[2007] UKSSCSC CIS_51_2007 (22 May 2007)

PLH                                                         Commissioner's Files:  CIS 51/07 & CIB 52/07

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claims for:  	Income Support & Incapacity Benefit
Appeal Tribunal: 	Manchester 
Tribunal Case Ref:  	U/06/929/2006/01531 & 02530
Tribunal date:	7 September 2006
Reasons issued:	23 October 2006

     1.     	These two appeals by the claimant are dismissed, as despite the support given to them on behalf of the Secretary of State I am not persuaded that there was any sufficiently material error of law on the part of the Manchester appeal tribunal (Mrs W Walker, chairman, sitting alone) on 7 September 2006 to warrant either of the two decisions she gave on that date being set aside as erroneous in law.  
     2.     	The factual situation and procedural history of the case as presented to the chairman was unfortunately anything but clear.  Neither the claimant nor the Secretary of State attended the hearing but fortunately she did have the assistance of an experienced representative, Mr G Elliott of the South Manchester Law Centre, who appeared for the claimant and had previously submitted evidence and written submissions on his behalf. Mr Elliott explained that the Law Centre had recently learned that the claimant was in prison though Mr Elliott did not know why.  However he confirmed that he wished the appeals to proceed on the existing material in the absence of the claimant, who had given written authority to this effect.  After confirming that there was no reason to suppose the reasons for the claimant’s imprisonment might be relevant to these appeals, the chairman agreed to that request.  There is no criticism of her for going ahead with the hearing in those circumstances, and nor could there be.  
     3.     	It appeared from the material before her that the claimant had made claims for both incapacity benefit and income support on 6 January 2006, and was appealing against not being awarded benefit on either of them.  However the precise way in which the decisions not to award him benefit had been made and communicated to him was left a lot less clear than it might have been; and the notice of appeal lodged on his behalf by the Law Centre complained of an apparent failure to make any decisions on his claims at all. The departmental written submission to the tribunal failed to produce even such an elementary housekeeping requirement as copies of the decisions under appeal as issued and notified to the claimant.  It really ought not to be impossible for the Secretary of State to identify what decisions have been taken in relation to any particular claim for benefit and the terms in which these have been actually notified to the claimant, and to supply the tribunal with copies of these as a matter of course in every single appeal submission.  Without such basic necessities the proper functioning of the appeal process may be impaired, and at the very least the work of the tribunal is made a lot harder.  This is especially so now that the Secretary of State routinely (and regrettably) fails to attend the hearing of tribunal proceedings to which he is a party, and leaves the tribunal to pick up the pieces on the basis of such written submissions as he sends in.  
     4.     	Fortunately despite the lack of clarity in this case the tribunal chairman was able to piece together (from references in the papers to computer records and other internal departmental documents) that decisions of some kind had been made on behalf of the Secretary of State on each of the two claims of 6 January 2006.  For income support there was a record of what was identified on the computer as a “disallowance or disqualification” on 29 March 2006 (document M); and for incapacity benefit there was a signed internal record of an officer on behalf of the Secretary of State having determined on 30 March 2006 (the claim being “closed” next day: documents I, N) that:
“Although the Secretary of State has accepted the claim for incapacity benefit received on 10.01.06 as in sufficient manner to be a claim for benefit I am not satisfied that it is a valid claim for benefit.  This is because [the claimant] has failed to provide proof of his identity and address.”
     5.     	Although as I say the dates and terms in which those apparent decisions were issued or notified to the claimant remained (and remain) quite unnecessarily obscure, there is no real doubt that (a) at or about the end of March 2006, decisions had been made on behalf of the Secretary of State that the claimant was not going to be given any benefit on either of his claims of 6 January; and (b) it was the failure to find him entitled to benefit on each of those claims that he wished to dispute, by way of the two appeals lodged by the Law Centre on his behalf which the tribunal had to determine.  
     6.     	Despite further confusion caused by letters issued to the claimant (not even in the name of the Secretary of State, but of “Jobcentre Plus”) citing different reasons for his not getting benefit, it was apparent by the date of the tribunal hearing what the substantive reasons had been for no award being made on either of his claims of 6 January 2006, and for the claims being treated in the department as effectively disposed of so that no further action was taken on them.  These were that the claimant had failed to provide satisfactory evidence of his identity, or the correctness of his address, to resolve some perfectly legitimate doubts that arose about these from the information given in his claim forms; and the lack of any satisfactory response to the enquiries made by departmental officers attempting to resolve them in the course of processing the claims.  In particular, the national insurance number entered on the claim forms as his was shown in the department’s records as belonging to a differently named individual altogether; and when the officers attempted to get in touch with him at the address given as his they were met with denials that anyone of the claimant’s name lived or was known there.  Further enquiries by letter addressed to the claimant had failed to produce any response from him, and the doubts arising from his two claim forms remained.
     7.     	Those being the substantive reasons why departmental officers had determined at the end of March 2006 not to award the claimant any benefit on his two claims of 6 January, it seems to me that Mr Elliott was entirely right in defining the scope and subject matter of the appeal as he did at the start of his written submissions to the tribunal (document S2):
“This appeal is about whether or not the appellant satisfied the evidence requirements.”
What was thus challenged in the appeal was the correctness of the two decisions whose effect was that he got no award of benefit because those requirements were not considered to be satisfied on either claim.  
     8.     	As a matter of language it seems to me indifferent whether one expresses that by saying he had not shown he had a “valid claim” to each benefit being sought, or that his claims failed to show he qualified for entitlement and so they were disallowed.  For all practical purposes it comes to the same thing.  This is however an area where it is well to be careful of the language one uses, because it is easy enough to muddle up (a) the requirements for making a claim under the regulations (which are purely a matter of form and procedure), and (b) the obvious and universal necessity for any person making such a claim to substantiate it by showing he meets the qualifying conditions for entitlement (which is a matter of fact and evidence).  To complete the prescribed form giving a name, address and national insurance number complies with (a); to show that the name, address and number given are genuinely those of the person submitting the claim form is within (b).  Rather than speaking of a “valid claim” I therefore prefer the formulation adopted by the tribunal chairman in the opening paragraph of her statement of reasons, when she recorded that the claimant appealed against two decisions made by the Secretary of State on 29 and 31 March 2006 “that he was not entitled” to income support and incapacity benefit from 6 January 2006.  That was in my judgment a correct assessment of the substance and effect of the decisions given, even if not of their actual terms.  
     9.     	She was further in my judgment entirely correct in identifying the material issues of fact she had to determine as she did in the course of the hearing itself, recorded in her own note of the proceedings (document U3) in the following terms:
“As I see it, issues in appeal are whether the information which appellant was required to give was reasonably required in relation to appellant’s incapacity benefit/income support claims, and whether appellant provided the information and whether a reasonable time was given to appellant to provide it.”
     10.     	That summary appears to me accurately to reflect the evidence requirements applicable to every person who makes a claim for either of these benefits, no doubt also in Mr Elliott’s mind when he referred in his submission to the “evidence requirements”. They are to be found in regulation 7 of the Social Security (Claims and Payments) Regulations 1987 SI No. 1968, under the heading “Evidence and Information”:
“7.  (1)  … every person who makes a claim for benefit shall furnish such certificates, documents, information and evidence in connection with the claim, or any question arising out of it, as may be required by the Secretary of State … and shall do so within one month of being required to do so or such longer period as the Secretary of State … may consider reasonable.”
At the risk of stating the blindingly obvious, this is a provision that applies in relation to claims once they have been made in a procedurally effective manner so that they have got to be processed: it enables the Secretary of State to require any additional or confirmatory information or evidence to ensure that they are processed properly, so that claimants are awarded the benefit to which they are shown to be entitled, and not awarded benefits to which they are not.
     11.     	The provisions of regulation 7(1) thus apply only to persons who have made  something that can be identified as a procedurally effective claim.  They are separate and distinct from the provisions earlier in the same regulations that define what amounts to such a claim, and set out the procedural requirements for making claims if they are to be recognised as such and require the claims adjudication process to be put in motion at all.  Particularly in relation to income support and jobseeker’s allowance those earlier provisions, now in regulations 4 to 6A, have been greatly encumbered and complicated with a plethora of additional provisions attempting to circumscribe and define more closely what is and is not to be accepted as amounting to  a “claim” for benefit for this purpose, and the date on which such a claim is treated as effectively made.  It is important to bear in mind that those earlier provisions are not concerned with the confirmation or correctness of the information entered by a claimant on his claim form or otherwise supplied by him as part of his claim: only with the question of whether the claim is procedurally an effective one at all, so as to require that information to be looked at and the substance of the claim to entitlement evaluated.  For these reasons it seems to me better nowadays to avoid expressions such as “valid” or “invalid” in relation to claims unless one also makes very clear whether this refers to procedural effectiveness, in the sense of something requiring the adjudication process to be started, or substantive validity in the sense of a claim on which the qualifying conditions for an actual award of benefit are shown to be met.
     12.     	In each of the present cases it seems to me the tribunal chairman was right in the substance of her decision that the claims failed, and entitlement to the benefit sought had been rightly refused, not because of any formal defect in the documents submitted as claim forms but because when those documents began to be evaluated in the course of the adjudication process, the necessary information and evidence required to confirm and establish the entitlement sought was not provided; and the opportunity afforded to the claimant to provide it and establish entitlement under regulation 7 was not taken up.  As she recorded in her statement of reasons:
“There was genuine doubt about the identity of the claimant, … his address and his national insurance number.  The Secretary of State had caused all enquiries to be made which could reasonably be expected to be made in order to resolve the doubts and ambiguities in the claim forms and had given sufficient time for the claimant to respond.  
The claim forms were requested on 06/01/06 and lodged on 10/01/06.  The first letter was sent to the claimant on 27/01/06 but no response was received.  The second letter was sent to him on 22/02/06.  No response had been received over a month later.  It was reasonable for the Secretary of State to require the additional information requested in those letters.  The claimant had been given ample time to provide the information requested but he failed to do so.
The Secretary of State therefore reasonably and properly decided on 29/03/06 that [the claimant] was not entitled to income support and on 31/03/06 that he was not entitled to incapacity benefit on the grounds that he had not provided within the time reasonably allowed the evidence required in connection with his claims.”
     13.     	In my judgment, the passage just quoted embodies the substantive reasons for the tribunal chairman’s decision and they are unimpeachable.  Whatever the truth about the apparent confusion of identity, national insurance number and address of the person who claimed these benefits on 6 January 2006, it could not be said in view of his total failure to respond to reasonable and legitimate enquiries about these matters that a case for any award of benefit had been established on either claim; or that any further time needed to be allowed before a decision was made to reject each of them.  Accordingly in my judgment the tribunal chairman was right to confirm that each had been properly rejected and there was no entitlement on either.  
     14.     	My only reservation arises from the final sentence in her statement of reasons when immediately after expressing her conclusions in the passage quoted above she added:
“The claim forms were therefore defective and the claims for income support and incapacity benefit not validly made.”
That additional comment appears to me to fall into the trap of confusing the two things which for the reasons given above I think have to be kept separate, namely whether there is something that can be identified as procedurally effective to constitute a claim requiring the adjudication process to be set in motion, and whether in the course of that process once there is such a claim the information provided by the claimant on or in connection with it establishes that the conditions for entitlement to benefit are met.  Plainly from the whole of what she had said in her statement of reasons down to that final sentence, and the way in which she approached and decided the substance of the questions on the appeal in terms of regulation 7 and of entitlement, the chairman had approached the entire case on the basis that this was within the second of those categories and in my judgment she was quite right to do so.  In that context I do not think her final sentence can be fairly read as showing that she really misdirected herself as to what the entire case was about, or considered it was to do with some unidentified procedural defect in the claim form: and for practical purposes I think it best simply disregarded as an immaterial though unfortunate confusion of expression, perhaps partly due to the confused procedural history and documents with which she was having to cope.
     15.     	I therefore dismiss both of these appeals.  In doing so I do not in any way disparage the careful submissions both of Mr Elliott on behalf of the claimant and of Mr Spencer on behalf of the Secretary of State in support of them, though on the view I have taken of the matter as set out above it is not necessary to prolong this decision by commenting on all of the points made in detail.  
     16.     	So far as the way the tribunal chairman dealt with the facts in the case, I cannot accept that there was anything unreasonable in her holding that the claimant had failed to comply with requirements legitimately made of him under regulation 7 within the time reasonably allowed, and for that reason had failed to establish entitlement to benefit on his claim.  It is for every person who makes a claim to benefit to establish his entitlement and provide sufficient information and evidence to show that he meets the qualifying conditions.  Of course as was emphasised in Kerr v. Department for Social Development [2004] UK HL 23 the adjudication process in such a complex system as this is not wholly adversarial, and it requires reasonable co‑operation from the Secretary of State and statutory authorities to determine the claimant’s true entitlement.  However it could not be said here that it was unreasonable for them to reject the claims after legitimate doubts had arisen and remained unresolved on something so fundamental as the identity and national insurance record of the person claiming, and enquiries had apparently been ignored despite being sent to the address he had himself given in the claim form as his.  
     17.     	In such circumstances the reason the claim must be rejected is that the claimant has failed to comply with reasonable evidence requirements, and consequently has not been shown by the available material to meet the conditions for entitlement.  Unlike the situation where an existing award of benefit to a person is sought to be taken away by showing that the evidence of their identity originally accepted was false, the initial rejection of a claim on the ground that sufficient evidence to support entitlement has not been provided involves no particular accusation of anything, other than the failure to meet the evidence requirements.  To be asked to explain apparent inconsistencies is not to be required to prove an impossible negative, nor in my view is it in any way “oppressive” for a claim to be rejected when no response of any kind is received to such enquiries.  
     18.     	As will be apparent from what I have already said I agree with a great deal of what is said in Mr Spencer’s submission on behalf of the Secretary of State, in particular about the important distinction between the procedural requirements for something to be recognised as an effective claim, and the evidential requirements for the purpose of substantiating such a claim once made; but I do not think a fair reading of the tribunal chairman’s decision and statement of reasons requires me to conclude that she wrongly confused the two.  Nor in my view does such a reading show her to have restricted herself, as Mr Spencer’s submission at paragraph 9 suggests, to a “judicial review” of the actions of the Secretary of State instead of determining all relevant issues for herself on the appeal.  It seems to me in the context of what was said in Kerr cited above, and the requirement for a “reasonable” period within regulation 7(1), that she addressed the right questions in asking herself whether the claimant had failed to provide within a reasonable time the evidence reasonably needed to substantiate his claims, and the decision to confirm the rejection of the claims embodied her own conclusion on the facts before her.
     19.     	For those reasons, I dismiss both of these appeals.
(Signed)

P L Howell
Commissioner 
22 May 2007