[2009] NISSCSC C1_08_09(SF) (03 March 2009) 

Decision No:  C1/08-09(SF)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

SOCIAL FUND

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 9 July 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 9 July 2008 is in error of law.  The error of law identified will be explained in more detail below.

2.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

3.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without having to make fresh or further findings of fact.

4.	My decision is that the claimant is not entitled to a social fund (SF) payment in respect of funeral expenses.  This decision will come as a disappointment to the claimant who had thought that, as a result of the appeal to the appeal tribunal, he had gained an entitlement to the SF payment, in respect of the funeral expenses resulting from the death of his late father.  As a consequence of my decision he will now learn that he is not so entitled.  As will be explained in more detail below, the decision of the appeal tribunal is wrong in law, must be set aside and an alternative decision must be substituted for it.

Background

5.	On 8 or 9 May 2008, an application form for a funeral payment from the SF was received in the Department from the claimant.  A copy of the relevant application form was attached to the original appeal submissions, prepared for the appeal tribunal hearing, as Tab No 3.

6.	The application was made in connection with funeral expenses arising from the death of the claimant’s father.  At Part 2 of the form the claimant indicated that his father had passed away on 23 January 2008 and that his funeral had taken place on 25 January 2008.  Attached to the relevant claim form was a copy of a newspaper death notice and a copy of a funeral services account from an undertaker.

7.	The front page of the application form has two receipt date stamps on it.  The first states that it was received in the Jobs and Benefits Office in Magherafelt on 8 May 2008.  The second states that it was received in the Jobs and benefits Office in Coleraine on 9 May 2008.  Whether the application was received on 8 or 9 May 2008 makes no difference as, on either date, it was received outside the prescribed time limits for the making of an application for a funeral payment from the SF.

8.	On 9 May 2008, a decision-maker of the Department decided that the claimant was not entitled to a SF funeral payment as the application for same was received outside the prescribed time limit for claiming such a payment.

9.	An appeal against the decision dated 9 May 2008 was received in the Department on 29 May 2008.

10.	The appeal tribunal hearing took place on 9 July 2008.

11.	The appeal tribunal allowed the appeal, and did not confirm the decision dated 9 May 2008, but substituted its own decision.  The form and effect of the substituted decision will be discussed in greater detail below. 

12.	On 21 July 2008 a request for a statement of reasons (SORs) for the appeal tribunal’s decision was received in The Appeals Service (TAS) from the Department.

13.	On 18 August 2008, the SORs were issued to the Department.

14.	On 10 September 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS from the Department.

15.	On 15 September 2008, the application for leave to appeal was granted by the legally qualified panel member (LQPM) (appearing to ‘state a case’ for the Social Security Commissioner).

Proceedings before the Social Security Commissioner

16.	On 2 October 2008 a further submission was received in the Office of the Social Security Commissioners.

17.	On 3 October 2008 observations on the Department’s appeal were sought from the claimant.

18.	The claimant did not reply to the request for observations and, accordingly, on 20 November 2008, I directed that an oral hearing of the appeal be held.

19.	The oral hearing of the appeal was subsequently arranged for 16 January 2009.  Prior to the oral hearing, a skeleton argument was received from the Department.  Despite further correspondence with the claimant in connection with the date, time and venue for the oral hearing, and in connection with sharing with him the skeleton argument from the Department, nothing further was heard from him.

20.	At the oral hearing the Department was represented by Mr Donnan of the Decision Making Services section.  The claimant did not attend.  Gratitude is extended to Mr Donnan for his detailed and constructive observations, comments and suggestions.

Errors of law

21.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

22.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)	failing to give reasons or any adequate reasons for findings on material matters;

(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)	giving weight to immaterial matters;

(v)	making a material misdirection of law on any material matter;

(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

The error of law in the present case

23.	The error of law in the present case was that the appeal tribunal relied on and applied a version of a set of legislative provisions as they had stood prior to significant amendment in 1997.

24.	The rules of entitlement to a funeral payment from the SF at the date of the decision under appeal

25.	The rules of entitlement to a funeral payment from the SF are to be found in regulations 7 and 8 of the Social Fund Maternity and Funeral Expenses (General) Regulations (Northern Ireland) 2005, as amended.  Regulation 7(2) provides that ‘subject to regulation 8, a funeral payment shall be made where each of the conditions referred to in paragraphs (3) to (9) is satisfied.’  The condition which was at issue in the present appeal was set out in paragraph (6).  Paragraph (6) provides that ‘the third condition is that the claim is made within the prescribed time for claiming a funeral payment.’

26.	The prescribed time for claiming social security benefits is provided for in the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended.  Regulation 19(1) states that ‘subject to the following provisions of this regulation, the prescribed time for claiming any benefit specified in column (1) of Schedule 4 is the appropriate time specified opposite that benefit in column (2) of that Schedule’.  The ninth benefit in column (1) of Schedule 4 is a ‘Social fund payment in respect of funeral expenses.’  The appropriate time specified in the column opposite that benefit, in column (2) of Schedule 4 is ‘The period beginning with the date of the death and ending 3 months after the date of the funeral.’

27.	Regulation 19(4) sets out certain provisions which permit the extension of the time limit for claiming certain social security benefits, namely, income support, jobseeker’s allowance, family credit or disability working allowance.  Regulation 19(6) also sets out certain provisions which permit the extension of the time limit for claiming income support or jobseeker’s allowance.

28.	There is no provision in the version of regulation 19 and Schedule 1, applicable at the date of the decision under appeal, to permit the time limit for the claiming of a SF payment in respect of funeral expenses to be extended.  The time limit for claiming such a payment, ie within three months of the date of the funeral of the deceased is absolute.

29.	The current version of regulation 19 has been in effect from 7 April 1997 through the enactment of the Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 1997.  The 1997 Regulations introduced significant amendments to regulation 19, and the version of regulation 19 which had been in force prior to the introduction of those amendments gave a more significant discretion to decision-making bodies with respect to back-dating entitlement to social security benefits.

What did the appeal tribunal decide in the present case?

30.	As was noted above, the appeal tribunal allowed the appeal, and did not confirm the decision dated 9 May 2008, but substituted its own decision.  The form of its decision, as set out in the formal decision notice, was to the following effect:

‘The Appellant’s late father died on 23.1.2008 and his funeral was held on 25.1.2008.  The Appellant’s claim for a funeral expense grant from the Social Fund was received on 9.5.2008.

Pursuant to Regulation 19(1) of the Social Security (Claims and Payments) Regulations 1987, the claim was made outside the period of 3 months from the date of the funeral, viz: 25.4.2008 (pursuant to the Interpretation Act (NI) 1954).

The Appellant has established good cause for his late appeal on 9.5.2008, pursuant to Regulation 19(2) of the 1987 Regulations, and also satisfies Regulation 19(4) of the 1987 Regulations. 

Appeal Allowed.’

31.	It is clear that the appeal tribunal meant to state, in the final paragraph of the decision notice, good cause for the late claim rather than late appeal.

32.	The SORs for the appeal tribunal’s decision reads as follows:

	‘Tab 1	The Appellant’s father died suddenly and unexpectedly on 23.1.2008.

		Funeral was held on 25.1.2008.  Claim was made 8.5.2008.

	Tab 3	Cost of funeral £1,786.61.

	Tab 1	Owing to suddenness of death.  Appellant was in a state of grief reaction – “Things seemed to pass after that in a blur”.

		Death Certificate not issued until 26.3.2008 and consideration given to holding of an inquest.  Appellant alone and family don’t bother with him.

		Therefore Appellant very isolated and alone at a time of great upset, trauma and shock.  This satisfies Regulation 19(2) of the 1987 Regulations (good cause).  Regulation 19(4) also satisfied.

		Pursuant to the Interpretation Act (NI) 1954, since the funeral was held on 25.1.2008, the claim (to be made in time pursuant to Regulation 19(1) should have been received by midnight on 25.4.2008 and not 24.4.2008 as stated in paragraph 5(a) of the Department’s submission.

		Moreover, the Appellant did not discover potential entitlement to such a grant until 6.5.2008 … .’

33.	There are two aspects of the SORs which are of significance.  The first is that the appeal tribunal determined, by applying the Interpretation Act (Northern Ireland) 1954, that the three month time limit for the making of the claim to the SF payment expired on 25 April 2008, and not 24 April 2008, as set out in the appeal submission.  Whether the time limit expired on 24 April or 25 April 2008 is immaterial, however, as the claim form was eventually received on 8 or 9 May 2008.  That was outside the absolute time limit for receipt of the claim and there is no provision for the extension of that time limit.

34.	The second significant aspect of the SORs is the determination by the appeal tribunal that regulation 19(2) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 was satisfied and, more particularly, that the appellant had established ‘good cause’ for his failure to claim within the prescribed time limits.  That finding reinforces the paragraph to that effect in the decision notice.

35.	When regulation 19(2) was originally enacted it did permit the extension of time limits for the making of claims to specified social security benefits, where the claimant could prove that he had good cause for his failure to claim within the prescribed time limits.  As was noted above, however, regulation 19(2) was the subject of significant amendment through the enactment of the Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 1997.  The effect of those amendments was to remove all references to ‘good cause’ and to limit the previous general discretion to extend time limits.  The appeal tribunal, therefore, has applied an incorrect version of legislative provisions relating to time limits for the claiming of a SF payment in respect of funeral expenses and, in so doing, its decision is in error of law.

Why did the appeal tribunal decide what it did in the present case?

36.	In the original appeal submission, prepared for the appeal tribunal hearing, the appeals writer had set out the relevant legislative provisions, relating to the time limits for claiming a SF funeral payment, and applicable at the date of the decision under appeal.  The appeals writer had also submitted, quite correctly, that the there could be no ‘exceptions to the prescribed time for claiming’.  The correct version of the relevant legislative provisions was attached as a tabbed document.

37.	In the papers made available to me there is a copy of a print-out from an internet web-page.  The print-out is part of Statutory Instrument No. 1968 of 1987, which are the Social Security (Claims and Payments) Regulations 1987 for Great Britain.  The print-out comes from Office of Public Sector Information website, and the date on the print-out is 9 July 2008, which is the date on which the relevant appeal tribunal hearing took place.

38.	Although I cannot be certain, it appears that the LQPM of the appeal tribunal has endeavoured to obtain a copy of the legislative provisions which he believed to be relevant to the issues arising in the appeal.  There are two difficulties with how he went about that process.

39.	The first is that what was down-loaded was a Statutory Instrument which did not apply in Northern Ireland.  That is not, in itself, critical, as the most social security legislative provisions enacted in Great Britain have parallel and identically worded Northern Ireland equivalents.  That is the case with SI No.1968 of 1987.  The Northern Ireland equivalent is Statutory Rule No. 465 of 1987.

40.	The second and more fundamental problem is that while the Office of Public Sector Information website is an excellent information resource, the versions of most of the legislative provisions contained therein are as originally enacted.  Amending provisions are, of course, also available on the site, in their own right but, crucially, the original legislative provisions are not updated as and when amended.  The version which the LQPM has downloaded is the version as originally enacted, not as amended.

41.	The LQPM would have had access to two more reliable resources.  The first is the publicly available webpage provided in Northern Ireland by the Department for Social Development – ‘Law and Legislation’ 
	(http://www.dsdni.gov.uk/index/law_and_legislation.htm) 

42.	This resource has two distinct advantages.  The first is that the legislative provisions available therein are those which apply in Northern Ireland.  The second is that the legislative provisions are regularly updated, as and when amendments are introduced, and details of when and how those amendments were introduced are also included.  Anyone accessing this resource can be reasonably certain that the version of the legislative provisions which they have accessed is up-to-date.

43.	The second more reliable resource available to the LQPM are the volumes of annotated legislation, produced on an annual basis, by Sweet and Maxwell, under the title Social Security Legislation.  The legislative provisions reproduced in these volumes are those applicable in Great Britain.  As was noted above, however, the wording is usually identical to the Northern Ireland equivalents.  More crucially, however, the version is current to the date of publication of the volumes, and is reasonably reliable as a source of legislation, as amended.  The commentary outlines, in considerable detail, how and when amendments have been introduced, and their effect.

44.	In respect of the legislative provisions, applicable in the present case, regulation 19 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, the Great Britain equivalent is set out in Volume III of Social Security Legislation 2008/2009.  The version is as amended in 1997 and, significantly, the commentary on that regulation begins ‘Regulation 19 was completely re-drafted in April 1997 to remove references to good cause and with it decades of case-law’.  One glance at this volume would have alerted the LQPM to the correct approach to be adopted.

45.	The LQPM had a further opportunity to review the approach of the appeal tribunal, when the Department made an application for leave to appeal to the Social Security Commissioner.  The application is detailed and sets out the basis on which the Department submitted that the appeal tribunal had erred in law.  The LQPM did grant leave to appeal but it would also have been possible for him to look again at the issues arising and realise that he had made an error in applying the incorrect legislative provisions.  Under the provisions of Article 14(2) he could have set aside the decision and referred it back for determination by the same or a differently constituted appeal tribunal.
 
What should the appeal tribunal have decided in the present case?

46.	The facts are not in dispute in the present appeal.  The claimant’s father passed away on 23 January 2008 and his funeral took place on 25 January 2008.  A claim to a funeral payment from the SF was received in the Department from the claimant on 8 or 9 May 2008.

47.	The rules of entitlement to a funeral payment from the SF are to be found in regulations 7 and 8 of the Social Fund Maternity and Funeral Expenses (General) Regulations (Northern Ireland) 2005, as amended.  Regulation 7(2) provides that ‘subject to regulation 8, a funeral payment shall be made where each of the conditions referred to in paragraphs (3) to (9) is satisfied.’  Paragraph (6) provides that ‘the third condition is that the claim is made within the prescribed time for claiming a funeral payment.’

48.	The prescribed time for claiming social security benefits is provided for in the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended.  Regulation 19(1) states that ‘subject to the following provisions of this regulation, the prescribed time for claiming any benefit specified in column (1) of Schedule 4 is the appropriate time specified opposite that benefit in column (2) of that Schedule’.  The ninth benefit in column (1) of Schedule 4 is a ‘Social fund payment in respect of funeral expenses.’  The appropriate time specified in the column opposite that benefit, in column (2) of Schedule 4 is ‘The period beginning with the date of the death and ending 3 months after the date of the funeral.’

49.	Regulation 19(4) sets out certain provisions which permit the extension of the time limit for claiming certain social security benefits, namely, income support, jobseeker’s allowance, family credit or disability working allowance.  Regulation 19(6) also sets out certain provisions which permit the extension of the time limit for claiming income support or jobseeker’s allowance.

50.	There is no provision in the version of regulation 19 and Schedule 1, applicable at the date of the decision under appeal, to permit the time limit for the claiming of a SF payment in respect of funeral expenses to be extended.  The time limit for claiming such a payment, ie within three months of the date of the funeral of the deceased is absolute.

51.	The claim form was not received within three months of the date of the funeral of the claimant’s father and, was, therefore outside the prescribed and absolute time limit for the making of such a claim.  The Department’s decision that the claimant was not entitled to a SF payment in respect of funeral expenses was, therefore, correct.

52.	All claimants to social security benefits have an expectation to entitlement when they make their claim.  When the claim is refused at first instance and an appeal is made to the appeal tribunal, there is a parallel hope that the appeal tribunal will find in the claimant’s favour.  In the present case, the claimant had that expectation fulfilled, having been told that he has an entitlement to a payment in relation to the funeral expenses in connection with the death of his father.  He will now be disappointed and even shocked to learn that that entitlement has been taken away.  The decision of the appeal tribunal was wrong in law, and I have no alternative but to set it aside, and make the decision which the appeal tribunal should have made.

(signed):  Kenneth Mullan

Commissioner

3 March 2009