UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CG_4060_2005 (28 March 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is disallowed. The decision of the Birkenhead appeal tribunal dated 12 October 2005 is not erroneous in point of law, for the reasons given below, and therefore stands.
2. The issue in this and the two linked appeals of CG/4063/2005 and CG/635/2006 is simply stated. It is whether claimants who are over the age of 60 when they make a claim for carer's allowance are discriminated against in contravention of the Human Rights Act 1998 when the normal rule is applied to them that the date of claim is the date of receipt of a claim in writing in an appropriate office, rather than the date of a telephone call to the office to request a claim form. The discrimination is said to arise because at the relevant time claimants of carer's allowance who were under 60 were required to attend a work-focused interview at an office of Jobcentre Plus and would have the date of claim recorded as the date of the telephone call to request a claim form. In all three cases, the claims were made before 1 October 2005, when there was a change in the terms of the relevant legislation. In the present case and CG/4063/2005 the claims were made in March 2005. All references below to legislation are to what was in force immediately before, unless expressly stated to the contrary, and omit references to the Board of Inland Revenue. In CG/635/2006, the claim was made in August 2005. I have noted in my decision in that case some minor amendments in the legislation that do not affect the outcome.

The relevant legislation as at March 2005

3. Regulation 4(1) of the Social Security (Claims and Payments) Regulations 1987 provided:

"(1) Every claim for benefit other than a claim for income support or jobseeker's allowance shall be made in writing on a form approved by the Secretary of State for the purpose of the benefit for which the claim is made, or in such other manner, being in writing, as the Secretary of State ... may accept as sufficient in the circumstances of any particular case."

Regulation 4(5) provided:

"(5) 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, or if he is a member of a joint-claim couple, either member of that couple 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 4(7) provided:

"(7) If a claim other than a claim for income support or jobseeker's allowance is defective at the date when it is received in an appropriate office, or other office specified in paragraph (6B) where that paragraph applies, 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 has been duly made in the first instance."

Under regulation 4(6)(b) a claim for any benefit other than income support or jobseeker's allowance (JSA) was to be delivered or sent to an appropriate office, subject to rules allowing delivery to some local authority offices.

4. Regulation 6(1) of the Claims and Payments Regulations provided:

"(1) Subject to the following provisions of this regulation or regulation 6A (claims by persons subject to work-focused interviews) the date on which a claim is made shall be--

(a) in the case of a claim which meets the requirements of regulation 4(1), the date on which it is received in an appropriate office;

(aa) in the case of a claim for--

working families' tax credit;

disabled persons tax credit;

jobseeker's allowance if first notification is received before 6th October 1997; or

income support if first notification is received before 6th October 1997;

which meets the requirements of regulation 4(1) and which is received in an appropriate office within one month of first notification in accordance with regulation 4(5), whichever is the later of--

(i) the date on which that notification is received; and

(ii) the first date on which that claim could have been made in accordance with these Regulations

(b) in the case of a claim which does not meet the requirements of regulation 4(1) but which is treated, under regulation 4(7) as having been duly made, the date on which the claim was received in the appropriate office in the first instance."

Regulation 6(4AB), which was inserted in 1997 together with paragraphs (4A) and (4AA), both limited to JSA claims, provided:

"(4AB) The Secretary of State may direct that the time for providing a properly completed claim may be extended to a date no later than the date one month after the date of first notification of intention to make that claim."

5. Regulation 6A(1) and (2) of the Claims and Payments Regulations (originally inserted with effect from 3 April 2000 and subsequently amended) provided:

"(1) This regulation applies to any person who is required to take part in a work-focused interview in accordance with regulations made under section 2A(1)(a) of the Social Security Administration Act 1992.

(2) Subject to the following provisions of this regulation, where a person takes part in a work-focused interview, the date on which the claim is made shall be--

(a) in a case where--

(i) the claim made by the claimant meets the requirements of regulation 4(1), or

(ii) the claim made by the claimant is for income support and meets the requirements of regulation 4(1A),

the date on which the claim is received in the appropriate office;

(b) in a case where a claim does not meet the requirements of regulation 4(1) but is treated, under regulation 4(7), as having been duly made, the date on which the claim was treated as received in the appropriate office in the first instance;

(c) in a case where--

(i) first notification of intention to claim income support is made to an appropriate office, or

(ii) a claim for income support is received in an appropriate office which does not meet the requirements of regulation 4(1A),

the date of notification, or, as the case may be, the date the claim is first received where the properly completed claim form is received within 1 month of notification or the date the claim is first received, or the day on which a properly completed claim form is received where these requirements are not met."

Prior to their amendment on 31 October 2005, the Social Security (Jobcentre Plus Interviews) Regulations 2002, made under section 2A(1)(a) of the Administration Act, included carer's allowance (and previously invalid care allowance) within the definition of "specified benefit", claimants of which under the age of 60 were subject to the requirement to take part in a work-focused interview.

The background

6. The claimant, who was born on 17 November 1944, signed a claim form for carer's allowance, in respect of looking after her husband, on 29 March 2005. It was received at the Carer's Allowance Unit on 30 March 2005. The claimant's representative, Mr Peter West of Wirral Inroads AbleNet, had telephoned the Unit on 21 March 2005 to request claim forms for both the claimant and her husband. On the form the claimant said that she wanted to claim from 21 December 2004. On 5 April 2005 the decision was given that the claimant was entitled to carer's allowance from and including 3 January 2005, but that it was not payable to her because of the amount of the retirement pension that she received. It was decided that she was not entitled to carer's allowance for the period from 21 December 2004 to 30 December 2004, because the claim for all the days in that period was outside the time-limit of three months (Claims and Payments Regulations, regulation 19(2) and (3)(d)). There was no entitlement from 31 December 2004 to 2 January 2005 because of the rule that entitlement has to start on a Monday.

The appeal to the appeal tribunal

7. Mr West lodged an appeal on behalf of the claimant stating that if a person under 60 wished to claim carer's allowance they had to telephone one of the Jobcentre Plus helplines round the country. After an interview and if they met the criteria they were paid from the first pay day after going back three months from the date of the telephone call. For persons over 60 claims could only be made on forms sent out and returned to the Carer's Allowance Unit. He submitted that to avoid discrimination such claims should be treated as made on the date of the telephone call, not the date of receipt. The Secretary of State's written submission to the appeal tribunal was that the legislation did not allow the date of claim to be any earlier than the date of receipt of the claim form.
8. Mr West attended a hearing on 1 September 2005 accompanied by Mr Steven Harnden, a CAB worker attached to a local hospital. Mr Harnden gave evidence of regularly helping people claim carer's allowance and described the different practices as to date of claim in line with Mr West's submission. Mr West referred to regulation 4(5) and (7) of the Claims and Payments Regulations. The chairman, the regional chairman, adjourned for a further submission from the Secretary of State. He asked whether the Secretary of State accepted that Jobcentre Plus administered claims for under-60s in the way described by Mr Harnden; if so, what statutory provisions enabled them to do so; and whether regulation 6(4AB) of the Claims and Payments Regulations was relevant to carer's allowance.
9. The submission dated 14 September 2005 on behalf of the Secretary of State was that Jobcentre Plus did not administer carer's allowance for claimants under 60 and that, if a claim form was received by a Jobcentre Plus office, the date of claim would be the date of receipt in that office. Taking the date of notification of an intention to claim, possibly by telephone, as the date of claim applied only to income support and JSA. It was submitted that regulation 6(4AB) was not relevant to carer's allowance and the regulations 6(1) and 4(1) laid down the rules for all claims for carer's allowance. In a written reply, Mr West relied on further enquiries by Mr Harnden to the Jobcentre Plus new claims line to confirm that Jobcentre Plus could accept telephone requests for carer's allowance and arrange work-focused interviews and that the date of claim would be taken as the date of the telephone call. He agreed that the Carer's Allowance Unit would process the claim once the form was received. In further support, he attached a copy of a letter dated 16 September 2005 from Jobcentre Plus Direct. It is not clear whether that was a standard letter or one produced in response to an actual enquiry. It contains the following:

"Thank you for contacting us about your claim for Carers Allowance.

I am writing to tell you what happens next.

We have arranged an interview for you with a personal advisor.

Your personal advisor will be able to offer you advice on work, training and other local support and will also give you information about what financial help is available if you take a job.

Before you meet your personal advisor you will be seen by a member of the customer services' team who will check your statement is complete and that you have brought the correct documents with you."

10. About a week before the date fixed for the resumed hearing, the Department's appeals officer asked for a postponement on the ground that she would not be in a position to respond to the Mr West's reply until advice had been obtained from the Adjudication and Constitutional Issues Branch in Leeds. That application was refused by the clerk to the appeal tribunal on the following day. No representative of the Secretary of State attended the hearing on 12 October 2005. Mr West attended once again with Mr Harnden.
11. The appeal tribunal disallowed the claimant's appeal and confirmed the decision of 5 April 2005. In the statement of reasons the chairman recorded his decision to proceed despite the Secretary of State's request for postponement. He continued:

"9. Mr Harnden stated that the Secretary of State was wrong concerning what happened to claims administered by Jobcentre Plus. Typically, he said, you wait two to three days for an interview at Jobcentre Plus. The form for claiming CA comes through with the letter of appointment. There are then two interviews at Jobcentre Plus offices. The first is the claim interview when the form is checked. The second concerns advice about jobs. The date of claim was always taken to be the date of the phone call.

10. On the factual dispute I have no hesitation in preferring Mr Harnden's evidence to the assertions made by the Secretary of State. Mr Harnden is a well respected local advice worker who gave me clear and consistent evidence. He answered my questions credibly.

11. By contrast the Secretary of State relies merely on an assertion from an appeals officer in the CA Unit. He did not send a representative to the hearing and I have no first hand evidence of claims administration from him.

12. I accept Mr Harnden's evidence in its entirety.

13. I accept that the Secretary of State deals differently with claimants under the age of 60 in respect of CA from the way that these appellants, both being over the age of 60, have been dealt with. The practical consequence in the case of both appellants is that they have lost out on one week's benefit. I note that CA is not itself payable because of the overlapping benefit rules but there is a knock on financial loss in respect of carer's premium for means tested benefits.

14. That being the case, I nevertheless accepted the Secretary of State's submission to the effect that both appeals should be dismissed. I am satisfied, for the reasons given by the Secretary of State, that both claims have been properly decided, as to their start date, in accordance with the Claims and Payments Regulations.

15. I can find no justification in law for the approach presently adopted by Jobcentre Plus. I have difficulty in seeing how [the claimant and her husband] can, in the ECHR sense, be seen as `victims' if the Secretary of State adopts a more favourable policy, outside of the law, for CA claimants under the age of 60."

The appeal to the Commissioner

12. The claimant now appeals against the appeal tribunal's decision with the leave of its chairman. In the first round of written submissions the representative of the Secretary of State wrongly submitted that regulation 6A of the Claims and Payments Regulations was not relevant, as carer's allowance was not within the definition of "specified benefit" in the Jobcentre Plus Interviews Regulations, overlooking that that had not happened until 31 October 2005. It was submitted that the claimant's claim had been correctly regarded as made on the date of its receipt, according to the terms of regulations 4(1) and 6(1). On the discrimination argument, it was submitted that, if a procedural practice was adopted that benefited some claimants, there was no ground for suggesting any change in the legislation, which did not itself discriminate. Further, it was submitted that Article 1 of Protocol 1 to the European Convention on Human Rights (ECHR) could not create a right to a possession where there was none in law, so that Article 14 was not engaged. In reply, Mr West did not challenge the Secretary of State's interpretation of the domestic law, but argued that the Claims and Payments Regulations did discriminate against claimants over 60, contrary to Article 14 of the ECHR.
13. Mr Commissioner Levenson granted Mr West's request for an oral hearing of this and the two linked cases. The hearing took place at Bury County Court on 4 August 2006. The claimant was represented by Mr Harnden, accompanied by Mr West. The Secretary of State was represented by Mr Huw James, solicitor, instructed by the Solicitor to the Department for Work and Pensions.
14. I am grateful to both representatives for their submissions, but they did not take matters much further forward from the written submissions. I raised two issues on which both representatives wished to have the opportunity of consideration and research before making written submissions. The first was whether regulation 6(4AB) applied to all benefits or only JSA and whether there was an indication of the intention of Parliament in 1997 that was relevant. The second was, whether or not the Secretary of State possessed a discretion under regulation 6(4AB) to extend the time for providing a properly completed claim in carer's allowance cases, whether the exercise of that discretion or the allowing of an extra-statutory benefit to under-60s and not over-60s could be challenged before a Commissioner or an appeal tribunal. Was the proper remedy judicial review and what that the proper arena for any Human Rights Act argument on difference in treatment? Accordingly, I issued a direction asking for further submissions on four groups of questions in all. The Secretary of State's submission was dated 27 September 2006. Mr West's reply in the case of CG/635/2006, dealing mainly with Human Rights Act issues, was dated 16 November 2006. Unfortunately, there has been some delay in seeking confirmation from Mr West that that submission was intended to stand in cases CG/4060/2005 and CG/4063/2005 as well and in the files then reaching the top of the pile for my attention.

Regulation 6(4AB)

15. The Secretary of State's further submission of 27 September 2006 did not contain the detail that I had hoped for as to the reasons for the introduction of regulation 6(4AB) in 1997. I have investigated the legislative history, which is instructive. The new paragraphs (4A) to (4AB) eventually introduced by regulation 3(5) of the Social Security (Miscellaneous Amendments) (No 2) Regulations 1997 (SI 1997 No 973) with effect from 6 October 1997 were presaged by proposals submitted by the Secretary of State to the Social Security Advisory Committee (SSAC) with a Memorandum reproduced in Cm 3586. The proposals covered both backdating and what was called onus of proof (requiring provision of information before a valid claim was made, requiring income support and JSA claims to be made only on authorised forms and allowing completed forms received within a month of first notification to be treated as received on the date of first notification). The original draft regulations contained the self-contained rules about receipt of a properly completed claim within a month of first notification for income support and JSA purposes (called "administrative backdating"). But the draft new regulation 6(1)(aa) set out a general rule for any claim for any benefit that a claim meeting the requirements of regulation 4(1) received within a month of first notification in accordance with regulation 4(5) was made on the date of first notification. The Secretary of State's accompanying Memorandum in some places described that rule in terms that suggested that it was intended to apply generally, while in other places more restrictive language was used. Paragraph 67 of the SSAC's report on the proposals, also in Cm 3586, contains the following:

"Administrative backdating will be retained for the income-related benefits. Apart from allowing a claim to be treated as made earlier where this is consistent with the proper administration of the benefit, it also allows the date of a telephone request for a claim form, whether by the claimant or a third party, to be treated as the date of claim. We understand that that part of the draft Claims and Payments Regulations, which would take effect from April 1997, had erroneously extended this provision to all benefits. As this was not the policy intention, set out in the Department's memorandum, the draft Regulations have subsequently been amended to restrict administrative backdating to the income-related benefits."

The SSAC raised no objection to the restriction of this form of administrative backdating to the income-related benefits.

16. Thus the Secretary of State made clear in the documents put before Parliament with the regulations enacted as SI 1997 No 793 that the intention was to restrict the new rules about properly completed claims received within a month of first notification (there was already a similar rule in the Claims and Payments Regulations for attendance allowance (AA) and disability living allowance (DLA): regulation 6(8) to (9)) to the means-tested benefits. Was that intention achieved in the amending regulations themselves? In my judgment the answer is yes. The form of regulation 6(1)(aa) as set out in paragraph 4 above (although referring to family credit and disability working allowance instead of to tax credits) was introduced with effect from 7 April 1997. It operated for income support and JSA until 6 October 1997, when the new regulations 6(1A) and (4A) to (4AB) took over with effect from 7 October 1997. So regulation 6(1)(aa) plainly did not and does not apply to all benefits, only to those specified.
17. The question that is left is whether regulation 6(4AB) is to be construed as applying to benefits other than JSA. I now have no doubt that it cannot be construed in that way. The precise mechanism of the provision is to give the Secretary of State a discretion to extend the time for providing a properly completed claim. It is true that under regulation 4(8) the concept of a properly completed claim is given a meaning in relation to all benefits. However, regulation 6 does not use the concept of a properly completed claim being received except in relation to the income support, JSA, working families' tax credit and disabled persons tax credit, and AA and DLA. For other benefits, including carer's allowance, the rules are in terms of receipt of a claim meeting the requirements of regulation 4(1) or of receipt of a properly completed claim form after a defective claim under regulation 4(7). The discretion in regulation 6(4AB) to extend the time for providing a properly completed claim to a month from first notification can have no application except in a case where a time for providing a properly completed claim after first notification is specified and there is not already a period of up to a month allowed. I do not think that regulation 4(7) specifies the right rule (as it does not refer to first notification), but in any event it builds in reference to a period of a month with a discretion to extend that period. Regulations 6(1)(aa) and (1A) allow a month from first notification. The AA and DLA rules in regulation 6(8) to (9) are self-contained and allow six weeks from what is effectively first notification. Thus the only case to which regulation 6(4AB) can have any application is that of a claim for JSA. There, under regulation 6(4AA)(a), the general rule is that a properly completed claim must be provided at or before the interview to which a claimant will be summoned after first notification of an intention to claim. The discretion to extend that time to a month has a real meaning and application in that case. But that is the only case to which regulation 6(4AB) applies.
18. If I had had any doubt about the meaning that must be given to regulation 6(4AB) from its words and its context in regulations 4 and 6 of the Claims and Payments, they would have been resolved by two factors. First, the draft regulations included in Cm 3586 had what emerged as paragraph (4AB) as sub-paragraph (b) of paragraph (4AA), thus clearly indicating its limited scope. In my view those limits were not extended by putting the provision in a separate paragraph. Second, the intention expressed to Parliament by the Secretary of State through the SSAC's report in Cm 3586 (that I am entitled to look at as an aid to construction: Commissioners' decisions R(G) 3/58, R(M) 1/83, R(SB) 6/86 and Secretary of State for Social Security v Davis [2001] EWCA Civ 105, R(I) 2/01) points clearly in the same direction.
19. The answer is the same when regulation 6A of the Claims and Payments Regulations, which applied in March 2005 to claims for carer's allowance by claimants under 60, is considered. It contains the same general rules in paragraph (2)(a) and (b) as apply to claims for carer's allowance under regulation 6. Then paragraph (2)(c) the rule about the date of claim being the date of first notification of intention to claim when a properly completed claim form is received within one month applies only to claims for income support. Regulation 6A contains nothing to support the practice found by the appeal tribunal to be applied to claims by the under-60s and regulation 6(4AB) does not support it either.
20. Finally, Mr West and Mr Harnden have argued that it is illogical and unfair that the benefit of having the date of claim taken as the date of telephoning for a claim form should be restricted to income support, JSA and AA and DLA (tax credit claims now being outside the scope of the Claims and Payments Regulations). Even if I agreed, that could not alter what I consider the only permissible construction of the regulations. But I do not agree that there is no logic to the distinction. In AA and DLA there can be no backdating of an initial claim for any reason. In income support and JSA claims can be made only on the currently approved form, with no discretion to accept claims made in writing, but not on the approved form. And the backdating rules are strict. In contrast, a claim for carer's allowance, as for most non-means tested benefits, is automatically treated as in time for any day within the previous three months. A logical case can be made for a need to allow time to return a claim form after a telephone request only in the cases of income support, JSA and AA and DLA.

The practice in Jobcentre Plus

21. The representative of the Secretary of State maintained in the submission dated 27 September 2006, after explaining what was said to be the purpose of interviews of carer's allowance claimants aged less than 60 under the work-focused interview rules in force down to 30 October 2005, that officers conducting interviews would stamp the date of receipt of the written claim form on that form. The form would then be forwarded to the Carer's Allowance Unit, which would administer the claim using the date of receipt of the written claim form as the date of claim, in accordance with regulation 4(1) of the Claims and Payments Regulations. It was said that an officer or adviser in Jobcentre Plus would not give advice about the date of entitlement. However, I must consider the appeal tribunal's decision on the basis of its clear finding of fact about what actually happened at the time. That was a finding that the appeal tribunal was entitled to make on its acceptance of Mr Harnden's evidence. The finding was consistent with what was said in the submission of 27 September 2006 except for the finding that the date of claim was always taken to be the date of the telephone call requesting a claim form. That seems simply to have followed from the stamping of that as the date of claim on the form, which would then be accepted by the Carer's Allowance Unit.
22. On that basis, though, my conclusion is the same as that reached by the appeal tribunal. For the reasons explained at length above, the practice found to have been carried on in Jobcentre Plus had no justification in law. The date of claim for a claimant of carer's allowance aged under 60 who had telephoned Jobcentre Plus for a claim form could not under the Claims and Payments Regulations be other than the date of receipt of the claim (either on the approved form or in writing in a manner accepted as sufficient) in an appropriate office, ie the office of Jobcentre Plus. Thus in so far as the practice found by the appeal tribunal to be followed by Jobcentre Plus, and either accepted or not noticed by the Carer's Allowance Unit, resulted in under-60s receiving awards of carer's allowance from an earlier date than in the case of someone over 60, that more favourable treatment was not authorised by the law. The appeal tribunal cannot be faulted in law for its conclusion that the legislation had been properly applied to the claimant's case.

The Human Rights Act arguments

23. With all due respect to the depth of Mr West's submissions, I can deal with this issue very shortly, the crucial matter being that the Claims and Payments Regulations themselves contain no difference in treatment between under and over-60s on the identification of the date of claim in carer's allowance cases.
24. I do not need to go into the difficult question of whether the issue of the proper start date of an award of a non-contributory benefit like carer's allowance engages Article 14 of the ECHR in conjunction with Article 1 of Protocol 1. On the assumption (for the purposes of argument only) that it does, I cannot see any discrimination of a kind that can addressed in a case before an appeal tribunal or a Commissioner. The chairman of the appeal tribunal put this in terms of the claimant not being a victim under section 7(1)(b) of the Human Rights Act 1998. That may well be right, but I am not sure how far a general proposition along those lines can be supported. If the Secretary of State chose, as a matter of policy, to make extra-statutory payments to one category of claimants, could not another category of claimants of the same benefit who did not receive extra-statutory payments claim to be victims of the difference in treatment so as at least to argue Article 14? But it may well be different if the making of the extra-statutory payment is not the result of a policy decision, but of a mistake as to the law.
25. There are, though, several other fundamental obstacles to successful reliance on the Human Rights Act in the present case. First, the duty of a public authority under section 6(1) not to act in a way incompatible with an ECHR right cannot be invoked against the appeal tribunal or me because neither of us could act differently as a result of the relevant primary and secondary legislation, which is not in itself in contravention of Article 14. Second, the primary remedy under section 3 of interpreting legislation if possible so as to be compatible with ECHR rights cannot be invoked, as the legislation is not incompatible with any ECHR right. Third, under section 8(1) a court (including here a tribunal) can only grant such remedies or relief, if it finds that an act of a public authority is unlawful under section 6, as are within its powers. Neither appeal tribunals nor Commissioners have power to do other than apply the relevant legislation, so far as it is validly made and interpreted wherever possible so as to be compatible with ECHR rights, to the facts of particular cases. That is what the appeal tribunal did. In my judgment, if a discriminatory policy on extra-statutory payments were to be attacked as incompatible with Article 14, that could only be done in an action for judicial review of the Secretary of State's decisions, not in an appeal to an appeal tribunal against a decision awarding entitlement to a member of the less favoured category entirely in accordance with the law.

Conclusion

26. The appeal tribunal's decision involved no errors of law. The claimant's appeal to the Commissioner must accordingly be dismissed.

(Signed) J Mesher

Commissioner

Date: 28 March 2007