[2005] UKSSCSC CSIS_815_2004 (15 March 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIS/815/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  L T PARKER

Appellant:  				          Respondent:  Secretary of State

Tribunal:  Hamilton			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The decision of the appeal tribunal sitting in Hamilton (the tribunal) on 30 June 2004 is wrong in law.  Accordingly, I set its decision aside and remit the case for rehearing by a fresh tribunal.

2.	Leave to appeal was refused by the district chairman but I granted leave directing the Secretary of State to address R(IS) 3/01 and CIS/3994/1998.  The Secretary of State supports the appeal and suggests that I substitute a decision in the appellant’s favour.  However, I am unable to do so.  Although it is plain that the tribunal’s approach to the question it had to decide was inadequate, it failed to make sufficient findings about what the appellant was actually told or led to believe and by whom, and the evidence is currently lacking on account of a failure to investigate so that I am unable to make the necessary decision in substitution.

3.	As was stated by Mr Commissioner Howell QC at paragraph 7 of CIS/4884/2002:

	“…whether the claimant was given such information and what he was or was not actually led to believe … 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.”

Background

4.	The following is deduced from the information in the papers as a whole.  It may be incorrect and the new tribunal is not bound by my narration of fact.

5.	The appellant received income support (IS) until 18 September 2002 and made no further claim for IS until 26 November 2003.  It seems that IS terminated when it did because he began to receive Incapacity Benefit (IB) at a higher level than his then IS entitlement.

6.	The appellant claimed disability living allowance (DLA) in November 2002, but an award was not made at that time and the disallowance was upheld by a tribunal in March 2003.  He made a further claim to DLA on 3 March 2003, this was initially refused again but finally awarded at the middle rate of the care component of DLA by a tribunal in November 2003, as from the date of his second DLA claim.

7.	The IS claim in issue was submitted on 26 November 2003.  How soon this was after the successful DLA tribunal hearing is not stated.  According to the submission to the tribunal by a decision maker (DM) on behalf of the Secretary of State, the appellant made a back dating request at the same time with respect to IS from 3 March 2003 (or 5 March 2003 which is the date given in a different part of the submission), whatever is the date from which DLA at the middle rate of care component had been awarded.
8.	An adverse decision on IS backdating was given citing regulations 6 and 19 of the Social Security (Claims and Payments) Regulations 1987 (the regulations) SI No 1968 (as amended).

9.	An argument under regulation 6 was not pursued (the appellant would have had to show that an original claim for IS was refused while he was waiting to hear about entitlement to DLA) but at the hearing the appellant’s representative, Mr Stephen Craig argued on his behalf that a period of three months back dating of benefit was appropriate under regulation 19 of the regulations with respect to the following head which, so far as material, reads:

 “(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;”

The tribunal decision

10.	The tribunal’s statement of reasons for refusing the appeal is as follows:

“2.	According to Mr Craig, Paragraph (d) says that the Appellant was given information by an Officer of the Department of Works & Pension (sic) which leads the Appellant to believe that an application for Income Support would not succeed.  Mr Craig also stated that there is nothing in the provision which restricts the information to misleading information.  Mr Craig stated that there were two pieces of information given by the Department which quite rightly led the appellant to believe that a claim for income support would not succeed.  He said that the first was when the Appellant was told in Incapacity Benefit exceeded the Income Support level so naturally that led the Appellant to the correct belief that a claim for Benefit would not succeed.  According to Mr Craig the second piece of information was that on two occasions at least the Department told the Appellant that he was not entitled to Disability Living Allowance which was correct information as it was at the time leading the Appellant correctly to believe that a claim for Income Support would still not succeed. … Mr Craig asked me to find that the information given to the Appellant led him to believe throughout the three months before his Income Support claim that a claim for Benefit for Income Support would not succeed at that time.
3.	In evidence at the Hearing the Appellant stated that he first claimed Benefits in August 2002 and a local Benefits Office advised him to apply for Income Support and Incapacity Benefit. … He said that he was not awarded Income Support due to the fact that he was eligible for a higher award of benefit of Incapacity Benefit as opposed to Income Support.  The Appellant further told the Tribunal that after this claim he made a claim for Disability Living Allowance in November 2002 and made an appeal for this in March 2003 which was rejected.  He stated that he appealed (sic) again and was finally awarded Disability Living Allowance in November 2003.  At the Hearing the Appellant was asked did he get any advice about his Disability Living Allowance and he stated that between November 2002 and November 2003 approximately he went to the CAB in Motherwell and was told that if he was awarded DLA he could apply for Income Support once more.  He stated that he applied for Disability Living Allowance. … The Appellant was asked if he did apply for Income Support once more and he replied he did not do so because he had been recently rejected for Disability Living Allowance and he did not see how he could apply for Income Support.
4.	The Tribunal found that the appellant was not entitled to backdated Income Support from 5th March 2003 to 29th November 2003 because he did not satisfy the conditions prescribed in Regulation (19)(5)(d) of [the regulations]. … When he submitted his claim for Income Support on 26th November 2003 the Appellant attached a letter requesting backdated payments of Income Support from 5th March 2003 on the basis that on 28th November 2003 he had been awarded the middle rate of Disability Living Allowance Care Component backdated to 3rd March 2003.  The Appellant’s reason for being late in claiming Income Support is not one of the reasons listed in the prescribed list of circumstances contained within Regulation 19(5) of [the regulations] including Paragraph (d).  The Tribunal accepted that the information given by the Appellant at the Tribunal was accurate. …”

Appeal to the Commissioner

11.	Mr Craig submits firstly that:

	“It is not material whether or not the reasons put forward in the original claim match any of the circumstances in 19(5)”.

and secondly that the tribunal gave inadequate reasons for rejecting the submission that regulation 19(5)(d) applies.

12.	As noted, the Secretary of State supports the appeal.  He refers to paragraph 14 of R(IS) 3/01 where Mr Commissioner Mesher said:

“14.	... In my judgment, the words of regulation 19(5)(d) are not to be given any artificially restricted meaning. … [I]t seems to me that when a letter is sent to a claimant by an officer of the Benefits Agency informing him of a benefit decision, information is being given. The question then is whether that information led the claimant to believe that a claim for benefit would not succeed. The test at this stage (providing that the substance of the information given is sufficiently established) is what the claimant in question was led to believe, not what a reasonable claimant would be led to believe. However, there may come a point where what the claimant says he was led to believe is so far-fetched that it cannot be accepted that the belief was linked to the information. I see no reason why the case should be excluded where information about one claim or benefit leads a claimant to believe that another claim, for the same or a different benefit, would not succeed. The crucial test then becomes whether as a result of those circumstances the claimant could not reasonably have been expected to claim earlier than he did (regulation 19(4)(b)). The result will not be to place an unacceptable burden on officers of the Benefits Agency to provide information. The issue is what a claimant is led to believe by the information which is actually given.”

13.	My difficulty with the submission from the Secretary of State is that, with respect to the present appeal, he says:

	“The claimant argues that he did not claim on or around 05/03/2003 because he was told by CAB that he could only qualify for income support if he was successful with his DLA claim.  As the claim was refused at the time he did not think that he could apply for income support.  He further maintained that when his claim for DLA was refused he was given no information from the DLA unit itself, notably when he appealed the DLA decision”.

14.	I can find nowhere in the papers any suggestion that the appellant, as distinct from Mr Craig on his behalf, said anything about enquiries concerned with his DLA claim, nor anything about either of them saying what is set out in the last sentence above.  Consequently, I am unable to substitute my own decision in the appellant’s favour as, contrary to the Secretary of State’s specific submission, the facts are not yet “sufficiently well documented”.

Reasons

15.	It was a mis-statement of law by the tribunal that a claimant can only succeed under regulation 19 if the claim for backdating expressly founds on an applicable circumstance under paragraph 5.  The onus of proof to establish a ground for backdating lies on the claimant but provided he demonstrates that his circumstances fit one of the matters set out under regulation 19(5) and that, as a result of the same he could not reasonably have been expected to claim earlier than he did (regulation 19(4)(b)), that is sufficient.  

16.	Moreover, the tribunal failed to make adequate findings about what the appellant had actually been told by an officer of the Department and thus led to believe and, in particular, it did not attempt to establish with him whether what was said on his behalf by Mr Craig was endorsed by the appellant.  When were any enquiries put to the Department about his DLA entitlement and exactly what was he told and not told?  These matters are critical.  While “the tribunal accepted that the information given by the appellant at the tribunal was accurate”, it was not apparent precisely which information was meant or how it related to what regulation 19(5)(d) requires.

17.	A claimant has to show that he was subjectively led to believe that a claim for benefit would not succeed having been given information by an officer of the Department.  In the present case it has been variously suggested that he was spoken to by the Department about DLA entitlement and by the local citizens advice bureau (CAB) about a claim for IS.  As already said, exactly who said what and when needs clarification.  But how relevant is information from the CAB?  In my judgement, information from the Department must be a significant operative cause of the claimant’s belief that a claim for IS would not succeed, but it does not have to be the sole cause.  If combined information from the Department and the CAB led to the belief, and what came from the Department was material in so doing, this is sufficient.  If, however, the primary reason for his belief that a claim for IS would not succeed was what he learned from the CAB the appellant would not discharge the necessary onus; whether the contribution from the Department constitutes an essential link in the causal chain is a matter for the good sense of a tribunal.

18.	As was held by Mr Commissioner Mesher in R(IS) 3/01 and followed by Mr Commissioner Howell QC in CIS/4884/02 and Mr Commissioner Bano in CJSA/580/2003, it does not preclude backdating that the information given was in respect of a different kind of benefit, provided it actually led the claimant to believe that his claim for the benefit in issue could not succeed and, moreover, as a consequence, he could not reasonably have been expected to claim the relevant benefit even one day earlier than the date he did.  It is immaterial that nothing was expressly said about income support if a claimant is nevertheless led to believe by what he was told by an officer of the Department with respect to another benefit that a claim for IS would not succeed.

19.	I agree with the Commissioners in the last two decisions cited above in disapproving of the suggestion made by a Tribunal of Commissioners in Northern Ireland in C3/00-01 (IS) (T), in so far as the Tribunal held that regulation 19(5)(d) is only satisfied if it was information which was given, rather than information which was not given, which misled the claimant.  As was said by Mr Commissioner Bano at paragraph 9 of CJSA/580/2003:

	“… the term ‘information’ must be given a practical, rather than an artificially restricted meaning”.

20.	The Secretary of State does not consider that CIS/3994/1998 is relevant but I disagree.  In that case, a claimant told the Benefits Agency that he was in receipt of a retirement pension and an occupational pension but not that he had a pending attendance allowance claim.  Nevertheless, Deputy Commissioner White held that a tribunal erred in law in saying regulation 19(5)(d) did not apply where the Department gave information which was reasonable in the light of what was disclosed by the claimant.

21.	As the Deputy Commissioner said at paragraph 17 of his decision, and I think he was right:

	“I take this view because entitlement to income support is a complex matter. Had an application form been supplied, the claimant would have been asked whether he had any claims for benefit pending and his potential entitlement would have been identified. I think that in a benefit system as complex as that of the United Kingdom, the claimant cannot be expected to identify all the circumstances which may open the door to a successful claim. In my view, he received information which led him to believe that a claim for income support would not succeed. He is within sub-paragraph (d).”

22.	A DLA claim is not only important in its own right but as a stepping stone to potential further entitlement to other benefits: when a claimant has his DLA claim acknowledged, it would seem prudent for the Department to tell him that, if successful, his DLA entitlement may begin from the date of claim, that this may affect his position with respect to other benefits from that same date, and that he may wish to consider seeking appropriate advice.

23.	If the claimant was told by CAB that IS entitlement depended on DLA entitlement and, at around the same time, he was told by an officer of the Department that his DLA claim was rejected but without being told that if he succeeded on appeal his DLA would date from the date of claim and could likewise underpin an IS claim if he made it, this could well lead a claimant to believe that a contemporaneous IS claim would not succeed.  If these are made out as the circumstances in the appellant’s case and that as a result he could not reasonably have been expected to claim IS earlier than in the relatively immediate aftermath of his successful DLA appeal, then I agree with the Secretary of State:

	“… that the claimant is entitled to income support for the period from 26/08/2003 to 25/11/2003 because he satisfies the conditions prescribed in regulation 19(4)(b) and (5)(d) of the Claims and Payments Regulations”.

Summary

24.	The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open.

						(Signed)
						L T PARKER
						Commissioner
						Date:  15 March 2005