PLH                                                                             Commissioner's File:  CIS 4884/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Income Support
Appeal Tribunal:	Worcester 
Tribunal case ref:	U/04/024/2002/03422
Tribunal date:	26 June 2002
Reasons issued:	2 October 2002

1.	This appeal by the claimant, which is supported by the Secretary of State, succeeds.   The decision of the appeal tribunal sitting at Worcester on 26 June 2002 was wrong in law in that the tribunal misdirected themselves about the provisions of regulations 19(4) and (5) Social Security (Claims and Payments) Regulations 1987 SI No. 1968 which they had to apply, and failed to make and record sufficient findings of fact on the points relevant to whether the claimant might be entitled to have the claim for income support he made on 15 March 2002 backdated for up to three months under those provisions.  I set the decision aside and since further inquiry in to the actual facts is necessary before the case can be disposed of properly, refer it in accordance with section 14(8)(b) Social Security Act 1998 to a fresh tribunal for redetermination.  
2.	The claimant is a single man aged 20, who submitted a duly completed form for income support on 15 March 2002.  There is no dispute about his entitlement to income support from then on, and the only question on his appeal to the tribunal was whether his entitlement on that claim could be backdated to 2 January 2002 or any later date between then and 15 March.  His contention was that it should, because when he had originally tried to claim benefit he had been told by an official in the department to claim incapacity benefit instead of income support, but then when he did this he was told after a delay that he was not entitled to it, so his not having claimed income support earlier was due to his relying on incorrect information from the department itself.  
3.	The tribunal, on only a paper consideration of the case so that they had no opportunity of hearing evidence from the claimant or the department about what exactly he had been told and by whom, simply determined it against him on the ground that no extension of time under regulations 19(4) and (5) was permissible.  
4.	Those paragraphs of regulation 19 (“Time for claiming benefit”) now provide so far as material as follows:  
“(4)…in the case of a claim for income support…the prescribed time for claiming the benefit shall be extended, subject to a maximum extension of three months …where –
(a)	any…of the circumstances specified in paragraph (5) applies or has applied to the claimant; and
(b)	as a result…the claimant could not reasonably have been expected to make the claim earlier.  
(5)…(d) the claimant was given information by an officer of the Department…which led the claimant to believe that a claim for benefit would not succeed;”
5.	The tribunal’s reasons for holding that these provisions did not assist the claimant on the evidence before them were stated very shortly as a matter of legal interpretation and without going into the facts at all:
“5.	There is…provision for extension of the time for claiming where a claimant has been given information by an officer of the DWP that a claim for benefit would not succeed.  
6.	In this case the Appellant claims that he was told to apply for incapacity benefit.  This does not amount to advice that a claim for income support would not succeed.”
In other words they appear to have regarded it as a prerequisite under regulation 19(5)(d) that the claimant should have been advised in terms that “a claim for income support would not succeed”, without which the gateway in regulation 19(4)(a) to consideration of whether the claimant could reasonably have been expected to make an earlier claim would never open, so that further consideration of the facts was unnecessary.  
6.	I granted leave to appeal in this case to enable the correctness of the tribunal’s approach to regulation 19 to be considered with the assistance of a submission from the Secretary of State, in view of recent Commissioners’ decisions in this area; and I am grateful for the very helpful written submission by Mr W Spencer on behalf of the Secretary of State in response to that, dated 21 January 2003 at pages 20 to 22, analysing and drawing my attention to no less than 64 pages of detailed decisionmaking by numerous Commissioners on this and allied topics.  I will for my part try and avoid adding further to that volume of material more than absolutely necessary, since in my judgment Mr Spencer is absolutely right in what he says, that the tribunal here did misdirect themselves as to the way regulation 19(4) and (5)(d) require to be applied, and the only course I can take is to remit the case to another tribunal for the necessary facts to be gone into and found and the relevant issues properly determined.   
7.	In my judgment the correct approach to regulation 19(5)(d) is that adopted by the Commissioner in reported decision R(IS) 3/01.  The wording that “the claimant was given information…which led the claimant to believe” needs to be given a practical, not an artificially restricted meaning, and it is not necessary for this purpose that what the claimant was told by a departmental official should have referred expressly to the benefit afterwards sought to be claimed, if for example the information was that some different benefit was available which, if correct, would have made such a claim beside the point.  Whether the claimant was given such information, and what he was or was not actually led to believe about the possibility of putting in a concurrent claim just in case, are matters of fact that need to be determined by the tribunal on the actual evidence; tested if necessary by cross-examination to resolve any doubt or dispute about what actually took place, or what the claimant afterwards says he believed at the time.  Only when those facts have been clearly identified can a tribunal say if the condition in regulation 19(5)(d) has been met, and (if it has) then go on to assess as a matter of objective reasonableness whether the claimant also meets the further condition in regulation 19(4)(b) that he could not reasonably have been expected to make the claim earlier (not even one day earlier) than the date he did. 
8.	Analysing the requirements of regulations 19(4) and (5)(d) and the facts that need to be determined in that way makes it plain why this tribunal’s approach to the question they had to decide was inadequate.   They failed to make any findings about what the claimant had actually been told or led to believe, and their short reasoning quoted above embodies a clear misdirection as to what regulation 19(5)(d) requires.    
9.	I further accept Mr Spencer’s submission that if the tribunal’s conclusion was based to any extent on a line of reasoning that “advice” that a person should claim one benefit rather than another was not capable of amounting to or embodying “information” for the purposes of regulation 19(5)(d) – it is a little difficult to tell if that was so from the tribunal’s actual stated reasons, where they referred to “information” at one point and “advice” at another – then that too is a misdirection based on too artificial and restricted a reading of regulation 19(5)(d).  I agree with those Commissioners who have expressed the view that if a claimant is told by an official of the department that benefit A is the one for him to claim and is supplied with a claim form for that and not for benefit B, that is a state of affairs quite capable of falling within the intendment of regulation 19(5)(d) as “information” which could have led a claimant so dealt with to believe that a claim for benefit B, if not normally obtainable by a person who has A, would not succeed and so was not worth pursuing concurrently.  
10.	It seems to me that to draw a line between an official who says “Your circumstances put you within benefit A so here is the form” and one who says “I advise you to claim benefit A because of your circumstances so here is the form”, with the one being treated as giving out factual information and the other no “information” but only “advice” so that regulation 19(5)(d) could not apply, would be the height of artificiality and exactly the kind of thing that consistently with R(IS) 3/01 ought to be avoided.  It would also involve tribunals and witnesses in some very unsatisfactory hairsplitting over the recollections of what actual words were used on an occasion when no one is likely to have regarded the difference as crucial, inevitably some months in the past by the date of the tribunal hearing so that immediate memories would have dulled.
11.	For the reasons just given, I accept Mr Spencer’s submission that I ought not to follow the somewhat different view expressed by the Northern Ireland Commissioners in case C3/00-01 (IS) that a departmental suggestion or advice to a claimant about which benefit is appropriate for his circumstances cannot amount to “information”.  I similarly agree with his further submission that I ought not to follow them on the related though slightly different point made in the same decision, that information about benefit A being available and appropriate cannot by necessary implication also embody information about benefit B leading the claimant not to claim that as well or instead.  Again it seems to me that the “information” given to the claimant and its actual effect on him must be judged together as a whole in relation to both benefits in question.  I do not think the point can be better put than it is in paragraph 3 of the submission: 
“In the circumstances in question, the claimant’s belief can properly be understood as the product of the information given and the reasonable assumption that the officer would have advised him of any benefits to which he was potentially entitled.  The information given was not an incidental factor with no causal consequences. … Had he been told something else, or even nothing at all, his reasoning in all probability would have had a different complexion.  Put another way, it is … artificial to regard the information given and the information not given as having independent effects on the claimant’s ultimate belief. …What was not said precisely has an effect by shaping how the person understands what was said in the circumstances.  The perceived meaning of the officer’s statements then determined what the claimant comes to believe about his benefit entitlement.”
12.	I agree with that approach to the interpretation of regulation 19(5)(d) and the evidence that has to be looked for to determine whether it applies, and I so direct the tribunal which will rehear this case.  As Mr Spencer says, that will enable the claimant to give his account, and its credibility to be evaluated.  The appeal is allowed and the case remitted for rehearing accordingly.	
(Signed)
P L Howell
Commissioner
20 February 2003