UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CIS_926_2005 (21 December 2006)

CIS/926/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the tribunal is not erroneous in point of law. I therefore dismiss the appeal.
2. The claimant was an asylum seeker who applied for asylum on his arrival in the United Kingdom on 25 March 2002. On 10 July 2003 he was notified that he had been accepted as a refugee within Article 1 of the 1951 Geneva Convention and the Protocol relating to the status of refugees. Under the regime applicable to recognised refugees who applied for asylum on or after 3 April 2000, regulation 21ZB of the Income Support (General) Regulations 1987 entitled the claimant to have an award of income support, less support payments, backdated to the date on which he applied for asylum, provided that he made his claim within 28 days of being notified that his refugee status had been accepted.
3. On 22 July 2003 a solicitor in the law centre advising the claimant wrote to him advising him of his right to claim benefit backdated to the date of his asylum application. The letter included the following paragraph:

"If you wish for me to assist you with a backdated claim of benefits, i.e. Jobseeker's Allowance or Income Support, please contact me at the Law Centre. The Benefits Agency has a strict 28 day time limit from the date of the decision i.e. 10^th July 2003 in which to submit an application for backdated benefits"

That information was of course wrong, because it was only income support, and not jobseeker's allowance, which could be backdated to the date of the asylum application.

4. According to his representative's submission to the tribunal, the claimant went with an interpreter to a Jobcentre, within the time limit for claiming backdated income support under regulation 21ZB, and showed a clerk the letter of 22 July. The submission continues:

"Through the interpreter (the claimant) asked about backdated benefit and pointed out (the paragraph set out above in the letter of 22 July). The clerk came back with a green form and after reading it, went away again and when she came back said "You received NASS support". The claimant said he had and the clerk said "so I won't give you this form"."

Following his visit to the Jobcentre, the claimant was awarded jobseeker's allowance, although I do not have any details of the award.

5. It is evident that the solicitor's mistake about entitlement to backdated jobseeker's allowance was not merely accidental, because on 6 August 2003 she wrote to the Jobcentre stating that the claimant wished to apply for backdated jobseeker's allowance from the date of his arrival in the United Kingdom. Following the award of jobseeker's allowance, the solicitor wrote further letters to the Jobcentre on 7 October 2003 and on 9 March 2004, again asking for the award of jobseeker's allowance to be backdated to the date of the claimant's arrival in the United Kingdom.
6. On 12 March 2004 a letter was sent to the claimant advising him to complete an income support claim form which was enclosed with the letter, and to return it with a statement of the support payments which he had received. On 31 March 2004 the completed claim form was returned, with a covering letter from the claimant's solicitor asking for the award of income support to be backdated to the date of the claimant's arrival in the United Kingdom. On 27 April 2004 a decision was made accepting the claim for income support as having been made on 9 March 2004, which was presumably the date of some further contact between the claimant and the Department, but refusing to award income support from the date of the claimant's arrival in the United Kingdom under regulation 21ZB of the 1987 Regulations because the claim for income support had been made outside the 28 day time limit.
7. The claimant appealed against the decision on 2 June 2004 and, after the refusal to backdate was maintained on reconsideration, the appeal proceeded to a hearing, attended by a presenting officer, on 11 October 2004. The tribunal dismissed the appeal, and this further appeal, brought with the leave of a chairman, is on the grounds, first, that the tribunal failed to consider backdating under regulation 19(4) and (5) of the Social Security (Claims and Payments) Regulations 1987, secondly, that the tribunal failed to give adequate reasons for rejecting an argument concerning alternative claims under regulation 9 and Schedule 1 of the Claims and Payments Regulations and, thirdly, that the tribunal failed to deal adequately with the claimant's argument that there had been a breach of regulation 4(5) of the Claims and Payments Regulations, which had the effect of disapplying the time limits for making a claim.
8. It will be convenient to deal with the grounds of appeal in reverse order. Regulation 4(5) of the Claims and Payments Regulations provides:

"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…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."

The original basis of the appeal to the tribunal was that the Jobcentre ought to have realised that the claimant was attempting to claim the wrong benefit, and that under regulation 4(5) he ought therefore to have been supplied by the Jobcentre with an income support claim form. Regulation 6(1A) of the Claims and Payments Regulations enables income support to be awarded from the date of the first notification of intention to make a claim, provided that a properly completed form is received within one month of that date, and the claimant's representative argued that the reason why the claimant had been unable to make a claim within one month of his visit to the Jobcentre, and thus within 28 days of receipt of the asylum decision letter, was because he had not been given an income support claim form.

9. In CI/2000/2004 Mr Commissioner Henty rejected an argument that a breach of regulation 4(5) of the Claims and Payments Regulations had the effect of suspending time limits for claim purposes until the claimant was provided with a claim form. The Commissioner subsequently set aside his decision, but when he re-decided the appeal Mr Commissioner Mesher also rejected the argument that Parliament must have intended that the sanction for a breach of regulation 4(5) should be a suspension of the time limits for making a claim. The Commissioner pointed out (paragraph 34) that under regulation 4(1) a claimant who has not been provided with a claim form can still make a valid claim in writing in such other manner as the Secretary of State may accept as sufficient in the circumstances of the case. Even if a claim is not accepted, except in the case of claims for income support and jobseeker's allowance, regulation 4(7) confers power on the Secretary of State to supply the claimant with an approved claim form and, if the claim form is returned within the prescribed time, the claim is treated as having been made when the initial claim was received. For those reasons, the Commissioner concluded that the consequences of a breach of the duty imposed by regulation 4(5) were not nearly as severe as the tribunal in that case had supposed.
10. However, CI/2000/2004 was concerned with industrial injury disablement benefit, and the claimant's representative has submitted that it should not be taken as applying to claims for income support. Regulation 4 of the Claims and Payments Regulations was modified in relation to claims for income support and jobseeker's allowance by the Social Security (Miscellaneous Amendments (No. 2) Regulations 1997 (SI 1997/793), so that under regulation 4(1A) of the amended regulations, claims for income support or jobseeker's allowance must be made on an approved form, which must be fully completed, except in the limited circumstances prescribed by regulation 4(1B).
11. It seems to me to be very much open to question whether there was in fact a breach of the duty imposed by regulation 4(5) of the Claims and Payments Regulations in this case. The claimant should probably have claimed income support for the period down to the date of his claim and jobseeker's allowance for the period thereafter, and in the grounds of appeal to the Commissioner the claimant's representative (not the solicitor who wrote the letter of 23 July) stated that it was intended that only the claim for income support should be backdated. However, in the written submission to the tribunal the representative accepted that the letter of 23 July had stated that the claimant wished to apply for backdated jobseeker's allowance and that "this was of course the wrong benefit to claim". The case as presented to the tribunal was that "the Secretary of State ought to have known that (the claimant) was attempting to claim the wrong benefit in these circumstances and have treated this letter as a notification of a wish to claim income support".
12. The account given by the claimant's representative of what took place at the Jobcentre suggests that the clerk may have thought that the claimant's entitlement to income support would be extinguished by the support payments which he had received, and decided for that reason to issue the claimant with only a jobseeker's allowance claim form. However, whatever the reasons for the clerk's actions, I find it difficult to accept that regulation 4(5) imposes a duty on a member of staff of a Jobcentre to deduce that the advice contained in a solicitor's letter to a claimant is in fact wrong, and then to supply the claimant with the correct claim forms on the basis of the clerk's own assessment of the benefits which should be claimed.
13. However, I do not consider that it was necessary for the tribunal to decide whether there was a breach of regulation 4(5) because I have come to the conclusion that the decision in CI/2000/2004 that a breach of the duty imposed by the provision does not suspend time limits for claiming benefit applies equally to a claim for income support. Under regulation 6(1A)(b) and (c) of the Claims and Payments Regulations, which were also introduced by the 1997 amendment regulations, where a properly completed claim form for income support is received within one month of the first notification of an intention to claim, the date of claim is the date of that notification, and a notification of an intention to make a claim is deemed to be made when an appropriate office receives a notification in accordance with regulation 4(5), or receives a defective claim. Although in the case of a claim for income support the Secretary of State has no power under regulation 4(1)(a) to accept a claim made otherwise than on an approved form, or to refer such a claim back to the claimant under regulation 4(7), a breach of regulation 4(5) will nevertheless not prevent an award from being made from the date when an intention to claim is notified, or the date a defective claim is made. In such a case the claimant will need to obtain an approved claim form in some other way in sufficient time to make the claim within the relevant one month period. However, I respectfully agree with Mr Commissioner Mesher in CI/2000/2004 that there is no reason not to treat the highly detailed and restrictive scheme for making claims in regulations 4 and 6 of the Claims and Payments Regulations, as amended in 1997, as exhaustive, particularly since regulation 19 of the Claims and Payments Regulations makes specific provision for relieving a claimant from the consequences of certain administrative shortcomings-see regulation 19(5)(d) (advice leading to a belief that a claim would not succeed), regulation 19(7(a) (office for claiming benefit closed) and regulation 19(7)(d) (claimant not advised of termination of another benefit). In my view, even in an income support case, the consequences to a claimant of a breach of the duty imposed by regulation 4(5) go nowhere near justifying reading into the Regulations a sanction for such a breach in the form of a suspension of the relevant time limits.
14. I therefore do not consider that the tribunal erred in law in not making findings with regard to a possible breach of regulation 4(5) of the Claims and Payments Regulations. The claimant's representative now contends that the letters written on the claimant's behalf asking for jobseeker's allowance to be backdated should be treated as notifications of an intention to claim income support, but even if there was any merit in that argument, the only contact between the claimant and the Department within the 28 day period following receipt of his asylum notification letter was his interview at the Jobcentre and possibly the letter of 6 August 2003. Since the claimant did not make a claim for income support in the proper form within one month of the date of the interview or the letter of 6 August 2003, and any breach of regulation 4(5) of the Claims and Payments Regulations would not stop time from running, the tribunal were correct in holding that the requirements of regulation 21ZB of the Income Support (General) Regulations 1987 were not satisfied. Accordingly, I reject this ground of appeal.
15. So far as the second ground of appeal is concerned, the tribunal referred to the submission of the presenting officer at the hearing that Schedule 1 of the Claims and Payments Regulations makes no provision for a claim for income support to be treated as an alternative, or additional, claim to a claim for jobseeker's allowance. That reference to the presenting officer's submission was in my view sufficient to explain why the tribunal rejected the claimant's argument that the claim for jobseeker's allowance ought to have been treated as being in addition, or alternatively, a claim for income support; but the claimant's representative now submits that Schedule 1 of the Claims and Payments Regulations does not prevent a claim for backdating of one benefit to be treated as a claim for backdating of another benefit. That argument seems to me to be misconceived, because the Secretary of State has power to treat claims as interchangeable only if they are specified as such in Schedule 1. In any case, as the Secretary of State's representative has pointed out, decisions under regulation 9 of the Claims and Payments Regulations are decisions against which no appeal lies by virtue of paragraph 5(g) of Schedule 2 of the Social Security (Decisions and Appeals) Regulations 1999. The tribunal therefore did not have power to deal with the issue of additional or alternative claims, and accordingly I reject this ground of appeal also.
16. The tribunal dealt with the issues arising under regulation 21ZB of the Income Support (General) Regulations 1987 and regulation 9 and Schedule 1 of the Claims and Payments Regulations, but made no reference to what may be termed 'ordinary' backdating under regulation 19(4) and (5) of the Claims and Payment Regulations. The Secretary of State's representative supports the claimant's contention that the tribunal ought to have considered those provisions, on the basis that the actions taken by the Jobcentre staff raised an issue under regulation 19(5)(d) as to whether the claimant was given information by an officer of the Department which led him to believe that a claim for income support would not succeed.

17. Regulation 19(4) of the Claims and Payments Regulations is expressed to be subject to paragraph (8), which provides that "this regulation shall not have effect with respect to a claim to which regulation 21ZB of the Income Support (General) Regulations (treatment of refugees) applies." In CJSA/4383/2003 Mr Deputy Commissioner Wikeley held that claims for 'ordinary' backdating under regulation (4) and (5) and for backdating under regulation 21ZB of the Income Support (General) Regulations 1987 were not mutually exclusive, so that a successful applicant for asylum could claim backdating under regulation 19(4) and (5). If the claim was made within 28 days of the letter notifying him that his asylum claim had been accepted, the award could be backdated to the date of the application for asylum, regardless of the normal three month rule in regulation 19(4).

17. Unfortunately, CJSA/4383/2003 cites regulation 21ZB incorrectly as "21ZB(2)" because of an error in a reference book, but I do not consider that this in any way affects the Commissioner's reasoning on this aspect of the case. Whilst I therefore agree that it was open to the claimant as a successful asylum seeker to claim 'ordinary' backdating under regulation 19(4) and (5), I do not however agree either with the claimant or the Secretary of State's representative that the tribunal erred in law in failing to consider backdating under those provisions.
18. Although I accept that the claimant's representative's account of events at the Jobcentre raised as a factual issue the question of whether the claimant was given advice that a claim for income support would not succeed, that issue was raised specifically in the context of regulation 21ZB of the Income Support (General) Regulations. Neither the written submission to the tribunal, which appears to have been drafted with great care, nor as far as I can see the Record of Proceedings makes any reference to regulation 19(4) and (5), which appear to have been mentioned for the first time in the application for leave to appeal. It seems to me that the explanation for the failure to refer to regulation 19(4) and (5) is almost certainly that the claimant was in receipt of jobseeker's allowance during the period of three months prior to his income support claim, which is the period in respect of which backdating under regulation 19(4) and (5) would be permitted-see R(IS) 3/01. He would therefore have been debarred by section 124(1)(f) of the Social Security (Contributions and Benefits) Act 1992 from receiving income support for that period, but even if that is not the reason why no reference was made to backdating under regulation 19(4) and (5) either before or during the hearing, I consider that it was not an issue raised by the appeal. By virtue of section 12(8)(a) of the Social Security Act 1998, it was therefore not an issue which needed to be considered by the tribunal.
19. For those reasons, I reject each of the grounds of the appeal, which is accordingly dismissed.

(signed on the original) E A L Bano

Commissioner

21 December 2006