UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CP_3037_2004 (17 March 2005)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Reading appeal tribunal dated 15 March 2004 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to give a decision on the claimant's appeal against the Secretary of State's decision dated 9 October 2003 after making the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). My decision is that the appeal is allowed and that the claimant is entitled to an increase of retirement pension in respect of his wife from and including 3 April 2000. The appropriate amount for the period for which payment has not already been made is to be identified by the Secretary of State.

The background

2. The claimant was born on 2 April 1935 and so reached the age of 65 on 2 April 2000. His wife was born on 26 October 1945 and so has not yet reached the age of 60. On 7 January 2000 the Department, then the Department of Social Security, received a BR1 retirement pension claim form from the claimant. The Department no longer has the form. The assumption is that it would have been destroyed at some time before August 2002 under its policy of not retaining documents for longer than thought necessary. There is a computer record of the receipt of the form and of a decision being made on 13 January 2000 that the claimant was entitled to retirement pension, which would have been payable from 3 April 2000 as the first Monday after his 65th birthday. It is evident from the computer record on page 22 that the case was treated as one where there was no claim for an increase for a dependant and it is accepted that the award of retirement pension did not include any such increase. The claimant's case is that he ticked the "Your spouse" box against the instruction "If you want to claim extra money, please tell us who you want to claim for" in Part 8 (Claiming extra money added on to your Retirement Pension) of the BR1 form to claim for his wife. At the end of Part 8 is this information: "If you have ticked that you want to claim extra money for someone, we will send you a form to fill in". I shall come back to the evidence about all that.
3. The Secretary of State's written submission to the appeal tribunal stated that computer records showed that the claimant was notified of the decision on 13 March 2000, although no copy of that record or of the notification itself or a sample of the form of notification was provided.
4. In September 2003 or shortly before, the claimant telephoned the Department to ask whether he was receiving anything for his wife in his retirement pension. That was shortly after a conversation with his sister that first alerted him to the possibility that he might not be. He was told that he was not and was sent a BF225 form, for claiming extra pension for another adult or children. He completed the form promptly, giving his wife's details and saying that he wished to claim for her from 2 April 2000, but he did not describe any of the history. The form was received in the Department on 24 September 2003. On 9 October 2003 a decision maker decided on behalf of the Secretary of State that the claimant was entitled to an increase for his wife from 24 June 2003 (payable from the next pay-day, 30 June 2003) and was not entitled to an increase for the period from 3 April 2000 to 23 June 2003 because the claim for the increase was made outside the maximum time limit of three months.
5. The claimant appealed against that decision, saying this:

"When I filled in form BR1 in the year 2000 to claim my pension, I filled in all the details about myself and my wife. I also ticked the box to claim for my wife. I received notification from the Pensions Office of the amount of pension that I would receive. I thought that this money included payment for my wife. In conversation earlier this year I was told to check whether or not I was getting any money for my wife and how much. I spoke to Newcastle and was sent a claim form which I filled in and returned. I received notice from Newcastle BR832 turning down my claim from 3-04-00 to 23-06-03 because of the three month rule. When I telephoned about this I was told that I had not been paid because I had not filled in the necessary form. When I told the person that I had not received the necessary form he checked and rang me back to tell me that the form had not been sent and that he would send an appeal form GL241. My appeal is based on this fact. Had I received this form I would have been paid from April 2000 for my wife. I feel that as Newcastle office is at fault I should be paid these arrears."

6. The Secretary of State's written submission to the appeal tribunal stated that it was the Department's procedure to issue a claim form when the relevant box on form BR1 had been ticked and that it was not reasonable for the claimant to have waited in excess of three years before making further enquiries. It continued:

"5.16. I submit that [the claimant] has not disputed the date on which his claim to an increase in his Retirement Pension was received, nor has he alleged that a written claim was made prior to 24 September 2003. Although I am sympathetic to his position, the law in this case is absolute and Retirement Pension can only be backdated a maximum of 3 months from the date on which a claim is received. I further submit that the law does not allow the Decision Maker to extend the time limit for claiming Retirement Pension under any circumstances."

The appeal tribunal's decision

7. The claimant attended the hearing on 15 March 2004, before a legally qualified panel member ("the chairman") sitting as the sole member of the appeal tribunal in accordance with regulation 36(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The chairman's note of the claimant's evidence includes his saying that he had filled in the original form and also that he had no copy of the original form.
8. The appeal tribunal disallowed the appeal. The reasons given on the decision notice, later adopted by the chairman as the statement of reasons, were as follows, after noting that the claimant had submitted that he had indicated on the 2000 claim form that he wished to claim for himself and his wife and assumed when the award was made that it was for both of them:

"The writer of the submission before me is clear that the amount of the payments since 2000 could only have been in respect of [the claimant]. The submission writer also reports that the original claim form has been destroyed so there is no way of knowing what was in it. In the absence of the original and in the absence of [the claimant] having kept a copy of the original I must treat the claim made on 24.9.03 as the first claim in respect of his wife. The law is clear in that it will only permit claims such as this to be backdated for a maximum of three months and that there is no exception to that rule."

The appeal to the Commissioner

9. The claimant now appeals against that decision with my leave. I granted leave after receiving a very helpful written submission by a representative of the Secretary of State, dated 1 November 2004, in response to a direction asking for copies of the BR1 forms in use in January 2000.
10. The submission drew attention to the decision of Mr Commissioner Howell QC in CP/3447/2003, in which he accepted a concession made on behalf of the Secretary of State that "the clear indication given by the claimant in part 8 of his original retirement pension claim that he wished it to include the increase for his wife was an express and unambiguous statement sufficient to constitute a claim in writing". The Commissioner held in that case that, although the claim was not on the approved form, with all the details required to enable it to be processed as a completed claim for the increase for the claimant's wife under regulation 4(1) of the Social Security (Claims and Payments) Regulations 1987, it brought regulation 4(7) into play:

"(7) If a claim ... is defective at the date when it is received or has been made in writing but not on the form approved for the time being, the Secretary of State ... may refer the claim to the person making it or, as the case may be, supply him with the approved form, and if the form is received properly completed within one month, or such longer period as the Secretary of State ... may consider reasonable, from the date on which it is so referred or supplied, the Secretary of State shall treat the claim as if it had been duly made in the first instance."

The date of claim is then to be taken as the date on which the claim was received in the first instance (regulation 6(1)(b)). In CP/3447/2003, the Commissioner accepted that the claimant there had submitted a BR1 claim form on which he had ticked the box in Part 8 in 1999 and that he had been supplied with the specific claim form for an increase for a spouse after making another enquiry in 2000, which was returned promptly. He held (differing from the view of a Deputy Commissioner in CP/216/2001 that the tick was merely a trigger to the issue of the correct claim form) that the claim was made in 1999 and awarded the increase from the first pay-day after the claimant's 65th birthday. The representative of the Secretary of State submitted that CP/3447/2003 was right about the effect of a tick in the box in Part 8 of the BR1 form.

11. In the submission on the appeal, dated 29 November 2004, the representative of the Secretary of State submitted that, in view of the above, the appeal tribunal needed to make a specific finding about whether the crucial box was ticked, but by resting its conclusion on the absence of the original BR1 form or a copy had failed to give a proper explanation of what view it took of the claimant's evidence. It had failed to show that it had not wrongly applied a rule that the claimant's own evidence that he had ticked the box in Part 8 of the form necessarily required corroboration before it could be accepted (see Commissioner's decision R(SB) 33/85). The submission suggested that, as whether or not the claimant's evidence was to be believed was a key component of the case, there should be a remission to a new appeal tribunal for a rehearing. The submission continued:

"An oral hearing before a tribunal would also give the Secretary of State the opportunity, should he wish to do so, to send an officer from the relevant local office to give evidence as to what administrative steps would probably have ensued if the claim form BR1 had in fact contained the entry alleged by the claimant."

In his reply the claimant requested an oral hearing.

12. I granted that request, both because I had doubts about some legal points made in the submission of 29 November 2004 and in the hope that I could substitute a decision in the case after receiving further evidence. In my direction I mentioned the possibility put forward in that submission and continued:

"The Secretary of State may also wish to produce evidence of any letters and notices that would have been sent to the claimant informing him of the award of retirement pension from 3 April 2000 and of any subsequent increases, in particular relating to the information that would have been given about the make-up of the amount of pension awarded. The claimant may wish to consider whether there is any person, for instance his wife, who could give evidence at the oral hearing about the completion of the BR1 form in January 2000."

13. The oral hearing took place on 14 February 2005. The claimant and his wife attended. The Secretary of State was represented by Mr Jeremy Heath of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to all present for their assistance and apologise for the delay in the issue of my decision beyond what I predicted at the end of the hearing.

Did the appeal tribunal of 15 March 2004 err in law?

14. The answer to that question is yes. Mr Heath accepted that the appeal tribunal went wrong in law in the way set out at the beginning of paragraph 11 above. Nor did the Secretary of State contest the correctness of CP/3447/2003. I also accept and adopt as correct the reasoning in that decision. Mr Heath therefore, after discussion, rightly accepted that, if a claim for an increase in a retirement pension is made in writing but not on the currently approved form (as by ticking the box in Part 8 of form BR1), the approved form is later supplied by the Secretary of State to the claimant under regulation 4(7) and the approved form is returned properly completed within a month of its supply, there would be no other issues to be determined before the date of claim was identified. The operation of regulations 4(7) and 6(1)(b) would be mandatory. There would be no room for the exercise of any discretion by the Secretary of State as to whether to allow further time for returning the approved form. Both provisions use the word "shall". I agree. As a result, if the appeal tribunal in the present case had found that the claimant had ticked the box in Part 8 of the BR1 claim form and had returned the BF225 form within one month of its being sent to him, it could have gone on immediately, as the Commissioner did in CP/3447/2003, to make an award of the increase for the claimant's wife from 3 April 2000. Thus, its failure to deal properly with the question of whether or not the claimant had ticked the box in Part 8 of the BR1 form was on an issue that was crucial to the success of failure of the claimant's appeal. There was an error of law that requires the setting aside of the appeal tribunal's decision.

The decision on the appeal against the decision of 9 October 2003

15. Having had the opportunity to hear evidence from the claimant and his wife, and Mr Heath having taken the opportunity to put questions to the claimant, I have no doubt that it is right for me to substitute a decision on the claimant's appeal against the decision of 9 October 2003.
16. First, I deal with an apparently dramatic piece of evidence produced by the claimant at the oral hearing. This was a photocopy of pages from a June 1999 print of a form BR1 filled in with the details of the claimant and his wife in Parts 1 and 2 and with a tick in the box in Part 8 to be ticked if he wanted to claim extra money for his wife. The claimant had the original of the form at the hearing and produced it for Mr Heath and for me to examine. He explained that it was his practice when filling in forms of this sort, since he did not have easy access to photocopying and did not feel that he was very good at writing, to get a second copy of the relevant form and to copy what he had written on the form to be sent in onto the second form to keep. He did not use the second form as a draft from which he copied onto the form to be sent in. He filled in the form to be sent in and then copied the answers by hand onto the one that he sent in. The claimant said that he had obtained the second copy of form BR1 before January 2000 and followed the practice above. When pressed about why he had told the appeal tribunal that he did not have a copy of the original form, the claimant said that he had thought that his handwritten form would not be acceptable as evidence because it was not a direct photocopy or facsimile of the form that had actually been sent to the Department.
17. But for the following reason that evidence is only apparently dramatic. I accept that the claimant did copy by hand from the form sent in onto the form he produced at the hearing on 14 February 2005. The particular print of the form could only have been obtained at the time the claim of January 2000 was made. I can see no point in the claimant having kept it in his filing system if he had not copied answers onto it. However, it does not really add anything to the weight of his oral evidence on the crucial question of whether he ticked the box in Part 8 of the form he sent in. Say that a claimant in the same position had, by an oversight, not ticked the box in Part 8 of the form sent in and did not tick the box on the form kept. A dishonest claimant could have added the tick in the box at a later date. So the result of the case turns, as it has always done, on whether I believe the claimant or not. If I believe him, he does not need any additional evidence in order to succeed. If I do not believe him, he cannot succeed on the basis of the BR1 form produced, because I would not then believe that it represented the answers actually given on the form sent in.
18. I do accept the claimant's evidence. There is no evidence positively to the contrary. In the terms used as examples in paragraph 14 of R(SB) 33/85, quoting from R(I) 2/51, the evidence was not self-contradictory and was not inherently improbable. The claimant's explanation of why he told the appeal tribunal that he did not have a copy of the original form and had not produced his copy until 14 February 2005 does not involve a self-contradiction in the light of his views about what sort of evidence would be officially acceptable (which perhaps would not be commonly shared but are within the bounds of reasonableness). It is not inherently improbable that an officer of the Department, no doubt dealing with large numbers of forms on a routine basis, overlooked a tick in the box in Part 8 of the BR1 form and treated the claim as one not including a claim for spouse, therefore not sending out a form BF225.
19. However, a stronger point on inherent improbability is that the claimant, if he thought that he had done what was necessary to initiate a claim for his wife, with the information on the BR1 form that he kept that a further form would be sent, made no enquiries when no further form arrived and when he was awarded a retirement pension that did not include an increase for his wife. The Secretary of State, despite the plain statements about the possible assistance to be gained from further evidence about the way in which decisions and up-ratings would have been notified to the claimant, has put forward no such evidence. The claimant's evidence about not being sent a further form was that, when he got his award of retirement pension, he either thought that he must have given enough details about his wife on the form BR1 or had simply forgotten about the question of another form by that point. As for the notification of how his pension was made up, the claimant's evidence was that he had not been expecting a very large amount and was quite pleasantly surprised by the total, that he thought he and his wife would be able to live on. He was particularly pleased by the working out of his entitlement to an additional pension, through what used to be called SERPS. His memory was that that was the only detailed calculation on the notification letter and that he assumed that the amount for the basic pension shown in the letter was for himself and his wife. He went on assuming that until his conversation with his sister and the telephone enquiry to the Department in 2003. I have no specific documentary evidence to go on in this case, in particular about the standard letters used in 2000, but my experience in other cases is that notification letters often use terms in the part about a basic pension like "amount for you" and "amount for other people". In my view, it would not have been unreasonable (although other people might have made further enquiries) for the claimant to have assumed that "you" meant himself and his wife as a couple, so that the amount stated covered what was due on a claim for both of them. I do not regard the circumstances above as sufficient to indicate that I should not accept the claimant's evidence.
20. So I am left with the question, paraphrasing the terms used in paragraph 14 of R(SB) 33/85, of whether there is anything about the way the claimant gave his evidence, in the context of the circumstances of the case and the other evidence, that does not inspire confidence in his truthfulness. I find nothing of that kind that is sufficient to lead me not to accept the truthfulness of his evidence. I hope that the claimant will not feel insulted by my putting things in that rather negative way, but I am trying to state my conclusion as objectively as is possible. Thus, I am satisfied that the claimant genuinely believes that he did tick the crucial box on the BR1 form and note that his wife gave brief evidence at the hearing that he had told her that he had claimed for her because she was not working. However, I must take account of the tricks that the memory plays on all of us and the natural human tendency to come to believe what one thinks must have been the case. Here there seems no reason why the claimant would not have ticked the box on the BR1 form to claim for his wife, but he might have omitted to do so by mistake. The line between remembering what one meant to do and what one actually did, when there was no reason not to do it, is one that is very difficult to be sure of. But, taking all that into account, I find nothing sufficient in the factors discussed above, either independently or in combination, for me to reject the claimant's evidence as not credible.
21. I therefore find as a fact that the claimant did tick the box on the form BR1 received on 7 January 2000 to claim an increase of retirement pension for his wife. I also find, in the absence of any evidence from the Department of the date on which the form BF225 was supplied to the claimant or of any suggestion that it was not returned promptly (the claimant's evidence was that he sent it back more or less by return), that it was returned within one month of being supplied. Accordingly, the conditions of regulation 4(7) of the Claims and Payments Regulations are met and the claim for the increase is to be treated as having been duly made in the first instance, ie on 7 January 2000. No obstacle has been suggested to the claimant's entitlement to the increase from the first pay-day after his 65th birthday, if the necessary claim had been made in time, and the increase was awarded from 30 June 2003 on apparently the same circumstances. I therefore make the award set out in paragraph 1 above. If the Secretary of State wishes to make any investigations about the circumstances in the period from 3 April 2000 to 29 June 2003, he is of course free to do so and then to consider the exercise of the power to supersede my decision if it is given in ignorance of or under a mistake as to some material fact.

(Signed) J Mesher

Commissioner

Date: 17 March 2005