Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CI/3218/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  1. Permission is given to the Secretary of State to make a further submission dated 19 June 2013 supporting the appeal.

2. The submission is to be numbered and added to the file and a copy supplied to the claimant.

3.  The appeal is allowed.  I set aside the decision of the tribunal and of the decision maker and I  direct the Secretary of State to appoint the claimant as appointee of her late husband in respect of his industrial injuries claim and then to process that claim.   

REASONS FOR DECISION

1.     This is a supported appeal with the leave of an Upper Tribunal judge from a decision of a First-tier Tribunal sitting in Newcastle upon Tyne given on 19 July 2012.

2.      The claimant’s husband had died on 30 January 2007.  At the time of his death, he and his wife were living in Ireland.  According to a coroner’s jury’s verdict, which I have no reason to question, he died of mesothelioma due to asbestos exposure in England in the 1960’s, the death being stated to be due to an occupational related disease.  The verdict followed an inquest held in Dublin on 19 July 2007. 

3.     On 22 December 2010 an industrial injuries disablement benefit claim form completed by the claimant on behalf of her deceased husband’s estate was received by the DWP.  At page 12 of the form it stated that the claimant was attaching a letter dated 13 September 2007 and apologised for the delay “but the successful claim against Phoenix Electrical has only just been settled.”  The letter dated 13 September 2007 was from a benefits officer at the industrial injuries section of the Pensions Service offices in Newcastle upon Tyne to the claimant telling her that that officer was dealing with her claim for industrial injuries disablement benefit.  It thanked her for sending a copy of the death certificate and medical evidence.  It continued:

“Unfortunately, you have not returned the claim form we sent you.  I am sending you a further one to fill in and return to this office.  The Decision Maker will refer to the information given on the claim form when considering the claim.”

4.     No time limit was given for returning the claim form, although there was a note at page 14 telling the claimant to send it to her regional disablement benefit office as soon as possible, and that if she delayed she could lose money.  That provision plainly did not apply to the claimant, at least so far as the address was concerned.  The claim form included a page on which details were required of the deceased’s employer at the time of the exposure to asbestos.

5.     The claim was rejected by a decision maker because it was regarded as being made on 22 December 2010, outside the 12 months time limit for making a claim.  The claimant appealed by letter dated 20 January 2011, pointing out that following the letter of 13 September 2007, she had replied to advise the office of the difficulty she had filling in the form because she was unsure of the company at fault.  She was also unaware of the time limit on claim until she received the letter rejecting the claim. 

6.     There followed what purported to be a reconsideration of the decision, but the decision expressed to be reconsidered was one dated 16 June 2008 disallowing the disablement benefit claim (this date appears twice in the reconsideration at p.26).  No explanation of this date has ever been provided, but it suggests that the 2007 approach by the claimant may have been treated as a claim and that there was on record a refusal of the claim in June 2008 which may or may not have been communicated to the claimant. 

7.     The claimant then wrote by letters dated 22 February and 22 April 2011 that she had been unable to fill in the form initially because she had to research to find out the identity of the company which had been responsible for exposing her husband to asbestos.  She stated that she explained her difficulties to the benefit section in her letter of 5 October 2007 and that if she had subsequently been advised in 2007 how to proceed, she would have complied.  It had taken 4 years to bring a successful claim against that company.

8.     When the case first came before the tribunal, it was adjourned because the tribunal judge thought new regulations might assist the claimant’s claim.  Unfortunately, it became clear on examination that the new regulations only applied to persons dying on or after 10 October 2007.

9.     The matter then came, as a paper hearing, before a new tribunal on 19 July 2012.  That tribunal disallowed the appeal stating that the claim could not be admitted because it was not made in time, giving the briefest of reasons:  “The Secretary of State has correctly applied the law to the facts of the case.  The tribunal adopts the response issued by the Secretary of State.  There was no need to adjourn.  No one requested a hearing.  The issue was straightforward.  Rules 2 and 27 apply.”

10. The claimant immediately sought permission to appeal stating that her claim was not in time because she had not been informed that she had to submit the claim form even though it was incomplete, that she had pointed out in her letter of 5 October 2007 (before the time limit expired) that she was awaiting conclusive proof of the company responsible for her husband’s death before sending in the form and that the pension service should have advised her that she should send in the claim form with the crucial information missing in order to meet the deadline.

11. Permission to appeal was refused by Judge Moss, the district tribunal judge who had been responsible for the decision.  No further statement of reasons was provided, it being stated that “The Statement of Reasons is adequate to explain the Tribunal’s decision.”  This plainly refers to the very brief reasons in the decision notice itself.  In giving permission to appeal subsequently, an Upper Tribunal judge questioned the adequacy of the reasons.

12. The appeal was initially supported by the Secretary of State both on the ground that the reasons were inadequate and also because the tribunal overlooked the possibility that the documents received by the Secretary of State in 2007 were capable of constituting a claim, albeit a defective one in the absence of sufficient information for it to be decided.  If it was a defective claim, it was submitted by the representative of the Secretary of State, then a decision should have been given that it was defective unless she supplied the additional information.  Such a decision needed to be notified to the claimant, who had a right to appeal it.  If no such decision was given, it was arguable that the defective claim remained open and undecided.  The claimant’s contention was that the form she sent in on 22 December 2010 was intended as a continuation of the claim that she had made in 2007 because she had not been told that she needed to return it by a particular date.  It was therefore necessary to consider in more detail the communications made in 2007 to see if they could constitute a defective claim. 

13. The representative of the Secretary of State therefore sought and obtained further time to recover from storage the records relating to the claimant’s 2007 communications.  That led to a further submission by that representative that the claimant had only made a claim to the Irish authorities in 2007 and had had no contact whatsoever with the DWP until December 2010, although a claim form is said to have been sent to the claimant in December 2008 by the DWP Industrial Injuries Section at Barrow following an approach from the Irish Department of Social and Family Affairs.  This information was plainly lacking in credibility given the letter from the Pensions Service Industrial Injuries dated 13 September 2007 at p.20 of the file and the decision maker’s own acceptance at p.1H that the claimant had contacted the DWP in 2007.

14. In response the claimant provided copies of further correspondence, starting with an exchange of emails between the claimant’s brother-in-law on her behalf and the Pensions Service in July and August 2007 ending with an email from a pension officer that she was forwarding the brother-in-law’s query about the deceased’s occupational injury to the Industrial Injuries section which would provide an answer as soon as it could.  There was then a letter from the claimant to the Pension Service in Newcastle upon Tyne giving details of the illness and enclosing a questionnaire, death certificate and autopsy report “as requested”.  A copy of the letter of 5 October 2007, replying to the Pensions Service letter of 13 September 2007 was also included and it states that the claimant was awaiting details of the name of the company in London responsible for her husband’s asbestos exposure and that she would return the claim form as soon as that was done.

15. As a result, there has now been a further submission by the representative of the Secretary of State accepting that she was misinformed by the DWP and that it was clear that the claimant had made a claim in September 2007.  I am asked to accept that the form submitted in December 2010 was in continuation of the claim she made in 2007 which was made within the time limit allowed for it.  I am asked to set aside the decisions of the tribunal and allow the appeal remitting the matter to the Secretary of State to determine entitlement. 

16. As pointed out by the decision maker in the original submissions to the tribunal, the time limit for making the claim is governed by regulation 30(6A) and 30(6B) of the Social Security (Claims and Payments) Regulations 1987.  The effect of those provisions is correctly described in the submissions as being that a person can make a claim for industrial injuries benefit in the name of a person who has died, if the deceased would have been entitled had he claimed in the prescribed manner and in the proper time, subject to certain conditions.  Those are (1) that within 6 months of a death certificate being issued in respect of the person who has died the person making the claim has applied to be made an appointee of the person who has died, (2) that person has been appointed by the Secretary of State to make the claim, and (3) the claim is made within 6 months of the appointment.

17. There is a limited power for the Secretary of State to further extend the time  by up to 6 months under regulation 30(6C).

18. There was no evidence before the tribunal of when a death certificate was issued although everybody appears to have proceeded on the basis that it was only issued following the inquest, an assumption which would now appear to have been justified.  The submission of the decision maker continues by asserting that there is no provision which allows the period for making the claim to be extended by more than 12 months from the date on which the death certificate is signed.

19. It is plain that, whether or not there was a defective claim, the claimant was seeking to make a claim on behalf of her husband.  While she cannot be expected to have been familiar with the regulations, it is plain that, in the absence of any evidence that she had been appointed his executor or administrator, the Secretary of State ought to have treated her as applying to be made an appointee of her late husband.  Her time for making the claim, if she was appointed, would therefore be “within 6 months of the appointment” (regulation 30(6B)(c)).

20. As there is nothing to suggest that there has ever been an appointment, it follows that provided her application to be appointed was made within 6 months of the issue of the death certificate, once she is appointed a claim made in 2010, or indeed at any time in the 6 months following her appointment, would be in time.

The errors of law made by the tribunal

21. It is plain that the reasons given were wholly inadequate.  They simply adopt the submissions of the decision maker.  They ignore the question whether the claimant applied to be appointed within 6 months of the death certificate and if so when, if at all, she was appointed.  They adopt, wrongly, the submission that any claim had to be received no later than 31 January 2008 or 23 October 2007 (both dates appear in paragraph 11 of the decision maker’s submission).  They also ignore the possibility referred to by the representative of the Secretary of State on this appeal that there could have been a defective claim but that no decision as to this had been taken and notified in accordance with the rules.

22. Further, the purpose of a statement of reasons is to enable parties to know why they have won or lost.  The reference to rules 2 and 27 in the reasons, without any explanation of which rules are referred to or what they relate to can only leave most claimants in person totally bewildered as to what the tribunal is referring to or why.  In this respect also, the tribunal was in error of law.

The outcome of this appeal

23. As the tribunal is in error of law I set aside its decision.  It appears to me that I should accept the invitation of the Secretary of State on this appeal to substitute my own decision.  There is no prospect of, or need for, the claimant attending an oral hearing, and the Secretary of State concedes that there was a claim made in 2007, that there had never been a decision that that claim was defective, and that the December 2010 claim was in continuation of that claim and needed to be determined by the Secretary of State.  I note the observation made on behalf of the Secretary of State that the maximum period for which benefit could be awarded was three months but it is unnecessary for me to comment on that in dealing with this appeal. Bearing in mind also that September 2007 was more than 6 months after the death of the deceased, it also does not answer the question whether the claimant had applied to be made appointee of the deceased within 6 months of the death certificate being issued.

24. I accept the information in the email dated 25 July 2007 (file p.56) that the claimant had then only just received the official death certificate.  This was a week after the inquest, and I infer that it was only issued after the inquest.  Her request to make the claim in the name of her late husband was therefore made well within the 6 months period from the issuing of the death certificate. 

25. I am not satisfied that she was ever appointed by the Secretary of State to make the claim.  I do not regard the sending of the claim form as such an appointment in the absence of any other indication.  In the absence of any written confirmation of her appointment, it simply indicates that her appointment is still under consideration.  The alleged issuing of another claim form by the Barrow office, without any application by the claimant shows that the issuing of the form cannot amount to an appointment following her application to be made an appointee. There is no other evidence of her appointment as one would expect.  In the circumstances, pending her appointment, the 6 months time limit for her claim from the date of her appointment has not yet started to run.

26. I can see no legitimate objection to her appointment and I direct the Secretary of State now to appoint her and to process the claim once she has been appointed.

(signed) Michael Mark

Judge of the Upper Tribunal

8 July 2013