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[2004] UKSSCSC CIS_1614_2004 (03 November 2004)

CIS/1614/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Secretary of State, brought with the permission of Mr. Commissioner Mesher, against a decision of the Blackburn Appeal Tribunal made on 1 December 2003. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal and set aside the Tribunal's decision. In exercise of the power in s.14(8)(a)(ii) of the Social Security Act 1998 I make the findings of fact set out below and substitute the following decision for that of the Tribunal:

The Claimant's appeal against the decision of the Secretary of State made on 4 July 2003 is disallowed. The Claimant was not entitled to income support until 27 June 2003.

2. I held an oral hearing of the appeal at which the Secretary of State was represented by Mr. Jonathan Moffett of counsel and the Claimant by Mr. McCarthy from the Claimant's local welfare rights unit.
3. The income support legislation provides that a person can be entitled to income support (albeit at a reduced rate) where he is appealing against a decision embodying a determination that he is not incapable of work under the personal capability assessment. However, there is likely to be at least some time gap between the date when the decision terminating his previous benefit entitlement takes effect and the date when he actually appeals against the incapacity decision. The main issue in this appeal, which is potentially one of some general importance, is whether a claimant is necessarily entitled to income support in respect of that gap.
4. The Tribunal held that he is. It gave as its reason that "Commissioner's decision CIS/2075/2002 states that the legislation implies that benefit will be paid in respect of the period between the decision on the personal capability assessment and an appeal being brought, at least if the appeal is not late."
5. I find the facts in the present case to have been as follows:

(1) On 10 June 2003 a decision was made, following a medical examination, superseding with effect from that date the Claimant's award of incapacity benefit on the ground that he was not incapable of work under the personal capability assessment. Notification of the decision was sent to the Claimant on that day, but not received by him until 13 June.

(2) On 16 June 2003 the Claimant attended at the local office, from which that decision had come, and saw an adviser and showed him the decision letter. The adviser asked him whether he wished to appeal and he replied that he did. The adviser then put him through on the telephone to someone else in the same building and the Claimant also told that person that he wished to appeal. The adviser then produced an income support claim form and, on the basis of the Claimant's answers, completed it, and the Claimant signed it and left it at the office. The adviser also went to get an Appeal Form which the Claimant took away with him, the adviser having said that he should go to his doctor who would help him complete it.

(3) On the income support claim form the Claimant gave the following as the reason for claiming income support: "I am claiming incapacity benefit but my claim closed on 9 June 2003 due to failed medical. I am appealing against that decision and wish to claim income support on that basis." At the end of the form the Claimant stated: "I would like to backdate my claim to 10 June 2003 as I didn't receive my disallowance notice until 13 June 2003 and did not realise I would have to claim IS on appeal grounds."

(4) The Claimant made an appointment with his doctor, and after seeing the doctor he completed the form for appealing against the incapacity benefit decision. That form was received by the local office on 27 June 2003, well within the one month time limit for appealing.

(5) On 4 July 2003 a decision was made awarding income support, but only from 27 June 2003, the date when the incapacity benefit appeal form had been received. The last 3 paragraphs of that decision were as follows:

"A person who falls within a prescribed category in the Income Support (General) Regulations 1987 for the purposes of this regulation for any day in a benefit week shall fall within that category for the whole week.

Income Support (General) Regulations 1987 Reg. 4ZA(4).

Whilst I accept that he claimed Income Support within 1 week of failing his PCA, because he did not send his appeal in within his benefit week from the date he failed his PCA, none of the conditions of entitlement were then satisfied hence he is therefore only entitled to Income Support from the date his appeal was received in the office, 27 June 2003.

As a consequence Income Support is not payable for the period 10 June 2003 to 26 June 2003 even if he did satisfy any of the criteria to extend the prescribed time for claiming benefit in Income Support (General) Regulations 1987 Reg. 19."

(6) The Claimant appealed against that decision, contending that he should have been awarded income support from 10 June 2003. As I have said, the Tribunal upheld that contention and allowed the appeal.

6. I should perhaps add the following by way of brief explanation for some of my above findings of fact. First, the Claimant said in his letter of appeal against the income support decision and in oral evidence to the Tribunal that he did not receive notification of the incapacity benefit decision until 15 June 2003. However, when he went to the local office on 16 June he said that he had received it on 13 June. I accept the latter as more likely to be correct because events were fresher in his mind at that stage, and because 15 June was in fact a Sunday. It in fact makes no difference to the outcome.
7. Secondly, the date of signature of the income support claim form is stated as 19 June, not 16 June. This is something of a mystery. It would seem inherently very unlikely that the date, which was written by the adviser at the local office, was incorrect. Yet the Secretary of State accepts that the income support claim was made on 16 June, which is when the Claimant says he went in and signed the form. There is no suggestion that the Claimant gave notification of intention to claim before he actually went into the local office. In those circumstances I see no alternative but to find that the date when the Claimant went in to the office and signed the income support claim form was 16 June, and that the date of signature was wrongly stated. Again, it makes no difference to my decision.
8. A decision superseding an award of incapacity benefit on the ground that the claimant has been found not incapable of work under the personal capability assessment will generally take effect from the date of the superseding decision under the primary rule in s.10(5) of the Social Security Act, 1998. The last day of entitlement will therefore generally be the day before the date of the superseding decision (as was the position in this case).
9. By s.12(1)(e) of the Social Security Contributions and Benefits Act 1992 it is a condition of entitlement to income support that the claimant "falls within a prescribed category of persons." By para. 7 of Schedule 1B to the Income Support (General) Regulations, 1987 ("the 1987 Regulations") persons incapable of work are a prescribed category. Para. 25 of Schedule 1B prescribes:

"A person –

(a) in respect of whom it has been determined for the purposes of section 171C of the Contributions and Benefits Act (personal capability assessment) that he is not incapable of work; and

(b) who has made and is pursuing an appeal against the decision which embodies a determination that he is not so incapable

but only for the period prior to the determination of his appeal."

10. In para. 9 of CIS/2075/2002, the decision relied upon by the Tribunal, Mr. Commissioner Rowland said:

"Paragraph 25 of Schedule 1B to the [1987 Regulations], which is the relevant provision entitling the claimant to income support while his "credits" appeal is pending, applies until the final determination of the "credits" appeal. It has been held in CIS/2654/99, following CIS/210/94, that an appeal is finally determined until any application for leave to appeal or appeal to a Commissioner has been determined. The legislation implies that benefit will be paid in respect of a period between a decision being given and an appeal being brought – at any rate if the appeal is not late or is admitted despite its lateness – and it seems to me that the same approach must be taken if an appeal is rejected as not being duly made and is then reinstated. Consequently, I agree with the Secretary of State that, in the present case, the claimant has remained entitled to income support ever since the decision was made that he was not incapable of work (subject, of course, to him satisfying the other conditions of entitlement and not having too much income)."

11. The adjudication history in that case was extremely complex, and I do not propose to examine it in this decision. The facts were different in that the Claimant had previously been entitled not to incapacity benefit, but to income support, so that it was not a case where the claimant needed to move from one benefit to another. However, it seems to me that the Tribunal was probably correct in drawing from the sentence which I have emphasised the proposition that, in the case of an appeal against a decision superseding an award of incapacity benefit on the ground that the claimant is not incapable of work, it is implicit that the claimant will (if he satisfies the other conditions of entitlement) be entitled to income support as from the date of the superseding decision, thus avoiding a gap in benefit entitlement. It does not, however, appear from that decision that the correctness of that proposition was the subject of any argument before Mr. Commissioner Rowland.
12. In my judgment the Secretary of State is correct in submitting in this appeal that the legislation contains no such implication. My reasons are as follows.

(1) Para. 25 of Schedule 1B applies in the case of a person "who has made and is pursuing an appeal". It is in my view clear that a person only becomes a prescribed person within para. 25 from the date when he has actually appealed against the decision embodying the incapacity determination. The words "but only for the period prior to the determination of his appeal" in my judgment merely indicate that para. 25 ceases to apply when the appeal has determined. I am unable to find anything in the legislation which implies that, once a valid appeal is made, the claimant should be considered to have fallen within that category from the effective date of the superseding decision. Such a provision might be reasonable, but I do not see how it can be implied into the legislation.

(2) The purpose of para. 25 is to enable persons in the position of the Claimant to protect their benefit position pending an appeal against the incapacity decision without applying for jobseeker's allowance and seeking to fulfil the conditions for entitlement to that benefit. It does not seem to me to follow from that purpose that it is necessary to imply that there is entitlement to income support in respect of the whole period between the date of the decision on incapacity and the date of the appeal against that decision.

(3) One of the conditions of entitlement to benefit is of course that a claim must have been made, and entitlement to income support will in general not run from before the date of claim. Reg. 19 of the Social Security (Claims and Payments) Regulations, 1987 contains detailed provisions permitting (in effect) the backdating of a claim, but there is no provision for automatic backdating of the claim of a person whose incapacity benefit award has been superseded and who then claims income support on the basis that he has appealed against the supersession decision. I do not see how it is possible to imply a provision backdating the claim in such circumstances when the legislation contains express and detailed provision for the circumstances in which backdating is permitted. If there is no provision backdating the claim, that suggests that there is no automatic backdating of any of the other conditions of entitlement

(4) The time for appealing can be extended by up to a year, and time can now be extended by a legally qualified panel member if he is satisfied that there are reasonable prospects that the appeal will be successful (Reg. 32(4)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) – it is not necessary that he be satisfied that as a result of special circumstances the application for an extension of time could not have been made earlier. The implication made by Mr. Commissioner Rowland would appear to admit the possibility of entitlement to income support arising retrospectively for up to 13 months after the date of the decision on incapacity, and in circumstances where the appeal could have been brought much earlier.

(5) As I said at the beginning of this decision, there will necessarily be some gap between the date when the superseding decision is made and the date when the claimant lodges his appeal. However, it does not seem to me to follow that even a claimant who appeals as soon as it is possible to do so will suffer a gap in benefit entitlement. First, Reg. 4ZA(4) of the 1987 Regulations provides that a person who falls within a prescribed category in Schedule 1B for any day in a benefit week shall fall within that category for the whole of that week. That in effect provides the possibility of being treated as falling within the prescribed category for up to a week before the appeal is made, depending on when the benefit week is considered to run from. Secondly, as regards the need to make the claim for income support, reg. 19(6) and (7)(d) provide for backdating in the case where (i) the claimant was previously in receipt of another benefit and notification of expiry of entitlement to that benefit was not sent to the claimant before the date when his entitlement expired and (ii) as a result of that circumstance the claimant could not reasonably have been expected to make the claim earlier. In a case where an entitlement to incapacity benefit is superseded with effect from the date of the superseding decision that provision will apply if the claimant claims income support as soon as practicable after being notified of the superseding decision.

13. On the footing that the Claimant's appeal against the incapacity benefit decision was not made until 27 June 2003, the Tribunal was therefore in my judgment wrong to hold that the Claimant was entitled to income support from 10 June.
14. However, I have considered whether, on the special facts of this case, the appeal could be considered to have been made on 16 June. The adviser in the local office allowed the Claimant to fill in his income support claim form stating "I am appealing" against the incapacity benefit decision, without warning him that he might be well advised to complete and sign the Appeal Form then and there because delay in doing so (even delay within the time allowed for appealing) could delay his entitlement to benefit. Under Reg. 33(1) of the 1999 Regulations an appeal must be in writing either on a form approved for the purpose by the Secretary of State or in such other format as the Secretary of State accepts, and must satisfy certain specified requirements. Under Reg. 33(5), where an appeal is made in writing otherwise than on the approved form, and includes sufficient information to enable the appeal to proceed, the Secretary of State may treat it as satisfying the requirements of Reg. 33(1). However, I do not think that the Secretary of State can be regarded as having accepted on 16 June that an appeal had actually been made. No grounds for the appeal had been stated, and it was made clear to the Claimant that the appeal form had to be returned.
15. If there was a deficiency in the advice given on 16 June, it lay not in indicating that nothing more was necessary in order to constitute a valid appeal, but in failing to point out the consequences of any further delay in appealing. That may give rise to some form of claim for compensation, but that is not a matter over which I have any jurisdiction.
16. I record that it is stated in the Secretary of State's written submission in this appeal that amendments to the 1999 Regulations to cater for situations arising as a result of paras. 24 to 27 of Schedule 1B to the 1987 Regulations are being considered. It may be that amendments to the 1987 Regulations themselves, and possibly to the Social Security (Claims and Payments) Regulations 1987, could also usefully be considered.

(signed on the original) Charles Turnbull

Commissioner

3 November 2004