Commissioner's File: CSB/168/93

SUPPLEMENTARY BENEFITS ACT 1976 
SOCIAL SECURITY ADMINISTRATION ACT 1992 
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW 
DECISION OF THE SOCIAL SECURITY COMMISSIONER

Social Security Appeal Tribunal: Maidstone

1. My decision is that the decision of the social security appeal tribunal given on 11 October 1993, confirming the rejection of the application made on behalf of the claimant on 24 June 1992 for backdating of income support and supplementary benefit, was erroneous in law. For the reasons given below I set that decision aside under section 23(7) Social Security Administration Act 1992 and give the decision which I consider the tribunal ought to have given, namely that good cause has been shown for the claimant's failure to make a claim for supplementary benefit before 24 June 1992 and that exceptional circumstances existed to justify that failure as regards the period before 24 November 1980. 

2. The claim to supplementary benefit should therefore be treated as having been made on 21 September 1976 (the claimant's 16th birthday) by virtue of regulation 5 Supplementary Benefits (Claims and Payments) Regulations 1977 and regulation 5 Supplementary Benefits (Claims and Payments) Regulations 1981 S.I. No.1525 (as explained in R(SB) 9/84 paragraphs 13 to 16). The adjudication officer must in consequence consider and determine the question of any entitlement of the claimant to supplementary benefit and/or income support over the whole period from that date to when income support was first actually granted to her on 16 May 1988. 

3. The claimant who is now aged 24 has been severely mentally handicapped since at least the age of 16. She is very fortunate in having devoted parents who look after her at home. A visiting officer's report dated 30 July 1992 shows that her medical condition has been deteriorating, and she needs a great deal of personal care because of incontinence and difficulty swallowing food. She has never been able to deal with financial matters or benefit claims for herself and on 29 April 1977 her mother was made her appointee by the Secretary of State under the Claims and Payments Regulations then in force for the purposes of the severe disablement and attendance allowances she was then entitled to.

4. Her parents remained unaware for some years that she might in addition be able to claim supplementary benefit or income support and it was not until 10 May 1988 that an income support claim was made in her name by her mother. This claim was accepted as effective and income support awarded even though the mother's formal appointment to act on her behalf did not cover income support. No application was made at that time for income support to be backdated and it was not until 24 June 1992 that an application to backdate supplementary benefit for the claimant to her 16th birthday was made by a social services officer for the claimant, on the instructions of her mother. 

5. This claim was accepted and adjudicated on, even though neither the claimant's mother nor the social services officer had any formal authority to make the claim on her behalf. The adjudication officer's decision issued on 10 September 1992 was that the claimant was not entitled to either supplementary benefit or income support from 21 September 1976 to 15 May 1988 (when her income support actually started) because she had not shown good cause for her failure to claim before 24 June 1992. The letter informing the claimant's mother of the decision said that although good reason was accepted because of her daughter's health up to 18 May 1988, "after that date any good reason for not claiming must become your responsibility, as you were her appointee". In fact the claimant's mother had not been made her appointee for the purposes of income support and no such appointment was made until 20 May 1993 on a written application by her which is at page T38 of the case papers. 

6. In the meantime, an appeal to the tribunal had been made against the refusal to backdate the claimant's benefits. At the tribunal hearing on 11 October 1993 the social services officer represented the claimant, now with the authority of her mother as formal appointee for income support purposes under regulation 33 Social Security (Claims and Payments) Regulations 1987 S.I. No.1968. He argued that the claimant was able to show good cause for her own failure to claim throughout the period from her 16th birthday because of her mental handicap, and that any delay by her parents before the lodging of the backdating claim on her behalf on 24 June 1992 was irrelevant because no one had ever been appointed to act on behalf of the claimant in relation to supplementary benefit or income support before that date. 

7. The tribunal rejected this argument, setting out their reasons clearly and in detail: see page T44. In particular they held that if the claim was to succeed at all the claimant's mother had to be treated as acting generally on her behalf from at any rate the date when she made the claim for income support in 1988; and consequently that following the observations of the Commissioner in R(IS) 5/91 paragraph 12 about the effects of a person taking on the management of another's affairs it had to be shown that not only the claimant but also her mother had good cause for failing to make a claim over the period down to 24 June 1992. This they held on the evidence that the mother had not done, applying the established test in R(SB) 6/83. 

8. The question in this appeal is whether they were right in the way they applied the law about making claims on behalf of claimants who are unable to handle them for themselves and in particular whether R(IS) 5/91 paragraph 12 disposes of the case against the claimant in the way that they held it did. 

9. The legislative provisions dealing with retrospective claims, and claims on behalf of another person, for income support and supplementary benefit can be summarised as follows: 
(1) by Supplementary Benefit (Claims and Payments) Regulations 1981 S.I. No.1525 regulation 5, a claim for supplementary benefit had to be made no later than the first day of the period in respect of which it was made, but a backdated claim could be treated as if it had been made on the first day of that period in any case where the claimant proved that throughout the period between then and the date on which the claim was in fact made there was continuous good cause for failure to make it earlier. As regards benefit periods before 24 November 1980, the test to be applied was that under the corresponding provision of the earlier (1977) regulations, which empowered a determining authority to treat a claim as backdated where satisfied that there were exceptional circumstances justifying it: see R(SB) 9/84 paragraphs 13 to 16. 
(2) from 11 April 1988 supplementary benefit was replaced by income support, for which under regulation 19 Social Security (Claims and Payments) Regulations 1987 S.I. No.1968 the prescribed time for claiming is the first day of the period in respect of which the claim was made, unless the claimant proves good cause for failure to make the claim throughout the period from the expiry of the prescribed time; in which case that time is extended forward to the date on which the claim is in fact made. This however is subject to the provisions of regulation 19(4) which prevent any extension giving entitlement to benefit for more than 12 months before the date of actual claim; so that by virtue of this and paragraph (2A) of the same regulation that period of 12 months is in practice the only period which has to be looked at in determining whether good cause exists. 
(3) regulation 26 of the Supplementary Benefit (Claims and Payments) Regulations 1981 which is headed "Persons unable to act" provided that in the case of any person by whom or on whose behalf a claim had been made or to whom benefit was payable, if that person was for the time being unable to act and no receiver or curator had been appointed by the Court of Protection or equivalent powers in Scotland so as to have authority to deal with benefits on his behalf, the Secretary of State might upon written application make a special appointment of a person over the age of 18 to exercise on behalf of the incapacitated person any right to which, he might be entitled under the Supplementary Benefits Act and to deal on his behalf with any sums payable to him. It was further provided by regulation 26(3) that anything required by those regulations to be done by or to an incapacitated person might be done by or to his receiver or curator "or other person acting or appointed in terms of law, if any" or by or to a person specially appointed under the regulation to act on his behalf. 
(4) by regulation 33 of the Claims and Payments Regulations 1987, where a person is or is alleged to be entitled to benefit, whether or not a claim for benefit has been made by him or on his behalf, and he is unable for the time being to act and has no receiver appointed by the Court of Protection (or in Scotland his estate is not being administered by a tutor, curator or other guardian acting or appointed in terms of law) the Secretary of State may upon written application appoint a person over the age of 18 or a corporation "to exercise, on behalf of the person who is unable to act, any right to which that person may be entitled and to receive and deal on his behalf with any sums payable to him". Regulation 33(3) contains a corresponding provision that anything required by the 1987 Regulations to be done by or to any person for the time being unable to act may be done by or to his receiver, tutor etc., or the person appointed by the Secretary of State under regulation 33, whose receipt is to be a good discharge to the Secretary of State for any sum paid. 
(5) by regulation 49 of the Claims and Payments Regulations 1987 as amended by regulation 12 1988 S.I. No.522, the supplementary benefit legislation which was repealed from 11 April 1988 by section 86 and schedule 11 Social Security Act 1986 was given a special extension, together with the regulations made thereunder, so as to continue to apply to any claim for supplementary benefit whether made before or after 11 April 1988. By virtue of this provision it thus continued to be possible to make retrospective claims for supplementary benefit (which is not within the normal meaning of "benefit" under the Claims and Payments Regulations 1987: see regulation 2(2)(b), but only as regards benefit periods before 11 April 1988: see R(SB) 1/94. That limited extension was however brought to an end by the repeal of regulation 49 on 16 November 1992 by regulation 6 Social Security (Miscellaneous Provisions) (Amendment No.2) Regulations 1992 S.I. No.2595. 

10. The principles that in my opinion are to be derived from the authorities, and ought to be applied in this and similar cases, are as follows. For convenience I refer to "him" but of course what follows applies equally to female claimants. 
(1) First, a person who is so severely mentally handicapped or disordered as not to be able to understand about making a claim for benefit or do it for himself shows sufficient "good cause" to justify his own failure to make a claim for so long as he remains in that condition: R(SB) 17/83 paragraph 3, R(SB) 9/84 paragraph 9. In my view such a condition also amounts to "exceptional circumstances" as regards any relevant period when that was the test rather than good cause. 
2) Second, an "informal claim" made purportedly on behalf of such a person by another person not holding any formal authority to act on his behalf in matters generally, or any specific appointment by the Secretary of State extending to that type of claim, is nevertheless to be regarded as an effective claim by the person on whose behalf it is made, if it is accepted by the adjudicating authorities and a determination made on it: R(A) 2/81 paragraph 20; R(SB) 17/83 paragraph 3; R(SB) 9/84 paragraphs 4 and 8. 
(3) Third, delay on the part of another person acting or purporting to act on behalf of the claimant is only to be imputed to the claimant so as to affect a question of "good cause" where at the time of the delay: 
(i) that other person holds a formal authority to conduct the claimant's affairs, (e.g. as a receiver appointed by the Court of Protection), or has been given actual authority by the claimant himself to do so either generally or for the purposes of the particular claim, (e.g. by an enduring power of attorney granted while the claimant had the required capacity); or 
(ii) that other person holds a valid appointment by the Secretary of State granted (after a written application - R(A) 2/81 paragraph 19) under the Claims and Payments regulations and extending to the particular benefit claimed (note that this will require an inquiry into the scope of the particular appointment in question, and that an appointment under the Social Security Acts generally does not apply for supplementary benefit or vice versa: R(IS) 5/91 ); or
(iii)that other person has made an "informal claim" of the kind described in (2) above, the claimant needs to rely on that claim in order to establish title to the benefit, and the delay arises in pursuing that particular claim or a related application for review etc: R(SB) 17/83 paragraph 3; R(SB) 9/84 paragraphs 9-10. 
(4) Fourth, despite the comment of the Tribunal of Commissioners in R(SB) 9/84 paragraph 19 that it is surprising and anomalous that backdating of claims for supplementary benefit may be unlimited while for contributory benefits there is an absolute cut-off after the lapse of a year, it remains the case that for claims made down to 16 November 1992 there is no time limit on the backdating of supplementary benefit provided that the requisite continuous good cause down to the date of actual claim is established. Moreover if in consequence of such a claim it turns out that the claimant was entitled to supplementary benefit at 11.4.88, then he is treated as having automatically made a claim for income support on or before that date under regulation 4 Income Support (Transitional) Regulations 1987 S.I. No.1969, so that separate consideration of "good cause" for the purposes of a retrospective claim to income support from and including that date is rendered unnecessary. A successful backdating claim for supplementary benefit for a period down to 11.4.88 is therefore also the "passport" to a continuing award of income support for as long after that date as the entitlement conditions remain satisfied, even though no claim for it was in fact made until much later; and even though without the supplementary benefit entitlement any backdating of income support would be subject to the absolute limit of 12 months under regulation 19(4) of the Claims and Payments Regulations 1987. 
(5) Fifth, the Commissioner's decision in case CIS/638/91 Walsh that an informal claim of the kind described in (2) above is a nullity and any consequent appeal decision invalid, and the suggestion in R(IS) 5/91 paragraph 12 that where someone else submits such a claim or de facto manages his finances, the claimant may be held responsible for delays in cases not covered by (3) above as if that other person had had actual authority over his affairs generally, are inconsistent with the earlier and preferable authorities cited above and should not be followed: (CIS/638/91 reversed by consent in the Court of Appeal 20.1.95; cf. CIS/439/91 paragraph 12, CIS/812/92: the case of R(S) 2/51 referred to in R(IS) 5/91 paragraph 12 being in my view clearly distinguishable as a case of actual authority within (3)(i) above). 
(6) Sixth, since 16 November 1992 it has not been possible to make a claim, formal or informal, for supplementary benefit as the relevant legislation has been repealed, and the special provision extending it (for the purpose of making claims as regards benefit periods before 11 April 1988 only) was itself terminated on 16 November 1992. Thus since that date there has been no provision in force by which a claim for supplementary benefit can be treated as made at an earlier period so as to give rise to the possibility of any backdated payment for that period (cf. R(SB) 9/84 paragraph 15): although the powers to regulate claims and payments, and the machinery for adjudication and review, etc., all continue in relation to supplementary benefit by virtue of section 186 and Schedule 10 Social Security Administration Act 1992. 

11. Applying these principles to the present case the tribunal decision of 11 October 1993 was in my judgment clearly erroneous in point of law in holding that the acts or omissions of the claimant's mother could be attributed to the claimant herself, in the absence of either any actual authority for her mother to manage her affairs or any specific appointment by the Secretary of State to act in relation either to a supplementary benefit claim or an income support claim before the lodging of the backdating application on 24 June 1992. Nor were they correct in holding in reliance on R(IS) 5/91 paragraph 12 that the lodging of an income support claim in the claimant's name by her mother on 20 May 1988 or other acts of management of her affairs meant that if the claim of May 1988 was to be treated as valid at all, then the claimant's mother had to be treated as her agent with the same consequences from then on as if she had had actual authority to make income support and supplementary benefit claims. That is inconsistent with the principles I have sought to set out at (2), (3) and (5) of paragraph 10 above and the earlier decisions there cited. 

12. The tribunal decision is therefore set aside and as I am satisfied that the claimant's mental condition amounts to "good cause" (and so far as relevant "exceptional circumstances") for the continuous period from her 16th birthday on 21 September 1976 to the actual date when her backdating claim was lodged on 24 June 1992, I give the decision set out in paragraphs 1 and 2 above. The adjudication officer must consider the question of entitlement over this period. 

13. It is not necessary to consider any separate question of good cause in relation to income support since either there will be an entitlement at 11 April 1988 making an actual claim for income support unnecessary, or there will be no such entitlement; in which case the backdating claim made on 24 June 1992 cannot avail the claimant, since she had already been receiving income support from May 1988 and under regulation 19(4) of the Claims and Payments Regulations 1987 there can be no backdating for income support beyond 12 months prior to the actual date of claim. 

14. The appeal is therefore allowed and the decision in paragraphs 1 and 2 substituted. 
  
(Signed) P L Howell
Commissioner 
(Date) 
5 April 1995