[1999] UKSSCSC CIS_610_1998 (04 February 1999)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's case no:             CIS/610/1998

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM A DECISION OF THE SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Mr Commissioner David Williams

	

1	I allow the claimant's appeal. It is brought by leave of the chairman against the decision of the Stoke social security appeal tribunal. The decision was that the claimant was not entitled to income support from 26 September 1997 to 6 October 1997.  For the reasons below,  the decision of the tribunal is  erroneous in law.  I therefore set it aside.  I refer the case to a freshly constituted tribunal to determine the appeal in accordance with this decision. 

2	This appeal is by a claimant who was receiving jobseeker's allowance but was advised by his general practitioner that he was to refrain from work.
He received jobseeker's allowance until 25 September 1997.  On Friday 26 September 1997 his general practitioner issued a Med 3 certificate. Neither that certificate nor the reasons for the certificate are on the file, although they should be as they are clearly relevant to the issue in dispute. However, it is clear that the certificate was enough to convince an adjudication officer that the all work test was satisfied and treated as satisfied (the officer has stated that both apply) from 26 September 1997.

3	The other facts found by the tribunal, are:
	“On either the 26 or the 29 September the appellant went to the Department of Social Security with his medical certificate. This was a queue for the counter and he did not wish to wait. He approached the security guard and asked if he could hand the medical certificate to him. The guard told him he need not fill anything in, took the medical certificate off him and made a note of the national insurance number in the logging in book. The appellant believed that the guard was employed by the Benefits Agency.
	The following Saturday the appellant received an incapacity benefit claim form in the post. He subsequently rang the Job Centre and the Department and was told to complete and return the form to the Department of Social Security.
	He completed the form and took it into the Department of Social Security. While queuing he was advised by another customer to apply for income support as well. Again he checked the information with the guard who confirmed this might be the case. He therefore remained in the queue until he reached the counter. At the counter he was advised to claim incapacity benefit but to back it up with a claim for income support He therefore completed claim forms for both benefits on that date, the 6 October 1997 and has been paid income support on that claim since that date.”    
4	The law relating to late claims for income support is in the Social Security (Claims and Payments) Regulations 1987, in particular regulations 4, 6, and 19.  The key provisions are set out in the submission to the tribunal and I do not need to repeat them at length here. Decisions under these provisions are at present made partly by the Secretary of State and partly by an adjudication officer. Only the decisions made by an adjudication officer can be considered by a tribunal, but the powers of the Secretary of State should also be noted.

Decisions for the Secretary of State

5	The first relevant provision is regulation 4. There appears to have been no consideration by the Secretary of State of this provision. Regulation 4(1) is relevant in that the claimant handed in a sick note that might be viewed in the particular circumstances as a claim made “in such other manner, being in writing” as is sufficient in those circumstances. [The relevant form of the regulation is that before the amendments taking effect on Monday 6 October 1997, when income support was excluded from this provision.] Alternatively, the sick note might be regarded as a claim made in writing but not on the correct form, or a defective claim, when regulation 4(7) might be considered. The correct form was, on the facts, returned within one month of the sick note being handed in. 

6	Alternatively, consideration might be given by the Secretary of State to regulation 19(6). This allows a late claim for income support within one month of the proper date if the Secretary of State considers that to allow the late claim would be consistent with the proper administration of benefit. In this case, the claimant does not appear to have been aware of the significance of his being certified incapable of work, although he did appear fully aware of the need to notify the Department of Social Security as soon as possible of his change of circumstances. He did that although he did not fill in all the necessary forms immediately. The facts suggest that his claim for benefit was strengthened rather than weakened by events, but the procedures appear to have stopped his benefit altogether. I note in particular that most of the delay in this case was because the incapacity benefit form took a week to be posted to the claimant, while the claimant returned it on the first working day after receipt. It is for the Secretary of State to say whether that is consistent with the proper administration of benefit, but in my view the facts suggest that this matter ought to be considered.

Decisions for the adjudication officer and tribunal 

Regulation 6

7	Regulation 6(1) is relevant because of the saving provision in regulation 6(1)(aa) which applies “ in the case of a claim if first notification is received before 6 October 1997”. As the adjudication officer now acting points out, the tribunal has not considered when first notification was received. It assumed that the claim form received on 6 October was the first notification.  In so doing it failed to consider the visit to the Department of Social Security office when the sick note was handed in, and telephone calls of which there is evidence in the papers. The tribunal's failure to consider those matters is an error of law.

Regulation 19(5)(d)

8	Regulation 19(5) contains 8 alternative reasons justifying a late claim for income support. The tribunal considered one, regulation 19(4)(d), which states:
	“the claimant was given information by an officer of the Department of Social Security or of the Department for Education and Employment which led the claimant to believe that a claim for benefit would not succeed.”
The claimant's representative argued that the tribunal erred in applying this  too narrowly.  In my view that is right about both its elements.

9	First, was this security guard “an officer” of the Department of Social Security?  This is clearly general language and would therefore cover, for example, the Department's press officers and telephone advisers. But does it cover a sub-contracted security guard? “Officer” is not used here in the technical senses of someone of a superior rank in a military or similar force, or individual grades in the Home Civil Service, or those working directly as employees in the Department of Social Security rather than for its executive agencies or others, nor in the sense that a Minister of State is an officer of the Department but not an employee. It means someone carrying out  public functions for the Department.  A security guard may not in all cases come within that description, but on the facts this security guard could have done so.  Whether he did is, however, a question of fact.

10	According to the record of proceedings, he was organising the queuing of claimants, was wearing a jacket with “Benefits Agency” on the back, and was logging people into an official log book and collecting documents.  He was giving advice to claimants, or at least to this claimant. In other words, his appearance, his location, his actions, and his words may all have reasonably suggested that he had authority to do what he was doing, and that it was reasonable for a claimant to ask him for help.  If that authority was not actual, then it is arguable that  on the facts the guard was acting in a way that suggested to third parties that he was authorised to act. The issue is whether the representation by conduct of the Department was sufficiently clear and unequivocal in this situation to satisfy the tests for apparent authority of an agent.  The tribunal found that this was not so, simply because, without explanation,  the guard was “not to be considered to be an officer of the Department”. In my view, on the facts recorded in the record of proceedings and not challenged at any point in the case papers, the guard could as a matter of law be considered an officer of the Department in the ordinary meaning of that term, and the tribunal erred in law in not considering the issue adequately.

11	The other test in regulation 19(5)(d) is that: “the claimant was given information ... which led the claimant to believe that a claim for benefit would not succeed.” The tribunal found that this was not so: “... the appellant believed that his claim for benefit was being processed.” However, there is an underlying issue about which  claim or claims is meant by “a claim” in the provision. Here the claimant had been receiving benefit. He had taken along a form to the Department of Social Security as he was told to do, and had handed it to someone who was at least arguably an officer of the Department, who had duly logged its receipt. The record of proceedings suggests that the guard told the claimant not to fill anything in. This is confirmed by the comment (on document 43) that the claimant was under the impression that he did not need to make a claim in connection with his transfer from jobseeker's allowance to income support. That could be interpreted to mean that he did not need to make another claim. It would follow that any such claim would be a waste of time and would not in that sense succeed.

12	When the rule refers to “a claim for benefit”, does it mean the claim already made (as the tribunal understood it to mean) or a new and additional claim (as the claimant understood it to mean)? The words are to have their ordinary meaning, and are not wide enough to refer to all claims by the claimant for any benefit regardless of the times when they are made. I take the provision to be referring to the new claim or claims about which the guard was advising the claimant. In this case it was the new claims because of incapacity for work that the claimant would make if he queued, not the previous claim already in process. The claimant may have been  under the impression because of what he was told that any new claim would not succeed. That being so, the tribunal should have considered the issue specifically, and not referred back to the previous claim. I find that the tribunal also erred on this issue.

13	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.

Regulation 19(5)(b)

14	The tribunal did not consider any of the other 7 reasons in regulation 19(5) at all.  The adjudication officer now acting submits that the tribunal erred in law in not considering regulation 19(5)(b).  This states:
	“... 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.” 
The adjudication officer's submission to the tribunal does not consider regulation 19(5)(b), and contains no mention of why the claimant was ill.  Nor is there any specific indication of the claimant’s incapacity in the case papers.  Nor was the matter raised by the tribunal with the claimant at the hearing.  All we know is that a certificate was issued and that the claimant, when he turned up to the Department of Social Security local office, did not queue.  Nor do we know how long the queuing might have involved. It may have been the illness, or it may have been impatience, or it may have been some other reason that stopped the claimant queuing: we do not know.  

15	If the claimant was unable to queue for the necessary time, other questions would arise. As the claimant clearly did not know the rules, I accept the submission that the tribunal should have at least considered this matter briefly.  It may have been obvious from the details on the general practitioner's certificate or other evidence that regulation 19(5)(b) did not apply.  But the tribunal, which had no evidence at all on the matter save that the claimant suffered from a problem of sufficient severity to render him incapable of work, erred in not considering it at all.

Decision

16	In paragraphs 5 and 6 I drew attention to the powers of the Secretary of State related to the claimant’s claim in this case. I direct the adjudication officer to draw this decision to the attention  of the Secretary of State to consider if any of the provisions noted above should be applied to this claim, and to advise the tribunal of the outcome of that consideration.  If the Secretary of State  finds that the claim can be accepted from 26 September 1997, then this appeal is superseded and will not need to be referred to a tribunal. Otherwise, the matter is to be referred to a new tribunal to determine in the light of this decision and the decisions taken by the Secretary of State whether the claimant was entitled to income support from Friday 26 September to Monday 6 October 1997. 

								David Williams
								Commissioner

								4 February 1999