THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CIS/538/98  

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ACT 1998

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

Commissioner:  C Fellner

CF							                      	 CIS/538/98

1.	This appeal, brought with leave of a Commissioner, succeeds.  The decision of the Social Security Appeal Tribunal on 23 7 97 was erroneous in point of law, for the reason given below, and I set it aside.  I remit the appeal for rehearing before a differently-constituted tribunal which, unlike the earlier tribunal, will under s7 of the Social Security Act 1998 and regulations made thereunder consist only of one legally-qualified panel member.  

2.	The appeal has raised complex issues and, in addition to an extra round of written submissions, I directed an oral hearing.  The appellant was represented by Ms Gaynor Phelps of the Benefit Shop, Dudley and the Benefits Agency by Miss Emma Dixon of counsel.  The appellant was also present.  I am very grateful to both representatives for their help.  Miss Dixon’s excellent written submission was handed in only just before the hearing.  She apologised for this, and told me that it was due to the short notice at which she had been instructed.  It put Ms Phelps in the awkward position of having to digest detailed legal arguments at short notice, arguments, moreover, which resiled from the most recent submission of the adjudication officer concerned with the appeal, who had recommended me to allow it.  I therefore offered Ms Phelps and her client an adjournment.  After consideration, they decided to go ahead, but I allowed a longer than usual lunch adjournment to give them further time after the close of Miss Dixon’s oral submissions.  They had agreed that she should open the appeal, to deal with the points I had raised in my second direction. .

3.	This appeal raised two points.  One, which I decide against the appellant, is whether an executor purely by virtue of his office, can initiate a post-death review of a deceased claimant’s benefit.  The other is whether a review request made during the claimant’s lifetime by the present appellant, who was not her appointee, could be treated as a request made as her “agent”.  I place “agent” in inverted commas because the term is used rather loosely (possibly even inappropriately) in social security law, where what is really being considered is whether a claim can validly be made on someone else’s behalf in the absence of any formality, whether authorisation or appointment.   It is in connection with this point that I am remitting the appeal, as despite information given to me at the hearing, there are further factual matters which need investigation.  
History of the appeal
4.	The appellant’s late mother received income support from 11 4 88 and attendance allowance from 21 2 94, paid with her income support by the local office from June 1994.  The computer is said to show that she was sent an IS10 form at that time to inquire about severe disability premium (which would have formed part of her income support); but it was not returned.  The appellant denies the form was received, saying he looked after his mother’s correspondence, would have dealt with the form if it had arrived, and has no recollection of it.  The local office took no follow-up action, and the Special Payments section (page 52) has now accepted that a mistake was made “in not considering the award of SDP”, though it is not clear what mistake was being referred to.  It seems the appellant’s mother would have qualified, subject to consideration of dates and periods in hospital, as she was in receipt of attendance allowance and lived alone, and no-one was receiving invalid care allowance for looking after her. 

5.	On 14 8 95 the appellant had sought to become his mother’s appointee, but following a home visit on 21 9 95 the Secretary of State refused to make the appointment.  This was a matter within the Secretary of State’s discretion under regulation 33 of the Social Security (Claims and Payments) Regulations 1987, and neither an adjudication officer, nor a tribunal, nor a Commissioner has any jurisdiction over the decision.  

6.	On 5 8 96 the appellant wrote (page 57) asking about his mother’s entitlement to SDP.  The original of this letter is missing, but I was shown a copy of an internal file note dated 12 8 96 referring to a letter received from a “daughter” (the claimant had no daughter) and directing a home visit.  I accept this as evidence that the letter of 5 8 96 was received and, as pointed out by the appellant, paragraph 5.5 of the submission to the original tribunal also recites that it was received.  I think I am right in saying that it was common ground that if that letter had been signed by the appellant’s mother herself, it would have been accepted as a valid application for a review of her benefit.  On 19 8 96 the appellant told the local office his mother was in hospital.  A home visit was arranged for 6 9 96, but was cancelled because she was still in hospital.  She died on 19 9 96 and on 1 10 96 the appellant wrote telling the local office of this and asking for arrears of SDP to be paid to him as her executor and only child.
7.	I interpose here that the appellant is indeed his mother’s sole executor, appointed under her will of 14 6 84, under which he is also residuary legatee.  Probate was granted on 19 12 96 and the original was produced at the hearing.  Copies of the grant of probate and  the will are on the file at pages 65-67.  

8.	On 20 11 96 the adjudication officer decided that she could not open up the question of reviewing the income support award.  She rejected the appellant’s letter of 1 10 96 because it was a post-death review application made by a non-appointee.  She appears to have refused to accept his 5 8 96 letter as a pre-death application, also because he was not his mother’s appointee.  The appellant appealed, but at the hearing on 23 7 97 the tribunal found that only the claimant herself could validly have sought a review, as she had no appointee, and that no review had been sought by her before her death.  Her benefit entitlement died with her, and the appeal failed.

9.	The appeal to the Commissioners was on the grounds that the tribunal had failed to make findings on whether the local office should have followed up the IS10 form, whether it should have advised the appellant on how to be made an appointee after death, and why a visit had been arranged for 6 9 96.  It was further complained that there was no presenting officer at the hearing to be questioned about these matters and that the Benefits Agency had not included in the tribunal papers all correspondence and telephone call records between the local office and himself, which he had produced at the hearing.  It was said that all these matters were relevant to whether a review had been sought before his mother’s death.

10.	I observe here that, as with the making or withholding of an appointment, a tribunal normally has no jurisdiction to deal with complaints about Benefits Agency failings (and neither do I).  The absence of a presenting officer to be questioned about these failings did not therefore affect the outcome of the appeal, and I do not accept it as a valid ground of appeal in this case.

11.	The adjudication officer concerned with this appeal did not initially support it, and at pages 35-37 explained why.  The response reiterated the points already made in the grounds of appeal, and added further complaints about omissions by the Benefits Agency.
12.	I found the adjudication officer’s submissions quite persuasive, but in view of comments by a Commissioner in a Scottish case, CSSB/290/97, *92/97 I directed a further submission.  That appeal was by the executrix of a deceased supplementary benefit claimant against refusal to entertain an application by her for review of her late husband’s benefit over a number of years.  The Commissioner rejected the appeal, holding in paragraph 10 that the appellant, although entitled at common law as executrix to recover unpaid benefit under an award made before death, and perhaps to pursue social security proceedings already begun before death, had no standing to initiate proceedings by way of review in the absence of any demonstrable debt due at death.  This finding was relied on in support of the adjudication officer’s original submission.  But the Commissioner went on to observe in his paragraph 11

It is unnecessary for me to consider whether the claimant as executrix
could in any circumstances have established a locus to proceed if she
had been able to state the essentials for demonstrating a debt due as a
result of past underpayment.  That would have required showing
details of the award made to the deceased, of the ground of review by
way of ignorance or error, of what the basis of the deceased’s true
entitlement was, of how much benefit was underpaid and last but not
least of showing that any right to payment had not been lost in the
period since the deceased’s death.

All these preconditions appeared at least arguably to be fulfilled in the present appeal.   The Commissioner’s observation was clearly obiter, in that it was not part of his reasoning on the appeal before him, but in fairness to the present appellant it seemed proper to pursue it. 

13.	The adjudication officer (pages 55-56) capitulated entirely and abandoned his previous submission.  He argued that provided the appellant could prove that he was the executor of his mother’s estate, and provided the facts as to entitlement to attendance allowance from time to time (bearing in mind periods in hospital) were established, CSSB/290/97 would provide a basis for SDP to be awarded, subject to the 12-month bar on backdating an award under regulation 63(1) of the Adjudication Regulations as then in force.  The officer conceded that the letter of 5 8 96 was a clear application for a review made before the appellant’s mother’s death.  He also submitted that no post-death appointment was necessary to ground my jurisdiction, arguing that in CSSB/290/97 there had been a refusal to appoint but this did not strike the Commissioner or anyone else as preventing the appeal being proceeded with.  He recommended remitting the appeal to a tribunal.  The appellant obtained a representative, Ms Phelps, who agreed with the further submission and suggested I should substitute my own decision in the appellant’s favour.  

14.	Still uneasy, I directed an oral hearing asking for argument on certain points which I found obscure.  In her written submissions, Miss Dixon on behalf of the Benefits Agency, argued first that I had no jurisdiction to hear the appeal in the absence of a post-death appointment, as the status of executor alone did not entitle the appellant to pursue arrears of SDP for his mother’s estate.  If this did not dispose of the appeal, then Miss Dixon argued that in the absence of evidence of an explicit appointment of the appellant as her agent the letter of 5 8 96 could not be treated as an application for review by the claimant.  In any case the  review application was not received by an adjudication officer until after the mother’s death because further inquiries (eg a home visit) were still outstanding, and therefore there was no duty on the adjudication officer to “proceed to deal” with the application under s26(2) of the Social Security Administration Act 1992 until it was too late.

15.	Ms Phelps relied on paragraph 10 as well as paragraph 11 of CSSB/290/97, where the Commissioner confirms an executor’s power at common law, standing in the shoes of the deceased, to get in debts.  He must generally act in the best interests of the estate.  The Benefits Agency had made a mistake in not pursuing the original IS10 form.  The local office knew of the attendance allowance award and there had been evidence that the claimant lived alone: there was no non-dependant deduction from her housing costs. After the claimant’s death the local office had asked the appellant whether his mother had lived alone and whether invalid care allowance was in payment to anyone, and he had answered these questions.  He could have been asked earlier - a visit to the claimant would have been a last resort.  The letter written on 5 8 96 followed a telephone conversation on 1 8 96 in which the local office had said the income support was wrong.       

16.	Ms Phelps also expressed her and her client’s surprise that the submissions presented at the hearing resiled from the adjudication officer’s second submission.  I can understand their grievance at having this change of position sprung on them, which is why I offered an adjournment.  But there can have been no real surprise in the adjudication officer’s submission not being accepted as conclusive: had I so accepted it, I would have allowed the appeal without directing an oral hearing.

The position of an executor

17.	Under English law, as apparently under Scottish law, an executor stands in the shoes of the deceased for some but not for all purposes.  His position in England is governed by s1 of the Law Reform (Miscellaneous Provisions) Act 1934, under which “all causes of action...vested in [the deceased] shall survive...for the benefit of, his estate”, subject to certain exceptions such as defamation.  What is meant by a cause of action?  Miss Dixon suggested that it was a set of circumstances where a court would grant a remedy, but as I am the person who has to decide whether or not to grant a remedy in this case, I did not find that formulation very consoling.  Halsbury’s Laws of England, 4th Edition, Volume 17, paragraph 1565 includes among surviving causes of action those based on breaches of contractual obligations and rights of action founded on statutory duties or rights “if as a matter of construction the statute envisages this”.  

18.	The relationship between a claimant and the DSS is not a contractual one.  In Danquah v Official Solicitor (Court of Appeal, 24 10 96) the court held that a County Court action for allegedly underpaid income support could not be brought.  The plaintiff’s only recourse was to the statutory authorities (tribunals and Commissioners) or by judicial review in the Divisional Court, an administrative law remedy.  In R v Secretary of State for Social Security, ex p Khan (Divisional Court, 11 6 96) a claimant obtained a declaration that income support had been underpaid and an order that the DSS pay it, based on the Department’s failure to provide evidence in answer to the claimant’s case.

19.	As for rights of action founded on statutory duties or rights, the legislation in each case is to be looked at to see if it envisages the sort of cause of action that survives on death; but in D’Este v D’Este [1973] 2 WLR 183 at 187 Ormrod J warned that in considering s1of the 1934 Act “one must be extraordinarily cautious in extending or widening the meaning of the phrase ‘cause of action’, particularly when one is asked to extend it into a completely different section of the law”.  That case concerned a summons to vary a post-nuptial settlement, issued before but not coming on for hearing until after the death of the party issuing it.  It was held that the summons abated on death and could not be continued by the administratrix.  The reasoning was specific to matrimonial law; but Miss Dixon urged me to apply the general principle of caution to social security law      

Does social security legislation” envisage” the survival of claims/reviews?

20.	The machinery for making social security claims, and applications for review, is contained in the Social Security Administration Act 1992 and regulations made thereunder.  By s1, “no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied, he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations...or he is treated by virtue of such regulations as making a claim for it”.   So it is clear that the primary rule is that the person seeking the benefit for himself is the person who must claim it.  Regulations made under s5(1)(g) may, however, provide for enabling one person to act for another in relation to a claim and for enabling a claim to be made and proceeded with in the name of a person who has died.      

21.	The regulations made under s5(1)(g) are regulations 33 and 30 respectively of the Claims and Payments Regulations.  Both give a discretion to the Secretary of State, to appoint or not, which is not appealable to a tribunal or to a Commissioner.  Regulation 33 provides for the appointment of another person to act for a live claimant who is unable to act for himself.  No provision is made for such an appointment in the case of any other live claimant.  Regulation 30(1) provides that on the death of a person who has made a claim for benefit the Secretary of State may appoint such person as he thinks fit to proceed with the claim.  Sub-paragraph (2) provides for distribution of any benefit which becomes payable on a claim proceeded with under sub-paragraph (1).  Sub-paragraph (3) provides for distribution (if not made under (2)) of “any sum payable by way of benefit to the deceased, payment of which he had not obtained at the date of his death”, subject to a 12-month time limit extendable for good cause (regulation 38).  Sub-paragraphs (5) and (6) permit claims to be made on behalf of the deceased, by a person duly appointed, to any benefit to which he would have been entitled if he had claimed it; but income support, among several other benefits, is expressly excluded.     

22.	Miss Dixon argued, in effect, that these provisions constitute a complete code for dealing with claims, at least in the absence of an award made before death, which an executor might be able to enforce through the ordinary courts. There is no room for an executor to step in by virtue of his office.  The Secretary of State has a discretion to override an executor’s claims both in appointing someone else under regulations 30(1) and (6) and in making distributions under regulations 30(2) and (3).  

23.	Miss Dixon then dealt with the authorities.  Mr Commissioner Mitchell’s observations at paragraph 11 of CSSB/290/97 were obiter and made without full argument; the true position is as he spells it out in paragraph 10: “...there cannot be a debt if there is nothing outstanding at the date of death to create such a debt”.  R(SB)8/88 is cited in CSSB/290/97 as supporting rights in executors and administrators independent of appointment.  The case held that the decision of a tribunal in the absence of production of a grant of probate or administration, as alternatives to an appointment, was a nullity.  Paragraph 5 contains a discussion of executors’ and administrators’ rights, but is vague as to exactly what proceedings these persons are contemplated as starting.  But in any event R(SB)8/88 is distinguishable because in that case the appeal had already been commenced before the claimant’s death.  The Commissioner in CIS/379/92, *44/93 merely followed R(SB)8/88 in deciding, “by analogy”, that an executor was entitled to proceed even where the claimant had died before the adjudication officer’s decision, so that the appeal had been launched by the executor and not the claimant.

24.	R(SB)9/84T held that a decision on a claim made by an unappointed person on behalf of a mentally incompetent claimant was not a nullity where no challenge had been raised by the Secretary of State before determination.  But the present appellant’s post-death claim had been challenged at every stage.  And R(SB)9/84T was .dealing with appointments on behalf of live claimants, not appointments on death.  CIS/642/94 decided that even a person who had a regulation 33 appointment under which he acted for his mentally incapable wife needed a  regulation 30 appointment to enable him to pursue an appeal after her death, in the absence of a grant of representation  

25.	I asked Miss Dixon whether the Claims and Payments Regulations also covered applications for review.  The statutory provision governing these is s26(1) of the Administration Act, which provides that “A question may be raised with a view to a review under section 25 above by means of an application in writing to an adjudication officer, stating the grounds of the application”.  On the face of it, this does not confine the power to make an application to a claimant, or an appointee.   I was told that the only reference to review in the Claims and Payments Regulations was that implied, though not expressed, in regulation 32 which requires notification of  information which might affect the right to benefit, eg change of circumstances.  Miss Dixon relied, however on R(SB)11/89T (also relied on in rejecting the appeal in CSSB/290/97), which held that as only a claimant could make a claim, so only a claimant could seek a review.

25.	Ms Phelps’s response on the position of executors was based only on CSSB/290/97, whether paragraph 10 or paragraph 11.        

26.	I have concluded, not without hesitation, that regulation 30 constitutes a complete code for dealing with claims (and reviews) on behalf of the estates of claimants who have died.  It covers proceeding with a claim made before death, and distribution of money received as a result of so proceeding.  It covers distribution on an award made before death of which payment has not yet been obtained.  (I observe that in the light of this, one might wonder whether there would be any room for executors or administrators to bring court actions for recovery of unpaid benefit, a right taken for granted in previous cases but not one in respect of which I am aware of any actual examples.)  There is a time limit for claims under  regulation 30(3), but it is extendable under regulation 30(4).  It cannot conduce to the due administration of the benefit system if actions can surface up to 6 years after the debt accrued.

27.	I think it is also significant that regulation 30(5)-(7) allows for post-death claims (treated as made on the day of death) to be made in relation to most benefits other than income support, family credit, disability working allowance and a social fund payment.  This provision did not figure in earlier Claims and Payments Regulations, and was introduced in 1988 by the new 1987 Regulations.  This suggests, first, that specific provision permitting the making of such claims was considered necessary.  Secondly, whatever the policy behind the exclusions may have been, to allow executors or administrators to make post-death claims for excluded benefits would circumvent it.   It would also give rise to unattractive anomalies.  CIS/116/92 and CSSB/41/94 (both referred to in CSSB/290/97), and also CIS/642/94, all rejected claims or review applications by widows and widowers who did not happen to have grants of representation.  Many small estates will not require the obtaining of a grant of representation because they are too small: as explained in literature issued by hospitals, registrars and undertakers, estates worth less than £5,000 can legally be administered without a grant.  I can see no indication that the framers of regulation 30 intended to allow those who happen to be administering estates large enough to require a grant to circumvent the appointment provisions.  

28.	Nor do I find myself constrained by authority to read regulation 30 as making such an exception.  R(SB)8/88 is a short case from which it is impossible to determine either the nature of the decision appealed against or the submissions of the adjudication officer concerned on the appeal; but it is clear that not only a claim but also an appeal had been launched before the claimant’s death.  CIS/379/92 appears to have been dealing with a review begun, albeit by the adjudication officer, before the claimant’s death, even though that officer did not reach a decision until after it.  It is not possible to discover the exact chronology in CIS/642/94, only that the claimant had died before the appeal was heard.  Other decisions referred to, such as R(SB)9/84T, were dealing with regulation 33, not regulation 30.   In so far as CSSB/290/97, where the Commissioner proceeded with appeal on a post-death claim in the absence of an appointment, suggests otherwise, I respectfully dissent from it.  This specific point was not argued.        

29.	I see no reason to treat review applications by executors or administrators any differently from claims, despite the wider wording of s26(1); and I am fortified (as well as bound) by paragraph 15 of R(SB)11/89T.  Mr Commissioner Mitchell, to whom arguments based on s26(1) were addressed by an executrix, also deferred to that decision; and I agree with Miss Dixon that his comments in paragraph 11 of CSSB/290/97 were expressly obiter and had not been the subject of argument.  It must be remembered that it is s26(1) that gives the Secretary of State power to initiate a review, which may explain the wider wording.

30.	I therefore hold that the appellant as executor had no standing to initiate a review after his mother’s death and that the adjudication officer was right to reject his letter of 1 10 96 asking for arrears of SDP to be paid to him as a valid initiating review request. 

31.	However, this does not deprive me of jurisdiction to hear this appeal as a whole, for two reasons.  One is that the decision appealed against was dealing not only with the appellant’s post-death review application, but also with the status of the letter of 5 8 96 as a review application on behalf of the claimant.  Could it have been so treated?  Certainly the local office began to take action on it eg by arranging a visit, and later by asking the appellant whether the claimant had lived alone and whether anyone was getting invalid care allowance for her.  I do not accept Miss Dixon’s submission that the matter was not referred to an adjudication officer until after the claimant’s death.  Under s26(1) of the Administration Act a review application is made to an adjudication officer who is by ss(2)  to “proceed to deal with it” under s21 as if it were a claim.  Information-gathering was at the period in question done by adjudication officers, who had the training to know what they needed, not by officials in some other nebulous capacity.  CIS/379/92 shows that the fact that the adjudication officer’s decision did not take place until after the claimant’s death need not be fatal to further proceedings on the claim.

32.	This leads on to the second reason, which is that authority does appear to constrain me to accept that appeals on claims or applications made before death can be proceeded with, including by the lodging of an appeal, by executors or administrators without appointment.  R(SB)8/88 says so.  CIS/379/92 says so.  CIS/642/94 says so.    Under s22 of the Administration Act a “claimant” can appeal to a tribunal, and regulation 1(2) of the Adjudication Regulations defines “claimant” to include “a person affected by the decision”, which a personal representative could arguably be, though not in his or her personal capacity.  It is still an open question whether the letter of 5 8 96 was a review application on behalf of the claimant, which would give the appellant standing to appeal, and therefore it cannot be said at this point that that appeal is outside my jurisdiction.

Was there a valid pre-death review application on behalf of the claimant?  

33.	As will be recalled, s5(1)(g) of the Administration Act provided for the making of regulations for enabling one person to act for another in relation to a claim.  That was done by regulation 33: but it covers only the situation where a claimant is “unable to act” because of mental incapacity.  The present appellant had been refused a regulation 33 appointment the previous year, presumably because it was felt that the claimant was not then “unable to act”.   Miss Dixon submitted that if the claimant had by 5 8 96 become unable to act through mental incapacity, she also lacked capacity to appoint an “agent”.  More broadly, she submitted that the Department simply will not accept someone as a claimant’s agent without explicit authorisation from the claimant.  There was no such explicit authorisation here, nor could authorisation for seeking a review be found in the letter of 5 8 96 itself.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     She explained that this policy is motivated by a need to prevent busybodies stirring things up and to ensure confidentiality.  The Tribunal of Commissioners at paragraph 15 of R(SB)11/89T, she said, referred to the possibility of someone being “appointed” as an agent; it must have been a formal appointment they had in mind.  

34.	She distinguished R(SB)9/84T by submitting that the reasoning in that decision was that if an adjudication officer adjudicated on a claim by a non-appointee (as he had a duty to do under the Supplementary Benefits Act 1976 and regulations), the Secretary of State must be taken not to have raised any objection to it.  Here, objection had been raised at every stage.  

35.	Miss Dixon’s difficulty is that R(SB)9/84T is not limited to awards made by an adjudication officer, but also applies to awards refused.   Both are “adjudications”.   It was some of the claimants in that case who were arguing that an earlier refusal of supplementary benefit was a nullity, because they did not wish to prejudice their current claims for backdating.  The Department’s representative argued (as recorded in paragraph 4) that the lack of a regulation 26 (now regulation 33) appointment did not render a decision on a claim invalid, though an appointment would normally be made where benefit became payable or a question of an appeal arose.  What applies to a claim must, in accordance with what I have decided above, also apply to a review application.

36.	Miss Dixon is therefore forced back on her submission that the 5 8 96 application for review in the present case was never put to the adjudication officer until after the claimant’s death (so that no duty to review under s26(2) of the Administration Act arose until it was) but remained in limbo where the Secretary of State could still reject it as invalid.  But as I said above, steps were clearly taken on it by the adjudication officer before the claimant’s death; and that officer did in due course adjudicate on it, even though it was refused.  CIS/379/92 held that an appeal could validly be brought on such a posthumous adjudication.  

37.	I am unable on the present state of the evidence to decide whether the claimant was or was not able to act as at 5 8 96.  The appellant first told me that before she went into hospital in July 1996 she was mentally confused and being visited by a community psychiatric nurse.  However, he later said that he did not believe she was so confused as to have been unable to appoint him as her agent.  Her precise mental state, and its effect in accordance with this decision, are matters that can be investigated by the rehearing tribunal.

38.	If the claimant was mentally unable to act as at 5 8 96, R(SB)9/84T (upheld by the Court of Appeal in CAO v Walsh, 19 1 95) shows that a claim (and, I hold, a review application) made on her behalf by a non-appointee is validly made and adjudicated on.  Appointments had in fact in that case been made by the date of the hearing, though the Commissioners observed that (as here) no-one in the local offices had earlier thought it necessary to invite applications.  In the present case, too, I would have thought consideration should now be given by the Secretary of State to a possible regulation 33 appointment.  I have no power to direct an appointment; but I would go so far, where an appellant is both a child of the claimant and her executor, to suggest that the normal course, in the absence of strong indications to the contrary, would be to appoint that person.  This view was also expressed by Mr Commissioner Rowland in CIS/812/92.  Appointments are retrospective: (R(SB)5/90.

39.	But if the claimant was still able to act as at 5 8 96, could another person validly act on her behalf without her having explicitly appointed him (however informally) as her agent?  There are probably myriads of cases where children take care of their ailing but still sane parents’ benefit affairs.  Do they all get their parents to sign review requests (claim forms make provision for someone to explain that they are signing on behalf of someone else and why)?  What normally happens if a letter is received from someone who makes clear that he is inquiring about someone else’s benefit?  Is he asked to obtain authorisation before further steps are taken?  That did not happen in the present case.  Is the passing reference to the appointment of an agent in R(SB)11/89T really to be taken to mean that only a formal appointment will do?  

40.	R(SB)9/84T was dealing with persons unable to act, who lack capacity, under the ordinary law of agency, to appoint an agent and might also be thought particularly open to exploitation by interveners.  There was specific legislative provision for an appointment to be made for such persons.  The Tribunal’s preparedness to endorse the adjudication of claims made by non-appointees, in circumstances where they could not possibly be regarded as agents, shows that there is a “third way” by which claims can be made “on behalf of” some living claimants.  Indeed, the Tribunal drew support from the opening words of regulation 26 “In the case of any person by whom or on whose behalf a claim has been made” as permitting a claim to be made before any appointment was considered.  These words, in a slightly different format, also appear in regulation 33, as do the words “where a person is..alleged to be entitled to benefit”, which could cover a review application. 
  
40.	I do not see why a similar “third way” should not in principle exist for claims to be made or reviews requested on behalf of claimants who are not mentally “unable to act” but for whom it is reasonable for someone else to do so.  Informal delegation of one’s affairs to another is recognised: in R(P)2/85 a woman of perfectly sound mind handed her retirement pension claim form (and several reminders) to her husband, because he normally dealt with such things.  It was held that it was reasonable for her to do this, though she and not he would have to prove good cause for any delay.  (Happily, good cause does not arise in the present case, because it was a review that was sought, not a claim that was made, and time limits in connection with reviews are dealt with in the Adjudication Regulations.)   In the present case, the evidence so far is that the appellant was in the habit of taking care of his mother’s affairs, including her benefit affairs, even though he had been refused a regulation 33 appointment.  I would be willing to bet that formal authorisation is not invariably insisted on by local offices in every case where one person acts for another, as it was not here (see also CIS/812/92).

41.	However,  I would not be willing to hold that this “third way” requires no authorisation at all at any time.  Claimants’ confidentiality must be safeguarded and interference by third parties prevented.   If explicit authorisation is not obtained before a request is acted on, the claimant should be asked to “ratify” the request.  If the claimant lacks the mental capacity to do this, then a regulation 33 appointment must be considered.   If the claimant dies before ratifying, consideration must be given to whether someone else can ratify on behalf of the estate.  Here, the appellant as executor may be taken to have done so by his letter of 1 10 96.      

42.	I do not think R(SB)9/84 should be taken as warranting too laid-back an approach to those acting on behalf of claimants.  Some formality is necessary, even if local officials are satisfied that the person acting is a close family member with whom they are used to dealing.  It is always the claimant who is entitled to any benefit, not someone acting for her; even if they are otherwise subsidising her.  The present appellant did not help himself by telling the tribunal that he was looking to recoup money he had spent on his mother’s living expenses.  A degree of flexibility to facilitate dealings until matters can be regularised may be one thing; a complete absence of formality is another.   

Directions
	
43.	It will be for the rehearing tribunal to decide whether the appellant’s mother was “unable to act” as at 5 8 96, so that a retrospective regulation 33 appointment would fall to be considered by the Secretary of State, or whether she would have been capable of authorising the appellant to request a review on her behalf, so that his letter of 1 10 96 could be regarded as ratifying the request.  A s30 appointment would then regularise matters.  In anticipation of anything that might be done by the Secretary of State, the tribunal will then have to consider dates, amounts and backdating.  I have added to the papers (pages 69-70) details of the claimant’s award as at 19 12 91 and a list of subsequent changes due to uprating, with finally two review decisions reflecting the claimant having entered hospital and having her benefit reduced and then withdrawn accordingly.  The adjudication officer/Secretary of State’s representative preparing the rehearing is asked to include for the rehearing tribunal submissions on regulations 63(1) and 57 of the then Adjudication Regulations.

						(signed)	Christine Fellner
								Commissioner

								26 November 1999