CJSA/580/2003

DECISION OF THE SOCIAL SECURITY COMMISIONER

1.	My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the tribunal’s decision and, since I consider it expedient to do so, I substitute my own decision that the claimant was entitled to jobseeker’s allowance for the period from 5 April 2001 to 4 July 2001, both dates inclusive.

2.	On 5 July 2001 the claimant made a claim for income based jobseeker’s allowance, stating that she wished to claim benefit from 5 April 2001.  The decision maker made an award of benefit, but decided that the claim could not be treated as having been made for any period prior to 5 July.   On 17 July 2001 the claimant submitted a backdating application, again asking for her claim to be backdated to 5 April, but the application was refused.  The claimant appealed on 13 August 2001 and, because the refusal to backdate was maintained on reconsideration on 24 October, the appeal proceeded to a hearing.  After two adjournments, the appeal was dismissed on 21 August 2002.  The claimant now appeals against the tribunal’s decision, with leave granted by a chairman.

3.	The claimant is a 28 year old Kurdish woman, who has been found by a tribunal, in connection with another appeal, to speak no English.  On 12 June 2000 she married a Turkish national whose English is also limited, but which is apparently sufficiently good for him to follow a course of study at an English university.  The claimant’s husband has a part-time job, but works more than 16 hours per week.

4.	According to her solicitors, in their submission to the tribunal of 18 August 2002, the claimant informed the Benefits Agency of her marriage and was advised that she could not claim income support because her partner had only limited leave to remain in the United Kingdom.   The submission continues:

(The claimant) states that she again contacted the Benefits Agency in April 2001 and was advised to claim working family tax credits.  (The claimant) maintains that she did not receive any decision from the working family tax credit unit or the income support section confirming why she was not entitled to any of those benefits despite the fact that she was not entitled to claim for her husband, who had limited leave to remain in the United Kingdom.

(The claimant) states that she attempted to make inquiries regarding a claim for jobseeker’s allowance, however she could not make any significant progress because of her language difficulties….

 (The claimant) maintains that it was not reasonably practicable for her to obtain assistance from another person in respect of her claim for jobseeker’s allowance, as she had received conflicting advice in the past and also her husband…was not familiar with the benefit system due to the fact that he had only resided in the United Kingdom for a very short period.”

Although the appeal was adjourned on 16 January 2002 for the Benefits Agency to provide information and documents relating to those matters, no relevant documents could be located.

5.	By regulation 19(4) of the Social Security (Claims and Payments) Regulations 1987, the time for claiming jobseeker’s allowance can be extended to the date of claim in the circumstances prescribed in regulation 19(5) where “as a result of that circumstance or those circumstances the claimant could not reasonably be expected to make the claim earlier”. Regulations 19(5)(a) and (d) prescribe as relevant circumstances:

“(a) the claimant has difficulty communicating because-
(i)	 he has learning language or literacy difficulties; or
(ii)…
and it was not reasonably practicable for the claimant to obtain assistance from another person to make his claim;

(d) the claimant was given information by an officer of the Department of Social Security or of the Department for Education and Employment which led the claimant to believe that a claim for benefit would not succeed”

6.	The claimant was too ill to attend the ultimate hearing of the appeal on 21 August 2002.  The tribunal, consisting of a legally qualified chairman, rejected the claim to backdating under both paragraphs.  In relation to paragraph (a), the tribunal held that the claimant could have asked her husband to help her make her claim and that, if he was unfamiliar with the benefits system, he could have made appropriate inquiries.  In relation to paragraph (d), it is clear from the statement of reasons that the chairman regarded advice relating to other benefits as not relevant to the issue of whether paragraph (d) applied to the claim for jobseeker’s allowance.  Thus, the chairman stated: “… I am not entirely clear as to the basis of the of this claim (under regulation 19(5)(d)) which seems to me rather to relate the refusal of working families tax credit” In relation to the claim for income support the chairman said: “…I find little evidence to suggest that she was given to understand that a claim for income based jobseeker’s allowance would not succeed”.

7.	The claimant appealed on the ground that the tribunal made inadequate findings of fact in failing to explain why they did not accept the claimant’s case that she had been misled, and in relation to the finding that the claimant’s husband could have made “appropriate inquiries”, in the light of the fact that the claimant had been advised throughout by the DWP.  In my observations on the appeal dated 8 April 2003 I invited submissions on Northern Ireland Commissioners decision C3/00-01(IS)(T).  The Secretary of State’s representative has supported the appeal in a very helpful submission dated 20 May 2003, for which I am grateful.

8.	In C3/00-01(IS)(T) a Tribunal of Commissioners drew a distinction between ‘advice’ and ‘information’ for the purposes of regulation 19(5)(d), but that distinction was rejected by Commissioners in Great Britain in  CIS/688/2001 and CIS/4884/2002. In C3/00-01(IS)(T) it was also held that regulation 18(5)(d) is only satisfied if it was the information which was given, rather than information which was not given, which  misled the claimant.  That was essentially the approach taken by the tribunal in this case, but it is inconsistent with what I said in CIS/1987/1998 and was expressly disapproved of by Mr Commissioner Howell QC in CIS/4884/2002.

9.	I prefer to follow the Commissioners in Great Britain who have held, consistently with R(IS)3/01, that the term “information” must be given a practical, rather than an artificially restricted meaning.  I reiterate what I said in CIS/1987/1998 and I entirely agree with Mr Commissioner Howell QC in CIS/4884/2002 that it is not necessary 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 given to the claimant was that some different benefit was available which, if correct, would have made a claim for the benefit beside the point.  I do not think that I can improve on the way in which the matter has been put by Mr Wayne Spencer, on behalf of the Secretary of State:

“…when the claimant was told by an officer to claim working families tax credit (and later income support), she was given “information” for the purposes of regulation 19(5)(d). …that information in all probability led the claimant to believe that working families’ tax credit was the only benefit to which she was potentially entitled.  A recent arrival in this country, such as the claimant, is unlikely to have any background knowledge about Britain’s labyrinthine benefits system.  If she discloses her circumstances to a relevant officer and is told in response to claim one benefit, she can reasonably assume that she has been given an accurate and complete statement as to her probable entitlement to benefit.  The claimant’s statements suggest that this is what happened in this case.  Moreover…the fact that the claimant initially claimed working families tax credit alone also points to the conclusion that she had been led to believe that that was the only benefit to which she may be entitled.  She evidently had no reason not to claim all of the benefit to which she may be entitled.  That being so, her failure to claim jobseeker’s allowance implies…that she did not know that she might not qualify for it…both limbs of regulation 19(5(d) are satisfied in her case.”

10.	I am therefore satisfied that the tribunal misdirected itself in relation to regulation 19(5)(d) and that its decision must accordingly be set aside.  The Secretary of State’s representative suggested this as case in which I might substitute my own decision for that of the tribunal, but has pointed out that regulation 19(4)(b) of the 1987 Claims and Payments Regulations requires that the claimant could not reasonably have been  expected to claim even one day earlier than she did in order for her application for backdating to succeed.  Since more than a year may have elapsed between the claim for income support and the claim for income based jobseeker’s allowance, the Secretary of State’s representative submitted that the claimant needed to explain in more detail when and how she became aware of jobseeker’s allowance, why such a long period elapsed before she made her claim and why she could not have relied on her husband to obtain information about jobseeker’s allowance.

11.	In response to that submission, the claimant’s solicitors have stated that it took six months for the claimant’s income support claim to be rejected and that thereafter she did make a claim for jobseeker’s allowance, but it was rejected.  At that point, the claimant was advised to claim working families’ tax credit, but when no decision was made on that claim after four months she consulted her present solicitors.  The thirteen month period between the claim for income support and the eventual claim for jobseeker’s allowance was therefore taken up with the processing of three separate claims.  According to the claimant’s solicitors, the claimant’s husband assisted her by progressing what he believed to be valid claims for benefits during the thirteen month period.

12.	The claimant’s entitlement to benefit was clearly very complicated and I have no reason not to accept the explanation for the delay in claiming jobseeker’s allowance put forward by the claimant’s solicitors.  They have represented the claimant with skill and energy throughout, and I therefore equally have no reason not to assume that the claim for jobseeker’s allowance was made as soon as was reasonably practicable.  I therefore find that the conditions for back dating prescribed by regulation 19(4)(b) and regulation 19(5)(d) of the 1987 Claims and Payments are satisfied, and that the claimant is accordingly entitled to jobseeker’s allowance from 5 April 2001.

13.	Since I have dealt with the case under regulation 19(5)(d) of the 1987 Regulations, I do not consider it necessary to consider also the issues arising under regulation 19(5)(a).

14.	For those reasons, my decision is as set out in paragraph 1.

	(Signed)	E A L BANO
		Commissioner

		8 December 2003