[2004] UKSSCSC CIB_2805_2003 (10 May 2004)

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The appeal is allowed.  I hold that the tribunal erred in law in failing to have regard to the dispute as to the actual date of the claim. I substitute my own decision, which the tribunal ought to have given.  The tribunal ought to have held that the claim was received by the Department on 2nd April 2002 and not on the 9th April.  This may allow the department to exercise their discretion to further backdate the claim by 7 days.

2.	I hold that the tribunal did not err in law in holding that there is an absolute time limit of 3 months after the date in respect of which the claim is made, in which to make the claim under Regulation 19(1) and Schedule 4, paragraph 2 of the Social Security (Claims and Payments) Regulations 1997.  In calculating the time limit, the day in respect of which the claim is made is not counted and the three months runs from the day after that date till the repeat date three months thereafter, subject to the exceptions for 31st to 30th or at end of February.

Background

3.	The claimant completed a claim form for incapacity benefit dated 29th March 2002, which she states “was dated and sent (29/02/02) until received in the appropriate department (09/04/02)”.  The form was dated stamped received in the office on 9 April 2002.  The decision maker had decided that she was not entitled to incapacity benefit from 25 December 2001 until 8 January 2002.  The claimant appealed to the tribunal explaining why she had submitted the form late.

4.	The tribunal rejected the appeal.  They held that the claimant had made the claim for incapacity benefit on 9 April 2002, but did not have regard to her claim that she had posted the claim form on 29 March 2003, saying that “there was no dispute as to the actual date of claim”.  The tribunal had regard to the 1997 Regulations and concluded that the regulations, because the “good cause” provisions had been removed in 1997, did not allow the tribunal “to backdate it further than 08 January 2002 because of the time it [sic limit?] imposed by the regulation”.

Appeal to the Commissioner

5.	The claimant appealed on the ground that “if the delay in processing my claim had not occurred, I would have qualified for this benefit”.  She was referring to the discrepancy between the claimed posting on 29 March 2002 and the date stamp of 9 April 2002. Mr Commissioner Howell granted leave to appeal late.

6.	The Secretary of State accepted that the tribunal had erred in not considering the question of the date of the claim and submitted that I should allow the appeal, but that I should substitute a decision to the same effect.

7.	The Secretary of State submitted that “in order to qualify for incapacity benefit from 25/12/2001 a claim would have to be made on or before 24/03/2002”.  I do not agree with that submission as it deprives the claimant of two days.  The phrase in Schedule 4 paragraph 2 is “The day in respect of which the claim is made and period of 3 months immediately following it”.  This is a peculiar phrase and not the normal type of time phrase usually found in statutory provisions; eg 3 months “from” a date or “within” 3 months from a date or 3 months “after” a date.

8.	In Dodds v Walker [1981] 1 WLR 1027, Lord Diplock said at 1029:

“My Lords, reference to a "month" in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since (1808) 15 Ves.Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.”
Lord Diplock goes on to note the exceptions when a date is running from 31st of a month to a corresponding month ending on 30th or the end of February. Therefore on any interpretation, a period of three months from 25 December 2001 ends, not on the 24th, but on the 25th.  However, I consider the phrase used in Schedule 4 paragraph 2 goes further.  The prescribed time for claiming incapacity benefit is “the day in respect of which the claim is made”, so the claimant gets the day of the claim.  The claimant also gets “and period of 3 months immediately following it”.  I read this to mean that there must be a full 3 months immediately following the day in respect of which the claim is made.  Taking the approach in Dodds the day immediately following the 25th December is 26th December and a full three months then runs from 26th December 2001 to 26th March 2002.  This is similar to the approach taken to a time limit “after” a date, where the date itself is not counted and the time period commences at the first moment of the following day; Stivens v Reynolds & Co (1891) 18 R 422. 

9.	I therefore hold that the claimant did in fact have until 26th March 2002 in which to make the claim.  However this does not avail the claimant, because on her own evidence, she did not post the claim form until 29th March 2002.  This may be the three days late to which she refers in her evidence.

10.	The Secretary of State then went on to refer to section 7 of the Interpretation Act which provides:

“where an Act authorizes or requires any document to be served by post the, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved. To have been effected at the time at which the letter would have been delivered in the ordinary course of post”.

The Secretary of State submitted that the “tribunal, in weighing the evidence, decided that the evidence provided by the Secretary of State, namely the date stamped form, led it to believe that, despite the claimant suggesting” that it was posted on 29/03/2002, that it was posted at a later date.  This submission is not consistent with the Statement of Reasons, which says “there was no dispute as to the actual date of claim” or to the Secretary of State submission on why there was an error of law.  The tribunal clearly did not consider the claimant’s letter to the tribunal which said she had posted the letter on 29th March 2002 and therefore did not weigh the evidence.
11.	I am entitled to take the claimant’s statement in her letter at face value, that she posted the form on 29 March 2002.  This was Easter Saturday so it should have been received in the ordinary course of post on Tuesday 2nd April 2002.  Set against that is the department date stamp “Received – 9 April 2002”.  Standing section 7 of the Interpretation Act the onus is on the Secretary of State to prove the contrary. I consider that the Secretary of State would have had to provide some evidence of practice in the department about date stamping received documents, particular as this was the Easter holiday period, where a received document might have had to await the return of staff on holiday before being opened. In these circumstances I am prepared to hold that the Secretary of State has not proved the contrary and therefore that the form should be held to have been received on 2nd April 2002.

					(Signed)
					Sir Crispin Agnew of Lochnaw Bt QC
					Deputy Commissioner
					Date:  10 May 2004