Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No.  CJSA 2187 2012

ADMINISTRATIVE APPEALS CHAMBER

 

AP v SSWP (JSA)

 

DECISION

 

The appeal is allowed. For the reasons below, the decision of the First-tier Tribunal is set aside. I replace the decision of the tribunal with the following decision:

Appeal allowed. The appellant’s claim for jobseeker’s allowance is backdated to 12 09 2011. 

 

This decision is made under the authority of the Tribunals, Courts and Enforcement Act 2007 section 12(2)(b)(ii). 

 

REASONS FOR DECISION

 

1 This is a late claim for jobseeker’s allowance. The appellant claimed the allowance on 1 12 2011 backdated to 12 09 2011. That date was the appellant’s 18^th birthday.

 

2 Put simply, the appellant’s case was that her parents stopped receiving child benefit and child tax credit for her when she reached 18. They asked Her Majesty’s Revenue and Customs (HMRC), the government department responsible for paying those benefits, whether she was entitled to any other benefit at that time. They stated that HMRC told them there were none. The appellant therefore thought she was not entitled to any benefit. She only claimed when she later found out from the Direct.gov website that she might be entitled to jobseeker’s allowance. She checked with her Jobcentre. They told her to claim and she claimed. Benefit was awarded from the date of claim, but the Jobcentre refused to backdate her claim.

 

3 The formal submission for the Secretary of State to the First-tier Tribunal explaining the refusal to backdate gave the following reason:

 

“5 The decision maker can consider extending the date of claim up to a maximum of three months but only where certain specified circumstances apply …

In particular, the claimant was given information by an officer of the Department for Work and Pensions which led the claimant to believe that a claim for benefit would not succeed; or the claimant was given written advice by a solicitor or other professional advisor, a medical practitioner, a local authority, or a person working in a Citizen’s Advice Bureau or similar advice agency, which let the claimant to believe that a claim for benefit would not succeed.”

 

4 That submission appears to be based on the guidance then given to officers in the Decision Makers’ Guide issued by the DWP about the relevant law. That law is in the Social Security (Claims and Payments) Regulations 1987 regulation 19(4) and (5). The relevant guidance is at 02376 and 02377. The guidance is as follows:

 

“Three months extension

 

02376 The conditions are that the claim is made late and one or more of the circumstances specified in DMG 02377 apply and as a result of those circumstances the claimant could not reasonably be expected to make the claim earlier.

 

02377 The circumstances are:

 

The claimant has difficulty communicating because of

learning, language, or literacy difficulties or

deafness or blindness

and it was not reasonably practicable for the claimant to obtain assistance from another person to make the claim

 

except in the case of a claim for JSA, the claimant was ill or disabled, and it was not reasonably practicable for the claimant to obtain assistance from another person to make the claim

 

the claimant was caring for a person who was ill or disabled, and it was not reasonably practicable to get help from another person to make the claim

 

the claimant was given information by an officer of the DWP which led the claimant to believe that a claim for benefit would not succeed

 

the claimant was given written advice by a solicitor or other professional adviser, a medical practitioner, an LA, or a person working in a Citizens Advice Bureau or a similar advice agency, which led the claimant to believe that a claim for benefit would not succeed

 

the claimant or partner was given written information about income or capital by an employer or former employer, or by a bank or building society, which led the claimant to believe that a claim for benefit would not succeed

 

the claimant was required to deal with a domestic emergency and it was not reasonably practicable to obtain assistance from another person to make the claim

the claimant was prevented by adverse weather conditions from attending the appropriate office.”

 

5 That is an inaccurate paraphrase of regulation 19(5). That paragraph reads:

 

“(5) The circumstances referred to in paragraph (4) are–

(a) the claimant has difficulty communicating because–

(i) he has learning, language or literacy difficulties; or

(ii) he is deaf or blind,

and it was not reasonably practicable for the claimant to obtain assistance

from another person to make his claim;

(b) except in the case of a claim for jobseeker’s allowance, the claimant was ill

or disabled, and it was not reasonably practicable for the claimant to obtain

assistance from another person to make his claim;

(c) the claimant was caring for a person who is ill or disabled, and it was not

reasonably practicable for the claimant to obtain assistance from another

person to make his claim;

(d) the claimant was given information by an officer of the Department for

Work and Pensions or in a case to which regulation 4A applies, a

representative of a relevant authority or of the Board which led the

claimant to believe that a claim for benefit would not succeed;

(e) the claimant was given written advice by a solicitor or other professional

adviser, a medical practitioner, a local authority, or a person working in a

Citizens Advice Bureau or a similar advice agency, which led the claimant to

believe that a claim for benefit would not succeed;

(f) the claimant or his partner was given written information about his income

or capital by his employer or former employer, or by a bank or building

society, which led the claimant to believe that a claim for benefit would not

succeed;

(g) the claimant was required to deal with a domestic emergency affecting him

and it was not reasonably practicable for him to obtain assistance from another

person to make his claim; or

(h) the claimant was prevented by adverse weather conditions from attending

the appropriate office.

 

6 There is an error in the official paraphrase of regulation 19(5)(e) in the omission of the words “or of the Board”. That is a reference to the former Board of Inland Revenue and now to the Commissioners of Revenue and Customs, or HMRC as they are usually known.

 

7 It seems that the Jobcentre followed wrong central guidance in failing to note that information from an officer of Revenue and Customs should have been considered in the same way as information from a Department for Work and Pensions officer. So the submission to the tribunal was wrong.

 

8 The error made by the Department for Work and Pensions is obvious if reference is made to the standard books made available to tribunals (see Social Security Legislation 2011/12 Volume III , paragraph 2.110, page 405). The tribunal should have spotted and corrected this error. It did not. There is therefore a clear error of law in the tribunal decision and it must be set aside.

 

9 There has been no challenge to the facts put forward in oral evidence by the appellant and her mother to the tribunal that they were given wrong advice by HMRC, and that this was found to be wrong only when the appellant checked the Direct.gov website and then checked with the Jobcentre. If those facts are accepted, then there are clear grounds to apply regulation 19(4) and (5) of the Social Security (Claims and Payments) Regulations 1987 to allow backdating for up to three months if the conditions of regulation 19(4) are met. The key issue is whether the claimant could reasonably have been expected to make the claim earlier. While the facts are not entirely clear, it is clear that the appellant found out about the HMRC error within two months of it happening, only then to be confronted with a DWP error that the HMRC error was irrelevant. Taking those together, this is in my view a clear case where the discretion in regulation 19 should be exercised in the appellant’s favour and jobseeker’s allowance granted from the date sought, 12 09 2011. 

 

 10 A draft of these reasons was issued to both parties. I am pleased to record that the Secretary of State agrees that the tribunal decision should be replaced by a decision allowing the claim to be backdated. I am also pleased to note that the Secretary of State has indicated that the guidance to officials is being amended.  I emphasise to the appellant that her account, and that of her mother, about what happened is entirely accepted.

 

 

David Williams

Upper Tribunal Judge

13 12 2012

 

[Signed on the original on the date stated]