to the Claimant's applicable amount turns on whether the Claimant is entitled to have included therein a "residential allowance" under para. 2A of Schedule 2 to the Income Support (General) Regulations 1987 ("the 1987 Regulations"). There is no doubt that, from 6 March 2002, the Claimant fulfilled the conditions for such an allowance, but para. 2A(6) of Schedule 2 provides:

"An amount shall only be applicable under this paragraph where an amount was applicable to a person under this paragraph on 7 April 2002 and shall only continue to be applicable to that person after that date for so long as he continues to satisfy the conditions specified in sub-paragraph (2)."

11. By a letter dated 5 September 2002 from the Claimant's representative an appeal against the decision of 8 May 2002, or a later decision or decisions, was made on two grounds. First, that the claim should be backdated to the date when the Claimant entered residential care permanently (i.e. 6 March 2002). The advantage of such backdating would be that para. 2A(6) would then undoubtedly not prevent entitlement to a residential allowance. Secondly, that since the Claimant had been continuously in residential care since before 8 April 2002 she was (whether the claim was backdated or not) entitled to a residential allowance as part of her applicable amount.
12. The Tribunal considered that there were two separate appeals before it. First, an appeal against a decision said in the Secretary of State's submission to the Tribunal to have been made on 18 September 2002 and to the effect that "the Claimant's claim made on 18 September 2002 cannot be treated as made any earlier because it has not been shown that she could not reasonably have made the claim earlier than this date nor that any of the prescribed circumstances applied to her."
13. In its decision on that appeal the Tribunal (a) rejected a contention on behalf of the Claimant that the claim was in fact made on 6 March 2002 when a claim form was requested and (b) rejected a contention on behalf of the Claimant that the claim should be backdated to 6 March 2002.
14. In the appeal to me against that decision the Claimant relies only on point (a).
15. The second (and separate) appeal which the Tribunal considered to be before it was against a decision said to have been made on 19 June 2002 to the effect that the Claimant was entitled to income support of nil from 1 May 2002. The issue which the Tribunal considered in this appeal was whether, on the footing that the claim for income support was not made until 1 May 2002 and could not be backdated, the Claimant was entitled to a residential allowance. The Tribunal upheld the Secretary of State's decision that she was not, and the Claimant also appeals to me against that decision of the Tribunal
16. This is my decision on the appeal against the Tribunal's decision which I referred to in para. 13 above. (I will deal separately, under file no. CIS/3229/2003, with the Claimant's appeal against the decision of the Tribunal referred to in para. 15 above.) The issue in this appeal is therefore as to the date on which the claim for income support was made.
17. Reg. 6(1A)(b) of the 1987 Regulations provides that where a properly completed income support claim form is received within 1 month of the first notice of intention to make the claim the date of claim shall be the date on which that notification is deemed to be made or the first day in respect of which the claim is made if later. The contention on behalf of the Claimant is that a properly completed claim form was submitted on 2 April 2002, and that the date of claim was therefore 6 March 2002, when the claim form was requested.
18. The Tribunal accepted that the fact that the claim form submitted on 2 April 2002 had not enclosed verification of the occupational pension did not, by reason of the provision in reg. 4(1B)(d) of the 1987 Regulations, mean that the claim form was not properly completed.
19. However, the Tribunal held that the claim form submitted on 2 April 2002 was not properly completed because it was signed by the Claimant herself, whereas it should have been signed by Rose as the Claimant's appointee. It is that point which the Claimant contests in this appeal.
20. Reg. 33 of the 1987 Regulations provides as follows (so far as material):

"(1) Where –

(a) a person is, or is alleged to be, entitled to benefit, whether or not a claim for benefit has been made by him or on his behalf; and

(b) that person is unable for the time being to act; and either

(c) no receiver has been appointed by the Court of Protection with power to claim, or as the case may be, receive benefit on his behalf; or

(d) [relates to Scotland]

the Secretary of State may, upon written application made to him by a person who, if a natural person, is over the age of 18, appoint that person to exercise, on behalf of the person who is unable to act, any right to which that person may be entitled and to receive and deal on his behalf with any sums payable to him.

(2) …………………………………………………….

(3) Anything required by these regulations to be done by or to any person who is for the time being unable to act may be done by or to the receiver, tutor, curator or other guardian, if any, or by or to the person appointed under this regulation …………………………………."

21. The contentions on behalf of the Claimant in this appeal are: (a) that the Claimant had sufficient capacity to sign the claim form; (b) that the fact (if it be a fact) that Rose had been appointed as the Claimant's appointee did not prevent the Claimant signing the form if she had capacity to do so because (i) reg. 33(3) merely provides that anything required by the regulations to be done by or to the claimant "may" (not "shall") be done by or to the appointee and (ii) reg. 4(1A) requires the claim to be made in accordance with the instructions on the form, and there is nothing in the claim form to indicate that it must be signed by the appointee; and (c) that in any event Rose had not by 2 April (the date when the form was first returned) been informed that she had been appointed as appointee.
22. In my judgment the Tribunal was right to hold that, Rose having been appointed as the Claimant's appointee, the claim form could not validly be signed by the Claimant herself. In my judgment it is simply implicit in the fact that an appointment under reg. 33 can be made only when the claimant is "unable for the time being to act" that, so long as the the appointment can be relied upon at all (and - see reg. 33(3) – this is only so long as the claimant is "unable to act"), actions in respect of the social security benefits in respect of which the appointment has been made cannot be performed by the claimant him/herself but only by the appointee on his or her behalf. The fact that reg. 33(3) uses the word "may", and not "shall", does not in my judgment support the Claimant's contention. Regulation 33(3) is a more general provision which is not limited to appointees, but applies also to the "receiver, tutor, curator or other guardian" of a person who is "for the time being unable to act." The assumption behind reg. 33(3) is therefore that the claimant is unable to act, and reg. 33(3) simply permits actions to be done on behalf of such a claimant. The word "may", rather than "shall" was appropriate because reg. 33(3) is essentially an empowering provision. However, that does not in my judgment detract from the inference which in my judgment obviously arises that the appointee of a person who is "unable to act" is the only person with whom the Secretary of State can properly deal.
23. Further, although it is unnecessary, in view of what I have said in the previous paragraph, for me to decide this question, I would not be disposed to accept the submission, originally made in the submission of the Secretary of State and adopted by the representative for the Claimant, that the mental capacity necessary to make a claim was merely the ability to understand that what she was signing was a claim for social security benefit. The claim form requires a substantial amount of information, and contains a series of declarations such as that "the information I have given on this form is correct and complete." Unless a claimant has the mental capacity to determine whether the information given in the form is accurate, and to understand and appreciate the significance of the other declarations made, I would not have thought that the claimant would have capacity to claim income support. In view of the information at pages 44 to 47 it must be very doubtful whether the Claimant had capacity to sign the claim form.
24. As to the Claimant's representative's contention based on the contents of the claim form, after the space for the signature (p.6) there is the following question: "Have you signed the form for someone else?" Above that is the statement: "If you are signing the form for someone else, please read the notes in Part 10 of the information booklet that came with this form." The form therefore does not say that it can be signed by the claimant himself even if an appointee has been appointed, and there is therefore in my judgment nothing in the form, taken together with reg. 4(1A), which could be regarded as overriding the effect of reg. 33, as I have held it in para. 22 above to be. (The note in Part 10 of the information booklet referred to in fact says that the form should only be signed on behalf of someone else if the claimant is not mentally able to act on their own behalf and the signer is willing to act on their behalf in all social security matters: see para. 11 of my decision in CIS/58/2003, where the relevant note is set out. Rose had, it seems, applied in February 2002 to be the Claimant's appointee, and that application must have been made on the basis that the Claimant was unable to act. It would seem that, far from indicating that the Claimant could sign the claim form, the contents of the form, when read with the note, indicated that it should be signed on her behalf by her appointee. However, I do not rely on the part of this paragraph which I have placed in brackets, as no copy of the notes was in evidence, and neither party has commented on it).
25. Finally, as regards the contention that Rose had not been notified of her appointment as appointee by the time when the form was returned on 2 April 2002, this case appears to have been conducted before the Tribunal on behalf of the Claimant on the footing that Rose was by that date the Claimant's appointee, and the Tribunal therefore cannot have erred in law in proceeding on that basis.
26. For the above reasons, the Tribunal's decision was in my judgment not erroneous in law.

(Signed) Charles Turnbull

Commissioner

9 January 2004