MAH-v-Department for Social Development (CA) [2011] NICom 181

Decision No:  C1/11-12(CA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

CARERS ALLOWANCE

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 5 August 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The decision of the appeal tribunal dated 5 August 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to carer’s allowance (CA) for any period prior to 20 July 2009 is confirmed.

 

2.    This decision will come as a disappointment to the applicant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.  That means that there is only one inevitable outcome.

 

3.    I grant leave to appeal.

 

       Background

 

4.    A claim form to CA was received in the Department on 15 October 2009.  In this claim form, the applicant indicated that she was caring for her husband.  Following an appeal tribunal hearing on 10 March 2009, the applicant’s husband had been awarded the middle rate of the care component of disability living allowance (DLA).

 

5.    In the claim form to CA, the applicant requested backdating of that benefit on the basis that she had only just become aware of the chance of her getting CA on the basis of her husband’s DLA award.  She added that nobody within the Department at any time made her aware of any potential entitlement she may have had to CA.

 

6.    On 20 October 2009, a decision-maker decided that the applicant was entitled to CA from and including 20 July 2009.  On 11 December 2009 the decision dated 20 October 2009 was looked at again but was not changed.  On 21 December 2009 the applicant appealed against the decision dated 20 October 2009.

 

7.    The substantive oral hearing of the appeal took place on 5 August 2010.  The appeal tribunal disallowed the appeal and confirmed the decision dated 20 October 2009.  On 20 September 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 11 October 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

8.    On 1 November 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 31 January 2011 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 21 February 2011.  In the meantime, further correspondence had been received from the applicant on 31 January 2011.  The written observations from DMS were shared with the applicant on 14 March 2011.  On 18 March 2011 further correspondence was received from the applicant which was shared with DMS on 13 April 2011.  On 22 April 2011 e-mail correspondence was received from the applicant which was shared with DMS on 4 May 2011.  On 6 May 2011 further correspondence was received from DMS.

 

       Errors of law

 

9.    A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

10.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)      making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)      failing to give reasons or any adequate reasons for findings on material matters;

(iii)      failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)      giving weight to immaterial matters;

(v)      making a material misdirection of law on any material matter;

(vi)      committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

11.   In the written observations on the application for leave to appeal, Mr Donnan, for DMS, provided detailed submissions which are worth setting out in full:

 

‘This is a case where, regrettably, the time limits imposed by the relevant legislation mean that there is no provision to make an award of CA to (the claimant) any sooner than the date decided by the decision maker – 20/07/09.  Regulation 19 (2) and (3) (d) of the Social Security (Claims and Payments) Regulations (NI) 1987 states:

 

“(2) The prescribed time for claiming any benefit specified in paragraph (3) is 3 months beginning with any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.

 

(3) The benefits to which paragraph (2) applies are—

 

(d) invalid care allowance or, as the case may be, carer’s allowance”

 

Unfortunately, there is no further provision within the legislation that would permit an extension to that three month time limit.  Furthermore, I would refer to section 1 of the Social Security Administration (NI) Act 1992 which states:

 

“1.—(1) Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied—

 

(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or

 

(b) he is treated by virtue of such regulations as making a claim for it.”

 

A Northern Ireland Commissioner referred to these provisions in a reported decision R 1/91 (CB).  The equivalent legislation at that time was section 154A of the Social Security (NI) Act 1975.  The Commissioner was considering a slightly different issue in relation to claiming benefit but he did say at paragraph 13 of this decision:

 

“…section 154A of that Act which provides that except in such cases as may be prescribed, no person shall be entitled to any benefit unless in addition to any other condition relating to that benefit being satisfied, he makes a claim for it in the manner and within the time prescribed in relation to that benefit…I have considered this matter, and I find nothing contradictory in the regulations.  I find support for this contention in CU/142/89 where the tribunal recorded:-

 

“In our judgment it is correct to say that in accordance with the proper use of language a person who has not become entitled to a benefit cannot be said to have acquired a right to that benefit.”

 

Taking that as a starting point, if a person cannot be entitled to a benefit until he claims, then in this case as in other cases there is no entitlement until he does claim…I am satisfied that even if a person satisfies all the conditions of entitlement other than making a claim that that person has no entitlement until a claim is made.”

 

The tribunal in this case extended sympathy to (the claimant) and her husband for the circumstances in which they found themselves.  In the same vein, I would also empathise with their situation; however the legislation cannot be applied in any other way than determining that (the claimant’s) claim to CA can only be treated as made from 20/07/09 at the earliest.

 

In making this submission, I bear in mind the fact that there is no evidence in this case that DLA office issued an information pack to (the claimant’s husband) when they implemented the tribunal’s decision to award DLA effective from 06/08/08.  It seems they did not do so, as (the claimant’s husband) informed the tribunal that he did not receive this.

 

I would like to make some observations on this particular issue as this aspect of (the claimant’s) case is one that seems to be causing the most distress i.e. whether the onus was on the Department to ensure she was made aware of potential entitlements that she may have had to certain benefits.

 

I would refer to an unreported Northern Ireland Commissioner’s decision C16/99-00(IS), where Commissioner Brown stated at paragraph 26:

 

“I have stated in at least one other decision that it would be good practice on the part of the Department to issue, with Incapacity Benefit claim forms, at least a leaflet indicating the possibility of claiming Income Support.  The Department has no general obligation to give advice but this would be good practice and may avoid a repetition of this type of situation.  These matters are, however, outside my jurisdiction.”

 

In another decision, C4/82 (RP), the Northern Ireland Commissioner was considering the legislation relevant to claiming Retirement Pension and said the following (at paragraph 7):

 

“The claimant’s case seems to be, in essence, that she did not receive literature sent to her by the Department before she attained 60…In a recent decision by a Northern Ireland Commissioner, No. 2/82(RP) the facts were very similar to the present case…It has been established, not merely by that decision, but by many decisions before it that the Department is under no legal duty to invite a claimant to make an application for retirement pension.  It is up to the claimant himself or herself to make the necessary application and, if in doubt to make enquiries from an official source and obtain the literature which is available.”

 

…

 

Returning to this case, the DLA information leaflet (numbered DLA95) should have been issued at the time DLA was awarded to (the claimant’s husband) and Page 6 of this leaflet would have notified him of the potential for Carer’s Allowance to be claimed by someone who was caring for him.  … .

 

At the same time, I respectfully submit that the Department at least did provide this information to (the claimant’s husband) at an earlier time (when DLA was first claimed, (the claimant’s husband) would have been given a leaflet to accompany his DLA claim form which informed him of the potential for a CA award once DLA was decided).  I acknowledge that this was some time before the tribunal eventually made an award and accept entirely that (the claimant’s husband) may not have retained this leaflet by the time his DLA was finally decided.

 

This point was submitted to the tribunal at paragraph 23 of the Department’s submission and a copy of this information sheet is located at Tab number 16A of that submission.  It can be seen that this leaflet contains a warning that CA should be claimed within 3 months of the DLA decision being made “or you could lose benefit”.  This is why, if CA had been claimed by (the claimant) within 3 months of the DLA tribunal’s decision (a maximum time limit of 10/06/09, not 10/10/09 as mistakenly recorded by the tribunal), the Department would have been able to award CA back to 06/08/08, i.e. the date from which DLA became payable.

 

This is in accordance with regulation 6(33) of the Social Security (Claims and Payments) Regulations (NI) 1987 which states:

 

“Subject to paragraph (34), where a person makes a claim for a carer’s allowance or for an increase in carer’s allowance in respect of an adult or child dependant within 3 months of a decision made—

 

(a) on a claim;

 

(b) on a revision or supersession; or

 

(c) on appeal whether by an appeal tribunal, a Commissioner or the court,

 

awarding a qualifying benefit to the disabled person the date of claim shall be treated as the first day of the benefit week in which the award of the qualifying benefit became payable.”

 

Unfortunately that did not happen in this case.  The failure to claim within time so that this regulation would be satisfied is, in all probability, compounded by the DLA office failing to issue further information leaflets on making the award of DLA.  However, I respectfully submit the fact remains that the Department can only consider the legislation that applies to a claim once it is made.  In absence of the ability to apply regulation 6(33), it must apply regulation 19(2) as the tribunal has decided in this case.

 

On that basis, I respectfully submit that the tribunal’s decision is not erroneous in law and I do not support the appeal to the Commissioner in this case.  I would however make one final submission in conclusion.

 

Namely, that I would highlight the fact that even if legislation existed that would enable the Department to award CA back to 06/08/08 in this case, there would not be a full award of CA made to (the claimant).  This is because her husband was already paid Income Support for the same period.

 

As paragraphs 10 to 11 of the Department’s original appeal submission demonstrate – where an amount has already been paid as Income Support in respect of a partner who is later awarded another benefit, the Department is entitled to recoup (abate) the amount of IS already paid from the arrears of the new benefit.

 

That is what happened in this case – on 20/10/09, the CA office decided upon an award for a past period commencing from 20/07/09.

 

However before any arrears could be paid, they needed to request from the IS office as to how much IS was already paid to [the claimant’s husband] since 20/07/09 that would need to be abated.

 

The IS office replied that the full amount of arrears of CA, totalling £902.70, needed to be withheld as this amount would not have been paid in respect of Income Support had CA been in payment during that past period.  The legislation that is relevant to abatements of this type is section 72(2) of the Social Security Administration (NI) Act 1992:

 

“(2) Where—

 

(a) a prescribed payment which apart from this subsection falls to be made from public funds in the United Kingdom or under the law of any other member State is not made on or before the date which is the prescribed date in relation to the payment; and

 

(b) it is determined that an amount (“the relevant amount”) has been paid by way of income support, an income-based jobseeker’s allowance, state pension credit or an income-related employment and support allowance that would not have been paid if the payment mentioned in paragraph (a) above had been made on the prescribed date,

 

then—

 

(i) in the case of a payment from public funds in the United Kingdom, the authority responsible for making it may abate it by the relevant amount; and

 

(ii) in the case of any other payment, the Department shall be entitled to receive the relevant amount out of the payment.”

 

Therefore, even if CA could now be awarded with effect from 06/08/08, a further abatement would need to be requested by CA office from the IS office.  I telephoned (the claimant’s husband’s) Income Support office in Portadown and they confirmed that he has been in receipt of IS from 16/06/08.  So any award of CA made from 06/08/08 to 19/07/09 would need to be taken fully into account.

 

I would also highlight however, that an award of CA to (the claimant) would enable the IS office to pay an extra premium (a Carer Premium) to her husband for the period of CA entitlement.  I have been assured by the IS office that this has been done with effect from 20/07/09.  So even though the IS office needed to recoup the full arrears of CA in this case, the IS decision maker did pay arrears of Carer Premium back to that date.  This weekly amount is less than the weekly amount of CA – in 2008 the weekly amount of CA was £50.55 and the extra IS Carer Premium was £27.75.  These amounts changed from April 2009 to £53.10 and £29.50 respectively.

 

So, my purpose in making reference to this is to highlight that (the claimant) has not lost out on a full award of CA in respect of the period 06/08/08 to 19/07/09.  In reality, the potential arrears she and her husband would have lost for this period are Income Support arrears totalling £27.75 per week from August 2008, increasing to £29.50 per week from April 2009.

 

I appreciate however, that whilst this extra potential entitlement is less than a full award of CA for this period, it would still amount to a considerable sum.  I would stress that I do not intend to diminish (the claimant’s) complaint against the Department in any way, but to make a point that the legislation in her case does not allow an extension of the time allowed for claiming CA, but even if it did, the financial loss is less than perhaps anticipated.

 

In certain cases, the Department may consider a means of redress to a complaint by giving consideration to an extra statutory payment.  This can be considered in cases where the legislation cannot be applied to award benefit for a particular period, but in those cases, if a claimant has suffered perhaps through negligence within the Department; then an extra statutory payment can be considered by way of compensation.

 

In a reported Northern Ireland decision, R1/01(IS)(T), a tribunal of Northern Ireland Commissioners considered the issue of lack of proper advice given to a claimant in relation to submitting a claim to Income Support.  They commented that, where the wording of the legislation relating to claiming benefit does not assist the claimant, there may be scope for compensation (albeit that this is a matter outside a tribunal or Commissioner’s jurisdiction).

 

I refer to paragraph 58, where the Commissioners stated:

 

“Undoubtedly a claimant may be put at a disadvantage by lack of advice by the Department’s officers (or a related Department’s officers) but the narrow wording of regulation 19, in our view, does not assist a claimant in these circumstances…but perhaps the words of Mr Commissioner Jacobs in Great Britain decision CIS/1842/98 at paragraph 6 to 8, dealing with the equivalent Great Britain legislation, are of some relevance:-

 

“Proper advice to the claimant

 

6. Regulation 19(5) may leave claimants in a difficult position.  The claimant claims benefit A.  The claim is refused.  The claimant then claims benefit B.  However, there is inevitably a gap between the making of claim A and the refusal of the claim.  When benefit B is claimed, regulation 19(5) does not contain a provision to allow time to be extended for the period while the decision on the claim for benefit A was awaited.  This may appear unfair to a claimant.  As I understand it, the unfairness is supposed to be removed by the administrative instructions that in appropriate cases claimants should be advised to claim both A and B at the same time to prevent any gap in entitlement.

 

7.  It may be that the claimant was not properly advised in this case.  From the information before me, it may be that he was not advised to claim both Income Support and Incapacity Benefit at the same time in case one of the claims was not successful.  It may be that he should have been allowed to sign on without claiming another benefit.  It is also suggested by the claimant’s solicitor that the relevant advice leaflets were not given to the claimant.

 

8.  If the claimant was wrongly advised about the best course of action in his circumstances, he may apply to the Secretary of State [the Great Britain equivalent of the Department] for a payment on the ground of misdirection.  However, that is not a matter over which the tribunal or the Commissioner has any jurisdiction.  It is not appropriate for me to do more than draw this possibility to the claimant’s attention.”

 

In the present case, I would add that I cannot offer any guarantees as to whether such a payment will be made but I will certainly remit this case to the appropriate branch within the Department for consideration of an extra statutory payment, on conclusion of the proceedings before the Commissioner.’

 

12.   I accept this submission from Mr Donnan in its entirety, and for the reasons set out by him, agree that the decision of the appeal tribunal was not in error of law.  All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.  Further, the appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.

 

13.   I have noted Mr Donnan’s statement that he will remit this case to the appropriate branch within the Department for consideration of an extra statutory payment.  I cannot influence the decision to remit or any subsequent decision which the Department may make in connection with an extra statutory payment.  It seems, however, that this is an example of a case where consideration should be given to the exercise of the discretion.

 

       Disposal

 

14.   The decision of the appeal tribunal dated 5 August 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to CA for any period prior to 20 July 2009 is confirmed.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

8 June 2011