Subject: CommDec - Decision
Author: Harphsetemp2
Last saved by: joe.ury
Company: MDK Innovation Ltd

[2006] UKSSCSC CIB_885_2006 (05 October 2006)

CIB/885/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	  This is an appeal by the claimant from a decision of the Kettering Appeal Tribunal given on 25 October 2005 dismissing the claimant’s appeal from a decision of the secretary of state that the claimant was entitled to incapacity benefit from 22 June 2004, but was not entitled to incapacity benefit from 23 October 2003 to 21 June 2004.  For the reasons given below, I set aside the decision of the tribunal and I substitute my own decision setting aside the decision of the secretary of state and determining that the claimant is entitled to incapacity benefit from 23 October 2003 until such date, if any, at which it has been determined in respect of the award made on 30 September 2004 that she has ceased to be entitled to incapacity benefit.  I remit to the secretary of state the calculation of the amount to which the claimant is entitled on the basis of that decision.

2.	  The claimant was born in 1947.  In 2003, she was in employment, but her employment was terminated on 24 September 2003 on the ground that she was no longer capable of carrying out her duties for health reasons.  More precisely, according to the undated letter from the claimant to Jobcentre Plus at p.202 of the file, the claimant was then given notice which expired on 23 October 2003.

3.	  The medical evidence shows that she had been suffering from severe mental health problems since about October 2002.  It seems that had she claimed incapacity benefit in October 2003, once she had ceased to be employed she would have been entitled to an award in view of her mental condition.  The essential issue on this appeal is whether she made such a claim and, if so, what became of it.  A subsequent claim dated 20 September 2004 led to an award of incapacity benefit backdated to 22 June 2004, the maximum period of backdating permitted if it was to be treated as a new claim.

4.	  The claimant stated that she had kept an appointment with KP, an employee of the DWP at the Central Milton Keynes Jobcentre on 9 October 2003, and provided a reference number, but stated that “after that date my condition deteriorated, hence the failure to send the certificates to my local Social Security office” (see the letter already referred to at p.202).  At the first hearing of her appeal on 22 August 2005, she explained that she went to the Jobcentre with her son and saw KP.  The tribunal decided to adjourn and directed the secretary of state to provide within 4 weeks a further submission stating what application was made or advice given by KP on 9 October 2003 and to provide a copy of the record and any documents prepared.  The hearing was to be relisted after 6 weeks or on receipt of the documents (file, p.205, where it is also stated that the claimant attended the Job Centre on 9 October 2003 to claim incapacity benefit, but “no information of the application was available”).  

5.	  Despite this direction, the secretary of state failed to provide any further submission, but the claimant provided a copy of an e-mail from a customer services manager at the Aylesbury Job Centre stating that she had contacted the Milton Keynes Jobcentre “and they had been able to confirm that you did attend an appointment on 9^th October 2003 with [KP].  Unfortunately at the moment they are unable to locate any clerical records for me.  This is mainly due to our rules governing the retention of documents.  They are still pursuing the matter for me however I wondered if this was enough verification that you required for the Appeals Service.  If I receive any further information I shall let you know.”

6.	   This e-mail was in response to an e-mail dated 22 August 2005 from the claimant explaining that her incapacity benefit appeal had been adjourned until evidence had been provided of the date she originally attended to register a claim for benefits.  She provided the time and date of her October 2003 appointment, the person she saw, KP, and her reference number.

7.	  The appeal was relisted before a single member tribunal on 25 October 2005, although it had previously been before a tribunal consisting of a chairman and a medical member.  The claimant attended, but there was no presenting officer.  The record of the proceedings shows that the claimant explained that she left work because of her ill-health and was told in a telephone call to the DWP that she should make a claim for incapacity benefit.  She attended on 9 October 2003 but had difficulty remembering what actually happened because of the extent of her illness.  She thought some forms were completed.  Her husband had gone there 2 weeks later to pursue her claim but was not allowed to do so.

8.	  The tribunal disallowed the appeal, finding that there was no evidence that a claim was made earlier than 22 September 2004.  In the decision the tribunal states (file, p.208F) “I accept that the Jobcentre in Milton Keynes saw the Appellant on 09.10.03 but the documents completed on that occasion appear to have been destroyed.  There is no presumption that these documents support the Appellant’s case (R(IS) 11/92 quoted at Page 81 of Volume 3, Social Security Legislation 2004).” 

9.	  In the statement of reasons, the tribunal stated at paragraph 8 that the previous tribunal had adjourned to obtain from KP a note of that meeting “since it no doubt wished to establish whether any valid claim had been made at this time.”  This is not accurate – the previous tribunal had directed a written submission from the secretary of state stating what application had been made or advice given to the claimant by KP, together with a copy of the record and any documents prepared.  This direction had apparently been ignored by the secretary of state, so that there was no indication from the secretary of state as to what had taken place, and no documents had been produced.  Instead, all that was produced was an e-mail to the claimant from the customer services manager at another Jobcentre, in response to an inquiry from the claimant, and not in response to the tribunal’s direction, indicating what she had been told by somebody at the Milton Keynes Jobcentre.

10.	It is immediately apparent that some record must have survived for the DWP to be able to confirm that there was a meeting on 9 October 2003, and while it may be the case that KP had no recollection of the meeting, it would have been possible for her to explain what her practice would have been at such meetings, as she has now done for the purpose of this appeal.

11.	The tribunal went on to state that the e-mail from the customer service manager indicated that there were no documents available in respect of the visit.  In fact, all that the customer service manager stated was that she had been told that none had yet been found, but there was no indication as to what search had been carried out or that it had been completed.  Further, it is apparent, as I have already indicated, that at least one record must have survived for the Jobcentre to be able to confirm that the meeting took place.

12.	The tribunal held that there was no clear indication from the claimant that she did make a claim on 9 October 2003 and that it could not be presumed that any documents destroyed by the DWP would support the claimant.  In this respect the tribunal relied on R(IS) 11/92.  

13.	In my judgment, the tribunal erred in law in its approach.  R(IS) 11/92 establishes that no adverse presumption could be drawn from the fact that the documents were routinely destroyed, if that is what happened.  However, the tribunal needed to consider what, on the balance of probabilities, would have occurred at the interview on 9 October 2003.  For that purpose it ought to have had regard to the purpose of the interview and the obligations of the DWP under the Social Security (Claims and Payments) Regulations 1987.

14.	It is plain from the decision notice when the first tribunal ordered an adjournment that the claimant’s evidence, which appears to have been accepted by that tribunal, was that she attended on 9 October 2003 to claim incapacity benefit.  If she did attend for that purpose, then regulation 4(5) of the Claims and Payments Regulations requires that she should have been supplied with the appropriate claim form.  The tribunal accepted in the decision notice that documents were completed at that meeting but that they appeared to have been destroyed by the DWP.  There is no suggestion here that the claim form would not have been provided in the normal manner either in advance of the meeting or at latest at the meeting by KP.  There is no suggestion that following the meeting the claimant retained any forms which still needed to be completed. The obvious inference, therefore, on the evidence before the tribunal, was that it was completed at or before the meeting and retained by KP.  This accords with the recollection of the claimant that a document or documents were completed at the meeting and retained by KP.  There was no evidence that any decision was ever made on that claim which therefore remained outstanding. 

15.	I therefore set aside the decision of the tribunal, and turn to examine the additional evidence which has been put before me by both the claimant and the secretary of state.  There is an additional document produced by the claimant which was not before the tribunal.  That is a letter from the Jobcentre Plus Contact Centre to the claimant dated 29 September 2003 indicating that the claimant had contacted the Jobcentre to claim benefits and notifying her of the meeting with KP on 9 October 2003.  The letter indicates that the benefit claim forms the Jobcentre thought the claimant would need were enclosed and that SSP1 was being obtained from her employer.  She was asked to fill in the forms and bring them with her to the meeting.  Although the letter does not specifically identify the benefit claim forms enclosed, I see no reason to suppose that they did not at least include a claim form for incapacity benefit.

16.	There is, as I have said, no suggestion that the claimant did not bring the forms to the meeting, or that she took any away with her at the end of the meeting.  The obvious inference is still, therefore, that the forms were completed by the end of the meeting and were retained  by the Jobcentre.  

17.	The secretary of state has provided for this appeal a statement by KP dated 19 May 2006 that she was unable to find any records either manual or computerised to support the fact that the claimant attended a meeting with herself in 2003 and that she could not recall any details regarding her case.  It is hardly surprising that she could not recall any details of the case, but it is surprising that she could not find any records in view of the e-mail dated 30 August 2005 from the customer services manager confirming that the claimant did attend the interview.  I am satisfied that the claimant did attend the interview and that, on the balance of probabilities, she did leave completed documents behind.  If the claim was not recorded on the computer, this was a failure on the part of the Jobcentre.

18.	The representative of the secretary of state on this appeal has provided details of the normal procedures that would apply in cases such as the present (p.245).  These appear to have been supplied by KP.  The customer would contact the call centre to make the claim and call centre would then send the appropriate claim forms out and book an appointment for the customer to see a personal adviser for a work focused meeting.  It is clear that this happened in the present case (p.230).  Before this meeting the customer would see a financial assessor who checks all forms and takes all supporting evidence and registers the claim on the system.  “An SSP1 form would have been obtained by the customer from her employer, as there is a section for their completion”.  There is nothing to suggest that this did not happen at least to the extent of the forms being checked and supporting evidence taken.  There is then a reference to the possible deferral of the meeting with the personal adviser, but there is nothing in this case to suggest that the meeting was deferred.  There is also reference to customers sometimes attending the office to bring the forms and evidence but still not seeing the personal adviser.  Again, the evidence is that the claimant did see KP, but in any event, if she did not see her, the practice would have been to forward claim forms and evidence to the processors.

19.	It is then suggested that the claimant could attend a meeting and at the financial assessor stage decide not to pursue the claim for a variety of reasons.  Again, I see no evidence that this may have happened in this case.  Incapacity is not means tested and no reason has been put forward why this should have happened.

20.	Finally, it is suggested that if the customer did pursue the claim but did not provide all the required evidence, then at the processing stage, the claim would be closed.  This could have happened as the claimant states in her letter to the Jobcentre Plus at p.202 that after 9 October 2003 her condition deteriorated, hence her failure to send certain certificates to her local social security office.  I am unable to be certain from the file what those certificates were, although it would appear that they were enclosed with that letter, which is undated.  

21.	There is provision in regulation 7 of the Claims and Payments Regulations for certificates etc. to be furnished as may be required by the secretary of state.  The obligation is to furnish them within one month or such longer period as the secretary of state may consider reasonable.  It appears from the statement of the claimant’s son at p.242, provided for the purpose of this appeal, that, following the meeting with KP, the claimant’s health deteriorated rapidly to the extent that she was unable to communicate effectively, and that his stepfather visited the Jobcentre within 2 weeks of 9 October 2003 to pursue the claim, only to be told that he was not able to act on the claimant’s behalf.  

22.	Even if, as appears to have been the case, the claimant failed to provide certificates or other information sought, that did not mean that the claim could be “closed”.  It was necessary for a decision to be made on it by the secretary of state, which would then have to be notified to the claimant, who would be entitled to appeal it in the normal way (R(IS) 4/93).  There is nothing to indicate that a decision was made on this claim which was notified in this way.  Rather, it would seem from KP’s account of the practice in her office, that when the certificates were not provided, the claim was simply closed without any decision being notified.  There was therefore either no valid decision at all or one which was never notified to the claimant.

23.	As the time for appealing a decision, if there was one, does not expire until one month after the decision has been notified, if there was a decision adverse to the claimant, it remained subject to appeal in the absence of any evidence that it was notified.  If there was no decision, then the claim remains on foot and needs to be determined.

24.	In my judgment, on the balance of probabilities a claim was made on 9 October 2003.  Instead of a decision being made, either the claim was overlooked or, as a result of a failure by the claimant to provide information or certificates which had been sought, it was simply “closed”.  That was something which could not be done.  The claim remained on foot and needed to be determined.     The 2004 claim, seeking backdating to 23 October 2003, was in reality also a revival of the undetermined 2003 claim, and should have been treated as such by the secretary of state.  

25.	I bear in mind that (1) by 23 October 2003 the claimant’s condition had deteriorated to such an extent that she was unable to communicate effectively and that her husband was seeking to represent her, and (2) her mental problems were therefore even more severe than they were in September 2004 when an award of incapacity benefit was made backdated to June 2004, and (3) the medical evidence in the file including in particular the Milton Keynes mental health assessement dated 7 October 2003 at pp.78-94.  It is clear that the claimant was incapable of work in October 2003 and that her entitlement to incapacity benefit from 23 October 2003 ought to have been determined by the secretary of state on that basis both in October 2003 and also when the undetermined 2003 claim was further pursued in September 2004.

26.	The appeal is allowed and I make the decision set out at paragraph 1 above.

	(signed on the original)	Michael Mark
		Deputy	Commissioner
		5 October 2006

CIB/885/2006