Decision No: C13/96(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INCOME SUPPORT

Appeal to the Social Security Commissioner
on a question of law from the decision of the
Downpatrick Social Security Appeal Tribunal
dated 8 February 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which upheld the decision of an Adjudication Officer to limit the arrears payable to the claimant of income support to 12 months. 

2.	The Social Security Appeal Tribunal which heard claimant's appeal against the decision to limit the payment of arrears records that the Presenting Officer began by saying - 

		"Panel can ignore the figures states to front of submission papers.
		Issue today is the award of Disability Living Allowance to 
		claimant's wife and the period for which arrears of income support
		can be paid.  This is the sole issue."

	The Tribunal held that arrears of income support could only be paid for maximum period of 12 months and found the following facts:-

		"1.	Claimant's wife Mrs McL was awarded Disability Living
			Allowance payable from 11 March 1993.  Although Mr McL
			was in receipt of income support at this time, he did not
			report of the award of this new benefit to Income Support
			Branch - as he was told to do so in the instructions in his
			income support booklet.

		2.	In August 1995 a routine assessment of claimant's benefit was
			carried out and on the review form claimant said his wife was
			in receipt of Disability Living Allowance from date stated 
			above.  Income Support Branch checked this fact out, confirmed
			it was correct and advised claimant he was now allowed an 
			increase of benefit - a disability premium was to be added to 
			his income support as his wife was on Disability Living 
			Allowance.  Income Support Branch said they could, in line
			with the law allowing arrears of income support to be back
			dated, pay the arrears from 29 August 1994 - one full year
			before they were aware of this change of circumstances.

		3.	The panel are quite satisfied that had best office procedure
			been put into practice in Disability Living Allowance section
			as recommended in the internal guidance rules, then this 
			entitlement of disability premium could have been picked up
			by Income Support Branch and paid since March 1993.  This
			however did not happen and the award of Disability Living
			Allowance to claimant's wife was only made known to income 
			support branch in August 1995 during a routine assessment
			of benefit.

		4.	The important fact to note however is that internal guidance
			procedure from one benefit department to another is simply
			guidance - not absolute law.  There is no statutory provision
			which says one benefit department MUST by law, tell another
			department, even one closely connected such as Disability
			Living Allowance section and Income Support Section, about
			any particular decision made.

			By law the onus is still with the claimant to report any change
			which might effect benefit to the relevant department.  The
			claimant failed to report the change that occurred in 1993
			(that his wife was in receipt of Disability Living Allowance
			from 11 March) until 29 August 1995 when an adjustment was madeto his benefit, awarding him a disability premium.  The 
			regulations say this can only be paid in arrears unless there
			are special circumstances such as set out in Regulation 
			64A(2)(b).

		5.	The panel do not accept there were special circumstances such
			as Mr McVeigh has relied upon in regulation 64A(2)(b).  There
			was no reason to have a review until the Department here made
			aware of a change in circumstances which warranted a review.
			They were told of a change in circumstances on 29 August 1995,
			therefore could only review from that date.  In accordance 
			with the law, arrears of income support were allowed to be 
			backdated for 12 months to 29 August 1994."

	and gave reasons for their decision as follows:-

		"Income Support section could only review claimant's benefit if they
		were made aware of a change of circumstances (or a change in the
		law).  They were made aware of a change of circumstances on 
		29 August 1995 and very properly adjusted claimant's income support
		awarding a disability premium, the award being backdated 12 months
		1994, the maximum allowed under income support rules.

		We do not accept that regulation 64A is relevant in this particular
		case, see point 4 in Findings of Fact.

		It is accepted that claimant has lost out on a disability premium
		from March 1993 to August 1994 because the law says the onus is on
		the claimant - not another benefit branch, to report a change in
		circumstance.

		If Disability Living Allowance had carried out their best office
		procedure as recommended in internal guidelines this would not
		have happened.  It would be a simple thing to attach a form to 
		new awards of Disability Living Allowance saying - "let us know
		at once if you or your partner receives Income Support - you may
		be entitled to an additional disability premium.""

3.	Claimant sought leave to appeal on the grounds that the Tribunal erred in law as follows:-

		"At the Tribunal my representative argued that the normal 12
		months restriction on backpayment of income support under reg.69
		of the Social Security (Adjudication) Regulations (NI) 1987 could
		be avoided in my case by the operation of reg.64A of the same
		regulations.  These regulations had been superseded at the time
		of the decision which was before the tribunal by regs. 63 and 57
		of the Social Security (Adjudication) Regulations (NI) 1995 which
		are of the same effect.

		Reg. 57(2)(a) and reg.57(2)(b) cover the situation where review
		is sought in circumstances, respectively, where an adjudication 
		officer had specific evidence before him at the time of making
		the decision under review yet failed to take it into account,
		and where there was documentary evidence in the possession of an
		officer of the Department at the time the decision was made but
		he failed to submit it to the adjudication officer.
		In my respectful submission, the standard procedures of the DLA
		Branch in effect at the time would have required the issue of a
		DLA 70 form to the local social security office where the income
		support claim was determined.  This confirms an award of DLA
		in children's cases where the claimant has notified the DLA branch
		that income support is in payment on the relevant DLA claim form.
		The claimant's DLA  claim form of 6 March 1993 notified DLA Branch
		that income support was in payment.

		I submit that on the balance of probabilities there are two factual
		situation which could have arisen in my case.  Either no DLA 70
		form was issued by the DLA Branch, although they had documentary
		evidence of receipt of income support, or else a DLA 70 was issued
		but not taken into account by the adjudication officer in income
		support.  In my respectful submission the former situation is
		covered by reg.57(2)(b) and the latter by reg.57(2)(a).

		I respectfully submit that on the facts of the case the tribunal
		have erred in law on the face of the record by misinterpreting
		the effect of reg.57 in coming to the decision which they reached
		or in the alternative have reached an irrational decision on the
		evidence."

	The Chairman of the Tribunal refused leave to appeal and an application was made to the Commissioner who granted leave to appeal.

4.	The Adjudication Officer upon receiving a copy of the application for leave responded as follows:-

		"I agree with the comments made by the claimant's representative in
		relation to the relevant legislation which should have been used,
		i.e. The Social Security (Adjudication) Regulations (Northern
		Ireland) 1995, regulations 63 and 57.  Those regulations superseded
		the Social Security (Adjudication) Regulation (Northern Ireland)
		1987.  I submit however that the tribunal did not err in law in 
		using the 1987 regulations as the 1995 regulations were consolidated
		regulations and as pointed out in the appeal to the Social Security
		Commissioner both sets of regulations have the same effect.

		The evidence before the tribunal was that the Income Support section
		of the Social Security office first became aware of the fact that
		Mrs McLwas awarded Disability Living Allowance on 
		29 August 1995.  There is no evidence to suggest that the Income
		Support section were in possession of form DLA 70 as indicated
		in the grounds of appeal, in fact in the evidence recorded the 
		presenting officer accepted that the usual Departmental procedures
		for DLA branch notifying the relevant social security office of
		awards of DLA was not adhered to in this case.  I submit that
		the tribunal were correct in finding that the onus is on the 
		claimant to report any change to the relevant office and that 
		the claimant failed to do so.  In decision number C15/95(IS) the
		Chief Commissioner found that:

		 disclosure of a material fact relating to income support to the
		 unemployment section of a Social Security Office is not a 
		 disclosure to the proper section or to the proper official

		Although the Commissioners decision was in relation to an 
		overpayment of income support, I submit that it is relevant to
		all matters relating to the onus on claimants reporting changes
		in their circumstances.  I submit therefore that although
		Mrs McL did report in her claim for DLA that her husband
		was in receipt of Income Support, that was not sufficient 
		disclosure for Mr McL to notify the proper section or the
		proper official of the change in his circumstances i.e. the 
		income support section.  I further submit that any failing on
		a branch of the Department to report awards of benefit to 
		other branches does not detract from the onus on the claimant to
		report changes.  I finally submit that the tribunal were correct
		in determining that arrears could only be paid for a maximum
		of 12 months."

5.	I arranged an oral hearing at which the claimant was represented by Mr Stockman of the Law Centre (NI) and the Adjudication Officer was represented by Mrs McRory.  Mr Stockman reiterated his grounds of appeal and drew attention to the fact that there was a letter to claimant's wife in May 1993 telling her that she had been awarded DLA from 11 March 1993.  He said that claimant notified the local office that his wife was in receipt of invalidity benefit in August 1995 and argued there were grounds to review the decision on the grounds of ignorance of a material fact that the wife had been awarded DLA, which brought into play regulation 57(2) (these are the replacements regulations for regulation 64).  Mrs McRory said that the Tribunal failed to identify the decision under review, but even if it had then regulation 63 still applied.  She did not accept that regulation 57(2) was applicable and argued that there was an onus on the claimant to report the change of circumstances.

6.	I have considered all that has been said and I have read all the documents.  The relevant regulations is former regulation 64A(2)(b) which has now been replaced by regulation 57 which is in similar terms.  The relevant portion of Regulation 64(A) read:-

		"64A(2)  This paragraph applies to a review of any decision under 
		sections 100A(2)(a) and (4), 104(1)(a) and 104A(1)(a) of the
		1975 Act(a) (review on grounds of ignorance of, or mistake as to,
		some material fact), whether that decision was made before or
		after the coming into operation of this regulation, where the
		reviewing authority, that is to say the adjudication officer or,
		as the case may be the appeal tribunal, is satisfied that -

		(a)	.............

		(b)	the evidence upon which it is relying to revise the decision
			under review is a document or other record containing such
			evidence which at the time of making the submission to the
			authority which was then to determine the claim or question,
			the officer of the Department who made the submission had in
			his possession but failed to submit;"

	The relevant portion is 64A(2)(b) and relates to evidence in a document which an officer of the Department who made the submission had in his possession but failed to submit (to the authority which was then to determine the claim or question) and it is interesting to note that the Presenting Officer at the Tribunal is recorded as having said:-

		"Regulation 64A(2)(b) says that special circumstances only arise
		if there was a document or other evidence in existence and an 
		officer of the Department, who was carrying out the review had
		this in his possession but failed to submit this.  It is not 
		the Department in general as Mr McVeigh suggests - in this case
		the Disability Living Allowance Branch - it is a particular person
		who, realising there is or are good reasons for review, fails to
		take into account that information which he had in his possession."

7.	It is not surprising that this matter has got as far as it has if that is the interpretation by the Department of 64A(2)(b).  Clearly it does not relate to the officer who is carrying out the review and has the document in his possession - it is someone other than the person who is carrying out the review who has the document, who had it in his possession at the time of making the submission to the authority which was then to determine the claim but failed to submit it.  Therefore it is not the person carrying out the review who had (but failed to submit) the document.  The failure to submit the document arises at the time the claim is being determined, not the review.

8.	In the instant case the document was the award of DLA to claimant's wife and the Department had in its possession that document.  They had it in their possession from 1993.  I am satisfied that this case got bogged down in attempting to discover whether or not claimant was obliged to notify the Department of a change of circumstances and whether or not he fulfilled his obligation.  It is not related in any way to the obligation to report a change.  This regulation stands alone and independent of regulation 32 which limits the payment of arrears.  This regulation 64A (now 57) relates to a document which was in existence when the claim was being determined.  It was in the possession of an officer of the Department who made the submission to have the claim determined and he failed to submit it.  That is the evidence upon which it is now relying to revise the decision under review.

9.	The Tribunal considered whether or not simple guidelines were statutory provisions or whether they were absolute law.  These matters were totally irrelevant.  This case is concerned with the payment of arrears only.  It is not disputed that claimant was entitled to these arrears.  What is disputed is that payment cannot be made past a certain point.  However, payment can be made past a certain point if regulation 64A is applicable.  I am quite satisfied that there is evidence that a document existed in the possession of an officer of the Department when the question was being determined and which he failed to submit but which is now being used and relied upon to revise the decision under review. I am satisfied that grounds existed for a review from 11 March 1993, the date claimant's wife received Disability Living Allowance.  I therefore allow the appeal and set aside the decision of the Tribunal.  I am satisfied this is a proper case in which to give the decision the Tribunal should have made.  My decision is that claimant is entitled to all arrears of the extra disability premium on his income support from 11 March 1993.

	(Signed): C C G McNally

	COMMISSIONER

	25 September 1997