R(IS) 3/01
Mr. J. Mesher CIS/4354/1999
17.5.00
Late claim - information received by claimant from the Department of Social Security in respect of an earlier claim - whether information which might have led claimant to believe second claim would not succeed
The claimant was in receipt of income support and incapacity benefit at the short-term lower rate. In the summer of 1996, he became entitled to incapacity benefit at the short-term higher rate. This exceeded his applicable amount and income support came to an end. A letter would have been sent to the claimant, telling him that his claim had ceased and explaining why. In January 1997, the claimant began to receive the long-term rate of incapacity benefit (£61.15). As he met the conditions for entitlement to a disability premium at that date, his income support applicable amount increased to £68.30, and he would therefore have been awarded income support had he re-claimed.
According to the claimant, he telephoned the Department of Social Security to enquire as to why he was not receiving this higher amount of benefit and was advised that he was receiving his maximum entitlement. He did not claim income support until June 1998, when he sought to have benefit backdated to January 1997. He argued that what was said to him by the officer of the Department of Social Security in January 1997 was "information" which led him to believe that his claim could not succeed. If, as a consequence of that information, he could not reasonably have been expected to claim income support earlier, then the time for claiming for that period would be extended to the actual date of his claim, pursuant to regulations 19(4) & (5)(d) of the Social Security (Claims and Payments) Regulations 1987.
A tribunal rejected the claim for backdating, and the claimant appealed to the Commissioner.
Held, allowing the appeal, that:
- the "information" referred to in regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987 is not restricted to information given in respect of the claim in question. It would include information given to the claimant on the ending of entitlement to income support in the summer of 1996. If CIS/2682/1999 is to the contrary, it should not be followed (paras. 13 to 18);
- what needs to be established under regulation 19(5)(d) is that which the claimant was actually led to believe, rather than what the "reasonable" claimant would have been led to believe. There is then a further test under regulation 19(4)(b) of whether, as a result of his belief, the claimant could not reasonably have been expected to claim earlier than he did (para. 14);
- the period of backdating allowable is limited to a maximum of three months. That period, in regulation 19(4) of the Social Security (Claims and Payments) Regulations 1987, is not aggregable with the period of up to one month which it is open to the Secretary of State to allow pursuant to regulation 19(6) (para. 19);
- notwithstanding the literal wording, the three month period in regulation 19(4) is that falling immediately before the date of claim. It does not run from the first day of the period claimed for (paras. 20 and 21).
The Commissioner set the tribunal's decision aside as they had failed to consider what the claimant was led to believe by the information given in 1996 or to make a finding as to whether or not they accepted the claimant's evidence about the contents of his telephone conversation with the Department of Social Security in January 1997. The case was remitted for a re-hearing.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- The claimant's appeal is allowed. The decision of the Plymouth social security appeal tribunal dated 11 November 1998 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to an appeal tribunal constituted under the Social Security Act 1998 for determination in accordance with the directions given in paragraphs 23 to 25 below (Social Security Act 1998, section 14(8)(b)).
The background
- The claimant's case as put to the appeal tribunal in a written submission prepared by his solicitors was based on the following. He had been receiving incapacity benefit before August 1995 and income support including the disability premium. However, the claimant was in prison from August 1995 to January 1996. When he was released he claimed incapacity benefit again, but because a new period of incapacity began, his entitlement was at the lower short-term rate. He was entitled to income support, although his applicable amount could not include the disability premium (which would have depended on clocking up another period of 364 days of being treated as incapable of work or receipt of the long-term rate of incapacity benefit). In February or March 1996 the claimant was told of those rules on enquiring about the amount of his benefits at a Citizens Advice Bureau. In the summer of 1996, he would have become entitled to higher rate short-term incapacity benefit (at that time £54.55), which would then have exceeded his applicable amount without the disability premium (£47.90). He would have been sent a standard letter telling him that his entitlement to income support had come to an end for that reason. In January 1997 the claimant became entitled to the long-term rate of incapacity benefit (£61.15). His income support applicable amount including the disability premium would then have been £68.30. He telephoned the Department of Social Security (probably speaking to someone in the incapacity benefit section) to enquire why he was not receiving benefit of around £68 as he expected. He was informed that he was receiving the maximum benefit he was entitled to. The claimant did not make any claim for income support at that time. He did not claim until after he consulted his solicitors in 1998.
- The timing of the claim was somewhat odd. The first contact with the Department seems to have been a letter dated 12 June 1998 to the income support section from the claimant's solicitors including an "application for backdated income support on the grounds that he has special reasons for his late claim". The claimant signed a claim form on 25 June 1998. There is no record of when the form was received, but on 14 July 1998 a representative of the Secretary of State certified that the claim was to be treated as made on 9 June 1998. A letter dated 21 July 1998 communicated the decision that there were no grounds to pay income support from January 1997. It was against that decision that the claimant appealed. It cannot now be disputed that the claim for income support in June 1998 included a claim for the period from January 1997 and that an adjudication officer's decision was given disallowing the claim for the past period.
- The case for the claimant was that the circumstances fell within regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987, as it had been in force since 6 April 1997:
"(d) the claimant was given information by an officer of the Department of Social Security or of the Department for Education and Employment which led the claimant to believe that a claim for benefit would not succeed;"
Where any of the circumstances specified in regulation 19(5) have applied to a claimant, and as a result the claimant could not reasonably have been expected to have made the claim earlier, then, subject to a maximum extension of three months, the prescribed time for claiming benefit is to be extended to the date on which the claim was made.
- The claimant, who was not represented at the appeal tribunal hearing, is recorded as having said that in January 1997, having allowed two weeks, he telephoned and spoke to a girl. She said that he had his legal entitlement to incapacity benefit and that he was getting income support and it was all in one.
The appeal tribunal's decision
- The appeal tribunal decided against the claimant. It noted differences in the way things were put, on the crucial telephone conversation in January 1997, in the solicitors' letter of 12 June 1998, the written submission and the claimant's oral evidence. It said this in the chairman's statement of findings of fact and reasons:
"13. The tribunal recognised that confusion may arise because of the fluctuation between amounts of incapacity benefit paid and the applicable amount for entitlement to Income Support which meant that at some times he would qualify and at other times would not qualify for income support. The tribunal worked on the premise that the onus was on [the claimant] to apply for income support. The onus was not on the Benefits Agency to advise him about entitlement.
- The tribunal concluded that as there were inconsistency between the two written statements about what [the claimant] had been told and the oral evidence that less weight could be placed on the evidence about the telephone conversation than would be placed if there was consistency in the three reports of the conversation.
- The tribunal also took account that although the conversation was in January 1997 the claim was not made until June 1998 and therefore could only be backdated for a maximum of three months to March 1998. The evidence in the schedule of evidence and given by [the claimant] to the tribunal was that he had sought advice from the CAB and his probation officer. The tribunal considered that if a late claim for income support was to be made then it is reasonable to have expected him to make that claim nearer to January 1997 when the conversation took place.
- The tribunal also took account that to meet the requirements of regulation 19 [the claimant] was relying in June 1998 on a conversation he had had 18 months previously. There appears to be no record at the Benefits Agency of that conversation. Whilst it is accepted that there was a conversation there is no corroborating evidence of what was said.
- The tribunal considered that the onus was upon [the claimant] to prove that he came within the provisions of regulation 19(5)(d) and the tribunal decided that he had not proved to their satisfaction that he came within those provisions."
The appeal to the Commissioner
- The claimant now appeals against that decision with leave granted by a Commissioner. The adjudication officer, in the submission dated 10 November 1999, supported the appeal. It was said there that the appeal tribunal failed to record clearly what evidence it accepted and what it found as a fact had been said to the claimant in the telephone conversation in January 1997. I agree that the appeal tribunal failed to make clear what its finding was of the contents of the conversation in the light of the view it took of the claimant's evidence and the submissions made on his behalf. That failure was an error of law.
- Ordinarily, that would be enough to allow a Commissioner to set the appeal tribunal's decision aside and direct a rehearing. However, the claimant's solicitors requested an oral hearing of the appeal in order to explain submissions on the relevance of the notification of the ending of entitlement to income support in summer 1996. I granted the request, because it seemed to me that it was arguable that, since the period for which the claim for income support was made started before the amendment of the Claims and Payments Regulations to remove the test of good cause for late claims, the claimant might have some accrued rights to rely on good cause which were protected by the operation of section 16(1)(c) of the Interpretation Act 1978.
- At the oral hearing, which the claimant attended, he was represented by Mr. Mark Sutherland Williams of Counsel. The Secretary of State (who has taken over the functions of adjudication officers) was represented by Mr. Leo Scoon of the Office of the Solicitor to the Department of Social Security. I am grateful to all present for their assistance.
Good cause and section 16(1) of the Interpretation Act 1978
- Let me start by considering the Interpretation Act point, as I have concluded that the particular facts of the present case mean that it cannot help the claimant. The argument for the claimant would, very briefly, run as follows. As from a date to be identified in January 1997 he satisfied the conditions of entitlement to income support apart from having made a claim. In accordance with Schedule 4 to the Claims and Payments Regulations, as it was before 7 April 1997 and still is, the time for claiming income support is the first day of the period in respect of which the claim is made. However, under regulation 19(2) as it was before 7 April 1997 the prescribed time could be extended to the date of claim where the claimant proved that there was continuous good cause for the delay in claiming from the end of the prescribed period to the date of claim. Since the claimant would before 7 April 1997 have had to rely on proving good cause in order to claim for a past period, it could be argued that he had an accrued right to rely on that rule which was not affected by the revocation of the regulations on good cause unless the revoking/amending legislation indicated a contrary intention. Such an argument could be regarded as supported by Commissioner's decisions R(F) 1/92 and R(A) 2/93 (referred to as CA/424/1989 in R(F) 1/92). I should record that Mr. Scoon submitted that there was no accrued right in such circumstances and that the revoking/amending legislation (the Social Security (Miscellaneous Amendments) (No. 2) Regulations 1997) displayed an intention against the general survival of any rights under the good cause test by including a savings provision. I do not need to decide any of those questions, and it is probably better that I say little about them. I do add, though, that there are difficulties in interpreting the saving provision in the 1997 Regulations (regulation 20) because it seems only to provide a saving provision in circumstances in which no saving is necessary.
- The point on which the claimant would fail, even if it is assumed that issues mentioned in the previous paragraph were decided in his favour, is this. Any accrued right to rely on the good cause test could only relate to claims for days prior to 7 April 1997. There could be no reliance on the Interpretation Act in relation to days falling on or after the day on which the regulations were altered. Moreover, the claimant could only have any accrued right subject to the conditions applied prior to 7 April 1997. Regulation 19(2) of the Claims and Payments Regulations, as in force before that date, expressly made the extension of time for claiming where good cause was proved subject to section 1 of the Social Security Administration Act 1992, which imposed an absolute bar on entitlement to benefit for any period more than twelve months before the date of claim. Applying that rule to the claimant's circumstances, and taking the date of claim as 9 June 1998 (although it probably ought to be the actual date of receipt of the claim), there could be no entitlement under the terms of the good cause rule before 9 June 1997. That date is after 7 April 1997. The only days for which the claimant could gain any benefit from the terms of the good cause rule fall outside the period for accrued rights could possibly be relied on, which ended on 6 April 1997.
- Accordingly, the question of whether there can be entitlement to income support on the claim made in July 1998 for any period prior to 9 June 1998 falls to be decided under regulation 19 of the Claims and Payments Regulations as in force with effect from 7 April 1997, and not to any extent under the previous rules on good cause.
The interpretation of regulation 19(5)(d) of the Claims and Payments Regulations
- It was argued for the claimant that the appeal tribunal erred in law in not taking into account under regulation 19(5)(d) the information given to the claimant on the ending of entitlement to income support in summer 1996. Mr. Sutherland Williams submitted that the words of regulation 19(5)(d) should be given a wide construction, as there was no express qualification of the word "information". Mr. Scoon submitted that the words should be given a very narrow construction, restricted to cases where information is given about the particular claim in question. Otherwise, he said there would be an unduly onerous duty on officers of the Benefits Agency, when asked about one benefit, to give information about other benefits. Mr. Scoon relied on two Commissioners' decisions in support of his submission.
- I reject Mr. Scoon's submission. In my judgment, the words of regulation 19(5)(d) are not to be given any artificially restricted meaning. Disregarding the Commissioners' decisions for the moment, it seems to me that when a letter is sent to a claimant by an officer of the Benefits Agency informing him of a benefit decision, information is being given. The question then is whether that information led the claimant to believe that a claim for benefit would not succeed. The test at this stage (providing that the substance of the information given is sufficiently established) is what the claimant in question was led to believe, not what a reasonable claimant would be led to believe. However, there may come a point where what the claimant says he was led to believe is so far-fetched that it cannot be accepted that the belief was linked to the information. I see no reason why the case should be excluded where information about one claim or benefit leads a claimant to believe that another claim, for the same or a different benefit, would not succeed. The crucial test then becomes whether as a result of those circumstances the claimant could not reasonably have been expected to claim earlier than he did (regulation 19(4)(b)). The result will not be to place an unacceptable burden on officers of the Benefits Agency to provide information. The issue is what a claimant is led to believe by the information which is actually given.
- The Commissioners' decision relied on by Mr. Scoon do not compel me to apply a different approach from that in the previous paragraph. The first is CIS/610/1998. There the claimant, who was receiving jobseekers' allowance fell ill and took a doctor's certificate to the Department of Social Security. An officer of the Department allegedly took in the certificate and told the claimant that he did not need to fill anything in. The claimant went away. After being sent an incapacity benefit claim form he went back to the Department and was then advised to make a claim for income support as well as for incapacity benefit. The question was whether the time for claiming income support from the earlier date could be extended to the actual date of claim. The appeal tribunal found that the circumstances did not come within regulation 19(5)(d) because the claimant believed that his claim was being processed. The Commissioner held that that was interpreting the provision too narrowly. He said in paragraph 12:
"When the rule refers to "a claim for benefit", does it mean the claim already made (as the tribunal understood it to mean) or a new and additional claim (as the claimant understood it to mean)? The words are to have their ordinary meaning, and are not wide enough to refer to all claims by the claimant for any benefit regardless of the times when they are made. I take the provision to be referring to the new claim or claims about which the [officer] was advising the claimant. In this case it was the new claims because of incapacity for work that the claimant would make if he queued, not the previous claim already in process."
- I think that I agree with what was said in that passage, but it must be read in the context of the facts of CIS/610/1998. The Commissioner was concerned, as was made clear in paragraph 13 of the decision, not to exclude from the scope of regulation 19(5)(d) a case where a claimant was deterred from making a further claim by information that an existing claim would succeed. The decision does not in my judgment support the existence of any general rule of the kind put forward by Mr. Scoon.
- The second decision is CIS/2682/1999, in which the claimant said that a notice disqualifying him from income support in 1995 led him to believe that he would not be entitled in the future. The appeal tribunal was concerned with the claim for income support made in April 1998. The Deputy Commissioner said that it had been expressly held in CIS/610/1998 that the ambit of regulation 19(5)(d) was limited to the belated claim and that there was no basis to distinguish that case from CIS/2682/1999. He then appears to have decided that, in the absence of any suggestion that the claimant had been told that he would never be entitled again, the appeal tribunal made no error of law in rejecting the application of regulation 19(5)(d). The Deputy Commissioner's overall decision may well have been correct, given the lapse of time from 1995 to 1998 and the changes of circumstances that may have occurred. However, if CIS/610/1998 was being interpreted as laying down a rule that information about the ending of entitlement on an income support claim cannot count for the purposes of regulation 19(5)(d) when a later claim for income support is in issue, the Deputy Commissioner was mistaken. If CIS/2682/1999 purported to lay down such a rule, in my judgment it should not be followed.
- Accordingly, I am satisfied that the appeal tribunal in the present case erred in law by not taking into account what the giving of the information on the ending of entitlement in summer 1996 led the claimant to believe about the prospects of success of a future claim. The new appeal tribunal which will conduct the rehearing must also take that into account. As the crucial issue may then be the operation of regulation 19(4)(b), the new appeal tribunal must also take into account the effect of the advice given to the claimant by the CAB in February/March 1996, according to his solicitors, as well as whatever it is found that the claimant was told in the telephone conversation in February 1997. If a claimant would reasonably have been expected to make a claim even one day earlier than the actual date of claim the test of regulation 19(4)(b) is not met. And an appeal tribunal may legitimately test whether or not it believes a claimant's evidence about what he was led to believe by what a reasonable person in the claimant's circumstances might have been led to believe.
The maximum extension of time of three months
- There are two further related points which I need to deal with. The claim actually made on an unknown date in July 1998 was treated on behalf of the Secretary of State as made on 9 June 1998. That must have been in exercise of the power in regulation 19(6) of the Claims and Payments Regulations to extend the prescribed time for claiming by up to a month in certain circumstances where the Secretary of State considers that to do so would be consistent with the proper administration of benefit. In his skeleton submission Mr. Sutherland Williams submitted that if the claimant's account of the facts was accepted his entitlement to income support could be backdated for a further three months. However, I agree with Mr. Scoon that that is wrong. The operation of regulation 19(4) is not cumulative with the operation of regulation 19(6). The three month limit on the possible extension under regulation 19(4) runs from the actual date of claim, not from the "treated as made" date under regulation 19(6).
- That conclusion depends on the outcome of another rather technical point, which so far as I know has never been taken by an adjudication officer or a representative of the Secretary of State. The drafting of regulation 19(4) is inept in the light of the way in which the prescribed time for claiming income support is set out in Schedule 4 to the Claims and Payments Regulations. The prescribed time is the first day of the period for which the claim is made. In the present case the claim seems to have been for the period beginning on the date in January 1997 when the claimant would have qualified for the disability premium. If the conditions of regulation 19(4) are met that requires the time for claiming to be extended to the actual date of claim, subject to the maximum extension of three months. The express words do not provide for the backdating of a claim to some past date, but for the extension forward of the time for claiming from the first day of the period for which the claim was made. If applied literally that would prevent the claimant here succeeding. The maximum extension of three months from January 1997 would expire in April 1997, way before the actual date of claim. Indeed, a claimant who made a claim for a period three months and one day before the actual date of claim would be unable to benefit from the operation of regulation 19(4).
- That is manifestly contrary to the purpose of the 1997 amending regulations, as well as being unfair. I can look at the report of the Social Security Advisory Committee, with the memorandum and response of the Secretary of State, on the draft amending regulations (Cm 3586, March 1997) in determining the purpose of the regulations. All of the discussion of the regulation 19 amendments there is in terms of backdating, and the Secretary of State rejected recommendations by the SSAC that the twelve month limit should be retained generally or in certain cases. The old twelve month limit in section 1 of the Social Security Administration Act 1992 was plainly in terms of counting back from the actual date of claim. The manifest purpose of the amendment was to allow benefit to be paid, if the conditions of regulation 19(4) were met, for a period up to three months before the actual date of claim, but not for any earlier period. Regulation 19(4) must be interpreted in that way. That could be done by treating a claim for a particular period as including claims for all the shorter periods within that period, including the period starting three months before the claim. But that is contrary to some Commissioners' authority (e.g. CIS/529/1990, which necessitated the insertion of paragraph (2A) into the old good cause form of regulation 19). I prefer to rule that the phrase "subject to a maximum extension of three months" means "subject to the rule that entitlement to benefit cannot be awarded for any period falling more than three months before the date of claim".
Conclusion
- For the reasons given above, the appeal tribunal's decision must be set aside as erroneous in point of law. The claimant's appeal against the adjudication officer's decision issued on 21 July 1998 must be referred to an appeal tribunal constituted under the Social Security Act 1998 for determination in accordance with the following directions. Mr. Sutherland Williams did submit that this was a case in which the Commissioner could substitute a decision on the facts, especially as the claimant was present at the oral hearing and could have given evidence. However, I thought it undesirable to take that course before the legal issues had been decided. In the event I did not hear any evidence from the claimant. The case must therefore go to a new appeal tribunal, which is generally the best qualified body for the assessment of evidence and the finding of facts.
Directions to the new appeal tribunal
- There must be a complete rehearing of the claimant's appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 12 November 1998. The new appeal tribunal must apply the legal approach set out above, in particular in paragraphs 14 and 18, in considering whether the notification of the ending of entitlement in summer 1996, as well as whatever the claimant was told in the telephone conversation of January 1997, falls within regulation 19(5)(d).
- There must be findings of fact as to whether or not the claimant was told anything in January 1997 which could have led him to believe that a claim for income support would not succeed (bearing in mind the difference between being told that he was getting the correct amount of incapacity benefit, with no information being given about possible entitlement to income support, and being told that he was getting all the benefits he was entitled to). If the new appeal tribunal concludes that the state of the credible evidence is such that it cannot determine what was said to the claimant in that telephone conversation, it should explain why it has reached that conclusion and record a finding that the claimant was not given information of the kind mentioned above.
- If the new appeal tribunal decides that either or both of the events in 1996 and 1997 fall within regulation 19(4)(d), it must consider all the circumstances (including those not specified in regulation 19(5)) cumulatively under regulation 19(4)(b) in asking whether the claimant could not reasonably have been expected to make the claim earlier than he did. The new appeal tribunal will wish to have evidence of what caused him to consult his solicitors' benefit advisor and how promptly he acted both before and after that consultation. Paragraph 19 above must be applied if the stage is reached of considering the maximum extension of time to be allowed.
Date: 17 May 2000 (signed) Mr. J. Mesher Commissioner
