Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIS/3182/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before: E Mitchell, Judge of the Upper Tribunal

 

Decision: The Secretary of State’s appeal is refused. The making of the decision of the Walsall East First-tier Tribunal on 31^st March 2014 (reference SC 028/14/00036) did not involve it making an error on a point of law.

 

 

 

REASONS FOR DECISION

 

What this appeal is about

 

1. This appeal is about evidence connected to time limit disputes, in this case for claiming social fund funeral expenses payments. Such claims can be made by delivering or sending them to a Jobcentre.

 

2. The Secretary of State appeals a First-tier Tribunal decision that a claim was in time because it was made at a Jobcentre. The claim form was not stamped by the Jobcentre. The Secretary of State objects to that finding. However, he provided no evidence to the First-tier Tribunal about arrangements for receiving claim forms at Jobcentres and transferring them to specialist benefit processing centres. It is not open to him to challenge the Tribunal’s finding by reference to evidence that he could and should have put before it.

 

Background

 

3. Mrs M’s husband sadly died in 2013 and his funeral was held on 27^th June 2013. Mrs M decided to make a claim for a funeral expenses payment.

 

4. Mrs M wrote in her appeal form that she “deposited” the claim form at Borehamwood Jobcentre on 20^th September 2013 having been told by an unspecified person to leave it there. In other correspondence, Mrs M referred to having “sent” the claim form to Borehamwood Jobcentre and to it having been “sent, via the Job Centre in Borehamwood, during September well within the time limit”.

 

5. Mrs M forgot to sign the claim form.

 

6. Mrs M’s claim form was received by a DWP office responsible for processing funeral payments claims on 3^rd October 2013. As the claim form was un-signed, on 10^th October it was returned to Mrs M for her signature.

 

7. The signed claim form was received at that same DWP office on 16^th October 2013.

 

8. On 20^th December 2013, the Secretary of State refused Mrs M’s claim. He said her claim was “invalid” until signed. The earliest date on which she claimed was 16^th October 2013 when her signed claim form was received. That was outside the time limit of three months from the date of the funeral. But, even if the 3^rd October 2013 claim was valid, it was still out of time under the three month rule. So far as Mrs M’s claim that her claim was received by Borehamwood Jobcentre before the end of the time limit was concerned, the Secretary of State’s said “there is no evidence of any earlier claim having been received by DWP or the Jobcentre”.

 

9. Date stamps feature in this appeal and so I shall identify what role they played in the case as presented to the First-tier Tribunal.

 

10. The Secretary of State’s written submission simply said “there is no evidence of any earlier claim [i.e. earlier than the un-signed claim form received on 3^rd October 2013] having been received by DWP or the Jobcentre”. Nothing was said here about normal arrangements when claim forms are received by Jobcentres for benefits that are administered at different offices.

 

11. As part of the mandatory reconsideration (MR) stage, Mrs M had a conversation with a DWP official. They discussed what happened after she returned her unsigned claim form on 10^th October 2013. My reading of this is that Mrs M said she had spoken to a social fund official who said she returned her claim form in an envelope pre-addressed to an office in Sheffield. The MR official said this could not have happened because there was no Sheffield stamp on the form. I note that the MR document says nothing at all about postal arrangements at Borehamwood or any other Jobcentre.

 

12. The Secretary of State did not consider whether Mrs A met the other entitlement conditions.

 

13. Mrs M appealed to the First-tier Tribunal (“the Tribunal”). Neither party requested a hearing.

 

14. On 31^st March 2014 the Tribunal allowed Mrs M’s appeal. It accepted Mrs M’s written evidence. The absence of a September 2013 date stamp from Borehamwood Jobcentre on the claim form was not conclusive because “post and incoming documents can be received without that confirmation in a busy office”. The Tribunal referred to a date stamp because it understood the Secretary of State to rely on its absence. However, I cannot see that this argument was put forward by the Secretary of State unless it is to be inferred from the assertion there was “no evidence” of a claim having been received at Borehamwood Jobcentre.

 

15. The Tribunal went on to decide that, under the relevant regulations, its finding that the claim was delivered to the Jobcentre on 20^th September meant Mrs M claimed within the three month time limit.

 

What the legislation says

 

16. Identifying the rules about time limits for claiming funeral expenses payments involves a surprisingly complex paper chase.

 

17. Regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 (the “2005 Regulations”) contains the cumulative entitlement conditions for funeral expenses payments. Regulation 7(6) provides that “the third condition is that the claim is made within the prescribed time for claiming a funeral payment”. 

 

18. By regulation 3(1) of the 2005 Regulations, the “prescribed time for claiming” means the “appropriate period during which a…funeral payment may be claimed pursuant to regulation 19 of, and Schedule 4 to, the Social Security (Claims and Payments) Regulations 1987”. Subsequently, I refer to these as the “1987 Regulations”.

 

20. The claiming window is found in Schedule 4 to the 1987 Regulations. For funeral expenses payments, this provides that the time for claiming is the “period beginning with the date of the death and ending 3 months after the date of the funeral”.

 

21.  The time for claiming provisions need to be considered in conjunction with the provisions about what a claim is.

 

22. Regulation 2(2) of the 1987 Regulations provides that, unless the context otherwise requires, any reference in the Regulations to “a benefit” includes “any social fund payments such as are mentioned in section 32(2)(a) and section 32(2A) [of the Social Security Act 1986]”. Funeral expenses payments were (and still are) payments out of the social fund. Section 32 of the Social Security Act 1986 has been repealed. However, it is re-enacted in section 138 of the Social Security Contributions and Benefits Act 1992. The adaptation of references provision in section 17(2) of the Interpretation Act 1978 therefore applies. Accordingly, the reference in the 1987 Regulations to section 32 of the Social Security Act 1986 is to be construed as a reference to section 138 of the Social Security Contributions and Benefits Act 1992. The upshot is that the rules in 1987 Regulations about making claims for benefit apply to claims for funeral expenses payments.

 

23. Regulation 4(1) of the 1987 Regulations provides that “every claim for benefit…shall be made in writing on a form approved by the Secretary of State…for the purpose of the benefit for which the claim is made”. However, that is not an absolute rule since regulation 4(1) goes on to provide that a claim may be made “in such other manner, being in writing, as the Secretary of State…may accept as sufficient in the circumstances of any particular case”. Regulation 4(11) allows claims for funeral expenses payments to be made by telephone call in certain cases but that is not relevant in this case.

 

24. Regulation 4(7) deals with defective claims. It applies where a claim “is defective at the date it is received in an appropriate office”. There are two consequences:

 

(a) the Secretary of State is required to “advise the claimant of the defect”; and

 

(b) the Secretary of State is required to treat the claim as properly made “in the first instance” if “a properly completed claim form is received within one month…from the date on which the claimant is first advised of the defect”. The Secretary of State is also given power to allow such longer period than one month as he considers reasonable and, if the claim is received within that longer period, it must again be treated as properly made in the first instance.

 

25. What makes a claim for funeral expenses payment (made on the approved form) defective is described in regulation 4(8). It is defective if not completed in accordance with the instructions on the form:

 

“(8) A claim, other than a claim for income support or jobseeker’s allowance, which is made on the form approved for the time being is, for the purposes of these Regulations, properly completed if completed in accordance with the instructions on the form and defective if not so completed.”

 

26. The 1987 Regulations also control the manner in which a claim is to be made. By regulation 4(6)(b), a claimant must “deliver or send the claim to an appropriate office”. In the light of regulation 4(1), “the claim” must mean the document embodying the claim.

 

27. “Appropriate office” is defined by regulation 2(1) of the 1987 Regulations. Like all the definitions in regulation 2(1), it applies “unless the context otherwise requires”. Here is the definition of “appropriate office”:

 

““appropriate office” means an office of the Department for Work and Pensions and, where any provision in these Regulations relates to a claim, notice or other information, evidence or document being received by or sent, delivered or otherwise furnished in writing to an appropriate office, includes a postal address specified by the Secretary of State for that purpose”.

 

28. So there are two types of appropriate office. Firstly, an actual office of the DWP. Secondly, the term includes certain postal addresses that the Secretary of State has decided to specify for particular purposes of the 1987 Regulations.

 

29. The date of claim is to be fixed according to the rules in regulation 6 of the 1987 Regulations.

 

30. The general rule in regulation 6(1) is that “the date on which a claim is made shall be (a) in the case of a claim which meets the requirements of regulation 4(1), the date on which it is received in an appropriate office…”. Regulation 6 also deals with claims which were initially defective but then corrected under regulation 4(7):

 

“in the case of a claim which does not meet the requirements of regulation 4(1) but which is treated, under regulation 4(7) as having been properly made, the date on which the claim was received in an appropriate office in the first instance.”

 

Why the Secretary of State appeals

 

31. The Secretary of State was granted permission to appeal to the Upper Tribunal by a salaried judge of the First-tier Tribunal. The Secretary of State argues that the First-tier Tribunal misapplied regulation 4(7) of the 1987 Regulations. This is the provision about defective claims that are corrected within one month of the claimant being advised of the defect. It is argued that this could not help Mrs M because the Secretary of State was not “notified in writing of the claim” until 3^rd October 2013 which was outside the three month time limit which, for a funeral held on 27^th June 2013, was said to be 27^th September 2013.

 

32. This is clearly an argument that the Tribunal got the facts wrong. That is made clear by later parts of the Secretary of State’s application. This asserts that, under local arrangements with the Royal Mail, “if the claimant had delivered the form to the local Jobcentre as suggested in the statement of reasons it would have been stamped by the Royal mail team that dealt with that area”. None of that evidence was put before the First-tier Tribunal.

 

33. The grounds of appeal also assert that the Tribunal wrongly applied the postal and receipt presumptions in section 7 of the Interpretation Act 1978 rather than the correct rules in the 1987 Regulations. It is also said that the Tribunal erred in law because it “afforded no opportunity for the Secretary of State to refute the statement about the date of receipt in the decision notice”.

 

34. Mrs M disputed the Secretary of State’s grounds although her dispute really only re-argued the facts. She did, however, say that she hand delivered her claim form to Borehamwood Jobcentre. I thought that was her argument before the First-tier Tribunal, I have to say, although the Tribunal itself did not.

 

Conclusion

 

35. I reject the Secretary of State’s appeal and confirm the First-tier Tribunal’s decision.

 

36. The Secretary of State’s grounds of appeal are built on new evidence about postal arrangements that was not put before the First-tier Tribunal. The time to present evidence about postal arrangements was before that Tribunal. It was not as if this was a new or unexpected point. Anyone with an informed knowledge of social security law should have appreciated that the key issue on this appeal was one of fact. Did Mrs M deliver or send her claim form to the Borehamwood Jobcentre so that it was received before the three month deadline? It is for that reason that I reject the argument that the Tribunal should have given the Secretary of State the opportunity to make representations about the relevance of date stamps.

 

37. The Secretary of State chose to present no evidence at all to the First-tier Tribunal about (a) arrangements for receipt of post in Jobcentres, (b) arrangements for receiving documents delivered in person to Jobcentres, or (c) onward transfer of claim forms from Jobcentres to specialist benefit processing centres. In those circumstances, the First-tier Tribunal was entitled to accept Mrs M’s evidence.

 

38. Mrs M’s evidence was not entirely clear about whether she took the claim form to the Jobcentre in person or sent it by post. The Tribunal seems to have found that she sent it. It is true that the Tribunal did not make a finding about the date on which it was received. However, I see nothing to suggest that it applied the presumptions in section 7 of the Interpretation Act 1978.  It referred to the 1987 Regulations and did not mention the Interpretation Act. Once the Tribunal had found that Mrs M sent her claim form to Borehamwood Jobcentre on 20^th September 2013, it was not required to make an additional finding that it was received on a particular date falling before the expiry of the three month time limit.  Once the Tribunal had discounted the absence of a Borehamwood Jobcentre date stamp as being of relevance (even though the Secretary of State did not rely on this), it did not need to spell out a finding that the claim form was received at some point before the end of the three month time limit which it considered to be seven days’ later on 27^th September 2013. It was obvious that the Tribunal found that the claim form was delivered on before the end of the time limit. Otherwise, it would not have decided that the claim was in time.  

 

39. I should add that, in my opinion, the end of the period for claiming was 28^th September 2013, rather than 27^th September. Where a statutory period of time ends “after” a particular event, unless the legislation shows a contrary intention the day on which the event takes place is not counted. Therefore, the date of Mr M’s funeral, 27^th June 2013, should not have been counted. That follows from the ruling in Dodds v Walker [1981] 1 WLR 1027 (referred to in CIB/2805/2003) which holds:

 

“a reference to a “month” in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since (1808) 15 Ves. Jun 248, that in calculating the period that has elapsed after the occurrence of a specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning”.

 

40. By contrast, if the day of the specified event is to be counted, the recognised legislative formulations are to refer to periods “starting with” or “beginning with” the event: R (Zaporozhchenko & Others) v Westminster Magistrates’ Court [2011] EWHC 34 (Admin).

 

41. On the Tribunal’s findings, it is clear that Mrs M’s claim form was in time even though it was initially defective because:

 

(a) the Jobcentre was an “appropriate office” for the purposes of the 1987 Regulations. It was an office of the Department for Work and Pensions;

 

(b) Mrs M’s defective claim was received at an appropriate office before the expiry of the three month time limit (reg. 4(7))

 

(c) the Secretary of State advised Mrs M of the defect in her claim on 4^th October 2013 (reg. 4(7));

 

(d) the Secretary of State received Mrs M’s perfected claim form on 16^th October 2013, within one month of the Secretary of State advising her of the defect;. That meant it was treated as properly made “in the first instance” (reg. 4(7))

 

(e) the date of claim was therefore the date on which the claim was received in Borehamwood Jobcentre in “the first instance” (reg. 6(1)(b)).

 

Outcome

 

42. My refusal of the Secretary of State’s appeal means he must decide Mrs M’s claim for a funeral expenses payment on the basis that her claim was in time. In other words, that she satisfies the third entitlement condition in regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005.

 

 

 

 

 

 

(Signed on the Original)

E Mitchell

Judge of the Upper Tribunal

22^nd April 2015