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[2000] UKSSCSC CIS_4490_1998 (13 June 2000)

RJCA/SH/RC/4

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/4490/1998

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER: R J C ANGUS


 


The decision of the Social Security Appeal Tribunal dated 3 December 1997 is erroneous in law. I set that decision aside and direct that the claimant's case be heard again by a differently constituted tribunal.

1. The claimant appeals, with the leave of the chairman, against the tribunal's decision that the claimant is not entitled to Income Support for the backdated period 20 November 1996 to 14 May 1997.
2. The claimant is a married woman with three dependant children, one of whom is disabled and in receipt of Disability Living Allowance. The claimant receives Invalid Care Allowance in respect of the disabled child. The claimant and her husband were in receipt of Family Credit up to and including 26 December 1996. Before departing to Bangladesh to attend his father's funeral the claimant's husband had, on 20 November 1996, made a repeat claim for Family Credit with the intention that payment of that benefit would continue after expiry of the current award. The renewal claim was rejected because neither the claimant nor her husband was in work while the husband was in Bangladesh. Consequently the claimant had only Child Benefit, Disability Living Allowance and Invalid Care Allowance and some financial assistance from her family to live on until her husband returned from Bangladesh on 25 April 1997.
3. On the husband's return he and the claimant sought advice from the Citizens Advice Bureau as to how to deal with debts which had accumulated during his absence. On advice, the claimant submitted a claim for Income Support to the Benefits Agency on 8 May 1997 and asked for the claim to be backdated. An adjudication officer decided on 21 May 1997 that the claimant was not entitled to Income Support in respect of the period from 20 November 1996 to 14 May 1997.
4. The claimant appealed to the Social Security Appeal Tribunal on the grounds that her entitlement to Income Support should be backdated as far as permissible under the regulations because, due to her ethnic background, she was unaccustomed to dealing with Social Security matters and in the period in respect of which she was making her retrospective claim she had been unable to claim or obtain advice because her husband was absent and the family on whom she had to rely lived at some distance from her and had similar difficulties of language and understanding. It was argued on her behalf at the tribunal hearing that the case law on the interpretation of the meaning of "good cause" as used in the version of regulation 19 of the Social Security (Claims and Payments) Regulations 1987 which was in force until 6 April 1997 was relevant to the interpretation of the current version of that regulation.
5. The statement of the tribunal's findings in fact includes the following:-

" 3. On 20.11.96 [the claimant's husband] went to Bangladesh and made a repeat claim for family credit. However the claim was rejected.

6. [The claimant] had Child Benefit, DLA, ICA as income after 26 December 1996. She received some assistance from her family pending her husband's return on 25.04.97.
7. A repeat claim for Family Credit on 1.5.97 was made.
8. A claim for Income Support was made on 8.5.97 and on 14.05.97 asked for it to be backdated to 20.11.96.
9. [The claimant] has a poor facility with English although at the hearing she did appear to have some understanding of English. However, it was accepted she had language difficulties although English is spoken in the home as the children all speak English, watches TV in English and does her own shopping.
10. [The claimant] has lived 19 years in England. During period of husband's absence she was able to cope with all the appointments and hospital visits relative to her [illegible] son. The boy, goes to normal school.
11. [The claimant's] brother went to Bangladesh but returned after 6 weeks. He lives in Didcot and is doing a Phd. there are also 2 sisters in London studying at King's College. The family used to live in London.
12. The brother in Didcot made the approach to the Council for housing benefit for help with the mortgage.
13. [The claimant] was in telephonic communication with her husband while he was in Bangladesh.
14. There are officers at the Benefits Agency who speak Bengali.".
15. The tribunal's reasons for its decision are stated to be:-

" 1. The claim falls to be considered under the Claims and Payments Regulations as amended from 7.4.97.

16. The date of claim was 8.05.97 therefore the amended Regulations apply.
17. The time for claiming Income Support is the first day of the period in respect of which the claim is made. Schedule 4 Claims and Payments Regs.
18. The first day of the period of the claim is 20.11.96 which is more than 3 months to the date of claim of 8.05.97. reg 19(4). Therefore, in the opinion of the Tribunal the claim would fail.
19. The tribunal, however, considered reg 19(4) and reg 19(5) as to whether any of the circumstances in (5) applied and whether as a result it was not reasonably practicable to obtain assistance from another person.
20. The appellant has some language difficulty but she has lived in England for 19 years, speaks English with her children and during her husband's absence was able to cope with all the matters of the household including doctors and hospital visits for her son.
21. The question was, therefore, whether it was reasonable for her to obtain assistance. The Tribunal felt she could have obtained assistance from those family members who assisted her financially. The family were not ignorant of the benefit system being in receipt of Family Credit, Child Benefit, DLA and ICA. The husband had a brother working for doing a Phd. and 2 sisters studying in London at King's College. These family members could have helped the appellant. The appellant was in communication with her husband and could have explained her position. The tribunal for these reasons considered that it was reasonably practicable for her to have obtained assistance. The appellant is caring for her son but he attends normal school in between injections and the Benefits Agency is 2/3 miles from her home. The Tribunal considers that it was reasonably practical for her to have obtained a claim form and have family assistance to fill it in.".
22. The claimant's grounds for appealing the tribunal's decision are that the tribunal had made insufficient findings in fact on which to base a decision as to whether it was reasonably practicable for her to have made a claim for benefit timeously and had given insufficient reasons to explain its decision. Moreover the tribunal had not dealt with the claimant's argument that although the provisions of regulation 19 applying to late claims for benefit had been changed some of the case law developed in the interpretation of the previous provisions is still relevant.
23. I heard the appeal on 19 April 2000. The claimant was not present but was represented by Mr McMorrow of Counsel and the Secretary of State, to whom the adjudication officer's functions have been transferred by section 1 of the Social Security Act 1998, was represented by Mr Scoon of the Office of the Solicitor to the Secretary of State for Social Security. I am grateful to both Mr  McMorrow and to Mr Scoon for their careful submissions.
24. Regulation 19(1) of the Social Security (Claims and Payments) Regulations 1987 as read with Schedule 4 to those Regulations provides that the prescribed time for claiming Income Support is the first day of the period in respect of which the claim is made. Paragraph (4) of regulation 19 provides, subject to an exception which is irrelevant to this appeal, as follows:-

" (4) ..., in the case of a claim for Income Support ..., where the claim is not made within the time specified ... in Schedule 4, the prescribed time for claiming the benefit shall be extended, subject to a maximum extension of 3 months, to the date on which the claim is made where -

(a) any of the circumstances specified in paragraph (5) applies or has applied to the claimant; and

(b) as a result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.".

Paragraph (5), in so far as relevant to this appeal, provides:-

" (5) The circumstances referred to in paragraph (4) are -

(a) the claimant has difficulty in communicating because -

(i) he has learning, language or literacy difficulties; or

(ii) he is deaf or blind,

and it was not reasonably practical for the claimant to obtain assistance from another person to make his claim;

(b) except in a case of a claim for jobseeker's allowance, the claimant was ill or disabled, and it was not reasonably practicable for the claimant to obtain assistance from another person to make his claim;

(c) the claimant was caring for a person who was ill or disabled, and it was not reasonably practicable for the claimant to obtain assistance from another person to make his claim;

(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 the claim for benefit would not succeed;

(e) the claimant was given written advice by a solicitor or other professional adviser, a medical practitioner, a local authority, or a person working in a Citizens Advice Bureau or a similar advice agency, which led the claimant to believe that a claim for benefit would not succeed;

...".

25. Before regulation 19 of the Claims and Payments Regulations was amended in April 1997 the provisions of the regulation as to late claims for benefit were as follows:-

" (2) Where a claimant proves that there was good cause, throughout the period from the expiry of the prescribed time for making the claim for the failure to claim a benefit specified in column (1) of Schedule 4 before the date on which the claim was made the prescribed time shall, subject to section 1 [of the Social Security Administration Act 1992] [12 months limit on entitlement before the date of claim] and paragraphs (4) and (4A), be extended to the date on which the claim is made.

(2A) In the case of a claim for Income Support, Family Credit or disability working allowance, where the claimant does not prove that there was good cause for the failure to claim throughout the period specified in paragraph (2) but does prove that there was good cause throughout the period from a date subsequent to the expiry of the prescribed time to the date on which the claim was made, the claim shall be treated as made on -

(a) that subsequent date if it is not more than 12 months before the date on which the claim was made; or

(b) in any other case the date 12 months before the date on which the claim was made.".

26. Mr McMorrow said that the basic ground of appeal was that the tribunal had failed to make sufficient findings in fact on which to base its decision and had failed to deal with the legal submission to the effect that the case law on the interpretation of the pre-April 1997 version of regulation 19 of the Claims and Payments Regulations was relevant to the current version of those Regulations. The provisions of the current version of regulation 19 constituted completely new rules on the backdating of entitlement. There was now a limit of three months on backdating.
27. Mr McMorrow said that at the tribunal hearing the only circumstances considered were those specified in paragraph (5)(a)(i). The tribunal could also have considered sub-paragraph (d) in this claimant's case. There was a two stage test, viz:-
28. her language difficulties and the fact of her caring for her disabled son and
29. was it reasonably practical for her to obtain assistance from another person to claim benefit.

If the two stage test is satisfied one goes back to paragraph (4)(b) to decide whether as a result of those two circumstances the claimant could not reasonably have been expected to make her claim earlier. He submitted that the tribunal had not gone through those stages. The new regulations had just come into effect at the date of the tribunal hearing and there was no case law to guide the tribunal. It has been suggested that the enactment of the new regulation 19 has swept away all the case law developed in the interpretation of the former regulation 19. He submitted that the tribunal has to deal with the individual claimant. The old case law can have relevance and if a tribunal does not have regard to it it must set out clearly how it has dealt with the new two stage test. Also the tribunal must consider the meaning of "reasonably practicable". That is reasonably practicable first to obtain assistance and secondly to make the claim timeously.

30. Mr McMorrow referred me to paragraph 6 of the tribunal's reasons for decision. The presenting officer had said in evidence that the claimant could do shopping and watch television. That, said Mr McMorrow, can be done nowadays without any words spoken. Television is a visual entertainment and ability to watch it is not an adequate test of the ability to communicate with others in English or process a claim for benefit. There are no clear findings in fact as to whether the claimant's language difficulties were preventative. The tribunal refers to the family who gave financial assistance but there is no information as to that family's language strengths. There is no evidence to substantiate any finding on the circumstances of the family - two sisters at King's College and others - or the degree of contact which the claimant had with them. The claimant obviously did attempt to obtain assistance from her brother-in-law in Oxford who had helped with the Housing Benefit claim but there is no finding as to what else he did. The evidence was he lived in Didcot and was in Bangladesh at the funeral during part of the relevant period.
31. The tribunal's finding that the family was not ignorant of the benefit system was, said Mr McMorrow, of suspect validity. The evidence makes it clear that the claimant's husband had made the earlier claims to benefit. There was a need for a finding as to her contact with the system. Under the regulations in force at the time a claim for Family Credit had to be made by the woman unless the Secretary of State was satisfied that it was reasonable for the man to make it. The Secretary of State had so accepted in this case. The tribunal should, therefore, have enquired as to why the Secretary of State had done that.
32. Referring to paragraph 5(d) of regulation 19, Mr McMorrow said the tribunal should have considered the applicability of that provision in the claimant's circumstances. Her husband's father had died suddenly. Before departing for the funeral her husband had made all the financial arrangements. There was no evidence of earlier receipt of Income Support. The husband had claimed a renewal of the current Family Credit award. All the claimant knew was that he was making the necessary arrangements. She received a refusal in September 1996 when her husband was away. There is no evidence that the Family Credit Unit told her of the alternative of Income Support. All she knew was that the Family Credit claim had been rejected. It was not therefore reasonably practicable for her to claim Income Support because she had been left with the impression that there was no entitlement to benefit. Paragraph 17 of R(SB) 6/83 was in point. That refers to the case of the employee who was late with his application to an industrial tribunal with a claim for unfair dismissal and whose application was found by the Court of Appeal to have been made as soon as reasonably practicable because the employee's delay had been due to the fact that he thought the reference of his claim for Unemployment Benefit to a National Insurance local tribunal was the same thing as the reference of his claim for unfair dismissal to the Industrial Tribunal. In this claimant's case she was told that she had no entitlement to Family Credit and there is no evidence that she knew of the alternative of Income Support or that she received any advice about the alternative from the Benefits Agency. On the precedent of R(SB) 6/83 it was not reasonably practical for her to claim Income Support at the correct time.
33. Mr McMorrow argued that another circumstance seemingly not taken into account by the tribunal was that the claimant's husband had expected to return at the same time as his brother but was detained for six months by a family dispute. There was evidence of this fact before the tribunal and it had a bearing on the reasonable practicability of the claimant making a claim for Income Support. A further matter is that it was known to the tribunal that she was receiving Invalid Care Allowance for looking after her disabled son. The minimum amount of care which qualifies a claimant for that benefit is 35 hours per week every week. That indicates a level of care over and above all other domestic and family responsibilities and is a factor which should have been considered by the tribunal in determining whether or not it was reasonably practicable for the claimant to claim Income Support.
34. It is, argued Mr McMorrow, the cumulative effect of the circumstances specified in paragraph 5 which have to be taken into account in determining the paragraph (4) questions. CS/371/49 was cited to the tribunal. That describes "good cause" for making a late claim under the old version of regulation 19 as being "some fact which, having regard to all the circumstances (including the claimant's state of health and the information which he had received and that which he might have obtained) would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did". He submitted that although "good cause" no longer appears in the Regulations it means no more than considering the cumulative effect of the circumstances, including the effect of the Department's failure to advise, on the claimant. This claimant's circumstances were that she was heavily reliant on her husband, had a poor command of English after 19 years in this country and had been left at short notice with her disabled son and in the mistaken belief that financial provision had been made for her. In all the circumstances it was reasonable that she did not claim in her husband's absence.
35. Mr Scoon said that it had to be conceded that there had been a technical failure on the part of the tribunal in that it had failed to address the claimant's argument that the cases on the interpretation of "good cause" as used in the old regulation 19(2) of the Claims and Payments Regulations were relevant to the interpretation of the current regulation 19(4) and (5). To that extent the tribunal's decision was erroneous in law.
36. There was, Mr Scoon argued, a fundamental difference between the old and the new provisions on late claims. The test is now whether or not it was "reasonably practicable" for the claimant to have made a claim but that is limited to particular areas of the legislation. The tribunal had accepted the claimant's language difficulties but thought them not to be pronounced because she had coped with matters and had some understanding of the tribunal proceedings. So the tribunal had her clear that hurdle. "Reasonably practical" is in the context of obtaining help. It is a much narrower context. Findings in fact numbers 8, 9, 10 and 11 indicate the tribunal's conclusion that the family had the ability to help and that the claimant had contact with her husband. There are Benefit Agency officers who speak Bengali. The tribunal had gone to great lengths to indicate the possible sources of help. Regulation 19(4)(d) refers to the benefit in issue. Commissioner's decision R(SB) 6/83 does not help because "reasonably practical" is linked to a narrow context. He agreed that there could be some commonality between the old test of "good cause" and the new test but it would be inappropriate to import the whole of the old "good cause" test into the new regulations. In response to a question from me Mr Scoon said that there probably would have been a submission on the new regulations to the Social Security Advisory Committee.
37. Mr McMorrow said that when he referred to the sisters in London he was not thinking of language difficulties but whether there was any contact with them. The claimant did approach her brother-in-law and coped with various matters in her husband's absence but those were household matters and there was no evidence of her having any previous experience of dealing with matters other than that. Mr Scoon, he argued, had said that the provisions are limited to the benefit in issue but paragraph (5)(d) says "information ... led the claimant to believe" i.e. any information from the Department which would lead her to believe that no claim to any benefit would succeed. "Reasonably practicable" is not restricted to obtaining assistance. Paragraph 4(b) says "could not reasonably be expected to make a claim earlier". That he submitted is the same as "not reasonably practicable" and, therefore, that also takes into account the Benefit Agency's rejection of a claim for Family Credit. Also the approach to the brother-in-law must be considered in the context of the circumstances of the rejection of the claim. There was no evidence of what had been her approach to her brother-in-law.
38. I accept Mr Scoon's concession that the tribunal has erred in law by neglecting to deal with the claimant's argument that the case law applied to the interpretation of the former version of regulation 19 of the Claims and Payments Regulations is applicable to the interpretation of the new version. On account of that error the tribunal's decision has to be set aside. I accept that Mr McMorrow has drawn attention to certain shortcomings in the evidence that help was available to the claimant from her brother-in-law and sisters and to other evidence which may indicate that the claimant was in more difficulty than the tribunal had accepted. Nevertheless, bearing in mind that the claimant was represented at the tribunal hearing and that it is for the claimant to establish her case, I do not think that the tribunal, even given its inquisitorial role, can, subject to what I say in paragraph 25 below be said to have made insufficient findings in fact or paid insufficient regard to the evidence which was before it. However, all questions of fact will be at large again before the tribunal which rehears the claimant's case and it will be for the claimant's representative to ensure that all relevant evidence in support of the claimant's case is put to the tribunal.
39. As to the relevance of the "old case law" to the interpretation of the new regulation 19(4) and (5), I accept Mr Scoon's argument that the new regulation 19 introduces a completely different regime from that of the old regulation 19(2). I did canvas with Mr Scoon and Mr McMorrow the possibility that I might obtain a copy of the Secretary of State's submission to the Social Security Advisory Committee on the draft of the new regulation 19. However, I have decided against doing that as it would have involved obtaining submissions from Mr Scoon and Mr McMorrow on the significance for the interpretation of the new regulation of the policy statement in the memorandum. I do not think it is necessary to incur that delay because it is quite clear from a comparison of the old regulation 19(2) with the new regulation 19(4) and (5) that the intention behind the new provisions is to restrict the circumstances in which there is a right to make retrospective claims to benefits to those specified in paragraphs (4) and (5) instead of the variety of circumstances which could amount to "good cause" within the meaning of the old paragraph (2).
40. It has, as Mr Scoon said, been stated by commentators that the enactment of the new regulation 19 swept away years of case law on the interpretation of "good cause". If that statement was intended to mean that none of the judicial interpretations of the old regulation 19(2) and its predecessors can be relevant to the interpretation of the new regulation 19(4) and (5) it is, to my mind, an overstatement. Paragraph 4(b) employs the phrase "could not reasonably have been expected" and paragraph (5)(a) employs "not reasonably practicable". Both provisions, therefore, import the concept of reasonableness on the part of the claimant. Consequently, any judicial interpretation of the old regulation 19(2) "good cause" in which the question of what was reasonable on the part of a claimant was considered may be relevant to the interpretation of paragraphs (4) and (5) of the new regulation 19. However, I should make it clear that I do not think that if the claimant in this case was ignorant of the possibility of making a claim for Income Support R(SB) 6/83 can be cited as authority for the proposition that she comes within the scope of paragraph (5)(a). I think that the impracticability of obtaining assistance which that provision envisages is such impracticability as arises from the circumstances specified in heads (i) and (ii) of sub-paragraph (a).
41. Mr McMorrow argued that the fact that when her husband's renewal claim for Family Credit was refused the claimant was given no information about the possible alternative of Income Support brings her within paragraph (5)(d). Mr Scoon's view was that it is only information about the benefit which is being claimed retrospectively which is envisaged by paragraph (d). I do not agree. The language of paragraph (d) is apt to include any information given by a departmental officer which leads a claimant to think that a claim to the benefit in question would not succeed, even if that information concerned a different benefit. The tribunal which rehears the case will have to investigate and make findings in fact on the effect which the refusal of the renewal of Family Credit had on the claimant's understanding of the possibility of her claiming any other benefits.
42. For the foregoing reasons the claimant's appeal succeeds, inasmuch as I have set the tribunal's decision aside, and my decision is as in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date) 13 June 2000