UK Social Security and Child Support Commissioners' Decisions

[2007] UKSSCSC CJSA_3960_2006 (16 March 2007)

DECISION

1. The claimant's appeal succeeds. The decision of Enfield appeal tribunal given on 1 August 2006 under reference U/42/921/2006/01416 is wrong in law. I set it aside. I make the further findings of fact set out at paragraphs 14 and 26 below and I give the decision that I consider appropriate in the light of those findings, namely:

The appeal is allowed.

The decision of the Secretary of State issued on 26 February 2006 is set aside.

The time limit for the appellant to claim jobseeker's allowance for the period from 4 February 2006 to 12 February 2006 (both dates included) is extended to 13 February 2006.

REASONS

Introduction

2. This appeal is about whether the appellant is entitled to a jobseeker's allowance ("JSA") for the period from 4 February 2006 to 12 February 2006. JSA must normally be claimed on the very first day for which the claimant wishes to receive it and it is common ground that the appellant did not make his claim until 13 February 2006. The issue is therefore whether the normal time limit can be extended to validate that claim for the period before 13 February.
3. In this decision, references to "the Regulations" or to specific numbered regulations are to the Social Security (Claims and Payments) Regulations 1987.

The facts

4. The facts are not in dispute:

(a) Before the events that led to this appeal, the appellant was unemployed but had been living on his savings rather than claim JSA. His girlfriend, N, with whom he did not then live, was receiving income support ("IS") as the lone parent of H, her 11 year-old daughter.

(b) On Saturday 4 February 2006, the appellant moved in with N and H. The consequence for benefit purposes was that the appellant and N became an "unmarried couple" and N ceased to be a lone parent. As N did not fall into any of the other prescribed categories of people who can claim IS, she ceased to be entitled to that benefit.

(c) On 1 February 2006 (i.e., before the appellant moved in with N) both members of the couple wrote to the local office dealing with N's IS claim in order to report the change in their circumstances that was shortly to occur.

(d) On Friday 3 February 2006, the local office wrote to N. So far as is relevant, the letter stated:

"About your income support

I am writing to tell you that your income support will change.

This means from 4 February 2006 you are not entitled. This is because your circumstances do not meet the conditions of entitlement."

(e) For whatever reason (and it may have been because the address was not absolutely complete), that letter was not delivered to N until the afternoon of Friday 10 February 2006.

(f) On the next working day, Monday 13 February 2006, the Appellant contacted the Jobcentre and notified his intention to claim JSA.

(g) Although benefit has now been awarded and paid from 13 February 2006, the Secretary of State has refused to extend time for the appellant to claim JSA so that it can be paid from 4 February 2006, the first day on which N was not entitled to IS.

The law

5. Under section 1 of the Social Security Administration Act 1992, no-one can be entitled to a social security benefit unless he first makes a claim for it within the appropriate time limit. For JSA, the time limit is "the first day of the period in respect of which the claim is made" (see Schedule 4 to the Regulations).
6. I accept the submission by the Secretary of State's representative that this is not a case in which the claim can be treated as having been made earlier that 13 February 2006. The appellant can therefore only succeed if the time limit in Schedule 4 can be extended.
7. The circumstances in which such an extension is possible are set out in regulation 19(4)-(7). The tribunal concluded—correctly in my judgment—that paragraphs (4) and (5) of that regulation were not satisfied. The relevant parts of paragraphs (6) and (7) read as follows:

'(6) In the case of a claim for … jobseeker's allowance, … where the claim is not made within the time specified for that benefit in Schedule 4, the prescribed time for claiming the benefit shall be extended, subject to a maximum extension of one month, to the date on which the claim is made, where—

(a) any one or more of the circumstances specified in paragraph (7) applies or has applied to the claimant; and

(b) as a result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.

(7) The circumstances referred to in paragraph (6) are—

(a)-(b) …

(c) there were adverse postal conditions;

(d) the claimant (or, in the case of income support or jobseeker's allowance, the claimant or his partner) was previously in receipt of another benefit, and notification of expiry of entitlement to that benefit was not sent to the claimant or his partner, as the case may be, before the date that his entitlement expired;

(e)-(h) …" (my emphasis).

The tribunal's decision

8. The tribunal accepted the evidence given by the appellant and N but felt obliged to refuse the appeal because he concluded that regulation 19(7) did not apply. In his statement of reasons, he said:

'10. A question arose as to the situation of [N] so far as her previous award of Income Support was concerned. She effectively became [the appellant's] partner from 04 02 06. At that time she was in receipt of Income Support. She (together with the appellant) had written to the Secretary of State to explain the change of circumstances with the two of them beginning to live together. The result was that the Secretary of State wrote to [N] on 03 February to say that her Income Support was terminating on 04 February, the end of that week. The Secretary of State had therefore written that letter prior to the expiry of entitlement to that benefit.

11. Of course, it was most unfortunate that, for reasons unknown, the letter did not arrive promptly to [N] but no evidence was placed before the tribunal to support any possible proposition that the delay in the arrival of the letter was the fault of the Secretary of State.

12. Consequently, the relevant notification under Regulation 19(7) had been sent to [N] prior to the Income Support payment date.'

The last two words of the quoted passage must be a typographical error for "expiry date".

9. The appellant now appeals to the Commissioner with the leave of a District Chairman.

Reasons for the Commissioner's decision

10. In my judgment, the tribunal's decision is wrong in law for two reasons:

i) its approach to the late delivery of the letter dated 3 February 2006 introduced a requirement that the delay should be "the fault of the Secretary of State" when no such requirement appears in the legislation; and

ii) it incorrectly identified the date on which N's entitlement to IS expired for the purposes of regulation 19(7)(d).

As both of those errors were material to the tribunal's decision, I must set that decision aside.

(a) Adverse postal conditions

11. The phrase "adverse postal conditions" was considered by the Commissioner in CIS/4901/2002. He expressed the view that it was apt to cover a wide range of circumstances:

'No doubt [regulation 19(7)(c)] is intended to include such things as postal strikes, weather conditions which prevent the delivery of mail and accidents but the wording seems to me to be wide enough to include such things as misdelivery of post and other mistakes on the part of Post Office employees such as the omission to comply with special arrangements for delivery made with an addressee.' (see paragraph 12).

12. In the light of that decision, the Secretary of State's representative (who supports the appeal on this point, but not on the "date of expiry point") submits that:

'… if the phrase "adverse postal conditions " is indeed a broad one, it can properly be taken to cover any factor that operated substantially to delay the delivery of an item of post relevant to the timing of the claim beyond the date when the mail service in question would normally expect to deliver it. Moreover, I submit that the fact that an item of post was so delayed is itself evidence that logically suggests the existence of such adverse postal conditions as the cause of the delay. It does not matter that the precise shape of the adverse postal conditions is not known, provided there is reason to believe that something of that nature affected the process of delivery."

13. I accept that submission and would add that regulation 19(7)(c) is fully satisfied if "there were adverse postal conditions" in that sense. There is no additional requirement that the adverse conditions should have been caused by the fault of the Secretary of State.
14. In those circumstances, I find as a fact that:

(a) the letter dated 3 February 2006 had to travel from a distance of approximately 14 miles across London.

(b) in the normal course of the post, that letter would have been delivered by Wednesday 8 February 2006, the third working day after it was posted, at the latest.

There is no evidence as to whether the letter was sent by first or second class mail. The Secretary of State's submission assumes that it would have been sent first class. Even if it had been sent second class, the Royal Mail would normally have expected to deliver it by date I have specified.

(c) the letter was in fact delivered during the afternoon of Friday 10 February 2006.

The Secretary of State's representative expresses surprise that the post should not have arrived until the afternoon. I surmise from this that—unlike N—he does not live in north London. I can see no reason to doubt the evidence on this point. On the contrary, the evidence shows that the appellant and N have a proper and conscientious approach to their obligations to the Department. Moreover, it would have been important for them to ensure that they did not lose benefit at a time when they were trying to establish a new life together as a family. If the letter had arrived at any earlier time, it is probable that the appellant would have claimed sooner than he did.

(d) The delay of two working days in the delivery of the letter—two thirds as long again as the maximum time it should have taken—establishes that there were adverse postal conditions for the purposes of regulation 19(7)(c).

(b) When did entitlement to income support expire?

"Expiry of entitlement"

15. The District Chairman who granted leave to appeal raised the issue of whether the phrase "expiry of entitlement" in regulation 19(7)(d) is limited to cases of expiry by effluxion of time or whether it is capable of including cases in which entitlement comes to an end as a result of a superseding decision. In my judgment, the latter is the correct interpretation. I agree with the Secretary of State's representative that, in the context of regulation 19(7), the term is a broad one and covers every case in which an award of benefit ends. Most benefits are awarded for indefinite periods and will therefore usually end because of a superseding decision. The wording of paragraph (7)(d) does not require me to interpret it as applying only in the minority of cases in which an award of benefit expires by effluxion of time. Even where a claimant's circumstances fall within one of the heads of regulation 19(7), his time for claiming benefit will not be extended unless he also satisfies the requirement of reasonableness in regulation 19(6)(b). There is therefore no reason to adopt a narrow construction when interpreting those heads.
16. Moreover, the adoption of a narrow construction in this case would lead to results that are not merely anomalous but would actually frustrate the proper operation of regulation 19(7)(d). The policy underlying that provision is that, where the ending of one benefit is relevant to the claiming of another, the claimant should not be prejudiced if he could not have known in time that the first benefit had ended. Where benefit expires by effluxion of time, claimants will almost always know in advance that that is the case: they should have been notified at the outset that they had been awarded benefit for a fixed period only. By contrast, most superseding decisions take effect no later than the date on which they are made. Claimants affected by such decisions will usually not know in advance that their benefit has ended. To interpret "expiry of entitlement" as extending only to cases of expiry by effluxion of time would therefore be to restrict the benefit of the provision to the class of claimants that needs it least.

Date of expiry

17. The tribunal took the view that the date on which N's entitlement to IS expired for the purposes of regulation 19(7)(d) was 4 February 2006, the date specified in the delayed letter. As that letter had been sent on 3 February, it had been sent before the date on which N's entitlement expired and therefore the regulation was not satisfied.
18. That is a misreading of the letter. It states that "from 4 February 2006 you are not entitled". In other words, the decision maker had decided that 4 February 2006—the day upon which N became the appellant's partner—was the first day on which she was not entitled to benefit.
19. That decision was almost certainly wrong. As can be seen from the subsequent award of JSA to the appellant, even when the couple's income and capital were aggregated they still satisfied the IS/JSA means test. The fact that N had become the appellant's partner was only relevant to the question of whether she remained a lone parent and was therefore in one of the categories prescribed for IS. Regulation 4ZA(4) of the Income Support (General) Regulations 1987 provides that a person who falls within a prescribed category for any day in a benefit week is to be treated as falling within that category for the whole of that benefit week. The computer printouts in the Commissioner's file suggest that N's benefit week began on a Thursday and ended on a Wednesday. If so, N should have been treated as a lone parent, and therefore entitled to IS, until Wednesday, 8 February 2006 even though the appellant moved in with her on the previous Saturday.
20. Nevertheless, the Secretary of State's decision that N was not entitled to IS from 4 February 2006 is final. N did not appeal against it and it is now too late for her to do so. For the purposes of this appeal, I must therefore proceed on the basis that that decision is correct and that therefore:

i) N's last day of entitlement to IS was Friday 3 February 2006; and

ii) her first day of non-entitlement was Saturday 4 February 2006.

21. On that basis, the "date that N's entitlement expired" was Friday 3 February 2006 and not Saturday 4 February 2006. She was entitled to IS for the whole of the Friday and she was not so entitled for any part of the Saturday. Therefore, her entitlement expired at the very last moment of the Friday but before the very first moment of the Saturday.
22. I reach that conclusion:

a) because it follows from the normal English usage of the word "expire"; and

b) by analogy with the decision of the Goulding J in Re Crowhurst Park; Sims-Hilditch v Simmons [1974] 1 All ER 991(Ch.D), a case about the date on which a tenancy "came to an end by effluxion of time" for the purposes of section 25(4) of the Landlord and Tenant Act 1954.

23. The Secretary of State's representative does not support that construction. He submits that the decision of Ms Commissioner Fellner in CIS/2631/2004 requires me to reach a contrary conclusion. I reject that submission. In that appeal, the relevant decision was sent to the claimant on 30 September 2003, which was either (it is not entirely clear) his last day of entitlement or his first day of non-entitlement. Regulation 19(7)(d) would therefore have been satisfied in any event and it was unnecessary for Ms Fellner to address the point that arises in this appeal. I doubt that CIS/2631/2004 can be read as deciding that the entitlement to benefit expires on the first day of non-entitlement rather than at the end of the last day of entitlement. But if it can be read in that way then, to that extent only, I respectfully disagree and I decline to follow it in this appeal.
24. I therefore conclude that regulation 19(7)(d) is satisfied in this case. The delayed letter was sent on the date that N's entitlement expired and not before that date.

(c) Reasonableness

25. The next issue that arises is whether regulation 19(6) is satisfied, that is, whether:

(a) as a result of the adverse postal conditions; or

(b) as a result of the fact that notice of the expiry of N's IS was not sent to her before the date on which it expired; or

(c) as a result of a combination of those circumstances,

the appellant could reasonably have been expected to claim JSA earlier than he did.

26. I find as a fact that he could not.
27. My reasons for that finding are essentially those given by the Secretary of State's representative. As he says:

'[N] had put her changed circumstances to the Department and it was reasonable for her and the claimant to await the advice of the Department before taking any further steps in relation to their benefit income"

Having received that advice on the afternoon of Friday 10 February 2006, the appellant then made his claim on the next day that the Jobcentre was open. I do not see how he could reasonably have done so any sooner.

(Signed on the original) Richard Poynter
Deputy Commissioner

16 March 2007