CIS/157/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Sutton appeal tribunal dated 28 June 2000 and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	Regulation 4 of the Social Security (Claims and Payments) Regulations 1987, as amended, makes provision for the claiming of benefit and paragraph (1A) provides:

“(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 Secretary of State for the purpose of the benefit for which the claim was made;

(b)	unless any of the reasons specified in paragraph (1B) applies, be made in accordance with the instructions on the form; and

(c)	unless any of the reasons specified in paragraph (1B) applies, include such information and evidence as the form may require in connection with the claim.”

By regulation 19(1) of, and paragraph 6 of Schedule 4 to, the Regulations, the time for claiming income support is the first day of the period in respect of which the claim is made.  However, regulation 19(4) and (5) provided at the material time:

“(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 three 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 result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.

(5)	The circumstances referred to in paragraph (4) are – 

	(a)	the claimant has difficulty communicating because-

(i)	he has leaning, language or literacy difficulties; or

(ii)	he is deaf or blind,

and it was not reasonably practicable for the claimant 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 the claimant to obtain assistance from another person to make his claim;

….”

3.	A form for claiming income support was issued to the claimant on 21 December 1999 and was returned by her on 10 January 2000.  On the form, she declared that she had an occupational pension.  The form said:

“You must send us proof of the pension.  For example, the latest statement from the company that pays it or a recent P60.”

In Part 14 of the form, the claimant ticked the box marked “Yes” beside the question “Can you provide all the documents we have asked for”.  Those answering “No” were asked to explain why.  The claimant did not in fact send any proof of her occupational pension when she submitted her claim form.  On 12 January 2000, an officer wrote to the claimant asking her to provide proof of her occupational pension.  A reply was received on 20 January when the claimant stated that her pension was £120.43 per month and she enclosed a statement dated 25 November 1994, confirming that amount.  On 21 January, an officer wrote asking for a more recent statement.  The necessary information was received on 31 January.  Income support was paid from 31 January on the ground that that was the effective date of claim as it was the date on which the information required by the claim form had been provided.  The claimant appealed on the ground that she had been ill and had been unable to provide the proof of her pension earlier than she did.

4.	The tribunal considered regulation 19(4) and (5)(b) but decided that the condition of regulation 19(4)(b) (that as a result of any circumstance within paragraph (5) the claimant could not reasonably have been expected to make the claim earlier) was not satisfied because the claimant had in fact made a claim for income support on 21 December 1999 when she obtained the claim form.  She appeals against that decision with my leave and her appeal is supported by the Secretary of State.  

5.	I agree with both parties that the tribunal misconstrued regulation 19.  It is plain from its context that, throughout that regulation, “claim” means a claim that is properly constituted for the purposes of regulation 4.  As is helpfully submitted by the Blackfriars Advice Centre on the claimant’s behalf, regulation 6(1A), which is concerned with the date on which a claim is effectively made, draws a distinction between a “notification of intention to make a claim”, a “defective claim” and a proper “claim”.  In this case, there had presumably been a “notification of intention to make a claim” on or before 21 December 1999 when the claim form was issued.  There was a “defective claim” on 10 January 2000.  The only proper “claim” was made on 31 January 2000.  I accept both parties’ submissions that regulation 19(4)(b) might have been satisfied if the claimant could not reasonably have been expected to make a properly constituted claim earlier than 31 January 2000 as a result of circumstances within regulation 19(5)(b).  Because she had misconstrued the legislation, the tribunal did not make any findings as to whether there had been circumstances within regulation 19(5) and, if so, as to their result.  

6.	As I do not have before me sufficient evidence upon which to substitute my own decision for the tribunal’s, this case must be considered by another tribunal.  The Secretary of State’s representative has helpfully drawn attention to three issues that the tribunal should bear in mind.  I accept his submissions and direct the tribunal to have regard to the following matters.  Firstly, the impracticability envisaged in regulation 19(5)(b) must be due to the illness or disability (see CIS/4490/98, decided in the context of the similarly worded regulation 19(5)(a)).  Secondly, “obtain” in regulation 19(5)(b) means “seek” rather than “receive” (see CIS/2057/98, also decided in the context of regulation 19(5(a)), so that it is irrelevant that the claimant might have been able to claim had someone else offered to provide assistance without the claimant taking the initiative.  Thirdly, if the claimant could reasonably have been expected to claim even one day earlier than she did, regulation 19(4)(b) will not be satisfied (see R(IS) 3/01).

(signed)	M. ROWLAND
Commissioner
15 October 2001