THE  SOCIAL SECURITY COMMISSIONERS   

                                      Commissioner’s Case no:        CIS 5430 1999  

	                      SOCIAL SECURITY ACTS  1992 - 1998

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

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Mr Commissioner David Williams

DECISION OF THE SOCIAL SECURITY COMMISSIONER 

1	I dismiss the appeal by the claimant.

2	The appeal was against the decision of the Birmingham social security appeal tribunal on 25 March 1999. It was brought by leave of the chairman.
The decision of the tribunal was that the claimant was not entitled to arrears of income support for the period 23 July 1998 to 20 August 1998.

3	I held an oral hearing of this appeal at the request of the claimant on 26 September 2000 in London. The claimant arrived at the hearing late. Mr Bob Prew of the Welfare Rights and Money Unit of Birmingham City Council represented him throughout. The Secretary of State was represented by Miss Anna Powick of the Office of the Solicitor to the Department of Social Security. I am grateful to both for their help.  

Background to the appeal

4	The claimant was a person from abroad who was granted political asylum by letter dated 23 July 1998.  Following the grant of asylum, he was paid arrears of urgent cases payments of income support for the period from 13 February 1997 (when he applied for asylum) to 22 July 1998. The claimant also claimed and was awarded income support from 21 August 1998. On 24 November 1998 he made an application for this to be backdated to 23 July 1998.  He based his claim for backdating on the circumstances in regulation 19(5)(d) and (e) of the Social Security (Claims and Payments) Regulations 1987. Neither the adjudication officer nor the tribunal accepted either of these circumstances as applying. 

5		The claimant appealed against the decision of the tribunal on the grounds that it had misconstrued both regulation 19(5)(d) and 19(5)(e) of the Social Security (Claims and Payments) Regulations 1987, and that it had taken too severe a view in applying regulation 19(4)(b).

Regulation 19: Time for claiming benefit

6	The relevant parts of regulation 19 for the purposes of this appeal are:

(4) … in the case of a claim for income support … where the claim is not made within the time specified … the prescribed time shall be extended, subject to a maximum extension of three months, to the date on which the claim is made, where –
	
(a)		any of the circumstances specified in paragraph (5) applies; and 

(b)		as a result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.

(5)	The circumstances referred to in paragraph (4) are –
(d)		the claimant was given information by an officer of the Department of Social Security … which led the claimant to believe that a claim for benefit would not succeed;

(e)		the claimant was given written advice by a solicitor or other professional adviser, a medical practitioner, a local authority, or a person working in a Citizens Advice Bureau or a similar advice agency, which led the claimant to believe a claim for benefit would not succeed;

Regulation 19(5)(e): Written advice

7	The claimant had been advised about his claim for income support by a neighbourhood office of the local authority. This advice had been recorded on a computer, but was not given in writing at the time to the claimant. Written confirmation of the advice was presented to the tribunal, but the tribunal rejected it on the grounds that “the appellant did not receive advice in writing”.  Mr Prew contended that following CJSA 1136 1998 it was sufficient that the advice had been confirmed in writing by the time of the tribunal hearing, or alternatively that it had been recorded in writing at the time it was given. Miss Powick submitted that both approaches were wrong, and that CJSA 1136 1998 was wrong if that it what it held. The advice had to be given in writing.

8	In CJSA 1136 1998, the claimant contended that advice that was initially given verbally by a trade union, and was confirmed in writing before the tribunal hearing, was advice within regulation 19(5)(e). It is not clear from the decision when precisely the advice was confirmed in that case, but I assume from the terms of the decision it must have been before the adjudication officer made the decision under appeal. The adjudication officer submitted that the advice must be in writing at the time the advice was given. The Commissioner accepted the application of regulation 19(5)(e) because: 

	5	In my opinion the reason for the insertion for the requirement for the advice to be written is to avoid any doubt, argument, mistaken memory or deception as to the contents of the advice. If, before the decision made by the adjudication officer or the tribunal, the advice is confirmed in writing then the above difficulties are avoided and this amounts to written advice for the purposes of regulation 19(5)(e). 

9	Mr Prew cannot rely on that decision in this case even if it is right. The written version of the advice appears only to have been produced after the decision of the adjudication officer and only in time for the tribunal hearing. However, the decision could be read as ambiguous on that point, and I therefore consider Miss Powick’s submission that (5)(e) covers only advice given in the form of writing and that CJSA 1136 1998 is wrong on either interpretation.

10	I agree that, read as widely as Mr Prew has submitted it should be read, paragraph 5 of CJSA 1136 1998 is too wide. I can see no basis on which advice can be regarded as “given in writing” to a claimant when the only written document produced is a confirmation of advice given after the adjudication officer or Secretary of State made the decision and later produced for the tribunal and not the claimant. If CJSA 1136 1998 is authority for that (and I am not sure that it is) I respectfully disagree with it. Nor is it enough that the advice is confirmed in writing (as on a contemporary computer or daybook record made for internal purposes by the adviser) if no written copy is given to the claimant.  

11	I also reject the opposite argument of the adjudication officer that the advice only comes within (5)(e) if the advice is given only in written form. I put a number of examples to the parties. For example, is it enough if the claimant was given a copy of the computer printout in this case, or was given oral advice to be confirmed in writing? That will be a question of fact. The idea that the adviser can say to the claimant only “Read this” or “I will give you advice in writing later” when asked a simple question about income support entitlement is impracticable, and a common sense view must be taken. Nonetheless the requirement of writing is in the regulation. If the adviser said something like: “That is my advice, and I will confirm it in writing”, or “This is a note of the advice I have just given you, confirming what I said. Have you any questions?” then, depending on what is said and written, a claimant could be “given written advice”. There must be a link between the giving of advice and the writing. That link does not exist in this case.  I do not accept that ground of appeal.

Regulation 19(5)(d): Advice of an official

12	Mr Prew also contends that his appeal is justified by reference to the failure of the tribunal properly to interpret regulation 19(5)(d). It is not in dispute that the claimant sought to claim income support before his asylum status had been decided, and that he was – at that time correctly – advised that he could not claim income support. He argued that this was enough for the purposes of the present claim because paragraph (d) refers to “a claim” not “the claim”.   The submission of the Secretary of State is that the “information must relate to the belated claim”. CIS 2682 1999, paragraph 5, is cited in support of this. That case relied on a decision of mine, CIS 610 1998, where, it was said, “the Commissioner expressly held that the ambit of the provision is limited to the belated claim”.  In a later decision, CIS 4354 1999, another Commissioner considered what I said in that decision, and its interpretation in decision in CIS 2682 1999. The Commissioner considered, and with respect I agree, that to interpret my decision as laying down a general rule about the claim on which the advice was given was wrong. He added that if CIS 2682 1999 purported to lay down such a rule, in his judgment it should not be followed, and I respectfully also agree. It is a question of fact whether the advice given, about that claim or any other, was such as to lead a particular claimant to believe that a particular claim would not succeed. That is a subjective test.  The objective requirement that as a result of those circumstances the claimant could not reasonably have been expected to claim earlier is in regulation 19(4). I do not therefore accept the Secretary of State’s interpretation of regulation 19(5)(d). 

13	But that does not assist the claimant. Mr Prew’s submission was at the other end of the range of possible views. His argument was that once the claimant had been given advice about a claim, then that was enough regardless of a change of circumstances.  This appears to have been accepted in submission, but rejected on consideration, by the tribunal as a proposition of law. If it was put forward as a proposition of law, then the tribunal was right to reject it. If it was put forward as an interpretation of the facts, then, as a matter of fact, the tribunal rejected it. In deciding that relevant advice was “advice given  … relating to the claim in the circumstances of the claim” is in my view a fair approach to this case, and I do not consider that the tribunal erred in this aspect of its decision either. 

Regulation 19(4): reasonableness

14	As my conclusion is that the tribunal did not err in its conclusion that neither (5)(d) nor (5)(e) apply, the arguments about regulation 19(4)(b) do not strictly arise. But lest I am wrong on the above points, I record that I see no error of law in the way the tribunal considered whether an earlier claim could reasonably have been expected. The tribunal was right to reject the attempt to fetter its duty to view all aspects of the case in deciding on what was reasonable by reference to the 28 day time limit in regulation 21ZA(4)(b) of the Income Support (General) Regulations 1987.  The claimant had the benefit of that regulation in this case for the urgent cases payment.  It does not apply here, and can be no more than one factor that the tribunal may have in mind. Other factors include the written advice about benefits in the letter granting asylum, and the written advice to the claimant in the solicitor’s letter sent to the claimant with the official letter granting asylum. It was clear to the tribunal that the other alleged circumstances supporting the backdating claim in the solicitor’s letter to the Benefits Agency were somewhat removed from the truth, and that is also relevant, and it considered the actual circumstances.

										David Williams  
										Commissioner  
										13 October 2000