NBC-v-Department for Social Development (ESA) [2011] NICom 212

Decision No:  C5/11-12(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

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 27 July 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

2.	The decision of the appeal tribunal dated 27 July 2010 is in error of law.  The appeal tribunal should note, however, that the Department accepts that the appeal tribunal was misled by an omission in the appeal submission to consider, in detail, the potential application of regulation 6(1D)(c) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended.

3.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

4.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings in fact.  The fresh findings in fact are outlined below.

5.	My substituted decision is that the appellant is entitled to employment and support allowance (ESA) from 17 September 2009 to 31 October 2009.

Background

6.	On 11 February 2010 a decision-maker of the Department decided that the appellant was not entitled to ESA from 17 September 2009 to 31 October 2009.  The basis for the disallowance for this period was that the claim to ESA was not received within the prescribed time limit for claiming that benefit.  An appeal against the decision dated 11 February 2010 was received on 23 February 2010.  On 20 April 2009 the decision dated 11 February 2010 was looked at again but was not changed.

7.	Following an earlier postponement of the appeal, an appeal tribunal hearing took place on 27 July 2010.  The appellant was present and gave oral evidence.  The appeal tribunal disallowed the appeal and confirmed the decision dated 11 February 2009.  On 3 February 2010 an application for leave to appeal was received in the Appeals Service.  On 16 November 2010 the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

8.	On 3 December 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 on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 10 February 2011.  In these initial written observations, Miss McHugh, for DMS, opposed the application on the grounds cited by the appellant.  Written observations were shared with the appellant on 7 March 2011. On 16 March 2011 further correspondence was received from the appellant.  On 27 April 2011 Miss McHugh was asked to provide additional observations on the potential application of regulation 6(1D) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, to the issues arising in the appeal.  On 9 May 2011 further observations were received which were shared with the appellant on 16 May 2011.  On 6 June 2011 further correspondence was received from the appellant.

Errors of law

9.	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.

10.	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?

11.	As was noted above, Miss McHugh was asked to provide written observations on the potential application of regulation 6(1D) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, to the issues arising in the appeal.  Miss McHugh’s reply was as follows:

‘Requested Further Observations

The Commissioner has written to me in the following terms;

“Is this a reference to the potential application of regulation 6(1D)(c) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended?

Regulation 6(1D)(c) provides that in the case of a claim for an employment and support allowance, the date on which the claim is made or treated as made shall be the first date on which the Department is notified of an intention to claim and within one month, or such longer period as the Department considers reasonable of first notification, a claim made by telephone is properly completed, or a properly completed claim is received in an appropriate office, or office mentioned in regulation 4G(3).”

The Commissioner asks;

“Does regulation 6(1D)(c) mean that the period for the return of the completed form (or completed telephone claim) is one month or such longer period as the Department considers reasonable?”

“Does regulation 6(1D)(c) impose a duty on the Department to consider the reasonableness of a period beyond one month?”

“Is there a requirement for the Department, following the making of an appeal against a decision, to inform the appeal tribunal that it has/has not exercised a discretion to allow an extended period of more than one month as reasonable?”

“Is an appeal tribunal, standing in the shoes of the Departmental decision maker, in a position to consider exercising the same discretion to consider the reasonableness of an extended period?”

Response on requested further observations

Regulation 6(1D)(c) of the Social Security (Claims and Payments) Regulations (NI) 1987 stipulates;

(1D)	In the case of a claim for an employment and support allowance, the date on which the claim is made or treated as made shall be the first date on which

	(a)	a claim made by telephone is properly completed, or a properly completed claim is received in an appropriate office, or office mentioned in regulation 4G(3);

	(b)	a defective claim is received or made but is treated as properly made in the first instance in accordance with regulation 4F(5) in the case of a telephone claim, or 4G(7) in the case of a written claim; or

	(c)	the Department is notified of an intention to claim and within one month or such longer period as the Department considers reasonable of first notification, a claim made by telephone is properly completed, or a properly completed claim is received in an appropriate office, or office mentioned in regulation 4G(3),

	or the first day in respect of which the claim is made, if later

I have viewed the regulation and I would agree that the period for the return of the form is one month or such longer as the Department may consider reasonable.  Additionally this regulation would impose a duty on the Department to consider reasonableness of a period beyond one month in relation to the treat as made date of the Employment and Support Allowance claim.

Furthermore I would acknowledge that the Department should have informed the appeal tribunal whether it has/has not exercised discretion to allow an extended period of more than a month as reasonable.

On viewing the decision I can confirm that reasonableness does not appear to have been considered in relation to the treat as made date of the Employment and Support Allowance claim form.

I would additionally submit that the Appeal Tribunal standing in the shoes as a Departmental decision maker was in a position to consider exercising the same discretion to consider the reasonableness of an extended period.  Therefore I would further submit that the tribunal has erred in law in not doing so.  However I acknowledge that it has been misdirected by the Department in this respect.

There is nothing specific in legislation or case law governing what is reasonable, it is therefore necessary to consider its dictionary meaning.

The Oxford dictionary meaning of “reasonable “is as follows:

“1 having judgement; moderate; ready to listen to reason.  2 in accordance with reason; not absurd.  3 a within the limits of reason; not greatly less or more than might be expected.  b inexpensive; not extortionate.  c tolerable, fair.  4 archaic endowed with the faculty of reason”

Having considered (the claimant’s) reasons for appealing to the Commissioner, I submit that it is arguable that the delay in returning her claim form was reasonable in view of the fact that she had sought help from the Citizen’s Advice Bureau, who were closed from 19/12/09 to 2/1/10, and the fact that the earliest appointment she could get with them was 29/1/10.’

12.	In the instant case, the appellant, on 16 December 2009, signified her intention to make a claim to ESA by requesting a claim form to that benefit.  The relevant claim form, a copy of which was attached to the original appeal submission as Tab No 1, was forwarded to the appellant on 16 December 2009.  I accept the appellant’s evidence that she encountered difficulties with the completion of the relevant form including the fact that the office of her representative, the Citizens Advice Bureau (CAB) was closed for a significant period over Christmas and the New Year and that when the office did eventually open, she had to wait for a further period of three weeks before she could have an appointment to see an officer from CAB.  The earliest date which she could get for such an appointment was 29 January 2010.  I accept that her claim form was completed, was forwarded to the Department and was received on 1 February 2010, which was the earliest date on which she could reasonably return it.

13.	Accordingly, for the purposes of regulation 6(1D)(c) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, I conclude that the date of claim is 16 December 2009.  That is the date on which the appellant signified her intention to make a claim to ESA and I conclude that the period from 16 December 2009 to 1 February 2010, when the properly completed claim is received in an appropriate office, was reasonable for the purposes of regulation 6(1D)(c) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended.  The period for making the claim is, for the purposes of regulation 19(1) and Schedule 4 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, 16 December 2009 and the period of three months immediately following it.  The appellant has been awarded an entitlement to ESA from 1 November 2009.  The appellant wished to claim ESA from 17 September 2009.  Accordingly, an award for the period from 17 September 2009 to 31 October 2009 may be made.

Disposal

14.	The decision of the appeal tribunal dated 27 July 2010 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

15.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings in fact.  The fresh findings in fact are outlined above.

16.	My substituted decision is that the appellant is entitled to ESA from 17 September 2009 to 31 October 2009.

(signed)  K Mullan

Chief Commissioner

26 September 2011