Decision No; C5/99(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

	SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	INCOME SUPPORT

	Appeal to the Social Security Commissioner
	on a question of law from the decision of 
	Newry Social Security Appeal Tribunal
	dated 27 November 1998

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against a decision of the Tribunal whereby it was held that the claimant was not entitled to Income Support from 24 July 1998 to 24 August 1998.

2.	The Tribunal, made the following findings of fact material to its decision:-

		"1.	The Tribunal accept, as facts, the facts outlined at paragraph 5.1-5.5 in the Summary of Facts in the attached written submissions prepared by the Adjudication Officer.

		[5.	FACTS OF THE CASE:

			5.1	[Claimant] is a single man aged 19 who resides 
				in his mothers household.

			5.2	On 25.08.98 [claimant] requested form A1 to 
				claim Income Support.  The completed form was received 
				on 28.8.98. ...  He stated he was sick from 24.7.98 and 
				prior to this he was claiming Jobseekers Allowance to 
				23.7.98.  At Part 8 of the form [claimant] requested his 
				claim backdated to the 24.7.98 as he was in the Royal 
				Victoria Hospital seriously ill.  He had claimed 
				Incapacity Benefit on 24.7.98 but had not been notified 
				until 25.8.98 that he was not entitled to that benefit.  
				He had no money for the last five weeks and was still 
				submitting medical evidence for broken pelvis and 
				cracked cheekbone.

			5.3	On checking Departmental records it was confirmed 
				that [claimant] had been paid Jobseekers Allowance to 
				23.7.98. ...  A letter had been received advising JSA 
				that [claimant] was claiming sickness benefit from 
				24.7.98 following a car accident. ...

				[Claimant] had claimed Incapacity Benefit from 24.7.98 
				and due to insufficient contributions was not entitled 
				to that benefit.  Form IB35 notification of disallowance 
				was issued on 25.8.98. ...

			5.4  	The Adjudication Officer considered [claimant's] 
				request and decided that he was not entitled to Income 
				Support for the period 24.7.98 to 24.8.98.  The decision 
				was issued on 04.09.98.

			5.5  	On 27.10.98 [claimant] appealed the decision. ...]

		2.	Having heard from and seen the appellant's mother, the 
			tribunal find her to be an honest and credible witness.  
			The Tribunal accept her evidence that she telephoned her 
			local Social Security Office to make enquiries about 
			entitlement to benefits following the inability of her 
			son to claim due to illness following a serious car 
			accident.  The Tribunal accept her evidence that she was 
			advised by a representative of the Social Security Office 
			for her son to claim Incapacity Benefit.  The Tribunal 
			also accept her evidence that she was not given advice or 
			information about any other benefits.

		3.	The Tribunal accept that, due to his illness following 
			his car accident, the appellant was unable to deal with 
			his own claims to benefit.

		4.	On 25 August 1998, the appellant was informed that he was 
			ineligible for Incapacity Benefit.  On that date he made 
			a claim to Income Support and asked for claim to be 
			backdated on 24 July 1998."

	The claimant made it clear in his grounds of appeal to the Tribunal that he had been unconscious in hospital for a long period and that following this he was unable to handle any of his personal affairs because of his injuries.

3.	The Tribunal gave the following reasons for its decision:-

		"The Adjudication Officer has accepted that the appellant's 
		claim to Income Support, made on 25 August 1998, was made in 
		a manner which complies with Regulation 4(1) of the Social 
		Security (Claims and Payments) Regulations (Northern Ireland) 
		1987 and that the date of claim for the purposes of Regulation 
		6(1) of the same Regulations is 25 August 1998.  The Adjudication 
		Officer also accepts that the issue which arises in this appeal 
		is whether the time for claiming can be extended to 24 July 1998.

		Under Regulation 19(1) and Schedule 4 of the Social Security 
		(Claims and Payments) Regulations (Northern Ireland) 1987, the 
		prescribed time for claiming Income Support is the first day of 
		the period in which the claim is made.  Under Regulation 19(4) 
		of the Social Security (Claims and Payments) Regulations (Northern 
		Ireland) 1987, the prescribed time for claiming Income Support 
		may be extended, where any of the circumstances specified in 
		paragraph (5) of Regulation 19 applies, or has applied to the 
		appellant, and, as a consequence, the appellant could not 
		reasonably have been expected to make the claim earlier.

		The Tribunal does not agree that the circumstances outlined in 
		Regulation 19(5) of the Social Security (Claims and Payments) 
		Regulations (Northern Ireland) 1987, applies or has applied to 
		the appellant.  The Tribunal is of the view that, although the 
		appellant was ill, sub-paragraph (b) does not apply to him.  The 
		tribunal is of the view that it was reasonably practicable for 
		the appellant to obtain assistance from another person to make 
		his claim.  Indeed, the appellant had obtained such assistance 
		from his mother in his earlier, abortive claim to Incapacity 
		Benefit.

		Sub-paragraph (d) does not apply to the appellant.  That 
		sub-paragraph relates to the situation where an Officer of the 
		Department positively, but erroneously, gives information to a 
		claimant, and does not cover an omission to give information.  
		The tribunal is of the view that there is no positive duty on 
		the Department to give information to claimants regarding their 
		entitlement to benefit.  Accordingly the prescribed time for 
		claiming Income Support, cannot, in the case of the appellant, 
		be extended."

4.	The unanimous decision of the Tribunal was in the following terms:-

		"Appeal disallowed.

		The Appellant is not entitled to Income Support from 24 July 
		1998 to 24 August 1998."

5.	The Chairman of the Tribunal made the following record of proceedings:-

		"All of the attached written submissions were considered.

		Mrs Toner 
		[presenting officer]:	I have nothing to add.  It is a claim for 
					backdating.  Did consider Regulation 
					19(5).  Was ill.  Claim was made to 
					sickness benefit and notification to 
					Jobseekers.  It could have assisted.

		Mr Brady 
		[claimant's		6.3. [Claimant's mother] rang the local 
		representative]:	office to say that he was in an accident 
					and to find out what to do.  She was told 
					to get certificates and claim incapacity.  
					She should have been told that a claim to 
					Income Support should have been made.  
					Rang to tell him that he was incapacitated.  
					Was told to write in an inform Jobseekers.  
					Told to get certificates.  Contacted local 
					office to find out which benefit to claim.  
					Social Security Agency had been contacted.

		[Claimant's mother]:	I contacted them on 30th.  I asked what to 
					do.  Said to get certificates.  I heard 
					nothing back.  Rang after a month.  Got out 
					in six weeks.

		Mrs Toner:		Date when it was accepted from.  Common 
					problem.  Don't give full story.  No way of 
					knowing an entitlement to Income Support.  
					Difficult to know.  Receptionist does not know.  
					Advise them to claim appropriate benefit.

		Mr Brady:		Nothing more.

		Mrs Toner:		No."

6.	The claimant sought the leave of a Chairman to appeal to a Commissioner on the following grounds:-

		"I wish to apply for leave to appeal to the Commissioner.  The 
		Tribunal have given no reason as to why, having accepted that I 
		was ill, Regulation 19(5) did not apply.

		I did obtain assistance from my mother for an earlier claim but 
		no mention was made by the Department of Income Support which 
		led to the problem in the first place."

7.	The claimant was granted leave to appeal by the Chairman on 20 May 1999.  

8.	The legislation relevant to this case is set out in the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 and in particular the following regulations:-

		"Making a claim for benefit

		4.	..........

			(1A)	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.

			.............

		Date of claim

		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 the first day in respect of 
					which the claim is made, whichever is the 
					later;

				(b)	where a properly completed claim form is 
					received in an appropriate office within 
					one month of first notification of 
					intention to make that claim, the date of 
					claim shall be the date on which that 
					notification is deemed to be made, or the 
					first day in respect of which the claim is 
					made, whichever is the later;

				(c)	a notification of intention to make a 
					claim shall be deemed to be made on the 
					date when an appropriate office receives -

					(i)	a notification in accordance with 
						regulation 4(5), or

					(ii)	a defective claim.

			(3)	In the case of a claim for income support, family 
				credit, disability working allowance, a social 
				fund payment for maternity or funeral expenses, 
				jobseeker's allowance or expenses incurred in 
				cold weather, where the time for claiming is 
				extended under regulation 19 the claim shall be 
				treated as made on the first day of the period in 
				respect of which the claim is, by reason of the 
				operation of that regulation, timeously made.

			............

		Time for claiming benefit

		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 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 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)	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."

	It is perhaps worthy of note that there is no mention of reasonably held ignorance of entitlement as a ground for seeking backdating of a claim.  Therefore a claim can only be backdated by the existence of at least one of the limited set of circumstances listed in regulation 19(5).

9.	Therefore in this case an obvious issue arose, namely whether or not any of the circumstances set out in Regulation 19(5) applied to the claimant.

10.	By letter dated 29 November 1999 Mrs Hall, on behalf of the Department, made the following succinct and relevant submissions:-

		"1.  [The Claimant's] grounds of appeal are that the tribunal 
		gave no reason as to why, having accepted he was ill, regulation 
		19(5) of the Social Security (Claims and Payments) Regulations 
		(NI) 1987 ("the Claims and Payments regulations") did not apply.  
		He stated that he had obtained assistance from his mother in 
		relation to his incapacity claim, but she was not advised to 
		claim income support by the Department.

		2. The decision of the Northern Ireland Chief Commissioner in 
		C12/98(IS) concerned a case similar to the instant case.  A young 
		man had obtained assistance from his mother to make a claim for 
		incapacity benefit.  The claim was later disallowed, as the 
		contribution conditions were not satisfied.  He then made a late 
		claim for income support and wanted his claim backdated as he 
		considered that the provisions of regulation 19(5)(b) of the 
		Claims and Payments Regulations were satisfied.

		The Chief Commissioner gave his views on regulation 19(4)(b) and 
		(5)(b) of the Claims and Payments Regulations.  He stated at 
		paragraph 11:

		"It is important to remember that there are two hurdles to 
		overcome ... namely (i) it has to be shown that it was not 
		reasonably practicable for him to have obtained assistance 
		from another person to make his claim (regulation 19(5)(b)) 
		and (ii) as a consequence the claimant could not have reasonably 
		been expected to claim earlier (regulation 19(4)).  "Reasonably 
		practicable for him to obtain some assistance" accordingly must 
		mean something other than can "reasonably have been expected to 
		make the claim earlier", otherwise there would be no need for 
		the two sub-paragraphs to consist of different terminology in 
		qualifying reasonableness."

		The Chief Commissioner also held that regulation 19(5)(b) places 
		an obligation on the sick or disabled person to seek assistance 
		with a claim unless it is not practicable to do so.

		3. In the instant case, [the claimant] stated in his grounds of 
		appeal that he had been unconscious for a long period.  I would 
		submit, respectfully, that it would not be "practicable" for a 
		person in an unconscious state to seek assistance with a claim.  
		I submit also that the tribunal should have investigated the 
		period of unconsciousness.  By not determining the extent of 
		[the claimant's] injuries, the tribunal had insufficient 
		evidence on which to base its decision and consequently erred 
		in law (R(SB) 11/83).

		4. In C12/98(IS), the Commissioner decided that the tribunal had 
		erred in law.  It did not explain why it was not practicable for 
		the claimant to seek assistance with a claim for income support 
		when he had received assistance to make a claim for incapacity 
		benefit.  Although [the claimant's] mother had made a claim for 
		incapacity benefit on his behalf, I would submit that this should 
		not be taken into account in this case.  If it is accepted that 
		he was unconscious and unable to claim, any action taken by [the 
		claimant's] mother would have been without his knowledge.  If 
		it is accepted that it was not reasonably practicable for [the 
		claimant] to obtain assistance while he was unconscious, and his 
		mother had not taken any action, he would not be penalised.  It 
		would seem unfair if his mother's attempt to assist resulted in 
		lost benefit.

		5. Conclusion

		To conclude, I submit that the tribunal erred in law by not 
		investigating the extent of [the claimant's] injuries, particularly 
		whether and for how long he was unconscious.  There was 
		insufficient evidence on which to base its decision.  If the 
		Commissioner agrees with the above submission, I would suggest 
		that he might remit the case to a tribunal to investigate the 
		extent of [the claimant's] injuries at the time of his accident, 
		in particular whether and for how long he was unconscious."

11.	No further submissions were made either by the claimant or on his behalf by his representative although an opportunity to make any additional comments was given to the claimant and his representative, Mr Brady.

12.	In my view, the Tribunal exercising its inquisitorial functions, ought to have investigated the nature and extent of the claimant's injuries, and in particular whether or not he was unconscious as he has alleged, before deciding whether regulation 19(5)(b) was applicable.  It seems to me self-evident that, if the claimant was unconscious at the relevant time, it could not have been "reasonably practicable for him to obtain assistance from" his mother "to make his claim".  If, as it appears, the claimant's mother had made a claim for Incapacity Benefit at a time when it is possible that the claimant was unconscious, for the reasons stated by Mrs Hall I consider that this should not be taken into account.  The reason for this is that if he was unconscious and was unable to make the appropriate claim, any action taken by his mother must have been in fact without his knowledge.  As Mrs Hall has pointed out, if it was accepted that it was not reasonably practicable for the claimant to obtain assistance while he was unconscious and his mother had not taken any action the claimant would not have suffered any penalty.  Therefore it cannot be appropriate that the claimant's mother's attempt to assist her son by making a claim on his behalf for Incapacity Benefit should penalise the claimant in his attempt to obtain Income Support.

13.	It is necessary, in my view, in these circumstances for a Tribunal to investigate in particular the length and the extent of any alleged unconsciousness on the claimant's part.  It is clear that there was not sufficient evidence before the Tribunal to come to any reasonable decision on this issue but, exercising its inquisitorial functions, the Tribunal ought to have dealt with this matter.  In the circumstances I hold that the Tribunal erred in law by not so doing.

14.	Accordingly I find that the Tribunal's decision was erroneous in point of law.  I therefore allow this appeal.  In the circumstances I set the Tribunal's decision aside and refer the case back for redetermination by a freshly constituted Tribunal which should have regard to my views expressed in this decision.

	(Signed):  J A  H Martin
					
	CHIEF COMMISSIONER

	21 February 2000