RP-v-Department for Social Development (IS) [2011] NICom 216

Decision No:  C2/11-12(IS)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCOME SUPPORT

 

 

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 21 May 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 21 May 2010 is not in error of law.  Accordingly, the decision of the appeal tribunal that the time limit for making the claim to income support (IS) can be extended to 8 April 2009 is confirmed.

 

2.    This decision will come as a disappointment to the appellant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.

 

       Background

 

3.    On 8 July 2009 a claim for IS was received in the Department.  On 28 July 2009 a decision-maker of the Department decided that the appellant was entitled to IS from and including 8 July 2009.  On 4 August 2009 correspondence was received in the Department from the appellant in which he requested that his entitlement to IS be backdated to 21 January 2009.  On 10 August 2009 a decision-maker of the Department decided that the appellant was not entitled to IS for the period from 21 January 2009 to 7 July 2009.  On 8 September 2009 a letter of appeal against the decision dated 10 August 2009 was received in the Department.  On 16 September 2009 the decision dated 8 August 2009 was reconsidered but was not changed.

 

4.    An appeal tribunal hearing took place on 21 May 2010.  There are few details of what took place at the oral hearing as the file in the Office of the Social Security Commissioners does not contain a record of proceedings for the appeal tribunal hearing or a statement of reasons for the appeal tribunal’s decision.  The reason why those documents are missing will be explored in more detail below.  What is available is a copy of the appeal tribunal’s decision notice.  This shows that the appellant was present at an oral hearing of his appeal together with a Departmental presenting officer.  The decision of the appeal tribunal was set out as follows:

 

‘Appeal allowed.  The Appellant’s entitlement to Income Support allowance is backdated to 8/4/2009’

 

5.    On 22 June 2010 correspondence from the appellant was received in the Department.  On 24 June 2010 this correspondence was forwarded to the Appeals Service (TAS).  On 19 July 2010 the correspondence from the appellant was placed before the legally qualified panel member (LQPM) who decided that the correspondence should be ‘treated’ as an application for leave to appeal against the decision of the appeal tribunal.  On 13 August 2010 the application for leave to appeal was rejected by the LQPM.

 

       Proceedings before the Social Security Commissioner

 

6.    On 22 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 3 February 2011 observations were sought from Decision Making Services (DMS) and these were received on 2 March 2011.  In these written observations, Mr Smith, for DMS, opposed the application.  Observations were shared with the appellant on 5 April 2011.

 

7.    On 4 August 2011 I directed an oral hearing of the application.  At the oral hearing, the appellant was represented by himself and the Department was represented by Mr Smith.

 

       Errors of law

 

8.    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.

 

9.    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?

 

       The post-appeal action in TAS

 

10.   As was noted above, on 22 June 2010 correspondence from the appellant was received in the Department.  On 24 June 2010 this correspondence was forwarded to TAS.  On 19 July 2010 the correspondence from the appellant was placed before the LQPM who decided that the correspondence should be ‘treated’ as an application for leave to appeal against the decision of the appeal tribunal.  On 19 July 2010 a clerk to TAS wrote to the appellant in the following terms:

 

‘I acknowledge receipt of your application for leave to appeal to a Social Security Commissioner against the Tribunal decision dated 21/05/2010.

 

Your application will be forwarded to a legally qualified member for determination.

 

You will be notified of the determination in due course.’

 

11.   On 13 August 2010 the application for leave to appeal was rejected by the LQPM.

 

12.   Accordingly, it would appear that the appellant was not re-directed to make an application for the statement of reasons for the appeal tribunal’s decision, when it was clear on receipt of the correspondence from him that the statement of reasons had not been requested.

 

13.   I am aware that the procedural guide for clerks to TAS contains a section which makes provision for administrative action to be taken in a situation where an application for leave to appeal has been received but a statement of reasons has not yet been requested.  Where a statement of reasons has not yet been requested, the clerk is instructed to forward a template letter ‘Comm 1d’ to the applicant, to retain the application in the file and bring the file forward for 14 days.  The template letter ‘Comm1d’ instructs the applicant to make a request for the statement of reasons.  As was noted above, it would appear that Comm1d was never issued in this case.

 

14.   I have to ask whether the appellant has been disadvantaged as a result of these problematic aspects of the post-appeal actions.

 

15.   Following the hearing of an appeal, an appellant is entitled, under regulation 53(3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended to be sent a copy of the decision notice which contains the decision of the appeal tribunal, and be informed of his right:

 

(a)        to apply for a statement of reasons for the appeal tribunal’s decision; and

 

(b)        to the conditions governing appeals to a Social Security Commissioner.

 

16.   The conditions governing appeals to a Social Security Commissioner are to be found in regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended.

 

17.   It seems to me that an appellant is also entitled to be informed of his right to apply for the record of proceedings for the appeal tribunal hearing, and of his right to make an application to have the decisions of the appeal tribunal set aside.

 

18.   In the instant case, it appears to be the case that the appellant was given a copy of the decision notice on 25 May 2010, together with the details of the regulation 53(3) requirements.  Those requirements would include the need to apply for a statement of reasons for the appeal tribunal’s decision.  The appellant was, however, not re-directed to make an application for the statement of reasons for the appeal tribunal’s decision, when it was clear on receipt of the correspondence from him that the statement of reasons had not been requested.

 

19.   The details in the decision notice (Form AT3D’SSAT), and the accompanying letter which was sent to the appellant on 25 May 2010, and which he did receive, are, on balance, sufficient to inform the appellant of his rights to apply for the decision of the appeal tribunal to be set aside; of his right to make an application for leave to appeal to the Social Security Commissioner; and of his right to apply for a statement of reasons for the appeal tribunal’s decision.  The appellant did take certain action based on that correspondence, namely to make an application for leave to appeal to the Social Security Commissioner.  Accordingly, I am of the view that the appellant was aware of the requirement to request a statement of reasons but failed nonetheless to make such a request.

 

20.   I am of the view, however, that consideration should be given by TAS as to the proper procedures to be applied in the circumstances where post-appeal correspondence from an appellant is unclear as to what the true intentions of the appellant are.

 

       Was the decision to reject the application correct?

 

21.   Regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

 

‘58(1) Subject to paragraph (1A), an application for leave to appeal to a Commissioner from a decision of an appeal tribunal under Article 15 of the Recovery of Benefits Order or under Article 13 or 14 shall—

 

(a)      be sent to the clerk to the appeal tribunal within the period of one month of the date of the applicant being sent a written statement of the reasons for the decision against which leave to appeal is sought; and

 

(b)      be in writing and signed by the applicant or, where he has provided written authority to a representative to make the application on his behalf, by that representative;

 

(c)      contain particulars of the grounds on which the applicant intends to rely;

 

(d)      contain sufficient particulars of the decision of the appeal tribunal to enable the decision to be identified; and

 

(e)      if the application is made late, contain the grounds for seeking late acceptance.’

 

22.   An appeal tribunal has no jurisdiction to consider an application for leave to appeal to a Social Security Commissioner if there is no written statement of reasons for the appeal tribunal’s decision.  That principle was established in the decision of the Commissioner in Great Britain in R(IS)11/99 in connection with the former procedural rules for decision-making and appeals – the Social Security (Adjudication) Regulations 1995, as amended, which had an equivalence in Northern Ireland in the Social Security (Adjudication) Regulations (Northern Ireland) 1995, as amended.  The principle remains valid, however, in connection with regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  On a simple construction of regulation 58(1)(a), the time for sending an application for leave to appeal to the Social Security Commissioner commences with the date on which a written statement of reasons for the decision has been sent to the applicant.

 

23.   Accordingly, although I have found that the proper post-appeal procedures were not followed by TAS, the LQPM was correct to reject the application for leave to appeal to the Social Security Commissioner.

 

24.   In other applications for leave to appeal and in appeals themselves, I have noted that there is in existence a template form which is utilised by LQPMs to record determinations in connection with applications for leave to appeal to the Social Security Commissioner.  At section 4 of that form, the LQPM may choose one of three reasons for rejecting the application for leave to appeal.  The first of those three options, in its current version, reads as follows:

 

‘Reasons for decision were not sent to the applicant as required by Regulation 58(1)(a)’

 

25.   I am of the view that this wording does not properly reflect the reason why a LQPM has the power to reject an application for leave to appeal to the Social Security Commissioner, where there is no written statement of reasons for the appeal tribunal’s decision.  The true reason for the rejection in these circumstances is that the applicant has not applied for a written statement of reasons under regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended and, accordingly, the time for bringing an application for leave to appeal, under regulation 58(1)(a) has not started to run.  I have, in the past, recommended that consideration is given to the alteration of this form to reflect the proper position.  I would repeat that recommendation here.

 

       Consideration of the application by the Social Security Commissioner

 

26.   Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides that an application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.  The latter emphasis is mine.

 

27.   Regulation 10 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, requires an application to a Social Security Commissioner for leave to appeal to be made by notice in writing and to have with it, inter alia, a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought.

 

28.   The application in the instant case does not fulfil that requirement in that it does not have a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought.  Nonetheless, I have exercised the power conferred on me by regulation 27 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, and waive the absence of a copy of full written statement of the reasons for the appeal tribunal’s decision as an irregularity.  The exercise of this power permits me to consider the application.

 

29.   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.  In the absence of a full statement, the error of law must appear from the documents before me or from the circumstances of the case.  As was noted in R3/02(IB)(T) and R(IS) 11/99, it is evidently not possible to challenge an appeal tribunal’s decision on the grounds of inadequacy of reasoning in circumstances where there is no written statement of reasons available.  The lack of adequate reasons cannot constitute an error of law, because a statement of reasons was not requested in time.

 

30.   Nonetheless, I have considered the arguments which have been raised by the appellant, in his application for leave to appeal, and the response of the Department, to those arguments.  In the written observations on the application for leave to appeal Mr Smith stated the following:

 

‘(The claimant) was awarded DLA at the middle rate of care component and the low rate of mobility component from 16/01/09 on appeal by a tribunal sitting on 08/07/09.  The award of DLA at the middle rate of care component is the qualifying element of DLA that entitles (the claimant) to the disability premiums of IS and therefore entitles him to IS.

 

On the same day (the claimant) made his claim to IS and on 28/07/09 was awarded IS from and including 08/07/09.  The claim was made in accordance with Regulation 4(1A) of the Social Security (Claims and Payments) Regulations (NI) 1987:

 

4 - (1A) Subject to paragraph (11A), in the case of a claim for income support or jobseeker’s allowance, the claim shall—

 

(a) be made in writing on a form approved by the Department for the purpose of the benefit for which the claim is made; and

 

(b) unless any of the reasons specified in paragraph (1B) applies—

 

(i) be made in accordance with the instructions on the form, and

 

(ii) include such information and evidence as the form may require in connection with the claim.

 

The time for claiming IS pursuant to Schedule 4 of the Social Security (Claims and Payments) Regulations (NI) 1987 is “the first day of the period in respect of which the claim is made.”

 

The date on which the claim is treated as made is determined in accordance with Regulation 6 of the Social Security (Claims and Payments) Regulations (NI) 1987.  In this case the Department determined that (the claimant’s) claim was made on 08/07/09 in accordance with Regulation 6(1A)(a)

 

6 - (1A) In the case of a claim for income support—

 

(a)            subject to the following sub-paragraphs, the date on which a claim is made shall be the date on which a properly completed claim form is received in an appropriate office or a claim made by telephone is properly completed, or the first day in respect of which the claim is made, whichever is the later;

 

When making this determination the Department considered the backdating provisions within Regulation 19(4) to (7) of the Social Security (Claims and Payments) Regulations (NI) 1987.  If the claimant satisfies the conditions within these provisions the time for claiming IS may be extended, up to one month or a maximum of three months.

 

19 - (4) Subject to paragraph (8), in the case of a claim for income support, jobseeker’s allowance, family credit or disability working allowance, 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 3 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 consequence the claimant could not reasonably have been expected to make the claim earlier.

 

(5) The circumstances referred to in paragraph (4)(a) 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 him 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 him 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, the Department for Employment and Learning or, in a case to which regulation 4A applies, a representative of a relevant authority 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 Health and Social Services Board, or by a person working in a Citizens Advice Bureau or 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.

 

(6) In the case of a claim for income support or jobseeker’s allowance, 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 one month, to the date on which the claim is made, where—

 

(a) any one or more of the circumstances specified in paragraph (7) applies or has applied to the claimant; and

 

(b) as a consequence the claimant could not reasonably have been expected to make the claim earlier.

 

(7) The circumstances referred to in paragraph (6) are—

 

(a) the appropriate office where the claimant would be expected to make a claim was closed and alternative arrangements were not available;

 

(b) the claimant was unable to attend the appropriate office due to difficulties with his normal mode of transport and there was no reasonable alternative available;

 

(c) there were adverse postal conditions;

 

(d) the claimant or his partner was previously in receipt of another benefit, and notification of expiry of entitlement to that benefit was not sent to him or, as the case may be, his partner before the date on which his entitlement expired;

 

(e) in the case of a claim for family credit, the claimant had previously been entitled to income support or jobseeker’s allowance (“the previous benefit”), and the claim for family credit was made within one month of expiry of entitlement to the previous benefit;

 

(f) except in the case of a claim for family credit or disability working allowance, the claimant had ceased to be a member of a married or unmarried couple within the period of one month before the claim was made;

 

(g) during the period of one month before the claim was made a close relative of the claimant had died, and for this purpose “close relative” means a partner, parent, son, daughter, brother or sister; or

 

(h) in the case of a claim for disability working allowance, the claimant had previously been entitled to income support, jobseeker’s allowance, incapacity benefit or severe disablement allowance (“the previous benefit”), and the claim for disability working allowance was made within one month of expiry of entitlement to the previous benefit;

 

(i) in the case of a claim for a jobseeker’s allowance by a member of a joint-claim couple where the other member of that couple failed to attend at the time and place specified by the employment officer for the purposes of regulation 6;

 

(j) the claimant was unable to make telephone contact with the appropriate office where he would be expected to notify his intention of making a claim because the telephone lines to that office were busy or inoperative.

 

The Department also considered the provisions of Regulations 6(16), (17) and (18) of the Social Security (Claims and Payments) Regulations (NI) 1987.  If the claimant satisfies the conditions within these provisions the time for claiming may be extended to the date the original claim was disallowed or the date the qualifying benefit is awarded, whichever is the later.

 

6 - (16) Where a person has claimed a relevant benefit and that claim (“the original claim”) has been refused in the circumstances specified in paragraph (17), and a further claim is made in the additional circumstances specified in paragraph (18), that further claim shall be treated as made—

 

(a) on the date of the original claim; or

 

(b) on the first date in respect of which the qualifying benefit was awarded, whichever is the later.

 

(17) The circumstances referred to in paragraph (16) are that the ground for refusal was—

 

(a) in the case of severe disablement allowance, that the claimant’s disablement was less than 80 per cent.;

 

(c) in any case, that the claimant, a member of his family or the disabled person had not been awarded a qualifying benefit.

 

(18) The additional circumstances referred to in paragraph (16) are that—

 

(a) a claim for the qualifying benefit was made not later than ten working days after the date of the original claim, and the claim for the qualifying benefit had not been decided;

 

(b) after the original claim had been decided the claim for the qualifying benefit had been decided in favour of the claimant, a member of his family or the disabled person; and

 

(c) the further claim was made within three months of the date on which the claim for the qualifying benefit was decided.

 

In the instant case (the claimant) stated on his claim form that he had never claimed IS before but Departmental records showed that he had made a claim to IS on 11/04/07.  However, that claim was disallowed because (the claimant’s) income exceeded his requirements at the time.  (The claimant) had not been in receipt of DLA then thereby satisfying the conditions of regulations 6(16) and (17) of the Social Security (Claims and Payments) Regulations (NI) 1987.

 

Regulations 6(16) and (17) must be read in conjunction with regulation 6(18).  Regulation 6(18) provides, firstly, that the claim for the qualifying benefit (in this case DLA) must be made not later than ten working days after the date of the original claim (in this case IS) was made and secondly, a subsequent claim to the original benefit must be made within three months of the decision to award the qualifying benefit has been made.  (The claimant’s) claim for DLA, made on 16/01/09, was not made within ten working days of making his claim to IS on 11/04/07 and therefore does not satisfy the first condition of regulation 6(18).  Unfortunately, Regulations 6(16) to (18) cannot help (the claimant).

 

Having considered Regulations 6(16) – (18) and 19(4) – (7) of the Social Security (Claims and Payments) Regulations (NI) 1987 the Department determined that (the claimant) did not satisfy any of the conditions contained therein and his claim to IS could not be extended beyond 08/07/09.

 

The tribunal, on the other hand, had a different viewpoint to the Department.  It overturned the decision of the Department and extended (the claimant’s) claim to IS back the maximum of three months.  Unfortunately, (the claimant) failed to request a statement of reasons and as a result I do not have an insight into the rationale behind the tribunal’s decision.  However, I am presuming that the tribunal made its decision in accordance with Regulations 19(4) and (5)(d) on the basis that (the claimant) alleged he was misled by the information he received from an officer in Knockbreda J&BO preventing him from making his claim to IS earlier.

 

…

 

Nevertheless, in his application for leave to appeal to the Commissioner, (the claimant) argues that his claim to IS on the basis of his award of DLA was made within three months of the (tribunal’s) decision to award DLA from 16/01/09.  Therefore his award of IS should be backdated to the date the qualifying benefit was awarded from.  (The claimant) also states that he is aware that if his appeal is made outside of one month the decision can be revised under the anytime revision regulations permitted by the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.

 

In response to (the claimant’s) grounds for appeal I reiterate what I stated … above.  (The claimant’s) claim for DLA was not made within ten working days of his initial claim to IS made on 11/04/07 in accordance with Regulation 6(18)(a) of the Social Security (Claims and Payments) Regulations (NI) 1987 and therefore I would submit that his claim to IS, made on 08/07/09, cannot be extended to the date from which his entitlement to DLA was awarded.

 

In relation to (the claimant’s) second point, the Department does have the discretion to revise its own decision if an application for revision is received within one month of the notification of that decision pursuant to Regulation 3(1)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.  However, in this case the decision under appeal is a decision of the tribunal which the Department does not have the power or authority to revise.  It is therefore for the Commissioner to decide if an error in law has occurred.’

 

31.   I agree with Mr Smith that, in the absence of a statement of reasons for the appeal tribunal’s decision, it is very difficult to be certain as to the legal basis on which the appeal tribunal allowed the appeal and permitted the time limit for the making of the application for IS to be extended for a three month period.  I also agree, however, that it highly likely that the appeal tribunal applied regulations 19(4) and (5)(d) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, having accepted that the appellant was given information by an officer of the Department which led the claimant to believe that a claim for benefit would not succeed.  I do not interfere with the appeal tribunal’s conclusions with respect to the extension of the time limit for bringing a claim as I cannot be certain as to the precise legal basis for the appeal tribunal’s conclusions with respect to that issue.

 

32.   Could the time limit for making the claim be extended to the date of the award of entitlement to disability living allowance (DLA)?  The answer to that question has to be ‘no’.  In this regard I accept Mr Smith’s articulate and cogent submissions in their entirety.  There is no legal provision that would permit the extension of the time limit for bringing the claim to IS to the relevant date.  The appellant cannot avail of regulations 6(16) – (18) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended.

 

33.   At the oral hearing of the application, the appellant appeared in person and answered questions concerning the circumstances in which he came to make an application for IS.  Having heard from and seen the appellant, I found him to be honest and creditworthy and I would have no hesitation in accepting the evidence which he gave to me.  His evidence was that following receipt of advice from a local advice service, he formulated an intention to claim IS.  In connection with this intention he attended what was probably Knockbreda Jobs and Benefits Office.  In that office he met with an officer of the Department to whom he signified his intention to claim IS.  That officer asked him whether he was already in receipt of any of a number of benefits set out in a produced list.  When the appellant indicated that he was not so entitled he was informed that a claim to IS was unlikely to succeed.  Following that the appellant put the idea of claiming IS out of his head and, instead, made a claim to DLA.  Following the successful appeal against the disallowance decision concerning entitlement to DLA, the appellant thought again about IS and considered that he might be entitled to IS as he now had an entitlement to a qualifying benefit.

 

34.   Does any of this affect any of the issues arising in the application for leave to appeal?  Unfortunately for the appellant it does not.  Despite this clarification from the appellant concerning the background to his applications to IS and DLA, I am clear that the decision of the appeal tribunal remained correct and not in error of law.

 

35.   At the oral hearing of the application for leave to appeal, I asked Mr Smith as to whether the appellant’s attendance at Knockbreda Jobs and Benefits Office and his subsequent discussion with the officer of the Department might be considered to amount to a claim to IS.  Mr Smith submitted that for the purposes of regulation 4(1A) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, a claim to IS has to be made in writing on a form approved by the Department.  I agree with that submission and conclude that there was no valid claim to IS until the receipt by the Department of the form on 8 July 2009.

 

       Disposal

 

36.   The decision of the appeal tribunal dated 21 May 2010 is not in error of law.  Accordingly, the decision of the appeal tribunal that the time limit for making the claim to IS can be extended to 8 April 2009 is confirmed.

 

       Postscript

 

37.   At the oral hearing of the application Mr Smith conceded that following the appellant’s attendance at Knockbreda Jobs and Benefits Office, and his signifying that he wished to make a claim to IS, the appellant should have been invited to make such a claim, even if it was clear that such a claim would be likely to be disallowed. Mr Smith also submitted that any disallowance of a claim, at that stage, might eventually have triggered the ‘qualifying-benefit’ provisions in regulations 6(16) – (18) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended. Mr Smith gave an undertaking that subsequent to the promulgation of this decision he would carry out further investigations concerning the appellant’s attendance at Knockbreda Jobs and Benefits Office. Mr Smith indicated that following those investigations, and depending on their outcome, he may remit this case to the appropriate branch within the Department for consideration of an extra statutory payment. I cannot influence the decision to undertake further investigations, remit or any subsequent decision which the Department may make in connection with an extra statutory payment. I am grateful, however, for the commitment made by Mr Smith on behalf of the Department to undertake such further action.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

12 October 2011