UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CI_2000_2004 (16 September 2005)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The Secretary of State's appeal to the Commissioner is allowed. The decision of the Manchester appeal tribunal dated 28 January 2004 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to give the decision that the appeal tribunal should have given on the claimant's appeal against the decision dated 19 June 2003 on its findings of fact (Social Security Act 1998, section 14(8)(a)(i)). My decision is to disallow that appeal and to confirm the decision of the Secretary of State to the effect that, on the claim made on 30 October 2001, the claimant is not entitled to disablement benefit for the period from 22 August 1995 to 30 July 2001, but is entitled from and including 31 July 2001.
2. An oral hearing of the Secretary of State's appeal to the Commissioner was held on 9 June 2005 at Bury County Court. Mr Commissioner Henty had previously set aside his decision given without a hearing, as the claimant's request for an oral hearing had been overlooked. I have not seen Mr Commissioner Henty's decision. The claimant attended the hearing. The Secretary of State for Work and Pensions was represented by Mr Huw James, solicitor, instructed by the Office of the Solicitor to the Department for Work and Pensions.
3. On 20 June 2005 I gave a direction requiring the Secretary of State to make a written submission on the question whether there was a valid appeal before the Commissioner. That submission, with supporting documents, was dated 6 July 2005. The submission, while acknowledging faults in what had been done by the Secretary of State's staff, was that there was a valid appeal and that I should waive the irregularities in what had happened (Social Security Commissioners (Procedure) Regulations 1999, regulation 27). In her reply dated 10 August 2005, the claimant vigorously disputed the Secretary of State's submission. I must look at this question carefully as a preliminary issue, as it goes to whether or not I have any jurisdiction to interfere with the decision in the claimant's favour by the appeal tribunal of 28 January 2004 and is therefore particularly important for the claimant.

Is there a valid appeal to the Commissioner?

4. The story for this purpose starts with the grant by the chairman of the appeal tribunal to the Secretary of State of leave to appeal against the decision of 28 January 2004. The chairman signed his grant of leave on 26 April 2004. Information obtained from the Appeals Service is that the letter giving notice of that determination was sent out to both parties on 28 April 2004.
5. It is worth setting out now the parts of the Commissioners Procedure Regulations relevant to what the Secretary of State then needed to do to make an appeal to the Commissioner. Regulations 12 and 13 provide:

"12.-(1) Subject to regulation 11(2) [which only covers cases where leave is granted by a Commissioner], an appeal shall be made by notice in writing and shall contain--

(a) the name and address of the appellant;

(b) the date on which the appellant was notified that leave to appeal had been granted;

(c) the grounds on which the appellant intends to rely;

(d) if the appeal is made late, the grounds for seeking late acceptance; and

(e) an address for sending notices and other documents to the appellant.

(2) The notice in paragraph (1) shall have with it copies of--

(a) the notice informing the appellant that leave to appeal has been granted;

(b) the decision against which leave to appeal has been granted; and

(c) if separate, the written statement of the appeal tribunal's reasons for it.

13.-(1) Subject to paragraph (2), a notice of appeal shall not be valid unless it is sent to a Commissioner within one month of the date on which the appellant was sent written notice that leave to appeal had been granted.

(2) A Commissioner may for special reasons accept a late notice of appeal."

Regulation 8(2) and (3) provides:

"(2) A notice to or other document for a Commissioner shall be delivered or sent to the office [defined in regulation 4 as `an Office of the Social Security Commissioners'].

(3) For the purposes of any time limit, a properly addressed notice or other document sent by prepaid post, fax or email is effective from the date it is sent."

6. I observe at this point that there is no requirement that a notice of appeal should be in any particular form. There is no requirement that a form OSSC1 or OSSC2 be used, although that is a convenient way of providing the necessary information. Nor is there any express requirement that the notice be signed by the appellant. All that is specified in regulation 12(1) is that the notice be in writing and contain the information listed. On general legal principle, the appellant must have done whatever is sufficient to show that he or she adopts the notice as his or her own. That could, for instance, be by a personal signature or by a signature of an authorised representative or by some other means.
7. The only part of the Commissioners Procedure Regulations that mentions email is regulation 8(3), which I think assumes that an email can constitute writing. That seems to me to be a correct assumption. Some research has turned up section 16(2) of the Vehicles (Crime) Act 2001, which provides that a representation is made in writing for the purposes of that Act if it is transmitted by means of an electronic communications system or by other means while in electronic form, is received in a legible form and is capable of being used for subsequent reference. Although that provision only operates specifically for the purposes of that Act, it seems to me to set out what can be regarded as part of the everyday meaning of writing in the electronic age and that it all its conditions are met by an email that is successfully delivered. I also note that in the recent case of Tyne & Wear Autistic Society v Smith [2005] IRLR 336, the Employment Appeal Tribunal (EAT) accepted without question that an application submitted to a tribunal's website was an application in writing, as the only discussion was as to when the application was received. In Initial Electronic Security Systems Ltd v Avdic [2005] IRLR 671, the EAT applied the principles stated there to an email that had disappeared into the ether. I do not, for the reasons given by Mr Commissioner Bano in decision CIB/3743/2004, need to delve into the complexities of section 7 of the Electronic Communications Act 2000 and electronic signatures. That is because the strict rules of evidence do not apply to appeal tribunals or to the Commissioners.
8. I am not sure that I have worked out quite what happened in relation to the Secretary of State's notice of appeal, especially what happened in the Commissioners' office. I have not made enquiries to the staff of the office, as giving the claimant and the Secretary of State the opportunity to comment on what came to light would cause further delay and the important points are clear enough.
9. I am satisfied from the documents attached to Mr Spencer's submission of 6 July 2005 on behalf of the Secretary of State that he sent the email, with a Word attachment, shown in his sent items folder (page 120 of the Commissioner's papers) to the Commissioners' office on 27 May 2004. The email plainly related to the claimant's case as her name, although with her first name misspelt, was in the subject line. The document on page 121 shows its receipt in the Commissioners' office on 27 May 2004. That document has a Department for Constitutional Affairs (DCA, parent department of the Commissioners' office) date-stamp of 27 May 2010 and an ACI Division (Adjudication and Constitutional Issues Division, Mr Spencer's branch) date-stamp of 1 June 2004. I do not know the practice usually followed in the Commissioners' office on receipt of such emails from ACID, but what in my view must have happened is that the officer concerned (Joe Richards) printed out a copy or copies of Mr Spencer's email and sent a copy with the DCA date-stamp to ACID by post or courier as an acknowledgement of receipt. Plainly the year 2010 on the stamp was a mistake for 2004. What pages 120 and 121 do not show is the contents of the attachment. Mr Spencer says that the attachment contained the submission dated 27 May 2004 that is now at pages 122 to 124. I think that that must be the case. That is consistent with the document not having been signed manually by Mr Spencer. It is also consistent with the DCA date-stamp on it of 27 May 2010. Although someone has altered the year in pen to 2005, I am sure that it was received on 27 May 2004. Mr Richards must have printed it out when printing out the email to which it was attached, date-stamped it and sent a copy back to ACID (otherwise Mr Spencer would not have been able to produce the copy with the date-stamp). It looks very much from the subsequent history that either Mr Richards did not retain a paper copy of the submission and sent the only paper copy back to ACID or the paper copy was lost somewhere in the Commissioners' office.
10. What leads me to that conclusion is first that the submission of 27 May 2004 now at pages 122 to 124 had not previously been part of the bundle of documents prepared by the Commissioners' office for the Commissioner and sent to the claimant and the Secretary of State. I shall come back below to the fact that the claimant would not have seen that submission before it was sent to her on 14 July 2005. The second factor is that on some date before 12 August 2004 an officer in the Commissioners' office telephoned Mr Spencer to say that the Commissioners' file did not contain a copy of the submission of 27 May 2004 and that Mr Spencer then wrote the letter dated 12 August 2004 to the Commissioners' office (page 125). I have no reason to doubt that he did enclose a copy of the submission with that letter. There is no trace of that correspondence in the Commissioners' file and what happened to that further copy of the submission is a mystery.
11. In the meantime, it appears that on 28 May 2004 something was sent from ACID to the Commissioners' office by inter-departmental courier with a covering letter referring to an appeal submission (page 113). The something should have included a paper copy of the submission of 27 May 2004, a copy of the form OSSC2 on which the chairman had granted leave to appeal with the section for making an appeal filled in and copies of the appeal tribunal's decision and statement of reasons. All that I can be certain was sent with the letter is a copy of the OSSC2 form that had been submitted to the appeal tribunal chairman, before he made any ruling (pages 75 to 80). After that was received, apparently on 3 June 2004, the Commissioners' office wrote to the Appeals Service for a copy of their file. That file, containing the chairman's grant of leave to appeal on the form OSSC2 appears to have been received on 29 June 2004 and on 2 July 2004 the Commissioners' office wrote to the Secretary of State acknowledging an appeal and to the claimant informing her of the appeal. It looks as though a copy of the papers in the Commissioner's file was not sent to her at that point, being sent subsequently on 27 July 2004. The case was treated by the Commissioners' office as an appeal made within time. Mr Commissioner Henty gave routine directions for submissions on 19 July 2004.
12. The claimant had written to her MP, Mr Graham Brady, on 11 June 2004, recounting the chairman's grant of leave and two telephone conversations with Mr Spencer. In the first conversation, Mr Spencer had told her that the Secretary of State had until 27 May 2004 to lodge an appeal and in the second (on 11 June 2004) that he had emailed the Commissioners' office with the appeal on 27 May 2004. The letter continued:

"but that means was not acceptable. The appeal was then sent by post as it should have been originally. I am sure that they are fully aware of their own rules but if not they should have been.

The appeal was not actually received until 9th June 2004 therefore it is out of date and should not be accepted and if the means of e-mail (therefore any means) is accepted surely it should follow that the means of a telephone request for a claim form, should also be accepted and my full backdated payment be paid to me immediately as awarded by the Appeal Tribunal.

It seems to me to be contradictory and duplicitous to fight what they term a `late claim appeal' (which in fact it wasn't) with a late appeal from themselves ..."

The claimant asked Mr Brady to put those arguments to the Commissioners' office, which he did by enclosing a copy of her letter with his letter dated 22 June 2004, addressed to the Commissioner. The reply to that letter from the Commissioners' office merely unhelpfully said that the contents had been noted, but the two letters were added to the documents before the Commissioner.

13. Thus the claimant had plainly raised the issue of the lateness of the Secretary of State's appeal and its validity at the earliest opportunity. But how does the sorry history set out above (which by no means exhausts the things that have gone wrong in the Commissioners' office in this case) leave the validity of the Secretary of State's appeal?
14. First, the last day for giving notice of appeal, as notice of the chairman's ruling was given on 28 April 2004, was 28 May 2004 (Commissioner's decision CIS/550/1993).
15. Second, it follows from what I have concluded in paragraphs 6 and 7 above that a notice of appeal given by email is a notice in writing within regulation 12(1) of the Commissioners Procedure Regulations. I am not sure whether in her letter of 11 June 2004 the claimant was saying that Mr Spencer had told her that email was not an acceptable means for lodging an appeal to the Commissioner, but whether he did or not, I reject the claimant's argument that a notice given by email was not acceptable.
16. Third, the submission dated 27 May 2004 attached to Mr Spencer's email of the same date was a notice of appeal within regulation 12(1). It stated in paragraph 1 that the Secretary of State was appealing to the Commissioner after leave had been granted by the chairman of the appeal tribunal on 26 April 2004 and it gave the grounds on which the Secretary of State relied. It does not matter that there was not a heading of `notice of appeal' or that the relevant section of form OSSC2 was not used. Sub-paragraph (c) of regulation 12(1) was thus satisfied and sub-paragraph (d), on the basis that the notice was given on 27 May 2004, did not apply. It is true that, in relation to sub-paragraph (b), the submission did not give the date of notification of the chairman's ruling, but that date was later ascertained by the Commissioners' office in a way that enabled the time limit to be defined. Mr Spencer has said that sub-paragraphs (a) and (e), on the giving of an address for the appellant, were satisfied by the paper copy of the form OSSC2 sent on 28 May 2004. I would certainly say that in the case of an appeal by the Secretary of State, whose address for the receipt of documents is already well-known to the Commissioners' office, a failure to meet the conditions in sub-paragraphs (a) and (e) does not invalidate a notice. Similarly, I would not say that stating only the date on which the chairman granted leave, and not the date of notification, invalidates the notice. Only failures of some substance, which prejudice the interests of other parties in some way, should have that effect. For the same reason, if copies of some or all of the documents mentioned in regulation 12(2) were not attached, the notice was not invalidated, as those documents are routinely obtained from the Appeals Service before the case is considered by a Commissioner and the respondent is asked to comment.
17. Accordingly, I am satisfied that a valid notice of appeal was given by the Secretary of State on 27 May 2004 by means of Mr Spencer's email and attachment. I do not need to consider whether any of the additional documents sent on 28 May 2004 need to be taken into account to make the notice valid, but I consider that I would have been able to do that. The test in regulation 13 of the Commissioners Procedure Regulations is in terms of when the notice is sent, not when it is received or served (the test at the time of Commissioner's decision CIS/550/1993). I would say, but do not need to decide, that a notice sent by inter-departmental courier (if properly addressed) is sent on the date that it is put into the service, just as a notice sent by the Royal Mail is sent when it is put into the post properly addressed and prepaid. It does not matter whether or not a courier service falls within "prepaid post" in regulation 8(3).

Natural justice and the Secretary of State's submission of 27 May 2004

18. It is of course regrettable, to say the least, that the Secretary of State's submission of 27 May 2004 was not put into the Commissioner's file when it was received and that a copy was not sent to the claimant before 14 July 2005. On the face of it, a question of a breach of the principles of natural justice arises. But Mr Commissioner Henty never saw that submission and the first I saw of it was when it was attached to Mr Spencer's submission of 6 July 2005 on behalf of the Secretary of State. It is not a case of potentially relevant evidence not having been put before a decision-maker. And it is not as though the claimant has been deprived of an opportunity of responding to the arguments made in the submission of 27 May 2004, since that document has not in fact been before the Commissioner until the file reached me at the end of July 2005. The claimant has now seen the submission and has had an opportunity to respond. And in any case the substance of the arguments was put forward on behalf of the Secretary of State at the oral hearing on 9 June 2005 at which the claimant was present. I am satisfied that at the present point both parties have had a fair opportunity to put forward their cases and to counter the case put forward by the other.

The Secretary of State's appeal to the Commissioner

19. The appeal tribunal of 28 January 2004 was concerned with the claim for disablement benefit received on 30 October 2001. That claim was in respect of an industrial accident said to have occurred on 9 May 1995. The problem that the claimant had was repetitive strain injury, and she was claiming for an overload on her hands and arms caused by increased work load with limited breaks on that day. The claim was initially disallowed on the ground that the claimant had not suffered an industrial accident, but that decision was overturned by an appeal tribunal on 7 June 2002, which was satisfied that she suffered a strain injury on a particular day that was probably 9 May 1995. The case was then referred to a medical adviser, whose opinion was that there was no loss of faculty resulting from the accident. A decision maker then continued the disallowance. On 12 June 2003, an appeal tribunal allowed the claimant's appeal, deciding that from 9 May 1995 there was a loss of faculty (pain and restricted movements of upper limbs) resulting from the accident and that the extent of the disablement resulting from the loss of faculty was to be assessed provisionally at 15% for the period from the 91st day after the date of the accident to 12 June 2005.
20. The decision was then made on 19 June 2003 revising the previous disallowance and awarding the claimant disablement benefit at specified rates from 31 July 2001, but deciding that she was not entitled for the period from 22 August 1995 to 30 July 2001 because the claim made on 30 October 2001 was outside the three-month time limit for claiming for any day in that period. It was the claimant's appeal against that decision that was before the appeal tribunal of 28 January 2004.
21. Her letter of appeal received on 11 July 2003 contained the following, after noting the decision of the appeal tribunal of 12 June 2003, which she interpreted as having awarded her disablement benefit from 22 August 1995:

"I have been informed ... that the benefit can only be paid from 1 August 2001 because she claims that I only applied for Industrial Injuries Benefit in October 2001. This is incorrect.

Following my accident on 9th May 1995 I informed my Union the T & G who sent me an accident claim form and a leaflet advising me to claim Industrial Injuries Benefit which I did (copy leaflet enclosed - please note it lists the benefit rates for 1995).

I telephoned the Industrial Injuries Benefit Office which I believe was in Stockport at that time. I was `assessed' over the telephone. I was informed that I was not entitled to the aforementioned benefit as RSI (which was the only diagnosis I had at the time from my GP) was not on the list of prescribed diseases and therefore they would not be sending me a claim form. I was not informed that there was provision under the accident regulations to make a claim therefore I would like to appeal under the `Special Reasons' ruling of:

`You were given information by an official of the DSS or Employment Service which led you to believe that your claim would not succeed.'

To substantiate my argument that I had previously applied for Industrial Injuries Benefit I enclose a copy of a letter from my MP dated 24th June 2003 and a copy of the original reply dated 11th June 1998 which are self-explanatory.

I visited my MP on 11th June 1998 as by that time I was a member of an RSI Support Group and we were informed that the Government were revising the list of prescribed diseases and we were fighting to have RSI accepted onto the list. My argument is simple; why would I visit my MP to complain that I had been refused the benefit in the past if I had never applied for it?"

22. In a later letter dated 30 July 2003, the claimant pointed out that she had signed an incapacity benefit claim form on 27 November 2003, on which she had ticked yes to the question "Do you think you are sick because of an industrial disease caused by conditions at work while working for an employer?" A copy of that form is now at pages 1 to 5 of the papers. The instruction against that question was to tick yes if not sure whether the disease was an industrial disease. There was also this printed note against the yes box:

"You may be able to get Industrial Injuries Disablement Benefit. We will send you leaflet N6 Industrial Injuries Disablement Benefit. This will tell you about the benefit and how to claim it.

We will also send you leaflet N2 If you have an industrial disease which will tell you about prescribed diseases."

The claimant had ticked no to the question whether she thought she was sick because of an accident at work.

23. The Secretary of State's written submission to the appeal tribunal was, in brief, that the only written claim made was that received on 30 October 2001, on which benefit could not be awarded for any period prior to 31 July 2001. Under regulations 4(1) and 6(1) of the Social Security (Claims and Payments) Regulations 1987 a claim has to be in writing and the date of claim is the date on which it is received in an appropriate office. The "special reasons" rules under regulation 19(4) and (5) did not apply to disablement benefit. The telephone call to Stockport in 1995 was not a claim, as it was not in writing. The completion of the incapacity benefit form was not a claim for disablement benefit as it was clearly stated that other forms would be issued on which to make such a claim.
24. In a reply dated 1 November 2003, the claimant pointed out that the Secretary of State's submission had not addressed the fact that in the telephone call in 1995 she was not informed that there was provision for making a claim for an accident in her circumstances. She accepted that there was no written claim at that time, but submitted that the refusal to send her a claim form was an official error within the meaning of regulation 1 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, as was the failure to give her full information. The claimant also relied on regulation 4(5) of the Claims and Payments Regulations, which as the regulations stood by 2003 provides:

"(5) Where a person who wishes to make a claim for benefit and who has not been supplied with an approved form of claim notifies an appropriate office (by whatever means) of his intention to make a claim, he, or if he is a member of a joint-claim couple, either member of that couple shall be supplied, without charge, with such form of claim by such person as the Secretary of State or the Board may appoint or authorise for that purpose."

She submitted that the refusal to send her a claim form in 1995 was a breach of that provision. The Secretary of State made a supplementary written submission in reply.

25. The appeal tribunal of 28 January 2004 allowed the claimant's appeal and decided that she was entitled to disablement benefit from 22 August 1995 to 30 July 2001. In the statement of reasons it accepted the claimant as an entirely truthful witness, including an acceptance that she did request a claim form for disablement benefit in 1995 (the Secretary of State had suggested that any request was abandoned after discussion). The statement continued:

"The rationale for the provision in Regulation 4(5) no doubt stems from the requirement in Regulation 4(1) to the effect that every claim should be made in writing on a form approved by the Secretary of State or in such other manner, being in writing, that the Secretary of State may accept as sufficient in the circumstances of any particular case. If there were no duty on the Secretary of State such as is required by Regulation 4(5), then a claimant would find it impossible to satisfy the requirements of Regulation 4(1) since the claimant would be unable to discover what form had been approved by the Secretary of State or what other writing would be acceptable to the Secretary of State.

If the Secretary of State fails in the duty imposed by Regulation 4(5), the question arises as to the consequences of such failure. The Secretary of State was not represented at the hearing before us and we did not hear argument on this point. No doubt, the Secretary of State would argue that there are no consequences for a failure of the duty imposed by Regulation 4(5) on him. In our view, however, that would mean that a claimant would be placed in the invidious position of being unable to satisfy Regulation 4(1). We decided, therefore, that the consequence of the failure by the Secretary of State in this case to comply with Regulation 4(5) was that the time limits for claiming were suspended until the Secretary of State issued a claim form in accordance with that Regulation, which did not occur in this case until October 2001. For these reasons, we concluded that the appellant is entitled to payment of Disablement Benefit from 22 August 1995 to 30 July 2001."

26. The Secretary of State now appeals with the leave of the chairman of the appeal tribunal. The grounds put forward at that stage were essentially that, if the consequences of a breach of regulation 4(5) were as accepted by the appeal tribunal, they would have needed to be spelled out expressly in the regulations, as they were inconsistent with the overall statutory framework and that the question of whether the duty under regulation 4(5) was engaged was outside the appeal tribunal's jurisdiction.
27. I look first at whether the appeal tribunal's reasoning was wrong in law (under the heading "regulation 4(5)") and then at the other grounds which the claimant submitted could support the appeal tribunal's decision even if its own reasoning was faulty (under the heading "alternative grounds").

Regulation 4(5)

28. The first point to be made, as I drew to the attention of the claimant and Mr James at the oral hearing, is that when the claimant had her telephone conversation with the Department in 1995 and indeed down to 6 April 1997, regulation 4(5) was not in the form set out in paragraph 24 above and relied on by the claimant and by the appeal tribunal. From the introduction of the Claims and Payments Regulations in 1987 and until the new form was introduced, it provided:

"(5) Forms of claim shall be supplied without charge by such persons as the Secretary of State may appoint or authorise for that purpose."

I have not traced the history right back to 1948, but I note that exactly the same provision existed as a separate regulation in the 1979 Claims and Payments Regulations.

29. Mr James did not wish to take any point about the difference in the form of regulation 4(5). He submitted that, although the wording from 7 April 1997 onwards was more elaborate, the essence of the Secretary of State's duty was the same under both forms. I am not at all sure that that is right. It seems to me that the emphasis of the 1987 form was quite different, on the availability of claim forms free of charge and on who was to supply them. There was nothing at all like the specific identification of a class of persons (those who notify an appropriate office by any means of an intention to claim but do not already have a claim form) to whom a duty was owed. In my view, the duty imposed on the Secretary of State by the 1987 form of regulation 4(5) was a completely general one, not designed to benefit any particular class of persons. I do not think that it could be relied on by individuals or could form any sort of basis for an argument for implying a rule that time limits were suspended if a claim form was not supplied after a request. If that is right, it supplies a short and complete answer to the appeal tribunal's reasoning. That reasoning could only work if the basis for a suspension of time limits was present throughout the period from the claimant's telephone conversation in 1995 until a claim form was actually supplied to her. That would not have been the case from the date of the conversation to 6 April 1997, or even for the later part of the period if the 1997 form of regulation 4(5) only applies to notifications of intention to claim made on or after 7 April 1997.
30. However, I do not come to a final conclusion on this point and do not rest my decision on it. It is unnecessary for me to do so, as I accept that Mr James is right that the appeal tribunal's reasoning was legally flawed even on the assumption that the 1997 form of regulation 4(5) was in existence for the whole of the relevant period.
31. The strongest point in the claimant's argument in favour of the appeal tribunal's reasoning seems to me to be the very specific identification of the class to whom the duty is owed, as noted in paragraph 29 above. It could be argued that, when the duty is imposed in such specific circumstances, once would at the least expect the legislation to say what was to happen if the duty was not carried out. She submitted, mentioning something apparently said by Mr Commissioner Henty in his set-aside decision about implying words into legislation, that that can be done in exceptional cases and hers is an exceptional case. If it was necessary to imply a completely unstated rule about the suspension of time limits, that could be done. Mr James had relied on a passage from Craies on Statute Law (8th edition) under the heading "casus omissus" that had evidently also formed part of the Mr Commissioner Henty's decision and on the proposition there that the desirability of supporting the legislative purpose does not permit the courts to supply actual deficiencies and remedy actual errors, so that a statute (or statutory regulations) may not be extended to meet a case for which provision has clearly and undoubtedly not been made. He also submitted that the rule implied by the appeal tribunal here was inconsistent with the rest of the Claims and Payments Regulations.
32. As with so many principles of statutory interpretation, it is hard to find a general rule that explains all the varying solutions that courts have found in the particular circumstances of cases before them. But I think that the essence is stated in Bennion, Statutory Interpretation (4th edition, 2002), where at page 750 this proposition is set out:

"It is presumed that the legislator intends the court to apply a construction which rectifies any error in the drafting of the enactment, where it is required in order to give effect to the legislator's intention. This may be referred to as a rectifying construction."

I will not go through any of the many cases quoted in the following pages of the book, especially as neither party has had the opportunity to comment on them. There are plainly some circumstances in which, if a piece of legislation leaves out a particular set of circumstances or class of persons from its scope, it may be possible to say that failed to fulfil the plain legislative intention and implying words can be regarded as a rectification. Sometimes what would need to be implied is simply too much for the operation to be permissible as a rectification. But in order for a rectifying construction to be applied it must be sufficiently plain what the legislative intention was.

33. That is where the appeal tribunal's reasoning fell down. In my view it is far from plain that the intention of the Secretary of State in making the amending 1997 regulations was that the sanction for a breach of the duty in regulation 4(5) should be a suspension of the time limits for making a properly completed claim. There could have been a number of different sanctions or indeed no sanction at all and in my judgment it is not open to an appeal tribunal or a Commissioner to choose one of the many alternatives by what is said to be a process of interpretation.
34. Further, the appeal tribunal was wrong to say that, if the Secretary of State failed to carry out the duty in regulation 4(5), a claimant would be unable to satisfy regulation 4(1). Regulation 4(1) requires a claim to be made (a) in writing on a form approved by the Secretary of State for the benefit in question or (b) in writing in such other manner as the Secretary of State may accept as sufficient in the circumstances of any particular case. If the Secretary of State fails to provide a claim form under regulation 4(5), a claimant will be unable to use route (a). But the claimant would still be able to use route (b), by making a claim in writing without using the specifically approved form. The Secretary of State exercises a judgment about whether such a claim has been in made in sufficient manner after the claim has been made. And even if the Secretary of State's judgment is negative, there is a power under regulation 4(7) for the Secretary of State then to supply an approved claim form. If the claimant returns it properly completed within a time-limit (that does not start to run until the form is actually supplied), the claim is treated as if it had been made when the initial claim in writing was received. Thus a claimant cannot know in advance, as she can with the use of the specifically approved form, that the manner of claiming will be accepted, but the consequences of a breach of the duty in regulation 4(5) are not nearly as severe as stated by the appeal tribunal. That emphasises the absence of any plain legislative intention that any particular sanction should follow from a breach.
35. I also agree with the submissions for the Secretary of State that the provisions made elsewhere in the Claims and Payments Regulations for other circumstances make it very difficult to say that there was a plain legislative intention, by mistake not carried out in the 1997 amendments, to have the rule implied by the appeal tribunal. Thus, in regulation 6(8) on claims for disability living allowance or attendance allowance, it is provided that, if a request is made to an appropriate office for a claim form and the form is returned properly completed within the time specified from the actual issuing of the claim form, the claim is treated as made on the date of the request. A similar rule could have been made for regulation 4(5), but was not. There was also a highly detailed scheme introduced into regulation 19 in 1997 allowing up to three months' backdating of some benefits to which regulation 4(5) would apply (but not disablement benefit) only where specified circumstances had prevented the making of the claim earlier. I agree that it would be at the least strange for that highly detailed and restrictive scheme to operate at the same time as a rule for the open-ended suspension of time-limits when the Secretary of State breached regulation 4(5).
36. For all those reasons, I conclude that the appeal tribunal's reasoning was flawed in law and that the rule it applied cannot be implied into the Claims and Payments Regulations.

Alternative grounds

37. The claimant submitted that she did not need to have any time limits waived or suspended because she had made a claim in her telephone conversation with the Department in 1995. She had not merely been enquiring about claiming, but had positively said that she wished to claim and wanted a form for that purpose. She was then effectively assessed over the telephone and told that as repetitive strain injury was not on the list of prescribed diseases she would not be entitled to industrial injuries benefit and would not be sent a form. She was not told of the possibility of claiming on the basis that the condition had been caused by an accident at work or a series of specific accidents, rather than by process. I proceed on the assumption that that is what happened, especially as the claimant's evidence was entirely accepted by the appeal tribunal. Whatever criticisms could be made of the conduct the official involved, on that assumption the claimant did not make a claim within the Claims and Payments Regulations in the telephone conversation. As noted above, regulation 4(1) requires a claim to be made in writing. There was no written claim at that time or until October 2001.
38. I am also satisfied that the incapacity benefit claim form signed on 22 November 1996 cannot be interpreted as a claim in writing for disablement benefit. Although the claimant did tick the yes box to say that she thought that she was sick because of an industrial disease, the notes on the form made it clear that what should follow would be the sending of leaflets including information about how to claim disablement benefit. Thus, it is clear that ticking the box was not itself a claim and the questions on the incapacity benefit form did not ask whether the person wanted to claim disablement benefit. The claimant told me that she did not get any disablement leaflets after filling in that form and that the incapacity benefit office could not tell her from their records whether any were sent out or not. However, even if the incapacity benefit form could have been interpreted as notification under regulation 4(5) of the Claims and Payments Regulations of an intention to make a claim for disablement benefit (which it cannot), that would not help the claimant for the reasons given in paragraphs 28 to 36 above.
39. Nor can the letter written in 1998 by the claimant's MP, Mr Brady, to Baroness Hollis of Heigham, then a Minister within the Department of Social Security, be accepted as constituting a claim for disablement benefit. She had been to see Mr Brady on 16 May 1998 to complain about having been refused disablement benefit and as part of a campaign to have repetitive strain injury added to the list of prescribed industrial diseases. The claimant has not been able to produce a copy of the letter that Mr Brady wrote to the Minister, but there is a copy of his letter to the claimant dated 11 June 1998 enclosing the Minister's response (page 30). The letter of 11 June 1998 described the response as being to "the representations I made on your behalf about the recognition of repetitive strain injury as an industrial disease for the purposes of Industrial Injuries Disablement Benefit". Thus, although Mr Brady confirmed in his letter of 24 June 2003 (page 31) that the appointment on 16 May 1998 was to complain that the claimant had been refused disablement benefit, it appears by far the most likely that his letter to the Minister was to raise the general issue of policy about whether or not repetitive strain injury should be added to the list of prescribed diseases. Without a copy of the letter itself, the evidence falls a very long way short indeed of showing that the letter indicated a specific claim for disablement benefit in the then state of the law. And even if it did, there is very considerable doubt whether Mr Brady was authorised to act on the claimant's behalf in such a claim (rather than merely to pass on a policy concern raised by a constituent as MPs often do).
40. The claimant also relied on the definition of "official error" in regulation 1 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. She said that what the officer she spoke to on the telephone did was an official error. I do not need to say whether the circumstances fall within that definition or not. It does not help the claimant. Regulation 1 only deals with definitions, ie it tells us what particular words or phrases mean in other parts of those Regulations. And the phrase "official error" is only used in the regulations about when a decision of (or on behalf of) the Secretary of State under section 8 or 10 of the Social Security Act 1998 (or decisions of adjudication officers under earlier legislation) can be revised. Revision going right back to the date of the decision is allowed when the decision arose from official error. I appreciate that in what the claimant says is a very real practical sense the officer to whom she spoke on the telephone made a decision on her case. But under the current legislation it would not have been a decision under section 8 of the 1998 Act (section 10 is not relevant). Section 8(1)(a) only empowers the Secretary of State to make decisions on claims for benefit. For the reasons explained in the previous paragraph, the claimant had not made a claim within the terms of the social security legislation that required a decision on entitlement to be made. Section 8(1)(c) empowers the Secretary of State to make any decision that falls to be made under the social security legislation. The claimant might say that the officer to whom she spoke made a decision (a wrong decision she says) under regulation 4(5) of the Claims and Payments Regulations not to supply her with a claim form. But it would not help her to get that decision revised now. "Official error" could only help her if it enabled her to get a decision on a claim, ie to award or not to award benefit, revised. It cannot do that. And in fact under the legislation in force in 1995 there was a division in decision making between the Secretary of State and adjudication officers. The operation of regulation 4(5) was a matter for the Secretary of State and not for an adjudication officer. Thus the official to whom the claimant spoke in 1995 may not have been acting as an adjudication officer at all.
41. The claimant mentioned section 1(2) of the Social Security Administration Act 1992, which sets out a general rule that, where a person is required to make a claim to be entitled to a benefit under section 1(1), there can be no entitlement for any period more than 12 months before the date of the claim, but exempts disablement benefit from that rule. However, that rule and the exemption for disablement benefit have become redundant after the April 1997 amendments to the Claims and Payments Regulations. Section 5(1)(a) of the Social Security Administration Act 1992 permits the making of regulations prescribing the manner and time within which claims must be made. In relation to disablement benefit, the 1997 amendments set the time for claiming for any day on which there would otherwise be entitlement at three months beginning with that day (regulation 19(2) and (3)). The regulation does not contain any provision allowing any extension of that period, however good the reason for the delay in claiming. The special reasons provisions in regulation 19(4) and (5) only apply to the specified means-tested benefits and not to disablement benefit. Thus the 12 month rule in section 1(2) simply cannot now come into play under the current rules.
42. The general principle is that it is the legislation that is in force at the date of claim that governs the procedure of claiming, including the question of the past period for which a claim is to be in time. Mr Commissioner Rowland has in reported decision R(I) 3/01 applied that principle to the particular circumstances of claims for disablement benefit or applications for supersession made after 6 April 1997 for periods beginning before that date. He decided that the new time limits applied and that an argument that accrued rights to the old time limits had been taken away retrospectively and invalidly did not work. I follow that decision, that I consider is right. To save space, I shall arrange for a copy of R(I) 3/01 to be sent to the claimant with the present decision. Although she is right to say that, prior to the 1997 amendments and at the time of her telephone conversation in 1995, the Claims and Payments Regulations allowed a claim for disablement benefit to be backdated without limit of time, provided that continuous good cause was shown for the delay in claiming right down to the day of receipt of the claim, that cannot in law help her. Those rules do not apply to her claim in October 2001.
43. Finally, the decision of the appeal tribunal of 12 June 2003 (pages 93 to 95) that the extent of the disablement resulting from the relevant loss of faculty resulting from the accident of 9 May 1995 was to be assessed at 15% for the period from the 91st day after the accident (ie 22 August 1995) to 12 June 2005 was merely a decision on that element of the total of the conditions of entitlement to disablement benefit. It was not a decision that she was entitled to disablement benefit from 22 August 1995 and could not bind the appeal tribunal of 28 January 2004 in any way to decide that that was so.
44. My conclusion is therefore that none of the alternative grounds put forward by the claimant could support the decision made by the appeal tribunal.

Conclusion

45. Accordingly, as the appeal tribunal of 28 January 2004 erred in law in its reasoning and its decision cannot be supported on other grounds, its decision must be set aside as erroneous in point of law. It is plainly right for me to substitute a decision on the claimant's appeal against the decision of 19 June 2003, as I indicated at the oral hearing that I would if I allowed the Secretary of State's appeal on a point of law. I accept the appeal tribunal's findings of fact. But, for the reasons given above, on those findings the only possible result in law is that the claimant's appeal against the decision of 19 June 2003 is disallowed and the result that she is not entitled to disablement benefit for the period from 22 August 1995 to 30 July 2001 is confirmed.
46. I know from her submissions that the claimant is aware of the Department's scheme of special payments for maladministration. That I think is the primary route for a claim for compensation for financial loss suffered as a result of misdirection said to have occurred in the telephone conversation in 1995 and on later occasions.

(Signed) J Mesher

Commissioner

Date: 16 September 2005