[2007] UKSSCSC CJSA_2663_2006 (14 June 2007)
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- The claimant's appeal to the Commissioner is disallowed. The decision of the Blackpool appeal tribunal dated 25 April 2006 is not erroneous in point of law, for the reasons given below, and therefore stands.
- There was an oral hearing of the claimant's appeal at Bury County Court, his request for one having been granted by Mr Commissioner Jacobs. The claimant attended. The Secretary of State for Work and Pensions was represented by Mrs Gillian Jackson of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both for their submissions. In view of the claimant's complaints about not having been able to put his case as he wanted to the appeal tribunal, I allowed him to read out a number of letters and submissions that were already in the papers as well as some documents he had specially prepared for the hearing, so that he could be sure that they had all specifically been drawn to my attention. I can assure him that I have taken all his submissions into account, even though I do not refer specifically to them all in what follows. I have attempted below to concentrate on the points that are crucial to the question of whether or not the appeal tribunal went wrong in law in some way. The claimant had been misled by Mr Commissioner Jacobs' statement that the purpose of the hearing was to consider the merits of his appeal into thinking that there would be a re-evaluation of all of the evidence and of his own credibility. I think that by the end of the hearing it was clear to the claimant that the focus was much narrower - on the question stated above. I am sorry that this decision will be issued well outside the time that I estimated at the hearing.
The issue in dispute and the relevant legislation
- The appeal tribunal was concerned with the decision given on 19 May 2005 that the claimant was not entitled to what were called incapacity credits for the tax years 1989/1990 to 2000/2001. The claimant has complained about the occasional use of the phrase "incapacity benefit credits" when before April 1992 incapacity benefit did not exist and the relevant benefits were sickness benefit and invalidity benefit. But nothing turns on that, as incapacity for work was part of the conditions of entitlement to sickness benefit and invalidity benefit. Throughout, the question has been whether the claimant was entitled to have earnings credited on the ground of incapacity for work. The decision of 19 May 2005 was given in response to the claimant's letter dated 13 May 2005, in which he requested that credits be reinstated due to his incapacity. His case was that he had been misdirected in 1989 or 1990 and told that he could not sign on sick or claim unemployment benefit after he had to retire from his business on 1 April 1989, because he had too much money in the bank. The reason given for the decision was that the claim for credits was outside the time limit.
- The relevant regulation as in force in May 2005 is regulation 8B of the Social Security (Credits) Regulations 1975 ("the Credits Regulations"):
"Credits for incapacity for work
8B.--(1) For the purposes of entitlement to any benefit by virtue of a person's earnings or contributions, he shall be entitled to be credited with earnings equal to the lower earnings limit then in force, in respect of each week to which this regulation applies.
(2) Subject to paragraphs (3) and (4) this regulation applies to--
(a) a week in which, in relation to the person concerned, each of the days--
(i) was a day of incapacity for work or would have been such a day had that person been entitled to incapacity benefit by virtue of section 30A of that Act under section 30C of the [Social Security Contributions and Benefits Act 1992] (incapacity benefit: days and periods of incapacity for work); or
(ii) would have been such a day had the person concerned claimed short-term incapacity benefit or maternity allowance within the prescribed time; or
(iii) was a day of incapacity for work for the purposes of statutory sick pay under section 151 of the Contributions and Benefits Act and fell within a period of entitlement under section 153 of that Act; or
(b) [not relevant: applies only to periods of payment of unemployability supplement].
(3) [not relevant: applies only to married women].
(4) A day shall not be a day to which paragraph (2)(a) applies unless the person concerned has--
(a) before the end of the benefit year immediately following the year in which that day fell; or
(b) within such further time as may be reasonable in the circumstances of the case,
furnished to the Secretary of State notice in writing of the grounds on which he claims to be entitled to be credited with earnings."
- Regulation 8B became part of the Credits Regulations in essentially the form set out above on 7 October 1996. There have been a few amendments since that date, but none to regulation 8B(4). It seems to have been the lack of any consideration of the effect of the Credits Regulations as they were prior to 7 October 1996, when a claim for credits from April 1989 was in issue, that caused Mr Commissioner May QC to grant the claimant leave to appeal after an earlier oral hearing on 29 November 2006. However, as put forward in the submission dated 18 January 2007 on behalf of the Secretary of State, what happened with effect from 7 October 1996 was that the provisions covering credits for both unemployment and incapacity for work, which had previously been dealt with together in regulation 9, were separated out and put into new regulations 8A (unemployment) and 8B (incapacity for work). I have verified for myself that that was the effect of the amending regulation, regulation 2(6) of the Social Security (Credits and Contributions) (Jobseeker's Allowance Consequential and Miscellaneous Amendments) Regulations 1996 (SI 1996 No 2367). Regulation 2(7) removed the existing regulation 9 of the Credits Regulations and replaced it by a new regulation 9 dealing only with the use of credits to qualify for short-term incapacity benefit. Regulation 4(1) of the 1996 Regulations specifically provided that the question of whether a person was entitled to be credited with earnings in respect of any week prior to 7 October 1996 was to be decided according to the regulations then in force.
- In 1989 and immediately before the amendment of 7 October 1996, regulation 9(8) of the Credits Regulations was as follows:
"(8) A day shall not be a day to which paragraph (5) applies unless the person concerned furnished to the Secretary of State notice in writing of the grounds on which he claims to be entitled to be credited with earnings, and did so before the end of the benefit year immediately following the tax year in which that day fell or within such further time as may be reasonable in the circumstances of his case."
There had been a technical change in 1987 from the concept of credits or crediting contributions (as in the original 1975 form of the regulations) to the crediting of earnings (from which satisfaction of the contribution conditions are now calculated). The time limit within which notice in writing of the grounds on which entitlement to credited earnings is claimed must be given, and the test for extension of time, has thus remained the same throughout the period in issue in the present case.
The appeal to the appeal tribunal
- I am going to ignore for present purposes the confusion amongst some officers about what the claimant was asking for in May 2005 and the requirement that he make a claim for current benefit. What was before the appeal tribunal was solely the decision about credits. I am also going to proceed on the assumption (although it is only an assumption) that throughout the period in issue the claimant would have satisfied the medical conditions to be accepted as incapable of work, which will mean that I say nothing about many of the claimant's arguments and concerns. The claimant's case initially was that he accepted what he was told when visiting the office of what was then the Department of Health and Social Security at Hurstdale House, Rawtenstall, with a sick note from his doctor and intending to claim. He was known to that office because of issues about the payment of national insurance contributions for employees of his company, which he had recently had to put into voluntary liquidation. He was told that because of the amount he had in the bank he was regarded as self-supporting and could not claim benefit. He said that he accepted that as the position until a friend pointed out the possibility of credits at the end of April 2005. The claimant's case is that, if he had not been misdirected, he would have been awarded sickness benefit, followed by invalidity benefit, and would have thereby had earnings credited for contribution purposes. However, I think that the claimant is also saying, in essence, that, whether he was advised rightly or wrongly about entitlement to benefit, he was not told that there was a point to producing doctors' certificates or to signing on as unemployed simply to ensure the crediting of earnings for contribution purposes.
- The claimant received a number of official communications about his contribution record prior to May 2005, copies of which he has supplied. On 15 January 1992 the Contributions Agency sent him a letter telling him about his contributions for 1989/90, what is often called a deficiency notice. This stated that the Agency's records showed nil contributions against the following categories: employed person, self-employed person, voluntary contributions, credits for sickness/incapacity, credits for unemployment, credits for other reasons. The letter asked the recipient to contact the Agency he thought that the record was wrong or if he wanted to pay voluntary contributions by the time limit of 5 April 1992. It was pointed out that if the record was correct, the year would not count towards qualification for retirement pension unless 52 voluntary contributions were paid. The letter said nothing about applying for credits, although I do not know what would have been contained in the accompanying leaflet.
- On 6 October 2003 the Pension Service sent the claimant a pension forecast at his request. The forecast contained the following:
"You may not receive a full basic State Pension when you reach State Pension Age. This is because your record shows there are 5 years in the last seven you have not paid enough National Insurance contributions, these years are shown below."
The years shown were the tax years starting on 6 April in 1996, 1997, 1998, 1999, and 2000. The tax year starting on 6 April 2001 would not have been affected because the claimant reached the age of 60 on 17 July 2001 and was so automatically entitled to credits on that ground from that year onwards. The claimant promptly wrote to the National Insurance Contributions Office of the Inland Revenue querying why he and his wife had not received deficiency notices for earlier years. The reply, dated 31 August 2004, noted the issue of the notice for 1989/90 but said that as no contributions or credits were recorded for that year or the following year he would not have received a deficiency notice for tax year 1090/91. The letter continued:
We notice that there are no contributions shown on either account for the years from 89/90. Can you please advise the reason for this, as it may be relevant to your case. If the reason for this is that you were self employed, please provide all dates of your self employment as this is to help with your enquiry.
Also note that there is no legal requirement for the Department to issue deficiency notices. The onus is and always has been on the contributor to ensure that their record is maintained for such purposes by the regular payment of contributions."
- The claimant also gave evidence of a further official contact in, I think, 2000, when he visited a Jobcentre to enquire about available jobs after moving house. He was told that he could not claim jobseeker's allowance because of money in the ban, but was not told anything about credits.
- The claimant attended a first hearing on 17 February 2006. No presenting officer on behalf of the Secretary of State attended. The claimant had prepared detailed written submissions and went through his case. The appeal tribunal adjourned for further medical evidence to be obtained and also directed that a presenting officer had to attend the next hearing to assist the appeal tribunal and the claimant. The GP was asked to provide medical records back to 6 April 1989 and to give an opinion about whether the claimant had been incapable of work from then until 31 December 2001. A comprehensive set of notes and letters was provided, but there was no attempt to answer the question. On the assumption I am making I do not need to say any more about that evidence.
- The claimant attended the hearing on 25 April 2006, as did a presenting officer. There was detailed evidence and discussion. The chairman's record of proceedings extends over nine pages in all. The appeal tribunal disallowed the appeal and confirmed the decision of 20 May 2005. The decision notice signed on the day of the hearing contained the following in addition:
"[The claimant] sought to obtain national insurance credits from 1.4.1989 having been disallowed Incapacity Benefit on his claim of 17.5.2005 as he failed to satisfy the first contribution condition. To obtain credits from that date [the claimant] would need to have put in a claim before the end of January 1992. Regulation 8B also allows an extension of time in `reasonable circumstances'. [The claimant] clearly feels that he has been ill-served by the DWP and misled in respect of benefit entitlement which would have produced a credits record by advice given to him in 1989. He also submitted that he has suffered continuous ill-health since that time. The tribunal, on careful consideration, found no legal facility to extend the period of credit claim. It reached the view that there had been circumstances since the original date, and within the period for which back-dating is sought, which should reasonably have prompted him to make further specific enquiries, and also found that although he has suffered ill-health it could be reliably established that he was incapable of work during the disputed period."
I am sure that the omission of "not" after "could" in the last sentence was a mere slip of the pen. The overall shape of the sentence allows no other conclusion.
- The chairman produced a statement of reasons at the claimant's request. The statement described the evidence mentioned in paragraphs 7 to 10 above and continued as follows (I have corrected some obvious typing mistakes and added [A], [B] and [C] for reference below):
"[A] [The claimant's] submission was essentially as delineated above - he said that the Department had been completely incompetent from 1989 to the present, both at Hurstdale House and other offices. He said that he accepted the wrong information in 1989, but acknowledged that he may have been naïve `If I hadn't had money in the bank I would maybe have questioned it a bit more closely'. When asked by the chairman why he did not make enquiries about contributions after receiving the deficiency notice of 15.1.1992 [the claimant] said that he had been intending to go back into business two years after liquidation, and as he wasn't short of money the lack of credits did not seem significant. He said that he had not felt prompted to seek further information concerning the consequences, although the tribunal noted that the deficiency notice clearly points out the consequential effects of contribution gaps upon Retirement Pension and state benefits. It specifically records `Nil credits for sickness/incapacity'. The Presenting Officer cited Reg 8B par 4 explaining that for [the claimant] to claim credits from i.4.1989, which week fell in the tax year 1.4.1989 - 31.3.1990, the relevant benefit year would be Jan 1991 - Jan 1992. She said that he therefore should have applied for credits before the end of January 1992. It had not been considered that there was any evidence which warranted extension of the time period due to the circumstances - there had been no evidence that he was not capable of making enquiries. She commented that the alleged misadvice was unlikely, but that it was difficult to form any cogent view since staff would tend to answer questions within the parameters of how the question was put. It was not possible to know this. She pointed out that [the claimant] had made no apposite later enquiries, and said that she found no power to permit such backdating in the 1975 legislation, and that from 1997 there was no possibility within the concept of good cause.
[B] In respect of the alleged misinformation in 1989 the tribunal could not ascertain fact at this remove, but did not doubt that [the claimant] understood that he had been told he could not claim Sickness Benefit because he had capital. The information was correct in respect of Unemployment Benefit - but the tribunal, having listened carefully to [the claimant's] account, could not rule out the possibility of a confusion of understanding, or some other breakdown of communication short of misadvice. In any event the tribunal considered that it would have been reasonable for him to make further directed enquiries within 16 years, since the applicable law - not to mention his own circumstances - was susceptible to change, and he had received prompts in the form of the deficiency notice in January 1992, and the pension forecasts in 2003. He acknowledged in evidence that his response may have been less than adequate, and that had he had less money, or not been planning to re-enter business, he might have made further enquiries, ie his reasons for not enquiring seem to have turned on these factors as much as a continuing belief in non-entitlement."
There was then a long discussion of the medical records, that I do not need to consider. The statement continued:
"[C] Looking carefully at the medical and functional situation throughout the relevant period from 1989 - 2005 the tribunal reached the view on the basis of the evidence and comment summarised above that [the claimant] had not made a timeous claim to credits. It considered that it was reasonable to expect him to make specific further enquiries in respect of entitlement after 1989 notwithstanding his belief that he had been told that he was not entitled because of capital, since some aspect of the applicable law might have changed between 1989 and 1992, and later. That he did not enquire was as much a function of his not needing benefits at that time, and intending to return to business, as it was of a belief that he would have no entitlement. Later the Thornton JobCentre did not advise him of the best course for him to take in respect of establishing credits - but it is not possible to establish in any accurate detail the context, content, or tone of [the claimant's] enquiries with any certainty, and the tribunal does not find it shown that any misadvice was given or implied on those occasions. The tribunal did not doubt his conviction that he had been inadequately dealt with in 1989 or later, but did not consider that the account was sufficiently cogent or persuasive to establish this as probable. Therefore the tribunal did not find that there could be any reasonable extension of time to claim credits on the ground of misadvice."
The appeal to the Commissioner
- As indicated above, the claimant now appeals against the appeal tribunal's decision with leave granted by Mr Commissioner May QC. I think that the arguments made by the claimant, after putting aside those made redundant by the assumptions I am making, can be grouped into the following categories: (a) that there was a breach of the principles of natural justice in his only receiving a copy of the chairman's record of proceedings from the hearing on 17 February 2006 five minutes before the start of the hearing on 25 April 2006; (b) that there was a breach of the principles of natural justice in that he was not allowed to make his case on 25 April 2006 in the way that he wished; (c) that the appeal tribunal of 25 April 2006 misstated the way in which he came to claim credits; (d) that the appeal tribunal wrongly applied regulation 8B of the Credits Regulations to a period before its introduction; (e) that the appeal tribunal wrongly applied the test in regulation 8B(4) to a case of an initial misdirection; and (f) that the appeal tribunal wrongly failed to make adequate findings of fact or give adequate reasons about how he was misdirected in 1989 and as to what was a reasonable time for him to claim credits. I ruled at the oral hearing on 1 May 2007 that the complaint of breach of natural justice in the claimant's application for leave to appeal being determined by the chairman of the appeal tribunal of 25 April 2006 was no longer relevant after leave to appeal had been granted by Mr Commissioner May QC.
(a) Natural justice - record of proceedings from 17 February 2006
- It is unfortunate that the claimant was not given a copy of the handwritten record of proceedings until just before the start of the hearing on 25 April 2006, especially as the handwriting is difficult to make out, and impossible in places. However, I do not find that the claimant was thereby deprived of a fair hearing. I accept that it is unsettling to receive documents just before a hearing, and even more so if they are illegible in part. But the appeal tribunal of 17 February 2006 had made no findings of fact and the appeal tribunal of 25 April 2006 was carrying out a complete hearing from scratch on all the evidence that it had, including all the medical evidence directed by the appeal tribunal of 17 February 2006. The claimant regards some elements of fact as having been established before that appeal tribunal. Whatever the chairman may have said about the case on that date, nothing had in law been established. If the chairman on 25 April 2006 had gained some impression of the case by reading the record of proceedings, of which the claimant was unaware because of the absence of any realistic opportunity to read the record, I cannot see that that could have had any more than an insignificant effect on his ability to put his case forward. In that respect I agree with the district chairman when refusing to set aside the decision of the appeal tribunal of 25 April 2006.
- As an incidental matter, the claimant has complained that following the adjournment on 17 February 2006, only medical records from 6 April 1989 were requested from his GP, when he had shown that medical conditions earlier in the 1980s were relevant. Page 59 of the papers shows that the request authorised by the chairman of the appeal tribunal of 17 February 2006 was for records back to 6 April 1989. The absence of earlier records did not prevent the claimant from raising points about his condition leading up to April 1989. However, as I am operating on the assumption that the claimant was incapable of work throughout the period in issue, I need not pursue this point any further.
(b) Natural justice - conduct of the proceedings
- The claimant has complained that he was not allowed to go through all of the documents to which he wanted to refer and, contrary to statements that there would be ample time to look at everything, was cut short by the chairman in challenges to the Secretary of State's case because of lack of time. I am satisfied, looking at the length of the record of proceedings for 25 April 2006 and the detail of the appeal tribunal's statement of reasons, that the claimant was not unfairly prevented from putting forward any significant part of his case. It is the responsibility of the chairman to keep the proceedings before appeal tribunals within reasonable bounds and, if satisfied that no important matters have been overlooked, to prevent repetition and unnecessary reading out of documents that the appeal tribunal has before it. I do not find that the chairman went beyond that proper responsibility. In addition, many of the matters complained of related to medical issues that are not relevant at the present stage of the case on the assumptions I have adopted.
(c) The making of the claim for credits
- The claimant has been particularly annoyed by the statement in the second paragraph of the appeal tribunal's reasons that he claimed credits for the tax years from 1989 to 2001 after his claim for incapacity benefit from 4 May 2005 was disallowed because of a failure to satisfy the first contribution condition. That was the order of events described in the Secretary of State's written submission to the appeal tribunal. The claimant is insistent that, as shown in his letter dated 13 May 2005 (page 7), his purpose at that time was to pursue National Insurance credits back to April 1989 and that he only made a prospective claim for incapacity benefit because he was told that he had to do so for a claim for credits to be considered. I have no difficulty in accepting that, but I cannot see that the appeal tribunal's mistake in this respect makes any difference at all in law. The decision that was under appeal was the decision dated 19 May 2005, which was solely a disallowance of the claim for credits, for failure to satisfy the condition in regulation 8B(4) of the Credits Regulations. It was irrelevant to the strength or otherwise of the claimant's case on that appeal whether or not and if so when a prospective claim for incapacity benefit had also been made. For similar reasons, the grammatical and/or typing errors in the request for a decision copied on page 16 were irrelevant to the decision that the appeal tribunal had to reach on its own independent consideration of all the evidence and submissions.
(d) Application of regulation 8B of the Credits Regulations to the period before 7 October 1996
- At the oral hearing, Mrs Jackson for the Secretary of State accepted that the appeal tribunal had erred in law by simply applying regulation 8B in relation to the period from 6 April 1989 to 6 October 1996 without considering the terms of the legislation in force throughout that period. That was I think contrary to the Secretary of State's written submission of 18 January 2007, which had suggested that the appeal tribunal was bound to apply the legislation, and in particular the time limit, in force at the date of the decision under appeal (19 May 2005). That suggestion must have been wrong in law, both because of the express provision in regulation 4(1) of the Social Security (Credits and Contributions) (Jobseeker's Allowance Consequential and Miscellaneous Amendments) Regulations 1996 (see paragraph 5 above) and of the principle that where a provision has been repealed rights accrued under that provision are not affected where it would be unfair if they were, unless the repealing provision displays a contrary intention (see section 16 of the Interpretation Act 1978). Thus, if the time limit rules prior to 7 October 1996 had been more favourable to claimants than those in regulation 8B(4), there could have a good argument that the claimant in the present case was entitled to have those more favourable rules applied to him in relation to the period prior to 7 October 1996. But, as explained in paragraphs 4 to 6 above, those rules were no more favourable to claimants than those in force from 7 October 1996, indeed were for all practical purposes identical. Thus, there is no basis for an argument based on accrued rights and the principle against retrospective effect and it does not matter whether or not regulation 4(1) of the 1996 amending regulations was in itself sufficient to require the application of the pre-October 1996 time limit. The limit has been in the same terms all along. Accordingly, I agree in substance with Mrs Jackson's submission that the appeal tribunal's error was merely a technical one. I would prefer not to use the word "technical", but say that the error of law was not a material error, in that it was not capable of affecting the outcome of the appeal. It therefore did not render the appeal tribunal's decision erroneous in point of law and does not justify setting that decision aside.
(e) The application of regulation 8B(4) where there has been a misdirection
- The claimant submitted that the test in regulation 8B(4) and in the previous legislation of furnishing notice in writing of the grounds for claiming entitlement to be credited with earnings for any day before the end of the benefit year following the tax year containing the day in question or within such further time as may be reasonable in the circumstances could not be applied in his case. His argument was, I think, that the misdirection he said he received in 1989 somehow trumped or overtook the conditions just set out, and made it unfair for the Secretary of State to rely on those conditions. I cannot accept that argument. The formula of "reasonable in the circumstances" requires the consideration of all relevant circumstances, including the nature and effect of any misleading official information or advice and failures to provide information. But as the circumstances of cases will vary, no one factor can as a matter of law be given a conclusive effect. I do not agree that that is unfair, but even if it were, it would not allow an appeal tribunal or a Commissioner to ignore the plain words of regulation 8B(4). Sections 22(5) and 175(3) of the Social Security Contributions and Benefits Act 1992 (and equivalent provisions in earlier Acts) authorise the making of regulations for the crediting of earnings and for imposing conditions on such crediting. The rule in regulation 8B(4), even if accepted as having unfair results, falls a very long was short of being irrational or of arguably contravening any rights under the European Convention on Human Rights.
- Nor could I accept an argument along the lines that, if it is once accepted that a claimant was at some point in a position where a reasonable person would not realise that it was necessary or possible to make a claim for credits on the ground of incapacity for work, any subsequent claim must be accepted as having been made within a reasonable time. That would involve ignoring any possibly relevant events occurring before the claim was made and would be contrary to the requirement in regulation 8B(4) to take all the circumstances into account.
(f) Inadequate findings of fact and reasons
- This is the most general of the categories and I include within it several different strands of the claimant's arguments. Some specific aspects of the appeal tribunal's reasons have also already been dealt with above.
- The claimant has submitted, most cogently I think in the three-page document handed in at the oral hearing headed "Re document 165 statement of reasons" (which I have labelled C), that the appeal tribunal was wrong to accept submissions from the Secretary of State that he would not have been told what he said he was told in 1989 and did not make clear findings about what he was in fact told. I find this to be a point of substance that needs careful examination. This might be one of those cases where the very fullness and detail of a statement of reasons leads to suggestions of inconsistency between different parts of the statement and a blurring of the clarity of a decision notice.
- In the first sentence of paragraph [B] of the statement of reasons, as set out in my paragraph 13 above, the appeal tribunal appears to find that the claimant's understanding in 1989 was that he was told by an official at Hurstdale House that he could not claim sickness benefit because of his capital. The following sentence is difficult to understand, especially as that information would not have been correct at the time in respect of unemployment benefit (except in cases where a claimant had received a compensation payment on termination of employment). I think what was meant was that the official might have been trying to communicate some different message, but the statement did not spell out what the consequences of that might be. But then in the middle of paragraph [C] the appeal tribunal says that it did not find the claimant's account (in relation to 1989 and later) sufficiently cogent or persuasive to establish as probable that he had been inadequately dealt with. The claimant submits that the record of official incompetence and misunderstanding in his case suggests at the least that it is not beyond the bounds of probability that he should have been given plainly wrong information in 1989 and that, as misdirection in 1989 was the central pillar of his arguments, he was entitled to more specific findings about what he was told and what he could reasonably have understood in 1989.
- There is force in that submission, but I have concluded that, because of the appeal tribunal's other findings and conclusions, a failure to make those more specific findings did not affect the outcome of the appeal. Thus in paragraph [B] the appeal tribunal goes on to say that it would have been reasonable for the claimant, in the light of the prompts from the deficiency notice and the pension forecasts and of the fact that the law can and does change, to have made more directed enquiries at some time before May 2005. The same point is made in paragraph [C]. In my judgment that was a conclusion that the appeal tribunal was entitled to reach on the evidence before it. The appeal tribunal's approach was that, whatever had in fact been said to the claimant in 1989, but assuming an acceptance of his account, nevertheless he did not satisfy regulation 8B(4) because of his failure to take further action (such as making enquiries) before May 2005. That had perhaps been put more plainly and simply in the decision notice.
- The claimant has submitted that the deficiency notice and the pension forecast were not sufficiently specific and clear to displace the force of what he was told by someone with apparent knowledge and authority in 1989. I do not agree. It is important that the focus in the present appeal is on what could be a reasonable time in all the circumstances of this case to furnish notice of the grounds on which entitlement to credits was claimed. The positive information given in 1989 was about whether the claimant could be entitled to sickness/invalidity benefit with substantial capital. It is true that if the claimant had not been put off claiming and if he had satisfied the conditions then in force about incapacity for work he could have been awarded benefit and along with that entitlement to credited earnings. However, an equally important element of the 1989 information was that he was not told anything about the possibility of applying for credits separately from a claim for benefit, or about entitlement to credits being accepted on proof (roughly) of incapacity for work even if for some other reason sickness/invalidity benefit could not be awarded.
- Then, looking at matters from the point of view identified above, it seems to me that the 1992 deficiency notice and the 2003 pension forecast were both relevant. The deficiency notice did state that there had been nil credits for sickness/incapacity in 1989/90, albeit in a list with five other nils. It did not give any information about how to go about getting entitlement to credits or whether that could be done retrospectively, although I do not know what would have been in the accompanying leaflet. However, significantly, it did draw the claimant's attention to the gap in his contribution record for 1989/90, particularly in relation to qualification for retirement pension, in circumstances that would have been replicated in future years. The pension forecast also drew attention to the gap in the years from 1996/97 to 2000/01, although again in the specific context of qualification for retirement pension and the possible payment of voluntary class 3 contributions. The letter of 31 August 2004 from the National Insurance Contributions Office, although not specifically mentioned by the appeal tribunal, provided another prompt inviting information about why no contributions were shown from 1989/90 onwards, that was not taken up. It seems to me that the failure of the JobCentre in around 2000 to mention credits was entirely neutral: that omission neither strengthened nor weakened the claimant's case. Looking at all those factors, I conclude that the appeal tribunal was entitled, within the area of reasonable judgment allowed to appeal tribunals, to conclude that by May 1995 what would have been a reasonable time for claiming credits for any of the years from 1989/90 to 2000/01 had expired.
- There are two further factors, not specifically mentioned by the appeal tribunal, that reinforce my finding that the appeal tribunal was entitled to reach that conclusion. To some extent they cancel each other out. The first is that the whole area of the crediting of earnings or contributions and in particular of whether and how separate claims need to be made for credits is in my view very obscure. In the Commissioners' case-law on the old test of good cause for delay in claiming benefits it was accepted that, although in general a person was expected to take reasonable steps to find out what his rights were, there could be circumstances in which a reasonable person would not realise that there was anything to enquire about (see the old decisions R(P) 1/79 and R(S) 3/79). Here, it could argued that, if the claimant had made no enquiries and received no information at all, a reasonable person would not have realised that there was anything to enquire about on credits. At the oral hearing, Mrs Jackson did not accept that that was so, but I think that she was over-estimating the level of knowledge and understanding of the contributions system that could be expected, even from someone who, like the claimant, had had to deal with the deduction of contributions when running his company.
- However, the other factor that comes into play is the precise form of the test in regulation 8B(4). It is not whether a claimant had good cause for the delay in claiming credits or whether there were reasonable grounds for the delay, but the more general test of what is a reasonable time in the circumstances for a claim to be made. Therefore, as Mrs Jackson submitted, the length of the time after the period for which credits are claimed is a factor, along with all the other circumstances. When entitlement to credits rests on proof of incapacity for work, the assessment of the evidence and the making of a proper decision becomes more difficult the further away from the period in question one gets. As a general proposition it can be accepted that the longer the gap from the tax year in question the more compelling the other circumstances must be for it to be concluded that the time for claiming, outside the following benefit year, is reasonable.
- I look at those two factors in the context of the present case in the following way. In relation to the earliest relevant tax years the lapse of time was very long, so that even if it were accepted that a claimant who had been specifically turned away from claiming sickness/invalidity benefit might reasonably fail to realise that there was anything to enquire about as to credits for incapacity for work, it would still be difficult to conclude that 16 years was a reasonable time in the circumstances for claiming. For the most recent relevant tax years, up to 2000/2001, the lapse of time to May 2005 was considerably less. A claim by the beginning of January 2003 would automatically have been in time for that tax year. However, the claimant was not, for a substantial period before May 2005, in a simple position of ignorance. He had received the deficiency notice in January 1992 and the pension forecast in October 2003, together with the further letter from the National Insurance Contributions Office in 31 August 2004. All of those alerted the claimant to the gaps in his contribution record, including some mention of credits, in such a way that the appeal tribunal was entitled to conclude that, even in relation to 2000/01 and the immediately preceding years, the time for claiming credits was no longer reasonable by May 2005.
- Thus, the appeal tribunal's evaluation of the evidence and its conclusion was within the area of reasonable judgment allowed to appeal tribunals. Even on the assumption that the appeal tribunal was wrong about the claimant's incapacity for work and that he had proved incapacity throughout, the appeal would have had to be disallowed on the regulation 8B(4) test. It might be possible to argue that the appeal tribunal should have given a more detailed analysis of the factors relevant to whether the claim was made outside a reasonable time, for instance taking into account the factors mentioned in the previous three paragraphs. But any such failure was not crucial. For the reasons explained above, the central factor pointing against the claimant's case was the information that the claimant had received in the deficiency notice, the pension forecast and the following letter. The appeal tribunal gave an adequate explanation of its reasons for regarding that factor as crucial and thus made it sufficiently clear to the claimant why his case had not succeeded.
Conclusion
- Accordingly, I conclude that there was no material error of law in the appeal tribunal's decision such as to justify setting its decision aside. The claimant's appeal to the Commissioner must be dismissed.
(Signed) J Mesher
Commissioner
Date: 12 July 2007
