CIB/3512/1998

DECISION OF THE COMMISSIONER

1.	This is an appeal, brought by the claimant with the leave of a Commissioner, from the decision of the Central London social security appeal tribunal dated 16 April 1998, whereby they dismissed the claimant’s appeal from a decision of an adjudication officer to the effect that the claimant was not entitled to incapacity benefit from 23 May 1997 because he had failed to return an all work test questionnaire on time.

2.	Regulation 28 of the Social Security (Incapacity for Work)(General) Regulations 1995 provides:-

“(1)	Where the all work test applies, the test shall, if the conditions set out in paragraph (2) are met, be treated as satisfied until a person has been assessed or until he falls to be treated as capable of work in accordance with regulation 7 or 8.

(2)	The conditions are -

(a)	that the person provides evidence of his incapacity for work in accordance with the Social Security (Medical Evidence) Regulations 1976 (which prescribed the form of doctors statement or other evidence required in each case); and

(b)	that it is not within the proceeding six months been determined, in relation to his entitlement to any benefit, allowance or advantage which is dependent on him being incapable of work, but the person is capable of work, or is to be treated as capable of work under regulation 7 or 8, unless -

(i)	he is suffering from some specific disease or bodily or mental disablement which he was not suffering from at the time of that determination; or

(ii)	disease or bodily or mentally disablement which he was suffering from at the time of that determination has significantly worsened; or 

(iii)	in the case of a person who was treated as capable of work under regulation 7 (failure to provide information), he has since provided the information requested by the Secretary of State under that regulation.”

Regulation 7 provides:-

“(1)	Where a person fails without good cause to comply with the request of the Secretary of State to provide the information referred to in regulation 6(1)(b) (all work test questionnaire) he shall, subject to paragraph (2), be treated as capable of work.

(2)	A person shall not be treated as capable of work under paragraph (1) unless - 

	(a)	at least six weeks have elapsed since the Secretary of state sent that person the first request for that information; and

	(b)	the Secretary of State has sent that person a further request at least four weeks after the first, and at least two weeks have elapsed since that further request was sent.”

3.	In this case, the claimant was awarded incapacity benefit from 15 February 1997.  The all work test applied to him and he was treated as satisfying the test by virtue of regulation 28(1).  A questionnaire was issued on 10 April 1997.  A reminder was issued on 8 May 1997.  Therefore, under regulation 7, the claimant was liable to lose entitlement to benefit from 23 May 1997 if the questionnaire had not been returned before then.  An adjudication officer duly reviewed the award of incapacity benefit and decided that the claimant was not entitled to benefit from 23 May 1997.  It is unclear whether that decision was made on 20 May 1997 in anticipation of the change of circumstances, as I am now assured was the case, or whether it was made later, as the language of the decision would suggest, but nothing turns on that point as the decision was not received by the claimant until 29 May or 30 May.  The decision seems to have had the desired effect because a questionnaire was received from the claimant on 3 June 1997.  The claimant also appealed against the decision removing entitlement to benefit.  The tribunal dismissed the claimant’s appeal.  He now challenges the tribunal’s decision on three grounds.

4.	Firstly, he asserts that he had good cause for failing to submit the questionnaire on time because he has difficulty reading and writing.  That can no doubt be a factor when it is being considered whether there is good cause for failure to submit a questionnaire but it does not by itself always amount to good cause.  A person who cannot read or write and who receives an official form can generally be expected to obtain assistance in dealing with it.  Indeed, the claimant did so in this case.  His argument before the tribunal was that he had given the form to his daughter and that she had mislaid it.  The tribunal were plainly of the view that he should have ensured that his daughter found the form before it was due to be returned.  I do not consider that they erred in law in doing so.  

5.	Secondly, the claimant asserts that he did not receive a reminder and that therefore the condition of regulation 7(2)(b) was not satisfied.  However, that regulation refers to a reminder being “sent”, rather than being received.  Non-receipt of a reminder does not mean that there has been non-compliance with regulation 7(2)(b).  It obviously has an important bearing on the question whether the claimant had good cause for not submitting the questionnaire on time but, in the present case, the tribunal found as a fact that the claimant had received the reminder.  That was a finding they were entitled to make and for which they gave adequate reasons.  

6.	Thirdly, the claimant asserts that the tribunal erred in rejecting a submission to the effect that he was entitled to take advantage of regulation 28(1) because the questionnaire had eventually been submitted.  The tribunal had rejected the submission, reasoning that they had found regulation 7 to be satisfied, that regulation 28(1) applied only until the claimant fell to be treated as capable of work in accordance with regulation 7 and that therefore the conditions under regulation 28(2) - in particular, regulation 28(2)(b)(iii) - did not fall to be taken into consideration.

7.	The adjudication officer supports this third ground of appeal and submits that I should decide that the claimant was entitled to incapacity benefit from 23 May 1997 by virtue of regulation 28(2)(b)(iii).  In other words, the adjudication officer submits that the late submission of a questionnaire may delay payment of benefit but does not cause loss.  In my view that is the effect of the legislation in many cases but I do not agree with the adjudication officer’s reasoning because it implies that regulation 28(2)(b)(iii) has retrospective effect and that is not justified by its language.  In my view, it is clear that a claimant can take advantage of regulation 28(2)(b)(iii) only from the date when a questionnaire is in fact submitted.  

8.	In any event, the adjudication officer’s submission does not answer the tribunal’s reasoning and, indeed, neither party has identified any flaw in that reasoning.  It may be incomplete, but as far as it goes it appears to me to be unassailable.  For as long as a decision under regulation 7 continues to have effect, there can be no question of the claimant having the benefit of regulation 28.  What the tribunal did not explain is for how long a person is to be deemed under regulation 7 to be capable of work.  Clearly, such a decision cannot continue to have effect for ever, particularly as regulation 19 of the 1995 Regulations provided:

“A determination whether a person is, or is to be treated as, capable or incapable of work, which is made for the purposes of determining his entitlement to any benefit, allowance or advantage, shall be treated as conclusive for the purposes of his entitlement to any other benefit, allowance or advantage in respect of any day or any period to which that determination relates”.

The answer is that the period to which a determination under regulation 7 relates ends immediately before the date from which a new claim or application is effective.  Thus, a decision under regulation 7 operates only to bring to an end a period during which a claimant has been treated as incapable of work.  There is no reason why the claimant cannot raise again, in respect of a later period, the question of his or her capacity for work by making a new claim for benefit or, in the case of a person who is entitled to income support even if not incapable of work, an application for review (or, now, revision or supersession).  Regulation 28 then applies on that new claim or application.  However, regulation 28(2) has the effect that, if less than six months has elapsed since the decision was made under regulation 7, the claimant will be treated under regulation 28(1) as satisfying the all work test only from the date when he or she submits a completed questionnaire (see regulation 28(2)(b)(iii)).  The claimant will not be treated under regulation 28(1) as satisfying the test during any period before the questionnaire is received but that does not mean that, once he or she is assessed under the all work test, he or she cannot be found actually to have satisfied the test in respect of such a period.  Thus, if a new claim or application is submitted very soon after a regulation 7 decision has been made, a claimant who actually satisfies the all work test may ultimately be paid benefit from the date from which the regulation 7 decision was originally effective. 

9.	The present case arises in the context of incapacity benefit.  The tribunal were obliged to consider the claimant’s case down to the date of their decision (CIB/14430/96).  However, for the reasons I have given, they could not have awarded benefit from 23 May 1997 unless there had been a new claim which had not been adjudicated upon.  There was no evidence of such a claim before the tribunal and they would not have been obliged to adjudicate upon it even if there had been.  I do not consider that the tribunal’s decision to dismiss the claimant’s appeal relating to the review of the original award of incapacity benefit was erroneous in point of law.  Therefore, they did not err in refusing to award benefit for any period after 22 May 1997.

10.	Accordingly, I dismiss the claimant’s appeal.

11.	However, it does seem to me that the tribunal ought to have drawn the claimant’s attention to the possibility of obtaining benefit from 23 May 1997 through a fresh claim.  I will cure that defect.  Unless there have been further decisions of which I am unaware, it remains open to the claimant to pursue the question of entitlement to incapacity benefit from 23 May 1997.  It is necessary for him to have claimed benefit but it is open to the Secretary of State to treat the questionnaire submitted on 3 June 1997 as amounting to a claim.  Given that the claimant had made it plain that he wished to claim benefit on the strength of that questionnaire, it may be thought unfair not to treat the questionnaire as a claim unless a proper claim form was submitted at the time or the claimant was at least sent a claim form or alerted to the needs to obtain one.  If that questionnaire is accepted as a claim, the claimant may be treated as satisfying the all work test from 3 June 1997, under regulation 28(1).  If it is accepted that the claimant did actually satisfy the all work test from 23 May 1997 to 2 June 1997, incapacity benefit may also be paid in respect of that period.  Those are all matters that should now be considered by the Secretary of State who may wish to bear in mind that the adjudication officer in these proceedings did submit, albeit on a faulty understanding of the law, that the claimant should be awarded benefit from 23 May 1997.

M. ROWLAND
Commissioner
16 February 2000