Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CG/581/2013

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Secretary of State, brought with the permission of a Judge of the First-tier Tribunal, against a decision of a First-tier Tribunal sitting at Wakefield on 4 October 2012. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for rehearing before a differently constituted First-tier Tribunal.

2. The Claimant is a woman now aged 46. She has been caring full time for her husband (now aged 58) since about 21 August 2010, when, unhappily, he was injured in a road traffic accident.

3. On 17 March 2011 the DWP received from the Claimant a completed claim form claiming carer’s allowance. It is a condition of entitlement to that allowance that the person being cared for has an award of the care component of disability living allowance at the middle or highest rate, or an award of attendance allowance. The Claimant stated on the form that her husband was awaiting the outcome of his appeal in respect of DLA.

4. On 21 March 2011 a decision was made refusing the claim for carer’s allowance, on the ground that the Claimant’s husband did not have the necessary DLA entitlement. The Claimant’s evidence is that she received, with the letter notifying her of the disallowance of her claim, the form of which a copy of the subsequently completed version appears at p.19. This was a form (headed “carer’s allowance reclaim”) which states that it is to be completed when DLA or attendance allowance is awarded.

5. On 28 November 2011 a First-tier Tribunal allowed the husband’s DLA appeal and awarded the higher rate of the mobility component and the highest rate of the care component with effect from 6 September 2010 (the date of claim).

6. The First-tier Tribunal whose decision is now under appeal to me accepted the Claimant’s evidence that at the end of the First-tier Tribunal DLA hearing on 28 November 2011 the Claimant’s representative advised her to immediately submit her claim for carer’s allowance, and that she did so by signing and posting the carer’s allowance reclaim form on 6 December 2011. She retained a copy of the form, which as I have said is at p.19.

7. By reg. 6(33) of the Social Security (Claims and Payments) Regulations 1987, where a person makes a claim for carer’s allowance within 3 months of a decision of a First-tier Tribunal awarding a qualifying benefit, the date of claim shall be treated as the first day of the benefit week in which the award of the qualifying benefit became payable.

8. The First-tier Tribunal further accepted the Claimant’s evidence that when by March 2012 she had not heard anything in relation to her reclaim she telephoned the carer’s allowance unit, and was told that the reclaim form had not been received and that she should send a copy of the reclaim form, which she did. There is a note of the conversation, which clearly took place on 19 March 2012, at p.10. By that time, of course, the 3 month period allowed by reg. 6(33) had expired. It was also noted in the conversation that the Claimant would also make an e claim, which she did on 26 March 2012. The Claimant stated on both the reclaim form and the e claim that she wished to claim carer’s allowance from 6 September 2010 (the date from which DLA had been awarded).

9. It seems that, following receipt of those documents, on 2 April 2012 a note was made by a decision maker on the computer system as follows (p.22):

“I have checked CIS interests, unlinked post and case papers and can confirm that the CA unit did not receive the DS1384 the customer states they completed and returned on 6 December 2011. It cannot be accepted a claim was received prior to 26 March 2012 – normal backdating rules applied as claim not received with[in] 3 months of the DLA decision.”

10. On 27 April 2012 a decision was made awarding carer’s allowance of £55.55 per week, but only from 2 January 2012 (i.e. effectively 3 months from the date of the claim received on 26 March 2012). That was on the basis that the reclaim form allegedly posted in December 2011 had not been received.

11. The question for the First-tier Tribunal, on the Claimant’s appeal against the decision of 27 April 2012, was therefore simply whether the reclaim form had been posted and received. The First-tier Tribunal found that it had and therefore allowed the appeal, its decision being therefore that the Claimant was entitled to carer’s allowance from the first Monday following 6 September 2010.

12. The Secretary of State’s written submission to the First-tier Tribunal provided no additional information, above and beyond that referred to in para. 9 above, as to the system at the relevant office for recording and dealing with claim forms, or as to the searches which had been made. The submission stated simply at para. 8 of section 5:

“I submit that a full search of the CA clerical and computer records has not revealed any evidence that this form was received in the CA Unit.”

13. The crucial final paragraph of the First-tier Tribunal’s Statement of Reasons was as follows:

“The Appellant impressed the Tribunal as an intelligent and totally truthful person and her evidence was fully accepted by the Tribunal. The Judge was not prepared to accept that the Carer’s Allowance Department was infallible and is satisfied that the original of the Form submitted by the Appellant on 6 December 2011 has been misplaced. That is not the fault of the Appellant and the Tribunal was entirely satisfied that her appeal should succeed.”

14. Under reg. 6(1) of the 1987 Regulations, the general rule is that the date on which a claim is made is the date on which it is received in an appropriate office. That requires actual receipt by the DWP: R(G) 2/06. That must apply equally when the date of receipt of a claim for the purposes of reg. 6(33) is being considered.

15. The burden lies on a claimant to establish that his claim was made in time. However, as I pointed out in para. 16 of CG/2973/2004, the overwhelming majority of documents sent by post do arrive at their destination. Proof by a claimant that a claim form was posted therefore in practice throws an evidential burden on to the Secretary of State to establish that the document was not received.

16. In my judgment the First-tier Tribunal in this case went wrong in law in failing sufficiently to consider whether it was more likely that the DWP had mislaid or mishandled the reclaim form than that it had been mishandled by Royal Mail before the time when Royal Mail were properly to be considered as acting for the DWP in opening and sorting correspondence (assuming of course that a Royal Mail post opening facility such as that described in my decision in CG/2973/2004 (which was the decision which was upheld by the Court of Appeal by their decision reported at R(G) 2/06) was being used). There is no reference in the First-tier Tribunal’s decision to the possibility that the reclaim form might have been lost in the post, rather than lost or misrecorded by the DWP. I refer to paras. 21 to 32 of my decision in SSWP v SB (CA) [2011] UKUT 422 (AAC), which also concerned the date of a claim for carer’s allowance.

17. I have considered whether the First-tier Tribunal could, on the rather scanty evidence provided by the DWP in this case as to the procedure for opening post through to recording a claim on a computer, and as to the computer and other searches which have been made, properly have decided the appeal in favour of the DWP. In para. 31 of SSWP v SB I said:

“I do not think that I can helpfully or properly say more than that it does come down to a question of fact on the evidence in each case. It is for the Department to decide in each case how much evidence it puts forward as to its procedures in relation to dealing with and recording claims for the particular benefit at the particular office concerned,  and what evidence it is relying on in the particular case for saying that no form was received. If it gives no evidence as to those matters it may be at risk of the tribunal finding that it has not put forward sufficient evidence to enable the fact finder to determine, on a balance of probability, which system (i.e. that of Royal Mail or the DWP) is more likely to have gone wrong, and therefore that an inference should be drawn against it. It does not seem to me that that would necessarily be an impermissible approach on the part of a tribunal. The Secretary of State will therefore need to consider what further evidence to put forward in the present case. The application which was made for a set aside suggested that further evidence might have been put forward, had time been available.”

18. I think that I would expand what I said there by saying that, if the Secretary of State’s evidence as to non-receipt is unsatisfactory, it is not so much a question of drawing an inference against the Secretary of State, as of finding that the Secretary of State has not discharged the evidential burden of establishing that a document which was posted was not received: see para. 15 above.

19. In the present case there was of course the note of 2 April 2012 (see para. 9 above). However, without further elaboration, it is impossible to understand the full significance of that. It is not clear what “CIS interests” are, nor why it was thought that the reclaim form might still be in “unlinked post” or “case papers”. The fact that it was considered that the form might not have become recorded on the computer, but might be retained elsewhere, arguably increases the scope for some kind of error to have been made by the DWP.

20. In the end I am not prepared to say that, had it considered the question whether it was more likely that the reclaim form was lost in the post rather than mislaid by the DWP, the First-tier Tribunal could on the evidence before it only have decided that it was more likely to have been mislaid by the DWP. However, it will be for the DWP to consider whether it wishes to put forward any additional evidence before the new tribunal, having regard in particular to what I have said in paras. 15 to 19  above, and in SSWP v SB.

21. The Claimant’s representative argues that the First-tier Tribunal failed to take into account the decision of Judge Levenson in CTC/0720/2010. It is contended that the Tribunal should have explained

“why they were not able to make an award of the benefit based on [Judge Levenson’s] ruling, as it was the failure of the Department to come to a correct decision. The error was not the appellant’s and the subsequent loss fairly and squarely lies with the DWP.”

22. In para. 16 of CTC/0720/2010 Judge Levenson said:

“I also note that if the Secretary of State had made the correct decision on DLA in the first place (by which I mean the decision made subsequently on the DLA claim for the First-tier Tribunal) the claimant would not have been in this position and there would have been no argument about the dates of entitlement. It seems unfair for there to be a considerable financial loss arising from the Secretary of State’s failure to make the correct decision.”

23. However, the question is whether the reclaim form said to have been sent in December 2011 was received by the DWP. I do not see how the answer to that question can be affected by the consideration that there would have been no need for the reclaim form if the initial DLA decision had been in favour of the Claimant’s husband. In so far as anything said by Judge Levenson implies the contrary, I must respectfully disagree with it.

24. Indeed, if one were to take into account wider considerations of that nature, there would appear to be more powerful factors supporting an argument that a tribunal should lean heavily in favour of finding in favour of the DWP. Those factors are (i) that it is open to a claimant to ensure that a claim form is delivered (or that he has notice if it is not) by making a claim online or by using the recorded delivery service and (ii) that the 3 month time limit in reg. 6(33) is generous. It gives ample time for a claimant, if he or she has heard nothing about the claim within a reasonable time, to check up within the 3 month period whether the form has been received, and if not to send another one. However, it does not seem to me that these considerations can properly be taken into account.

24. The new tribunal will reconsider the appeal entirely afresh. For the avoidance of doubt I should say that it will not be bound to find that the Claimant did post the reclaim form in December 2011.

Charles Turnbull

Judge of the Upper Tribunal

16 October 2013