UK Social Security and Child Support Commissioners' Decisions

 


[2005] UKSSCSC CJSA_3084_2004 (07 February 2005)

CJSA/3084/2004

1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the East Ham Appeal Tribunal of 26^th April 2004 made under reference U/42/242/2004/02295. I substitute my own decision. This is to the effect that the prescribed time for claiming jobseekers allowance (JSA) from 21^st July 2003 is extended from that date to 2^nd October 2003. I refer to the Secretary of State questions relating to the satisfaction of the other conditions of entitlement to JSA and to calculation and payment of any arrears of benefit on this basis.
2. The facts in this case appear not to be in dispute. The claimant was born on 25^th September 1952 and his usual occupation is as a proof reader. He was made redundant after a period of 5 or 6 years in the same employment. He had some freelance work but when that finished he did not expect to be out of work for very long. He was concerned about his national insurance record because no deductions had been made in respect of his freelance work. He had an insurance policy to cover his mortgage payments in the event of redundancy, but could not claim on this until he had claimed JSA and had the necessary paperwork from such a claim. On 21^st July 2003 he went to his local Jobcentre to sign on and claim whatever benefits he was entitled to. The place was "teeming with people" and he has not since seen it so crowded. After waiting in line he was given a form which was 3 or 4 pages long to complete and on which he had to give details about his employment record, national insurance number and so on.
3. This was not in fact a JSA claim form but was a preliminary or screening document, although at the time the claimant believed that he was making a claim for JSA. He handed in the form there and then as soon as he had completed it and also explained his concern about his national insurance record. He was given a typed list of official addresses and telephone numbers. This list includes at the bottom of the first column telephone numbers for "CONTRIBUTIONS ENQUIRY". The claimant was told to contact one of these numbers and to take it from there. He does not recall what was said about his JSA claim but believed that he had made such a claim. He spent a couple of hours going through this whole procedure. He was not given an appointment to return. He spent a day or so chasing up the contributions enquiry and was eventually told that the position would not be known until after the end of the tax year. He did not appreciate that contributory benefits do not depend on making contributions in the year in which the benefit is claimed. He cannot now remember precisely what prompted him to make the claim in October 2003 but at some stage he was told that the DWP had no record of a claim being made and was advised to make what he thought was a replacement claim.
4. An official from the DWP came to his home on 2^nd October 2003 with the correct form and helped him to complete it and to claim JSA (which was awarded with effect from 5^th October 2003). At the same time the claimant applied for payment of the benefit to be backdated to 21^st July 2003. On 10^th October 2003 the Secretary of State made a decision to refuse backdating. On 31^st October 2003 the claimant appealed to the tribunal against the decision of the Secretary of State. The tribunal considered the matter at a paper hearing (not attended by the parties) on 26^th April 2004 and confirmed the decision of the Secretary of State. The tribunal contented itself with finding that a claim had not been made in July 2003 and that the claimant had not been given advice which led him to believe that a claim would not succeed.
5. On 1^st October 2004 the chairman of the tribunal refused the claimant's application for leave to appeal to the Commissioner against the decision of the tribunal. The claimant renewed to the Commissioner his application for leave and on 25^th October 2004 I directed an oral hearing of this application but said that the Secretary of State need not attend nor be represented. That oral hearing took place on 10^th December 2004 and I granted leave to appeal. The grounds of appeal as originally formulated did not really focus on the point of law that emerged at the hearing before me. Having made enquiries, to which I refer below, the Secretary of State now supports this appeal and the decision that I have made.
6. Regulation 19(1) of and Schedule 4 to the Social Security (Claims and Payments) Regulations 1987 provide that the prescribed time for claiming JSA is the first day of the period in respect of which the claim was made. However, so far as is relevant, regulation 19(4) provides:

19(4) … in the case of a claim for [JSA], … where the claim is not made within the time specified for that benefit in Schedule 4, the prescribed time for claiming the benefit shall be extended, subject to a maximum extension of three months, to the date on which the claim is made, where -

(a) any of the circumstances specified in paragraph (5) applies or has applied to the claimant; and

(b) as a result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.

7. Regulation 19(5) sets out the relevant circumstances as follows:

(a) the claimant has difficulty communicating because-

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

(ii) he is deaf and blind

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

(b) except in the case of a claim for [JSA] …

(c) the claimant was caring for a person who is ill or disabled, and it was not reasonably practicable for the claimant to obtain assistance from another person to make his claim;

(d) the claimant was given information by an officer of [the Department] which led the claimant to believe that a claim for benefit would not succeed;

(e) the claimant was given written advice by a solicitor or other professional adviser, a medical practitioner, a local authority or a person working for a Citizens Advice Bureau or similar advice agency, which led the claimant to believe that a claim for benefit would not succeed;

(f) …. The claimant or his partner was given written information about his income or capital … which led the claimant to believe that a claim for benefit would not succeed;

(g) the claimant was required to deal with a domestic emergency affecting him …

(h) the claimant was prevented by adverse weather conditions from attending the appropriate office.

8. The point of law that emerged during the hearing before me of the application for leave to appeal, and which the tribunal did not consider is as follows. Regulation 19(5)(d) refers, not to advice, but to information. Reference was made to decisions by Commissioners in R(IS) 3/01 and CIS 4884 2002. If a claimant has been led to believe that he has made a claim, but he has not in fact made a claim, and because no decision has been received therefore believes that the claim has not succeeded, that seems to me to amount to having been given information which led him to believe that a subsequent real or effective claim would also not succeed.
9. Having made enquiries at my instigation, the Secretary of State's submission of 11^th January 2005 includes the following (paragraph 9):

" … enquiries have revealed that it is the practice at [that particular local Jobcentre" to ask a person making initial enquiries regarding benefit entitlement to complete a locally issued form. The format of the form is frequently changed and it has been impossible to obtain a copy of the edition that the claimant would have completed in July 2003. However I have obtained a copy of the form currently being used, which is attached. It is doubtful whether the content of the form would have changed significantly with each issue. I would draw the Commissioner's attention to the type of question on the attached form which I submit certainly give the impression that it is initiating a claim".

10. The attached form asks for details of name, address, date of birth and national insurance number and then asks 16 specific questions about employment record, current activities, residence and nationality, date from which claiming and type of work being sought. It says nothing about not being an actual claim form or about having to complete any subsequent form. I have no hesitation in deciding that being given this form to complete, and completing and submitting it, amounted to having been given information that led this particular claimant (and would lead most claimants) to believe that he had made a claim. When no decision had been received, this led to a reasonable belief that the claim had not succeeded and that a subsequent (real or effective claim) would also not succeed.

H. Levenson

Commissioner

7^th February 2005