Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIS/2695/2012 

ADMINISTRATIVE APPEALS CHAMBER

DECISION

1. The Secretary of State’s appeal is allowed. The decision of the First-tier Tribunal sitting at Bradford East on 3 May 2012 is wrong in law and I set it aside. The re-made decision is as follows:

The claimant is not entitled to a Social Fund Funeral Payment Grant because her claim was not made within the prescribed time set out in paragraph 9 of Schedule 4 to the Social Security (Claims and Payments) Regulations 1987.

This decision is made pursuant to s.12(2)(a) and s.12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

Background

2. This appeal concerns the claimant’s entitlement to a Social Fund Funeral Payment Grant (“Funeral Payment”). The claimant’s husband died on 11 July 2011. The claimant applied for a Funeral Payment on form SF200 in respect of his funeral which was held on 26 July 2011. She dated the form 22 August 2011. She gave the form to an employee at the funeral company responsible for her late husband’s funeral, who agreed to send off the form. The form was received in the Department for Work and Pensions (“DWP”) Mail Opening Unit on 27 October 2011 according to the date stamped by the Unit.

3. On 15 November 2011 a decision maker decided that the claimant was not entitled to a Funeral Payment because the claim was not made within the prescribed time. The prescribed time for claiming is the period beginning with the date of death and ending 3 months after the date of the funeral (see Regulation 19(1) of, and paragraph 9 of Schedule 4 to the Social Security (Claims and Payments) Regulations 1987 (“the 1987 Regs”). Regulation 6(1)(a) of the 1987 Regs provides that the date on which a claim is made shall be the date on which a properly completed claim form is received in an appropriate office. The claimant appealed against the decision to the First-tier Tribunal (“FTT”).

4. On 3 May 2012 the FTT found that the claimant was in receipt of a qualifying benefit (Housing and Council Tax Benefit) for the purposes of entitlement to a Funeral Payment and that the claim form was received on 27 October 2011. The FTT found that the claimant had applied in time within paragraph 9 of Schedule 4 of the 1987 Regs on the basis that the first day for counting the 3 months “after the date of the funeral” was 27 July 2011 and that the date of receipt (namely 27 October 2011) did not count. By this calculation the claim had been made within the prescribed period. Accordingly, the FTT allowed the appeal and held that the claimant was entitled to the Funeral Payment.

5. The Secretary of State appealed with the permission of the District Judge given on 15 July 2012.  The grounds of appeal are set out in the application for permission to appeal, dated 27 June 2012, and are that the FTT erred in reckoning the period of time for appealing and wrongly determined that the day of receipt did not count in the calculation. It is submitted that the FTT should have followed the principle determined in CIS/550/93 and have calculated the three month period from the day following the funeral, namely beginning on 27 July 2011. It is submitted that the period would then end on 26 October 2011, which was the day before the date when the form was received.

6. On 12 September 2012 the Upper Tribunal Judge directed the Secretary of State to provide a submission setting out the procedures for handling and date-stamping mail at the Mail Opening Unit. The Secretary of State provided such a submission, dated 29 November 2012. On 10 December 2012 the Upper Tribunal Judge directed the claimant to make written submissions concerning this appeal within one month of the date of issue of this direction. On 13 May 2013 the Upper Tribunal Judge directed that the appeal be decided on the basis of the submissions currently on file if no further submission was received from the claimant within 14 days of the issue of this direction. No submissions have been received by the claimant.

7. In view of there being no further submissions and in accordance with Rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008, particularly Rule 2(2)(a) and (e), I propose to determine the appeal on the basis of the papers and submissions that are in the file as I consider this to be a proportionate way of dealing with the case and in order to avoid further delay.

Relevant provisions: Regulation 6(1) and date on which claim was made

8. Regulation 6(1)(a) of the 1987 Regs specifies that the date on which a claim is made shall be the date on which it is received in an appropriate office.

9. The Court of Appeal in Levy v Secretary of State for Work and Pensions [2006] EWCA Civ 890 (also reported as R(G)2/06) dismissed an argument that regulation 6(1) was ultra vires and also an argument based on a date of “deemed service”. The Court of Appeal held that Regulation 6(1) is to be construed as referring to the date on which the claim is actually received. The Court of Appeal accepted that there were sound policy reasons for interpreting regulation 6(1) in that way as the DWP dealt with a very large number of claims and the only point at which the Secretary of State could establish with any degree of certainty the existence of a claim was on its receipt by the Department or its agent. 

10. The Secretary of State’s submission, dated 29 November 2012, sets out the procedure for handling and date-stamping mail so far as Funeral Payments are concerned, as directed by the Upper Tribunal Judge.  The submissions state that such post would go through a Royal Mail Post Opening Unit to be sorted and sent to the correct DWP office. The stamp on the claim form (being the only stamp on the form) was applied by the Royal Mail Post Opening Unit. It is submitted that the Secretary of State cannot be deemed to have received the claim on any date before the date the claim form was actually stamped by the Royal Mail Post Opening Unit, namely 27 October 2011.

11. In the light of that submission and following the decision in R(G) 2/06, I hold that the date of receipt of the claimant’s form, and hence the date on which the claimant’s claim was made, was 27 October 2011. The FTT made a finding of fact that the date on which the claimant’s claim was received was 27 October 2011, so there has been no error of law in this respect.

Was the claim made within the prescribed period?

12. Schedule 4 to the 1987 Regs sets out the prescribed time for claiming benefit. In the case of the Social Fund payment in respect of funeral expenses, paragraph 9 of Schedule 4 provides that this is:

“The period beginning with the date of death and ending 3 months

after the date of the funeral”.

There is no provision in the 1987 Regs for extending time in these circumstances.

Period of three months

13. In all Acts passed since 1850 the word “month” (unless words be added showing lunar month was intended) means “calendar month” (see s. 4 Interpretation Act 1850). Section 11 of the Interpretation Act 1978 provides that expressions in subordinate legislation have, unless the contrary intention appears, the meaning which they bear in the Act. Schedule 1 of that Act confirms that “month” means calendar month. Accordingly, I hold that the appropriate period in this case is three calendar months.

Starting date

14. The Secretary of State submitted that in calculating the beginning of the period

of 3 months “after the date of the funeral”, the starting date would be the day following the funeral, namely 27 July 2011.

15. The Secretary of State referred in his grounds of appeal and submissions to a passage in paragraph 26 of Volume 37 of Halsbury’s Laws of England which was cited with approval by the Commissioner in Decision CIS/550/1993 and followed by him in interpreting a different set of regulations. This passage does not exist in that form in the most recent edition of Halsbury’s Laws of England. The computation of time is now to be found in volume 97 of the 5^th edition of Halsbury’s Laws of England.

16. Paragraph 329 of volume 97 of the 5^th Edition of Halsbury’s Laws states:

“Days included or excluded When a period of time running from a given day or event to another day or event is prescribed by law or fixed by the contract, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as ‘from such a day’ or ‘until such a day’ are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however the effect of defining a period in such a manner is to exclude the first day and to include the last day.”

17. As was stated by Lord Justice Chadwick in Zoan v Rouamba [2000] 1 WLR 1509 at p.1516:

“Where the period within which the act is to be done is expressed to be a number of days, months or years from or after a specified day, the courts have held, consistently since Young v Higgon (1840) 6 M.&W. 49, that the specified day is excluded from the period; that is to say, that the period commences on the day after the specified day.”

I find that the FTT did not err in calculating the 3 months by excluding the first day (the date of the funeral) as it interpreted paragraph 9 as meaning that “the first day of counting of the 3 months is 27 July 2011”.

Closing date

18. The Secretary of State submits that the FTT erred in law in so far as it stated that in calculating the 3 months from 27 July 2011, the day of receipt did not count. In the grounds of appeal the Secretary of State submits that neither Halsbury’s nor the Commissioner in CIS/550/93 refer to the exclusion of the date of receipt in the calculation. However, the Commissioner did not deal expressly with the exclusion of the date of receipt as that case involved a document which was never received and he was concerned with the question whether provisions in different regulations regarding deemed posting had been met.

19. The general rule of construction, as expounded in Halsbury’s 5^th edition (supra) and in numerous judgments, is that when calculating a period of time one includes the last day (see paragraph 329 of Halsbury’s 5^th edition (supra)  and cases cited at note 4 therein). When it comes to calculating a period of calendar months, the courts traditionally adopt what has come to be known as the “corresponding day” rule (see  Dodds v Walker [1981] 1W.L.R. 1027).

20. In Dodds v Walker (supra) the House of Lords held that in calculating the period of a specified number of months that had elapsed after the occurrence of a specified event, such as the giving of a notice, the general rule was that the period ended on the corresponding date in the appropriate subsequent month, irrespective of whether some months were longer than others. In that case a landlord gave notice of termination of tenancy under s.25 of the Landlord and Tenant Act 1954 on 30 September 1978. Under s.29(3) the tenant had “four months after the giving of the landlord’s notice” to apply to court for a new tenancy. The tenant applied on 31 January 1979 and it was held that he was out of time.

Lord Diplock, who gave the leading speech, stated at p.1029 that:

“My Lords, reference to a “month” in a statute is to be understood as a calendar month……It is also clear under a rule that has been consistently applied by the courts since Lester v Garland (1808) 15 Ves.Jun.248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established …. that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given”.

21. I find that the FTT did err by interpreting the words in paragraph 9 of Schedule 4 of the 1987 Regs as meaning that the day of receipt does not count. The FTT went on to state that “Using this interpretation, if [the claimant’s] form was received on 28/10/11 it would still have been in time”. There was no adequate reasoning by the FTT as to how it reached its decision that the form could have been in time if it was received on either 27 or 28 October and no authority was relied upon for such a proposition.

22. I hold that the Tribunal erred in law and I set aside its decision pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. I propose to re-make the decision that it should have made.

23. I hold following Dodds v Walker (supra) that time expired in the claimant’s case three calendar months after the date of the funeral, namely on the corresponding day in October to the date in July when the funeral took place. Thus, time for making the application expired on 26 October 2011.  

24. The re-made decision is that the claimant is not entitled to a Social Fund Funeral Payment Grant because her claim was not made within the prescribed time set out in paragraph 9 of Schedule 4 to the Social Security (Claims and Payments) Regulations 1987.

(signed on the original)

A.A. GREEN

Judge of the Upper Tribunal

Dated 29 November 2013