UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CIS_2726_2005 (06 February 2006)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(a)(i) of the Social Security Act 1998. It is:

I SET ASIDE the decision of the Manchester appeal tribunal, held on 13 May 2005 under reference U/06/929/2005/00661, because it is erroneous in point of law.

I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISION is that the date of the claimant's claim for income support is 2 August 2004. The Secretary of State must now determine her entitlement from that date.

The issue and how it arises

2. The claimant, through her representative, asked to be provided with a claim form for income support on 21 July 2004. At that time, she was a lone parent receiving maternity allowance, which was due to end on 30 July 2004. She anticipated claiming income support thereafter and her representative booked for her to be interviewed on 2 August 2004. She submitted the claim form on that date seeking an award from that date, but she did not provide verification that she had been awarded child benefit. She did not remedy this omission until 31 August 2004. The issue that arises in those circumstances is : what is the date of her claim for income support?

The legislation

3. The relevant legislation is contained in the Social Security (Claims and Payments) Regulations 1987. All references to regulations refer to those Regulations. The only ones I need set out in full are:

Regulation 4 - Making a claim for benefit

(5) Where a person who wishes to makes 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 … shall be supplied, without charge, with such form of claim by such person as the Secretary of State … may appoint or authorise for that purpose.

Regulation 6 – Date of claim

(1A) In the case of a claim for income support-

(a) subject to the following sub-paragraphs, the date on which a claim is made shall be the date on which a properly completed claim is received in an appropriate office or the first day in respect of which the claim is made if later;

(b) where a properly completed claim is received in an appropriate office within one month of first notification of intention to make that claim, the date of claim shall be the date on which that notification is deemed to be made or the first day in respect of which the claim is made if later;

(c) a notification of intention to make a claim will be deemed to be made on the date when an appropriate office receives –

(i) a notification in accordance with regulation 4(5); or

(ii) a defective claim.

The decisions of the Secretary of State's and the appeal tribunal

4. The Secretary of State's decision-maker applied regulation 6(1A)(b). As explained in the submission to the tribunal, the claimant asked for a claim form on 21 July 2004. That was treated as the first notification of the claimant's intention to make a claim in accordance with regulation 4(5). On that basis, the month allowed by regulation 6(1A)(b) ran from 21 July 2004. The properly completed claim form was not received until 31 August 2004. That was outside the one month. Accordingly, the date of claim was 31 August 2004. As the circumstances did not come within any ground on which the time for claiming could be extended under regulation 19, income support was awarded and paid from that date. Notice that the Secretary of State did not treat the initial submission of the claim form as a defective claim and allow the claimant one month from that date in which to provide verification of the child benefit award. if the decision-maker had done that, the date of claim would have been 2 August 2004 as the verification was provided within one month of that date.
5. The claimant appealed against that decision to an appeal tribunal, but the tribunal confirmed the Secretary of State's decision.

The appeal to the Commissioner

6. Mr Commissioner Levenson gave leave to appeal and directed observations from the Secretary of State and the claimant. When those were received, he transferred the case to me for decision. I issued a direction asking for further submissions, which have now been received.

Regulation 6(1A)

7. In my direction, I set out my concerns about two issues of interpretation. What was the priority between the two heads of regulation 6(1A)(c)? What is that distinguishes one claim from another? I asked:

'Regulation 6(1A)(c) causes problems because it does not specify when head (i) or (ii) applies. It does not say that head (i) applies 'if a notification was given under regulation 4(5)'. Nor does it say 'whichever is the later'. Both of those are well known forms of drafting and could easily have been used. So how do I decide whether head (i) or (ii) applies? The lack of any provision must be significant, as it is so obvious a departure from basic drafting principles.

'One solution would be to go to the function of regulation 4(5) and head (i). It is there for the advantage of the claimant and to allow a claim to be treated as made before the date when a properly completed claim is received. Here it is being used against a claimant who does not wish to take advantage of those provisions. The claim was submitted defectively on 2 August and the claimant does not ask for it to be considered from an earlier date. Why should it be used against her?

'If the claimant can rely on head (ii) instead of head (i), that still produces a possible problem. Regulation 6(1A)(b) only fixes the period of grace within which a claim can be made by reference to the date of first notification. It is easy to imagine cases in which an early request acts to the claimant's detriment rather than advantage. Is the solution to be found in the fact that subparagraph (b) refers to the first notification of that claim? How is one claim to be distinguished from another? It surely cannot just be a matter of which form is used for the claim. Perhaps the answer lies in the date from which the claim is made. If the claimant is claiming only from 2 August, that is a different claim from one that could have been made from 21 July. That would have the effect that the first and only notification of the only claim in contention was the one that is deemed to have been made under subparagraph (c)(ii) when the defective claim was submitted on 2 August.'

8. I also asked:

'I believe that these provisions were amendments made following an exchange of views between the Secretary of State and the SSAC. Do the relevant reports, memoranda and so on contain anything useful to this case on the scope and purpose of these provisions?'

9. In reply, the Secretary of State's representative provided me with a copy of the report of the Social Security Advisory Committee on the draft legislation that became regulations 4(5) and 6(1A).

How is 'that claim' identified?

10. On further consideration, I now realise that I was confused and did not ask the correct questions in my direction.
11. Regulation 6(1A)(b) refers to 'that claim'. The word 'that' refers back to the words 'properly completed claim'. The claim to which regulation 6(1A)(b) refers is the claim that is made when the properly completed claim form is submitted. Until that time there is no claim. As a matter of convenience, an improperly completed claim form is referred to as a 'defective claim' (see regulation 4(9), but the fact remains that it is not yet a claim.
12. There were two sources for my confusion.
13. The first was the Secretary of State's approach to regulation 6(1A)(b). It assumes that the claim in question is identified when the claimant gives notification under regulation 4(5) and is sent a claim form. And it assumes that it retains its identify as the relevant 'claim' despite the submission of a defective claim. Those assumptions involve the difficulties in distinguishing one claim from another that I set out in my direction. On my interpretation of regulation 6(1A)(b), the claim in question is identified not when the claimant asks for a form, but when the claimant submits the form properly completed. In other words, the correct way to apply regulation 6(1A)(b) is to start with the receipt of a properly completed claim and work backwards. It is wrong to start with the request for the claim form and work forwards, but that is the way that the Secretary of State interpreted and applied the provision. I became confused because I accepted the wrong starting point.
14. The second source of my confusion was to assume, as did the Secretary of State, that it was possible to identify a claim from the fact that regulation 4(5) applied. That was also wrong. Regulation 4(5) deals with a request for a form on which to make a claim. It is not concerned with any claim that may eventually be made. All it does is to impose a duty on the Secretary of State to provide a form on request and to do so without charge. It is a step preliminary and preparatory to the making of a claim. It is the start of a process that may lead to a claim. But it is not a claim. Accordingly, when regulation 6(1A)(b) refers to 'that claim', it cannot be referring to anything that was done under regulation 4(5). My confusion was compounded by the fact that regulation 6(1A)(c) uses regulation 4(5) as one of the ways of identifying the date of claim once a claim is made. However, that does not mean that a request to which regulation 4(5) applies can be used to identify a claim before it is made or to distinguish one claim from another. Its use under regulation 6(1A)(b) is retrospective and only for the limited purpose of attributing a date of claim to the claim that has now been made.
15. On my interpretation, the properly completed claim was submitted on 31 August 2004 and is 'that claim' for the purposes of regulation 6(1A)(b).

Priority in regulation 6(1A)(c)

16. On further consideration, I now realise that I was also wrong to be concerned about the absence of any specified priority between the two heads of regulation 6(1A)(c).
17. This only appears puzzling if the heads in that provision are read in isolation from subparagraph (b). Subparagraph (c) is expressed as a deeming provision. Its function, though, is more akin to a definition. It sets out the circumstances in which a person is treated as notifying an intention to make a claim. If heads (i) and (ii) are read into paragraph (b), it reads:

'where a properly completed claim is received in an appropriate office within one month of first notification of intention to make that claim, which may be shown by (i) a notification in accordance with regulation 4(5) or (ii) a defective claim, the date of claim shall be the date on which that notification is deemed to be made or the first day in respect of which the claim is made if later'.

Set out like that, no issue of priority arises. The claimant is given a choice to rely on one month from the date of notification or from the date of defective claim.

18. The pre-legislation material that the Secretary of State has provided does not contain any discussion of how the legislation would apply in the circumstances of this case. It does, though, make clear that the function of regulation 6(1A)(b) was to allow a concessionary period of one month in which the claimant could get the claim form and accompanying documentation in order. In this example, the claimant did not take advantage of the one month from the date of notification. Why should she thereby forfeit the right to one month from the later date when the defective claim was submitted? That would subvert the function of the provision. It would also be contrary to the wording of heads (i) and (ii) which, when read into regulation 6(1A)(b), allow a choice from one month from either date.
19. The function of regulation 6(1A)(b) explains why there is no specified priority between heads (i) and (ii). As the function is to allow a concession to the claimant, there is no reason to specify a priority. The claimant can rely on either head in order to obtain the advantage of the one month concession. In this case, the claimant cannot rely on head (i), but can rely on head (ii). Note that this still only gives the claimant a period of one month. It would not allow her to extend the period of one month from the date of notification under regulation 4(5), even if she wanted to. All it does is to allow the claimant a period of one month from the date of the defective claim. If the claimant had obtained a claim form without asking for one, the application of regulation 6(1A)(b) would be beyond doubt. On my interpretation of that provision, the fact that she did ask for a claim form does not operate to her detriment.
20. On my interpretation of regulation 6(1A)(b), the properly completed claim form was submitted on 31 August 2004. That was within one month of the date when the claim was submitted in defective form on 2 August 2004. Accordingly, the date of the claim is 2 August 2004. It is irrelevant that the claim was submitted more than one month after the date on which she requested the claim form.

Notification under regulation 4(5)

21. In view of my interpretation of regulation 6(1A)(b), the issues that I raised under regulation 4(5) do not arise. However, I will deal with one of them as it may arise in the future and I know that it is already causing concerns for housing benefit decision-makers in the different context of regulation 7A(4B) of the Housing Benefit (General) Regulations 1987.
22. In my direction I asked:

'The request for the claim form in this case came not from the claimant personally but from her representative. Is that sufficient to satisfy regulation 4(5)? Can the claimant act through anyone else? On general legal principle, what a person can do directly can be done through someone else. Does that apply? Are the words 'by whatever means' sufficient to cover not only the way in which the request is made but the person by whom it is made?'

23. In reply, the Secretary of State submitted that the common law rules of agency apply in social security and the legislation is now drafted with that in mind, citing the decision of Mr Commissioner Angus in CIS/4022/2004 at paragraph 22. I accept that submission and respectfully agree with Mr Angus. The Secretary of State also submits that it is not necessary to rely on the words 'by whatever means' to achieve that result. I accept that submission, although I consider that if necessary the words are sufficiently wide to cover not only the medium of communication through which the notification is given but also the person by whom it is given.
24. This result is consistent with the function of regulation 4(5) both alone and in conjunction with regulation 6(1A)(b). Those provisions do not deal with the submission or making of a claim, but with the date from which the claim is treated as made. Any restrictions that there may be on the persons who may make a claim on behalf of a claimant are not therefore in point. The action taken is the notification of an intention to make a claim, not the making of the claim. That action is preliminary to making a claim, not part of the process of making a claim. As such it is outside any control that might be justified on the person who may make a claim.

Disposal

25. I allow the appeal and set the tribunal's decision aside, because it wrongly directed itself on the interpretation of regulation 6(1A)(b). A rehearing is not necessary, as I am able to substitute the decision that the tribunal should have given.

Signed on original on 06 February 2006

Edward Jacobs Commissioner