UK Social Security and Child Support Commissioners' Decisions

 


[2005] UKSSCSC CIS_3416_2004 (23 February 2005)

CIS/3416/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant with the leave of the chairman from a decision of the Stockport Appeal Tribunal given on 2 July 2004 confirming the decision of the secretary of state issued on 23 March 2004 that the claimant was not entitled to a funeral payment in respect of his wife's funeral. For the reasons given below, this appeal is dismissed.
2. The facts are not in dispute. The claimant's wife died on 9 May 2003 and her funeral took place on 16 May 2003. On 27 July 2003 the claimant made a claim for a funeral payment. On 29 July 2003 the claim was disallowed because the claimant was not in receipt of a qualifying benefit. On 14 October 2003 the claimant claimed council tax benefit and asked for the claim to be backdated to 9 May 2003. On 6 January 2004 the claimant was awarded council tax benefit from 9 May 2003. On 27 January 2004 the claimant made another claim for a funeral payment.
3. There is no longer any dispute that the secretary of state was right to reject the claimant's first claim for the reason given. The essential question which arises on this appeal is whether, for the purpose of the claimant's claim for a funeral payment, the claim for council tax benefit was made on 27 January 2004 when it was submitted to the council, or on 9 May 2003 the date on which under the Council Tax Benefit (General) Regulations it is treated as having been made.
4. The problem arises under regulation 6 of the Social Security (Claims and Payments) Regulations 1987. Regulation 6(16) provides that

"(16) Where a person has claimed a relevant benefit and that claim ("the original claim") has been refused in the circumstances specified in paragraph (17), and a further claim is made in the additional circumstances specified in paragraph (18), that further claim shall be treated as made –

(a) on the date of the original claim; or

(b) on the first date in respect of which the qualifying benefit was payable,

whichever is the later."

5. One of the circumstances specified in paragraph (17) of regulation 6 is that the claimant had not been awarded a qualifying benefit. That was the case here. It is therefore necessary to consider whether the second claim was made in the additional circumstances specified in paragraph (18). That paragraph provides, so far as relevant here that

"(18) The additional circumstances referred to in paragraph (16) are that –

(a) a claim for the qualifying benefit was made not later than 10 working days after the date of the original claim and the claim for the qualifying benefit had not been decided;

(b) after the original claim had been decided the claim for the qualifying benefit had been decided in favour of the claimant…; and

(c) the further claim was made within three months of the date on which the claim for the qualifying benefit was decided."

6. It is common ground that circumstances (b) and (c) apply here. However, a claim for council tax benefit was submitted only in October 2003, over two months after the date of the original claim. Normally, that would be the date on which the claim is made, but the claimant contends that under regulation 62(16) of the Council Tax Benefit (General) Regulations 1987 the claim is treated as made on 9 May 2003, and it is therefore to be treated as made on that date for the purposes of paragraph (18)(a) of regulation 6 of the Claims and Payments Regulations.
7. Regulation 62 of the Council Tax Benefit (General) Regulations provides for the time and manner in which claims are to be made. Regulation 62(5) provides that subject to paragraph (12) and Regulation 62A the date on which a claim is made shall be, depending on the circumstances there set out, the date on which the claim is received at the appropriate office. Various offices are specified for different claims.
8. Regulation 62(16) provides that

"Where the claimant makes a claim in respect of a past period (a "claim for backdating") and, from a day in that period up to the date of the claim for backdating, he had continuous good cause for his failure to make a claim, his claim in respect of that period shall be treated as made on –

(a) the first day from which he had continuous good cause; or

(b) the day 52 weeks before the date of the claim for backdating,

whichever fell later."

9. The claimant contends that in awarding him council tax benefit backdated to 9 May 2003, the council has implicitly accepted that he had continuous good cause from 9 May 2003 for failing to make a claim and that his claim for council tax benefit should therefore be treated as made on 9 May 2003. He further contends that for the purposes of regulation 6(18)(a) of the Claims and Payments Regulations his claim for the qualifying benefit was made on the date on which it was treated by regulation 62(16) of the Council Tax Benefits (General) Regulations as having been made.
10. I accept that the date on which a claim for a qualifying benefit was made must be determined by reference to the regulations which specify when that claim was made, in this case regulation 62 of the Council Tax Benefits (General) Regulations. However, regulation 62(5) provides that subject to paragraph (12) of that regulation and to regulation 62A the claim is made is the date when it is received at the relevant office. That provision is not made subject also to regulation 62(16). Further, regulation 62(16) itself provides for backdating at most to "the day 52 weeks before the date of the claim for backdating", which is defined as the making of a claim in respect of a past period. These provisions indicate to me that regulation 62 draws a distinction between the actual date of a claim and the date on which it is treated as being made. It does not stop being actually made on a particular date because "in respect of an earlier period" it is treated as being made earlier.
11. It would also seem to follow from paragraph (16) of regulation 62 that the claim is divided in two. That part of the claim in respect of the earlier period is treated, once continuous good cause is accepted, as made on the earlier date while the rest of the claim is made on the date it is received in the appropriate office and is not backdated.
12. Regulation 7(1) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 provides, as amended, that a funeral payment shall be made only where the claimant or his partner in respect of the date of a claim for a funeral payment, has an award of a relevant benefit. Regulation 6(18) of the Claims and Payments Regulations contemplates a claim for the relevant benefit being made not later than 10 working days after the date of the original claim. In respect of council tax benefit, as the claimant's representative has pointed out, the normal rule under regulation 56 of the Council Tax Benefit (General) Regulations 1992 is that benefit is only payable from either the following benefit week or in certain circumstances from the benefit week in which the claim was made. It follows that, in general, claims made for housing benefit within the 10 working days allowed by regulation 7(1) after the date of the claim for a funeral payment will not result in an award of council tax benefit in respect of the date of the claim unless there is backdating under regulation 62(16) of the Council Tax Benefits (General) Regulations. But if there is backdating and the claimant's contentions are correct, then the claim will have been treated as made by the date of the claim for the funeral payment. The extra 10 days allowed by regulation 7(1) of the Social Fund Maternity and Funeral Expenses (General) Regulations will, in the case of council tax benefit, be irrelevant.
13. Further, backdating in respect of other qualifying benefits does not involve treating the claim as being made earlier but involves permitting an award to be backdated to a date before the claim was made. It would be very strange if claims in respect of those benefits had to be made within the 10 working days provided, while claims for council tax benefit could be made at any time within a year provided that the claim could be treated as being made by the date of the claim for the funeral payment. That does not appear to me to have been the intention of the regulations.
14. I am therefore driven to the conclusion that regulation 6(18)(a) of the Claims and Payments Regulations is referring to the actual date when the claim is in fact made and not to a notional date under regulation 62(16) of the Council Tax Benefit (General) Regulations when it is treated as having been made.
15. It follows that, while I have sympathy for the claimant, who was found to have had good cause for not making the claim for council tax benefit until October 2003, I have come to the clear conclusion that the tribunal was correct and that this appeal must be dismissed.

(signed on the original) Michael Mark

Deputy Commissioner

23 February 2005