Application No:  A9/05-06(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Application by the above-named claimant for
leave to appeal to a Social Security Commissioner
on a question of law from a tribunal's decision
dated 15 September 2005

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal by the claimant in relation to a decision of the tribunal dismissing the claimant’s appeal and confirming the decision of the decision-maker to the effect that the claimant is not entitled to income support (IS) for the period 4 December 2000 to 12 September 2001.

2.	At the request of the claimant a hearing of the application was arranged at which the claimant was present, though not represented, while the Department was represented by Mr Michael Donnan of Decision Making Services.  

3.	The reasons for the tribunal’s decision were as follows:

“On 8.11.2001, the Decision Maker disallowed a claim made on 15.10.2001 by the claimant for backdating of his Income Support for the period 4.12.2000 to 12.09.2001, which he requested because he had been awarded Invalid Care Allowance from 4.12.2000 but it could not be paid because he was in receipt of Incapacity Benefit (an overlapping benefit). 

The claimant did not argue that any of the conditions in Reg 19 of the Claims and Payments Regulations, which permit backdating in certain circumstances, were satisfied.  Rather he argued that he did not need to make a fresh claim and ask for backdating on 13.9.2001 because he had been on or entitled to Income Support all the way through from 2000.

However as can clearly be seen, he was not entitled to Income Support at least for the period 7.09.2000 – 25.10.2000 because his income (£195.40 per week) exceeded his applicable amount.

Furthermore we know that on 13.11.2000 he sent back his Income Support order book and then did not approach Income Support again until September 2001.  I really cannot accept that throughout this period while not receiving Income Support he thought he was still on Income Support and did not realise his claim in September 2001 was a fresh claim which would need backdating.

If he felt at any time after November 2000 that due to a relevant change in his financial position he might be entitled again to Income Support, it was up to him to make a claim so that the relevant calculations of income and applicable amount could be done but he did not do so.  The Decision Maker was right to treat this as a fresh claim made on 13.09 2001 and a claim for backdating on 15.10.2001 and to disallow backdating as the claimant does not rely on Reg 19(4) (5) (6) or (7).”

	The claimant’s grounds of appeal, as set out in his application form, were as follows: 

“The decision is wrong because it defies logic.  It does not deal directly with the issues involve [sic] but avoids them. The wrong case law was used in this case so therefore the decision is illegal.  This was a deliberate attempt by a corrupted official to line her own pockets by defrauding me of benefit.  The chairman of the appeals tribunal help [sic] her do this by deliberately avoiding the true facts of the case, and creating new case law that makes official notification irrelevant.”

4.	The claimant made an oral submission to me at the hearing and kindly provided me with a copy of his note.  For the sake of completeness I set out the relevant note, which was as follows: 

“The department allege that my claim for income support had terminated on the 7/9/2000, this is an outright lie, of which I have proof.  I have a document which proves that I was paid at a much later date.  The departments facts of the case are a totally mis-representative, and their claim that I did not satisfy the criteria, laid down in writing, for claiming this benefit, is complete rubbish.  All the forms that I filled in were filled in correctly, albeit a number of years prior to them having me fill in a second form.

This case is not about the back-dating of benefit of a new claim, but the deliberate attempt by corrupt social security officials to con me out of benefit.  The regulations and previous rulings that department representatives have used in considering the outcome of this case, have absolutely [sic] no bearing on what this case is really about.  These regulations are simply a misdirection used by officials to cover up their own corruption or incompetence.

The regulations that should determine the outcome of this case are those that deal with the law regarding the department’s responsibility to inform claimants, if and when, their benefits have been terminated.  The departments representatives don’t deny that I wasn’t informed that my benefit had ceased, and neither they are [sic] the tribunal chairman, were prepared to explain the departments legal requirements, concerning the notification, and the reasons for termination of benefit.  The case before the tribunal should have been, about the department’s failure to carry out its legal requirements of notification.

Would I have acted differently if I had been properly notified?  I would have been able to claim ICA directly from the department responsible for that benefit.  Not being notified did not give me that option.  One, if being totally impartial, and fair, considers the reasons as to why one waited months to contact the income support department, and comes to a conclusion, one must also, consider the reasons as to why one did not claim the benefit directly from the ICA department, using the same logic.  The tribunal failed to be impartial, considered the wrong regulations, and would have absolutely no bearing in case law.”

5.	Mr Donnan also made an oral submission at the hearing and, again, he provided me with a copy of his note used in his opening summary, which in the circumstances, I consider should also be set out in full.  It was in the following terms:

“This appeal follows an application for Income Support that was made by [the claimant] on 13/09/01 which appears to be the first contact made by him to the Income Support office since his previous claim had been disallowed on 13/11/00.  This was due to the fact that Disability Living Allowance ceased for [the claimant’s] daughter from 13/09/00, thereby disentitling his claim to Income Support from 07/09/00, due to the withdrawal of the Disabled Child Premium, which caused [the claimant’s] other income to be in excess of his Income Support entitlement.  [The claimant] reapplied for Income Support on 13/09/01 as he had since claimed Invalid Care Allowance for his wife on 09/03/01.  He had been awarded an underlying entitlement from 04/12/00, which attracts an extra premium (Carers Premium) in his Income Support assessment thereby bringing him back into Income Support entitlement.

Once Income Support was awarded again from 13/09/01, [the claimant] submitted a letter to the Income Support Office dated 10/10/01 in which he requested that the period between his two Income Support claims be re-examined as he wished to claim any Income Support due to him as far back as January 2001, due to the Invalid Care Allowance award raising his Income Support allowances again.  The decision maker considered the fact that the Invalid Care Allowance award was effective from 04/12/00, however, it was decided on 08/11/01 that [the claimant] was not entitled to Income Support for the period 04/12/00 to 12/09/01 as he did not satisfy the conditions contained in regulation 19(4) and 19(5) of the Social Security (Claims and Payments) Regulations, which relate to the backdating of a fresh claim to Income Support.

The decision was appealed by [the claimant], but when the decision was reconsidered by the decision maker on 01/08/02 it was not changed.  The appeal proceeded to be heard on 15/09/05, where the Tribunal upheld the decision of the Department.  [The claimant] has since sought leave to appeal in his letter to the Commissioners Office dated 19/10/05.

[The claimant’s] grounds for appeal focus on the fact that the tribunal held on 15/09/05 ignored his statement that he had not been notified of the disallowance decision dated 13/11/00.  The tribunal instead made its decision on the basis that it was hard to accept that [the claimant] would be under the impression that he still had entitlement to Income Support, despite having received no Income Support payments for ten months.  The tribunal therefore found that it was correct for the Income Support decision maker to treat [the claimant’s] application on 13/09/01 as a fresh claim and his application on 10/10/01 as a claim for backdating and to disallow [the claimant] as he did not satisfy the conditions of regulation 19.

In my observations to the Commissioner dated 15/02/06, I have submitted that [the claimant] did raise the point at the appeal tribunal that he had not received notification of his Income Support disallowance in November 2000 and on this point the Tribunal could be deemed as erring in law as it did not address an issue that was expressly raised before it and therefore may have failed in it’s [sic] inquisitorial role to explore this issue.

However, I summarised my observations by submitting to the Commissioner that this failure did not reduce the effectiveness of the decision dated 08/11/01, where [the claimant’s] letter dated 10/10/01 was accepted by the Income Support decision maker as an application for backdating of a fresh claim, rather than an application for revision or supersession.  I have submitted in my observations that regulations 3 and 6 of the Social Security and Child Support (Decisions and Appeals) Regulations concerning revision/supersession would not contain any  provision that would allow the decision dated 13/11/00 that disallowed [the claimant’s] previous Income Support claim, to be revised or superseded.

It is therefore my submission that the Tribunal took the correct approach in upholding the Department’s decision that [the claimant] had submitted a fresh claim to Income Support from 13/09/01 but did not satisfy the conditions contained in regulation 19 to allow the claim to be backdated to 04/12/00 – the date from which [the claimant’s] claim to Invalid Care Allowance took effect.”

6.	Mr Donnan also conceded that the claimant’s circumstances were such that if he had made the appropriate application at the appropriate time he would have been entitled to IS for the relevant period.  However, he did emphasise the fact that if the claimant was of the belief that he was still entitled to IS, it would have been required of him that he contact the Income Support office on 9 March 2001 (or as soon as possible thereafter) to report a change to his circumstances, namely that he had claimed Invalid Care Allowance (ICA).  He also emphasised that the claimant had a further opportunity to report to the Income Support office on 30 March 2001, the date he was informed by Invalid Care Allowance branch of underlying entitlement to ICA (though it could not be paid as he was in receipt of Incapacity Benefit (IB) effective from 4 December 2000).  Mr Donnan did point out that, if the claimant had reported the change in circumstances in March 2001, he would have alerted the Income Support section sooner to the possibility of his becoming entitled to IS again, as Income Support section could have awarded a Carer’s Premium if his claim to ICA was successful.  Mr Donnan submitted that it was relevant that paragraph 15 of the IS order book at the time stated:

“Any new benefits – You must send us a letter or form A9 if … you or your partner have claimed Invalid Care Allowance but do not get it because you get money from another benefit.”

	Mr Donnan submitted that he accepted that when the claimant claimed ICA on 9 March 2001 he had been without an IS order book since 13 November 2000.  However, he also submitted that the claimant had been regularly cashing a fortnightly order book for quite some time before November 2000 and he would have been expected to have been familiar with the types of changes to his circumstances that the Department required him to disclose.

7.	Mr Donnan also submitted that the validity of the decision-maker’s decision did not depend on its being communicated to the claimant [see Great Britain Commissioner’s decision R(P)1/85 and Great Britain Tribunal of Commissioners’ decision R(U)7/81].

8.	The claimant is seeking to appeal a failure by the tribunal to backdate a decision.  If the claimant could successfully appeal the decision to remove IS, then there may be some merit in the claimant’s arguments.  However, it is clear that the “normal” backdating rules do not assist the claimant.  The claimant is submitting that he is entitled to IS throughout the relevant period as he was not told that he was no longer getting IS.  Accordingly he submits that he does not have to “backdate”.  The claimant must argue, therefore, that there has been no effective removal of his original IS award because it was not communicated to him.  

9.	However, there is clear authority in two Commissioners’ decisions in Great Britain, namely, R(P)1/85 and R(U)7/81, that the validity of the decision does not depend on promulgation.  On the assumption that the decision was not communicated to the claimant, the only effect would be to give the claimant extra time to appeal the removal of IS.  The time for this would run from when he was informed.  

10.	However, in my view it is clear that there has been a valid removal, even though it is not clear whether that removal of IS was communicated to the claimant.  It is clear that the Department has conceded that there is a lack of formal evidence that the claimant was ever notified.  The claimant raised this matter as a complaint at the hearing, although it is not recorded in those specific terms, nor is it mentioned as such in the reasons.  The reasons state:

“… I really cannot accept that … he thought he was still on Income Support …”.

	Moreover, there is no mention of failure to be notified.  However, the tribunal has drawn a legitimate conclusion taking the claimant’s case at its height.  The tribunal would not have been giving reasons about the claimant’s knowledge if it had not assumed that the claimant had not been officially informed of the removal of IS.

11.	There is no doubt that the tribunal could have made this matter clearer but I consider that the tribunal was implicitly holding that it was not satisfied that the claimant had been informed of the removal of IS.  

12.	If the matter was reheard by a tribunal and that tribunal established that the claimant was not told of the decision to disallow IS from 7 September 2000, the claimant is not assisted in any way.  The reason for this is that even if he established this point explicitly, the decision to disallow would still be upheld as the claimant would not be able to show that he was entitled to IS until he qualified “through” his wife.

13.	In the circumstances it is not appropriate for me to grant leave to appeal as the claimant has no prospect of improving his position by winning any such appeal.

14.	It is clear that the claimant has fallen foul of the complex interaction of benefits and premiums.  It is clear also that he had an underlying entitlement to certain money which he has not received due to a procedural failure on his part.  In such circumstances the Department often considers making an ex gratia payment.  Such payments are entirely a matter for the Department.  The Department’s enthusiasm for considering such a course may be dampened by the wild and unsupported allegations of corruption and deceit made by the claimant against departmental officials.  It may be of some consolation to the officials involved that the tribunal and Commissioners, not only myself but other Commissioners, have also had similar allegations against them, entirely without substance.

15.	Accordingly I refuse leave to appeal.

(Signed):  J A H MARTIN QC

CHIEF COMMISSIONER

(Dated):