Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CJSA/3937/2014

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

The Upper Tribunal allows the appeal by the Secretary of State.

 

The decision of the First-tier Tribunal sitting at Basildon on 14 March 2014 under reference SC919/13/06483 involved an error on a material point of law and is set aside.

 

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.

 

This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

(1)               The new hearing will be at an oral hearing.

 

(2)              The parties are reminded that the tribunal can only deal with the situation as it was up to 17 October 2013 and not any changes after that date.

 

(3)              If either party has any further evidence that they wish to put before the tribunal which is relevant to this appeal, this should be sent to the First-tier Tribunal’s office in Birmingham within one month of this decision being notified to them.

 

(4)              The First-tier Tribunal should have regard to the points made below and is directed that it is to decide the appeal on the basis that the information provided on the relevant pages of the DirectGov website was information given to the claimant by an officer of the DWP: per the first part of regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987.

Representation: Stephen Cooper, solicitor, for the appellant/ Secretary of State

 

Joseph Markus instructed by Coventry Law Centre for the respondent/claimant  

 

 

 

REASONS FOR DECISION

 

 

Introduction

 

1.                   This is an appeal by the Secretary of State for Work and Pensions from a decision made by the First-tier Tribunal on 14 March 2014 (“the tribunal”) by which it allowed the claimant’s appeal and found that his claim for jobseeker’s allowance (“JSA”) made on 9 October 2013 could be “backdated” to 2 September 2013 under regulation 19(4) and (5)(d) of the Social Security (Claims and Payments) Regulations 1987 (“the Claims and Payments Regs”).

 

2.                  It is necessary to make sense of what follows to set out immediately, though I will return to them later, the relevant parts of regulation 19 of the Claims and Payments Regs. 

 

“19.-(4)……, in the case of a claim for income support, jobseeker’s allowance, working families’ tax credit or disabled persons’ tax credit, where the claim is not made within the time specified for that benefit in Schedule 4, the prescribed time for claiming the benefit shall be extended, subject to a maximum extension of three months, to the date on which the claim is made, where–

(a) any one or more of the circumstances specified in paragraph (5) applies or has applied to the claimant; and

(b) as a result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.

(5) The circumstances referred to in paragraph (4) are–

(a) the claimant has difficulty communicating because–

(i) he has learning, language or literacy difficulties; or

(ii) he is deaf or blind,

and it was not reasonably practicable for the claimant to obtain assistance from another person to make his claim;

(b) except in the case of a claim for jobseeker’s allowance, the claimant was ill or disabled, and it was not reasonably practicable for the claimant to obtain assistance from another person to make his claim;

(c) the claimant was caring for a person who is ill or disabled, 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 for Work and Pensions or in a case to which regulation 4A applies, a representative of a relevant authority or of the Board which led the claimant to believe that a claim for benefit would not succeed;

(e) the claimant was given written advice by a solicitor or other professional adviser, a medical practitioner, a local authority, or a person working in a Citizens Advice Bureau or a similar advice agency, which led the claimant to believe that a claim for benefit would not succeed;

(f) the claimant or his partner was given written information about his income or capital by his employer or former employer, or by a bank or building society, which led the claimant to believe that a claim for benefit would not succeed;

(g) the claimant was required to deal with a domestic emergency affecting him and it was not reasonably practicable for him to obtain assistance from another person to make his claim; or

(h) the claimant was prevented by adverse weather conditions from attending the appropriate office.”

 

 

I have highlighted in bold the two, cumulative statutory tests in play on this appeal. 

 

3.                  In terms of regulation 19(5)(d), the critical finding of the tribunal – and the one with which the Secretary of State is primarily concerned on this appeal – was that the claimant:

 

“was given information by an officer of the [DWP], by way of the Department’s website, that he may ‘be better off applying for Pension Credit instead of Jobseekers Allowance’…..the [claimant], having received this information, honestly and reasonably believed that he would be entitled to Pension Credit and should claim that benefit instead of JSA. He also believed that JSA and Pensions Credit applications were alternatives available to him and that he should not apply for both.  That is because he was informed that he may wish to apply for pension credit instead of JSA.” (Decision Notice, page 53)

 

 

I have highlighted in bold the words which the Secretary of State argues shows the tribunal erred in law on the issue with which this appeal is primarily concerned. A secondary issue, however, also arises.

 

4.                  The Secretary of State’s argument on the primary issue is that the information accessed by the claimant on the website was not capable of coming within regulation 19(5)(d) because it was not information he was given by an officer of the Department.  He relied on this point on the decision of Upper Tribunal Judge Wikeley in S K-G–v-SSWP (JSA) [2014] UKUT 430 (AAC). In that case Judge Wikeley agreed with the Secretary of State’s argument that “regulation 19(5)(d)……did not cover material on a DWP website: there were an unknown number of people interposed between those in the Department who wrote the original text and those who placed it on the direct.gov website……….being given information by an officer implies an interchange of some kind between the officer and the enquirer, and that situation does not seem to have arisen here”.

 

5.                  Judge Wikeley concluded that the Secretary of State’s argument “by itself rules out the Appellant being able to rely on regulation 19(5)(d) as regards the website information”. He went on (at paragraphs 17 and 19, relying in paragraph 18 on paragraph 35 of R1/01 (IS)(T), a decision of a Tribunal of Northern Ireland Commissioners): 

“The wording of regulation 19(5)(d) is significant. It applies where “the claimant was given information by an officer of the Department for Work and Pensions” (emphasis added). It does not say “the claimant was given information by the Department for Work and Pensions”. The insertion of the words “by an officer of” must be there for a purpose. Whilst, as Judge Mesher has held, “the words of regulation 19(5)(d) are not to be given any artificially restricted meaning” (see R(IS) 3/01 at paragraph 14), that statutory purpose is surely to confine the exception to the situation where a claimant is given information by a DWP officer as part of some specific interchange or transaction relevant to their personal circumstances. This would also be consistent with the wording of regulation 19(5)(e) and (f), which both cover situations where the claimant is given written advice (regulation 19(5)(e)) or written information (regulation 19(5)(f)) by certain specified third parties about their situation.

 

It follows that regulation 19(5)(d) does not cover general information on a DWP website which is not tailored to the claimant’s particular circumstances and which is not provided as part of some specific interchange between the claimant and DWP officer. This not to say that information provided online may never fall within regulation 19(5)(d). For example, it is common nowadays when dealing online with e.g. utility companies to be asked “Do you wish to chat with our online adviser?” If such a facility were to be available in the context of benefit claims, and specific information be given in the course of an online conversation, then that might well count as a case where “the claimant was given information by an officer of the Department for Work and Pensions”. However, that is not this case”

6.                  Recognising, I think correctly, that if S K-G was correctly decided it would mean the tribunal in this case went wrong in law, the claimant through his representatives argued that S K-G had been wrongly decided and should not be followed.

 

7.                  Given this division of views and the importance of the point in issue, the appeal, unsurprisingly, was the subject of an oral hearing before me in Leeds.  Mr Cooper, solicitor, argued the case for the Secretary of State; Mr Markus argued the contrary case for the claimant.

 

Summary of decision

 

8.                 For reasons which I set out below, I have concluded that the claimant’s arguments on whether he “was given information by an officer of the [DWP]” ought to prevail, that accordingly in my judgment S K-G was wrongly decided and I decline to follow it.  In short, in my judgment information on a DWP related website (and I will explain what I mean by “related” below), is capable of amounting to information given by an officer of the DWP and on the facts of this case the tribunal did not err in law in finding the claimant had been “given information by an officer of the DWP”.

 

9.                  I have, however, found the tribunal to have erred in law and as a consequence set aside its decision on the secondary ground of appeal. This ground concerns the adequacy of the tribunal’s reasoning explaining why the information on the DWP related website led the claimant to believe that a claim for JSA would not succeed.  I deal with this error of law at the end of this decision. The new First-tier Tribunal to which the appeal is remitted will, however, need, as I have directed above, to proceed on the basis that the information given on the website was information given “by an officer of the [DWP]”.

 

Factual background in more detail

 

The claimant

10.              The claimant made his online claim for JSA on 9 October 2013.  What had happened prior to this is explained by the claimant in his appeal form.

 

“Having been made redundant on Fri August 30^th, on Monday 2^nd September I went on the .GOV internet site to register for jobseekers allowance. Having completed the online form I was notified on line that ‘I may be better off on pensions credit’ and was offered a link to click on to go to pensions credit application. I used the link and applied for pensions credit…but after sending documents and details to pensions credit I found I was not better off so went back to the .GOV internet site to registar for jobseekers allowance, by this time it was 9^th October. Because I had followed the advice from the .GOV jobseekers allowance my jobseekers allowance registration was delayed, I believe this is wrong, when the .GOV jobseekers allowance site offered a link to pensions credit, there was no warning that my application was not made or the date of the original for jobseeker’s allowance was lost…”. 

 

 

11.               It is not disputed that the claimant made a claim for pension credit on 2 September 2013. The claim that the claimant submitted for JSA on 14 October 2013 is in the appeal bundle.  On page 7 of that claim form the claimant said he wanted to claim JSA from 1 September 2013 and that he had been delayed making the JSA claim because he had “applied [JSA] online 1/09/13. Was advised i may be better off 2 claim pensions credit. Made application for pension credit have since been advised I should claim [JSA]”. In follow-up questions in the same form the claimant said he had asked “Job seekers staff and tax credits staff” about claiming JSA on 1 September 2013 and what his best option was and they had told him “try pensions credit and if not better off then apply [JSA]”.

 

12.              The claimant also helpfully provided screen shots or screen prints in the appeal papers of the pages on the DirectGov website (his “.GOV”), which he had been taken through when he first sought to claim JSA at the beginning of September 2013. This evidence has not been contradicted and gives a helpful context to the issue with which this appeal is primarily concerned. 

 

13.              The first screen page shown is titled Jobseeker’s Allowance Online. Under a heading Eligibility it is stated that Questions marked with a * are mandatory.  There is then set out-

 

Your age and circumstances suggest that you could be better of claiming Pension Credit. Would you like to consider making a claim for Pension Credit or continue with this application for Jobseeker’s Allowance?

 

This was a mandatory question. The option is then given to press a “Please select” button.  On the basis of the next two pages of screen shots it appears that on pressing that button the options were either “Continue with this application for Jobseeker’s Allowance” or “Consider making a claim to Pension Credit”.  If the latter option was chosen, as the claimant did, then as the next screen shot shows the claimant was taken to a screen which had as its heading You may be better off applying for Pension Credit instead of Jobseeker’s Allowance, under which there was set out-

 

Because of your age, you may be better off applying for Pension Credit. This could top up your weekly income to a guaranteed minimum level.  If you have saved towards your retirement, you could receive extra money.

On the same page there was then a link button “Find out more about Pension Credit”, which when clicked took the claimant to a GOV.UK page titled “Pension Credit from GOV.UK” and which had a link to a Pension Credit calculator “to work out how much you might get”.  

14.              The claimant took this route through the GOV.UK pages to the information pages concerning State Pension Credit.  He said that once he had clicked on the Find out more about Pension Credit link there was no button to return to the pages dealing with a claim for Jobseeker’s Allowance. On the other hand, until he had used the Find out more about Pension Credit he could not make a proper assessment about whether to claim Pension Credit.

 

15.               I will return later to the claimant’s oral evidence to the tribunal as it puts a different perspective on the above screen shot evidence and is relevant to the secondary issue which arises on this appeal. However, the above suffices to set out the GOV.UK evidence. I should add that it would appear that the claimant’s comments in the JSA claim form which he later completed concerning advice from Jobcentre and tax credit office staff about his “best option” was confined to the information or advice given on the GOV.UK pages highlighted above. Certainly at no stage has it been any part of the case on this appeal that the claimant was also wrongly advised or informed in person by an official at the Jobcentre or Tax Credit Office.

 

16.              Ignoring the oral evidence for the moment, this was the evidential basis on which the case came before the tribunal. I have already recited in paragraph 3 above the key findings set out in the tribunal’s Decision Notice. This continued:

 

“The [claimant] applied for Pension Credit and after some delay he was told he was not entitled. The information provided to the [claimant] led him to honestly and reasonably believe that he was entitled to Pension Credit and that if he claimed Pension Credit then he could not claim JSA. Consequently Regulations (sic) 19(4) and 19(5)(d) of The Social Security (Claims and Payments) Regulations apply to his application.  Provided that the [claimant] is otherwise entitled to JSA, he is to be paid JSA from the 2/9/2013.”

17.               The tribunal expanded on this analysis in its statement of reasons, where it set out the following. (I have corrected some spelling mistakes in the original.)

 

“The [claimant] told the tribunal, and the tribunal accepted, that [the claimant] had attempted to apply for [JSA] on Monday 2^nd September 2013. He did so as he had been made redundant on Friday 30^th August.  When completing the online form on the Respondent’s website he came to a page which informed him [and there is then set out the first screen page referred to in paragraph 13 above]…Plainly it was open to the [claimant] to claim both JSA and Pension Credit.  However the use of the word ‘or’ misled the [claimant] who believed he could either claim JSA or Pension Credit.  That was the honestly held belief of the [claimant].  The tribunal also found that a reasonable applicant was likely to be so misled.

 

The [claimant] was then taken to the webpage at page 42 of the appeal bundle. [There is then set out the second screen page quoted in paragraph 13 above.] Again the [claimant] was led to believe that making a claim for Pension Credit was an alternative to claiming JSA.  That is not the true position (which is that the [claimant] could have simultaneously claimed both to ensure he received what he was entitled to) but was misled by the information provided. The tribunal found that he was honestly misled in that way. The tribunal also found that a reasonable applicant, who did not have specialist knowledge of the welfare benefit system, would probably have been so misled.  The Respondent website could have urged applicants to consider making an application for Pension Credit and JSA. It does not do so.  It instead implies that the two benefits are alternatives and an application should be made for one or the other. That is misleading. If there is any doubt about entitlement applicants should be advised to apply for both benefits.

 

[Regulation 19(4) and (5)(d) are then quoted and the tribunal continues] ..[t]he tribunal found as fact, on the balance of probabilities, the [claimant] was misled and so believed that if he claimed Pension Credit he could not also claim JSA. He was also given the impression that he should claim Pension Credit. Having done so it was clear to him (because of the misinformation provided) that he could not additionally claim JSA.

 

…..the [claimant] was provided with information by an office of the [DWP].  Then information was provided by the modern mechanism of posting such information on the Respondent’s website.  The tribunal found that, that information was misleading and misled the [claimant] so that he believed that it was not open to him to additionally claim JSA.  He was led to believe that any such application would fail.

 

The tribunal found that, in these circumstances, the [claimant] could not reasonably have been expected to have claimed JSA any earlier than he did claim.”

 

The website

18.              As is now the case with many emanations of the State, the information was not in fact provided by the Secretary of State for Work and Pensions or the DWP through its own named website. Much Government related information is now, as it was at the material time, provided though one central website. The website’s address ends .direct.gov.uk It is of note, however, that the website pages which the claimant first consulted had the fuller website address of https://www.dwpe-services.direct.gov.uk.  These on the face of it were therefore DWP related pages of the GOV.UK website, and it is in this sense that I have used the phrase “DWP related website” above.

 

19.              At my direction, evidence was supplied by the Secretary of State on this appeal as to how the DirectGov website is managed and updated in terms of information relevant to DWP benefits.  I set that evidence out in full and in the format in which it was provided..

“Since October 2012, information about benefits (including how to claim Jobseeker’s Allowance and Pension Credit) has been on the GOV.UK website.

The GOV.UK website is managed by the Government Digital Service (GDS) which is part of the Cabinet Office.

GDS is responsible for how information about claiming benefits is presented on GOV.UK. They make sure that content meets users’ needs and is consistent with GOV.UK style guidelines.

Subject matter experts (for example policy officials) in departments are responsible for making sure that content is factually accurate.

In DWP, the Digital Publishing team is responsible for the department’s relationship with GDS and, in most cases, liaises with GDS on behalf of other areas of the department.

A typical process for updating content on GOV.UK will be:

• DWP subject matter experts will identify factual changes and explain what needs to change and why

• the DWP Digital Publishing team will ask GDS to make the changes on behalf of the subject matter experts

• a GDS content designer will assess the request and prioritise it with other work

• the GDS content designer will make changes in line with GOV.UK style guidelines and another senior GDS content designer will check the changes are in style and make sense to the user

GDS then sends a draft copy of the changes for the DWP subject matter experts to check for factual accuracy

• if any content is factually incorrect, the GDS content designer will rewrite it making sure it meets GOV.UK style guidelines

• the GDS content designer will send the revised content to another senior GDS content designer to check that it meets GOV.UK style guidelines

• when subject matter experts have confirmed the factual accuracy of the content and GDS is happy that it meets the GOV.UK style guidelines, a GDS content designer will publish the updated content

 

20.             As I read this evidence, and as I think was accepted by Mr Cooper, it is the DWP which is responsible for the accuracy of the information provided on its pages on the DirectGov website. It is the Cabinet Office which is then responsible for the styling of the content and its publication.

 

Arguments, Discussion and Conclusions

 

Primary Issue - “Was given information by an officer of the DWP”

21.              I hope I do the parties and their respective arguments on this issue no disservice if I summarise them somewhat shortly.

 

22.             The Secretary of State’s case was relatively straightforward as he had the benefit of Judge Wikeley’s decision in S K-G. The Secretary of State argued that S K-G was correctly decided and should be followed. What had occurred in this case was not – per S K-G – the claimant being given information by an officer of the DWP as part of a specific interchange or transaction relevant to his personal circumstances, nor was it information tailored to the claimant’s particular circumstances and provided as part of some specific interchange between the claimant and a DWP officer.

 

23.             In his written submissions on the appeal the Secretary of State accepted that the claimant could have gained the impression that a claim for JSA may not have succeeded. But he argued that being given information implied an interchange between a DWP officer in person and the enquirer, which had not happened here, and had the claimant actually contacted an officer it was almost certain he would have been given the correct advice.

 

24.             Those acting for the claimant had the more difficult task as S K-G stood in their way. They argued that S K-G was wrong in concluding that the words “was given information by an officer of the [DWP]” in regulation 19(5)(d) of the Claims and Payments Regs required the information to be provided as part of some specific interchange between a DWP officer in person and the claimant in relation to the latter’s personal circumstances.  The word “information” was unqualified and was sufficiently broad to cover any information, simple or complex, and so could be general information not specific to the claimant.  The key was whether the information led the claimant to believe that a claim for benefit would not succeed, and that could arise from general information as well as more specific information. Reliance was placed here on CJSA/3084/2004.  Moreover, seeking “advice” from a DWP officer, as possibly suggested as the correct interchange by the Secretary of State, did not provide a convincing answer. Being given advice as to which of two benefits to claim may be qualitatively different both in content and form from being given information that then led the claimant not to claim a benefit. Causation was likely to be more direct in the former than the latter, and information and advice are not necessarily the same thing.

 

 

25.              Second, it was argued for the claimant that regulation 19(5)(d) did not provide any qualification as to the manner, form or mechanism by, or in, which the information must be “given”.  It therefore could and should be construed as encompassing information given by email, leaflet, in-person, by telephone, on a notice-board or through a website, and it could also cover information provided through an intermediary to an individual or group.  It was stressed that there could be no principled basis for distinguishing in regulation 19(5)(d) terms between a claimant going to a Jobcentre and picking up a leaflet and his getting the same information via the DirectGov website, as both were intended by the DWP to be forms of information made available to claimants generally and for them to read and act upon.  (I would add that at this stage the issue of the accuracy of the information is irrelevant as the sole issue of concern in terms of the opening words of regulation 19(5)(d) is the words “was given information  by an officer of the [DWP]” and not the quality of that information.)

 

26.             The claimant argued thirdly that the words “an officer” did not limit the verb “given” but “of the DWP”, and therefore was being used to identify the status of the person who provided the information in question and not how it was provided. The words “by an officer” did not, therefore, imply or necessitate some form of personalised interchange between claimant and DWP officer.

 

27.              Fourth, the wording of other sub-paragraphs in regulation 19(5) did not materially assist (contrary to the view in S K-G – see paragraph 17 of that decision) because those provisions are worded differently.  Sub-paragraphs 5(e) and (5)(f) in regulation 19 are, it was argued, both concerned with written advice or information, were limited to that extent, but did not assist with any general meaning of the word “given”. 

 

28.             Fifth, the statutory purpose underpinning regulation 19(5)(d) was inconsistent with the narrow reading adopted in S K-G. Cases such as R(IS)3/01 (at paragraph 21) and CIS/610/1998 (paragraph 13), spoke in terms of regulation 19 being intended to ensure those who are honestly misled by a person or entity in a position of authority into believing that a claim for benefit would not succeed are permitted to backdate their claim to make up for the reasonable delay in claiming.

 

29.             Broadly speaking, I accept the arguments put forward on behalf of the claimant on this issue and reject the arguments of the Secretary of State. I recognise in so doing that I am arriving at a different decision from that of Judge Wikeley in S K-G and am not following that decision. I am satisfied, however, having heard contested legal argument (a benefit which Judge Wikeley did not have), that S K-G was wrongly decided on this point and ought not to be followed: see R(I)2/75 (paragraph 21) and Dorset Healthcare NHS Trust –v- MH [2009] UKUT 4 (AAC) (paragraph 37(iii)).  As the issue is one of importance and as I am differing from the views of Judge Wikeley, I set out my own reasoning on this issue rather than just adopt the arguments of the claimant.

 

30.             Before doing so, however, I should emphasise that this issue is central to the proper resolution of this appeal. If the Secretary of State’s argument on this issue was correct then the decision of the tribunal would have to have been set aside and the first instance appeal determined against the claimant as the website information on which he relies could not come within regulation 19(5)(d) at all and so could not have founded any mistaken belief on his part. The central importance of this issue cannot then fall away simply because I have decided the tribunal did not err in law on it, even if it did err in law on the secondary issue. The secondary issue would simply not arise if the Secretary of State had prevailed on the first issue.

 

31.              Turning then to my analysis of this issue, the correct starting point is the reported decision of Mr Commissioner Mesher (as he then was) in R(IS)3/01 and the view, which I share, that “the words of regulation 19(5)(d) are not to be given any artificially restricted meaning” (paragraph 14).  In my judgment the thesis in S K-G that regulation 19(5)(d)’s language of “the claimant was given information by an officer of [DWP]” requires some personalised, specific interchange between the claimant and DWP officer does artificially restrict the meaning of the statutory words used and is inconsistent with prior case law. 

 

32.             Take the example of R(IS)3/01 itself. In that case the operative information was what was described as “a standard letter telling [the claimant] that his entitlement to income support had come to an end [because the level of his short-term incapacity benefit exceeded his income support applicable amount]” (paragraph 2).  The crux of Commissioner Mesher’s reasoning on the scope of regulation 19(5)(d) has been quoted in the paragraph immediately above but he then went on to apply that test and said at (paragraph 14): “..it seems to me that when a letter is sent to a claimant by an officer of the [DWP] informing him of a benefit decision, information is being given” (my underling added for emphasis).  The letter in question was the “standard letter” referred to above. Although particular to the claimant in question, it was not information sought by the claimant and so did not, in any ordinary sense, form part of an “interchange” between the claimant and the officer. 

 

33.             There are dangers in subjecting an Upper Tribunal decision to the same close textual or interpretative analysis that one might subject a statute to in order to determine the meaning of a word or words used: see criticism to like effect in Duggan –v- CAO (appendix to R(SB)13/89) – page 602 of bound volumes of Commissioners’ Decisions – Social Security and Child Benefit Acts – 1989 to 1990 at letter E. And even with statutory words or phrases recourse to dictionary definitions can be an empty or circular exercise: see Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions [1969] 1 WLR 1163, at 1171. However, First-tier Tribunals rightly look to the Upper Tribunal to provide authoritative and binding case law on what phrases mean or should be taken as meaning, and S K-G does lay down in paragraph 19 that “regulation 19(5)(d) does not cover general information on a DWP website which is not tailored to the claimant’s particular circumstances and which is not provided as part of some specific interchange between the claimant and DWP officer” (my underlining). The word “interchange” is defined in most dictionaries as meaning, relevantly, “to exchange mutually; to give and receive in reciprocity” (Shorter Oxford English Dictionary: third edition).  That is how the Secretary of State has interpreted S K-G (see paragraph 23 above).  However I do not see how the relevant information which “was given” in R(IS)3/01 formed part of any specific interchange.

 

34.             The decision of Mr Commissioner Levenson (as he then was) in CJSA 3084/2004 is also difficult to reconcile with, or is inconsistent with, the specific interchange thesis in S K-G. As it was put in that case:

 

“If a claimant has been led to believe that he has made a claim, but he has not in fact made a claim, and because no decision has been received therefore believes that the claim has not succeeded, that seems to me to amount to having been given information which led him to believe that a subsequent real or effective claim would also not succeed.

 

[The form the claimant was given to complete] says nothing about not being an actual claim form or about having to complete any subsequent form. I have no hesitation in deciding that being given this form to complete, and completing and submitting it, amounted to having been given information that led this particular claimant (and would lead most claimants) to believe that he had made a claim. When no decision had been received, this led to a reasonable belief that the claim had not succeeded and that a subsequent (real or effective claim) would also not succeed.”

 

 

In CJSA/3084/2004 it was the absence in the information given that led to the belief of the claimant that brought him within 19(5)(d). That wide approach to “given information” is a proper approach to the scope of those words, it being consistent with the general approach laid down in R(IS)3/01 and having been expressly so decided in CIS/4884/2002 and CJSA/580/2003 (both rejecting the contrary stance taken in R(1)01 (IS)(T) as being “artificially restrictive”) . However on the facts in CJSA/3084/2004 it is difficult to discern any specific interchange between the claimant and the official in the Jobcentre tailored to his circumstances: he was simply handed the form and told to compete it.

 

35.              Another problem area, in my view, with S K-G lies in its application to the perhaps now historic situation of a claimant being honestly misled into not claiming benefit because of wrong, misleading or incomplete information in a DWP leaflet.  It seems to me clear that such a situation ought to, and does, fall within regulation 19(5)(d) of the Claims and Payment Regs, but if the information was collected from an information board within the DWP office and simply taken away by the claimant, no interchange would have occurred between the claimant and any DWP official.  In one sense the information would not have been “given” by a DWP official to the claimant in the sense of the leaflet being handed over. That, however, in my judgment is to confuse or conflate the means of providing the information with the provision of the information itself, and the latter is giving information just as much as the former, if not more so.

 

36.             Take the following example. There is a leaflet which seeks to explain the rules of entitlement to benefit.  It is a DWP leaflet and has the DWP logo on it. It has been written by a DWP official, or if not written he or she has provided the basic text and then checked it for accuracy once it has been styled and formatted. In other words, the information is that of the DWP. That information is inaccurate, misleading or incomplete, or could be read as such by a claimant (the test in 19(5)(d) being subjective – R(IS)3/01 at paragraph 14).  The claimant in question collects the leaflet from his library or local CAB.  In that situation, in my judgment, the information can be said to have been given by a DWP officer even if no DWP actor actually handed it to the claimant or another actor – a CAB receptionist – handed it to the claimant.  In the latter case it may be said that the claimant was given the leaflet by the CAB receptionist, but the information (which is the cause of the misleading and thus the critical causative factor under the regulation) was given by the DWP officials who were responsible for the content of that information. This has a direct read across to the DirectGov website, for reasons which I explain further below.

 

37.              I therefore respectfully part company from S K-G in its conclusion that personal human interchange is necessary to the test of being given information for the purposes of regulation 19(5)(d) of the Claims and Payments Regs.  

 

38.             I add that I do not consider that anything in the rest of regulation 19 of the Claims and Payments Regs points against this conclusion.  In particular, I agree with the claimant that the terms of regulation 19(5)(e) and (f) do not point to any common meaning to be ascribed to the words “was given”.  In the case of regulation 19(5)(e) – given written advice by a solicitor or other professional person – I can well see that it is unlikely that advice, and written advice in particular, would be given in the  absence of a specific request from the claimant, and therefore a specific interchange would be present. That, however, arises because of the nature of what is being given (advice) and who is providing it and not because of anything inherent in the words “was given”.  Moreover, I do not consider that being given written information about your income or capital by your employer or bank – regulation 19(5)(f) – necessarily implies any request for the same by the claimant or a specific interchange. It could, for example, cover bank statements given in the ordinary course of the bank’s business which may have misled the claimant into thinking he had too much capital.

 

39.             This leads on to another point and concerns the perspective in S K-G that the statutory purpose intended by the use of the words “by an officer of the [DWP]” in relation to who has given the information to the claimant “is surely to confine the exception to the situation where a claimant is given information by a DWP officer as part of some specific interchange or transaction relevant to their personal circumstances”.  For the reasons I have endeavoured to give above, I can identify no clear statutory purpose requiring the wording to be so confined.  At most as far as I can see the mischief against which the amendments were made to regulation 19 of the Claims and Payments 1987 on 7 April 1997[1] - so as to remove the general “good cause” test and replace it with the current more specific and limited grounds on which “backdating” may be allowed – was to remove the need for decision makers to give consideration to a substantial body of case law on “good cause” when deciding whether to award backdating and thus improve administrative efficiency[2].  I do not see that this wide purpose behind the changes to regulation 19 in 1997 requires regulation 19(5)(d) to be given the “specific interchange” meaning as held in S K-G.

40.             If any useful statutory purpose may be divined, in my judgment it has to come from the amended language of regulation 19, and regulation 19(5) in particular.  To this end I find of some use the views of Mr Commissioner Williams (as he then was) in paragraph 13 of CIS/610/1998:

 

“Unless the scope of regulation 19(5)(d) is interpreted and applied by reference to the impression formed by the claimant about an individual claim, there would appear to be a gap in the approach taken in it.  If the regulation is interpreted as the tribunal interpreted it, it would follow that if an officer of the Department states that “you do not need to fill in a claim form (or another claim form) because your claim will not succeed in any event”, then the provision applies.  If the officer states that “you do not need to fill in a claim form (or another claim form), because your claim will (or should, or may, or might) succeed in any event”, then the provision would not apply. If it does not apply, claimants may lose rights to make late claims notwithstanding that they relied on what an officer said. That may leave a claimant without benefit and without remedy in respect of benefit that might have been received had a new claim been made. Regulation 19(5) is clearly intended to restrict permissible late claims to those arising for limited reasons, but I do think it was the intention of the drafter to restrict this provision quite so narrowly.”

 

 

If it is appropriate to do so, I would venture to suggest that the theme running through regulation 19(5) which informs its statutory purpose is the identification of specific situations or events outwith the claimant’s immediate control or sphere of responsibility and which may lead the claimant not to claim benefit in time. The critical focus, however, in many of the situations is on what the claimant is led to believe.  Regulation 19(4)(a) of the same regulations then provides an overall and objective test of reasonableness in terms of whether the claim could nonetheless have been made earlier. Viewed from this perspective, I do not accept the Secretary of State’s argument that rejecting the S K-G view of regulation 19(5)(d) would cast the statutory test too widely and enable backdating to be made on the basis of just general information on the website.  The information would still have to be on the DirectGov website or a DWP related website and be information on the site provided by someone[3] working for the DWP. Moreover, it would have to have led the claimant to believe that a claim for benefit would not succeed, and the more general the information given the less likely it is that it will mislead.  But if the information does genuinely mislead a claimant into not claiming a benefit to which they are otherwise entitled, I cannot see that it is contrary to the purpose of regulation 19 generally, or regulation 19(5)(d) in particular, to deny that person “backdating” of up to a maximum of three months. And so construing regulation 19(5)(d) would also have the beneficial effect of ensuring the DWP seeks to make its publicly available information as accurate as possible.

41.              I need also to address, though only briefly, R1/01(IS)T.  Judge Wikeley in S–KG placed reliance on paragraph 35 of this Northern Irish decision and was of the view that it supported the “specific interchange” construction of regulation 19(5)(d). I have already noted that R1/01(IS)T has not been followed in Great Britain on the key issues which it decided.  The passage in paragraph 35 is tangential to those issues.  I can, however, identify nothing in that paragraph which dictates the “specific interchange” holding in S K-G.  What paragraph 35 says is:

“We consider that the giving of information requires the transfer of factual data from an officer to a claimant. In the context of regulation 19(5)(d) such giving of information, in our view, will consist of the handing over by an officer, either orally or in some written or similar form, of factual data to the claimant. Examples of such information that could lead a claimant to believe that a claim for benefit would not succeed, would include, by way of illustration, (1) a statement by an officer to a claimant that capital of under £5000 will disqualify a claimant from Income Support and (2) a statement by an officer to a claimant that the only benefit available for people unable to work is Incapacity Benefit. Statements such as these, which clearly provide inaccurate information, could undoubtedly lead a claimant to believe that a claim for benefit would not succeed.”

 

I do not see anything in that passage which dictates the need for a specific interchange. The “handing over” of data in some “similar form” in my judgment can cover the provision of DWP information via the DirectGov website, for the reasons I have given above. If, on the other hand, “handing over” means personal handing over and thus an interchange, I decline to follow R1/01(IS)T. 

 

42.             Returning briefly to the DWP related pages on the DirectGov website, in my judgment, having regard to the reasons I have given above in relation to leaflets, on the evidence set out in paragraph 19 above the information on the website was information given to the claimant by an officer of the DWP and thus understood the first part of regulation 19(5)(d) of the Claims and Payments Regs was met in this case.  The evidence shows that DWP officials are responsible for the accuracy of the information on its pages on the DirectGov website, and in my judgment that direct relationship with the content of the information is sufficient to construe it as being information given by DWP officials. The wording of that regulation is not restricted to situations where the information is given by way of a specific interchange between a claimant and a DWP officer relating to that claimant’s personal circumstances. I therefore reject the Secretary of State’s appeal on the primary issue.

 

 

Secondary Issue – “led the claimant to believe that a claim for [JSA] would not succeed”

43.             The Secretary of State is, however, entitled to succeed on his second ground of appeal.  Although this ground did not feature in the Secretary of State’s application for permission to appeal, permission to appeal was not limited and in any event the claimant has had adequate opportunity (post the hearing before me) to address this ground of appeal.

 

44.             In essence the second ground of appeal is that even if the website information was information given to the claimant by a DWP officer, the tribunal had either arrived at a perverse conclusion that the claimant had by that information been misled into believing that a claim for JSA would not succeed, or not explained that conclusion adequately.

 

45.              I prefer to address this ground in terms of the adequacy of the tribunal’s reasons on this issue because true legal perversity is a very high test to establish and can only be judged on a full consideration of all the evidence before the tribunal. For the reasons given below I am not satisfied that I have all that evidence. Moreover, the test here is what was the claimant’s (i.e. subjective) belief, and it would generally be difficult to overset a finding as to that simply by way of reference to more general, objective considerations as to what the information ought to have conveyed.

 

46.             Mr Cooper began his argument here by focusing on what was on the website. He argued, correctly as a matter of the language used on the website pages, that nowhere did it say that a claim for JSA would not succeed if a claim for Pension Credit was made. All that the relevant website pages said was that the claimant may have been better off by claiming Pension Credit. Nothing in that information said a claim for JSA could not succeed if a claim for Pension Credit was made. It simply said that if a claim for JSA was made it may give a lesser entitlement. However I think that this misses the point somewhat. The critical wording was not that which Mr Cooper seeks to rely on but the wording later on in the website pages asking if the claimant wanted to continue with his claim for JSA or consider making a claim for Pension Credit.  That binary choice might have led the claimant to believe that he could not claim both and a claim for one ruled out a claim for the other. 

 

47.              The tribunal might, however, still be criticised for not exploring or explaining why that belief remained even when the claimant had sought to find out more about pension credit and given consideration to claiming it.  For example, as described above once the claimant had clicked through the various webpages in order to consider claiming Pension Credit he came to pages that gave a link to a Pension Credit calculator and gave a helpline number. There is an absence of consideration in the tribunal’s reasoning as to whether the claimant in fact used either of these options. Even had he not done so, his failure might have been relevant to the test in regulation 19(4) of the Claims and Payments Regs as to whether, even if misled by the earlier pages and their use of the word “or”, he could not reasonably have been expected to make a claim for JSA earlier.  I recognise, however, that a belief properly so held by the use of the word “or” in the earlier pages might not have led the claimant to use the helpline number or the calculator, and so explore this issue no further.

 

48.             The real vice with the reasoning, however, and where Mr Cooper was on a much surer footing, lies in its failure to address what the claimant is recorded as having said to the tribunal in its record of proceedings. The clear impression given by the tribunal’s decision and its reasoning is that the claimant was misled by the website pages into believing that he could not make a claim for both benefits and so chose only to claim Pension Credit. However he is recorded as having told the tribunal that (the underlining is in the original):

 

“Did complete all details required for a JSA application [including] name, address, [date of birth], NI number, dependants’ details, savings and all other details. Put in all information – then pressed Save and Continue. Was sure information would be stored. Was still in section entitled Jobseeker’s Allowance online when prompted to ‘find out more about Pension Credit’. No indication that (for example) all “your JSA info will be lost! Believed had saved and stored details of original application.  He did not believe he had to actively seek work because he believed he would get Pension Credit and be better off by doing so.  He believed JSA claim was stored and could be actioned once the [Pension Credit] claim was determined.  Cannot apply for Pension Credit online. They send you a form. Believed he would get Pension Credit - and consequently would not be entitled to JSA – because of receipt of Pension Credit.  However not entitled to Pension Credit – he was subsequently told.”

 

49.             On the face of this evidence it is at the very least arguable that the claimant thought he had made a claim for JSA (the “original application”) before he moved on to the Pension Credit pages.  This is not addressed at all by the tribunal.  In my judgment it is very difficult to fit this evidence within the narrative the tribunal explained of the claimant believing he had to, and in fact did, claim Pension Credit instead of making a claim for JSA, without at least further by way of reasoning which is not given.

 

50.             It may be that the claimant case has different bases to that which the tribunal seemed to consider. For example, it may be that he did in fact submit a claim which has never been actioned.  If so, then no question of backdating would arise. Or it may be that the claimant was misled by the website information into believing that a second claim for JSA was unnecessary and could not succeed because he had made claims for first JSA and then Pension Credit and both had to be decided.  It may be on this second alternative scenario that it was only when the Pension Credit claim was refused and the first JSA claim which the claimant believed was stored did not then surface, that a (second) claim for JSA was made. Or it may even be that the case is as the tribunal thought it to be and that the first JSA claim the claimant thought he had made was the one made on 9 October 2013 (though the evidence given to the tribunal would then need to be explained).

 

51.               What I am satisfied of, however, is that the tribunal’s reasoning failed adequately to address these incongruities in the evidence.  Nor do I consider the further submission from Mr Markus on behalf of the claimant irons out what he terms these ambiguities in the evidence.  If anything the argument now made on behalf of the claimant appears to shift towards the second alternative scenario suggested above. I do not accept that the ambiguities are irrelevant.  If the claimant thought he had made a claim for JSA before he claimed Pension Credit then the causative basis for his belief would very arguably be different and needed to be addressed and explained by the tribunal.

Conclusion

52.              For this reason, the tribunal’s decision dated 14 March 2014 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided entirely afresh by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber) at an oral hearing, which I have directed above.

 

53.              The Secretary of State’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether the claimant’s appeal will succeed on the facts before the new First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.  In so doing, however, the First-tier Tribunal is bound by this decision to proceed on the basis that the evidence on pages 40-47 (the DirectGov pages) was information given to the claimant by an officer of the DWP.

 

Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

 

Dated 6^th November 2015