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[2004] UKSSCSC CP_3447_2003 (05 May 2004)

PLH Commissioner's File: CP 3447/03

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Retirement Pension

Appeal Tribunal: Sutton

Tribunal Case Ref: U/45/176/2002/01099

Tribunal date: 23 May 2003

Reasons issued: 4 June 2003

1. This claimant's appeal succeeds. I am satisfied that the tribunal chairman sitting alone at Sutton on 23 May 2003 was wrong in law to hold the claimant disentitled to any adult dependency increase on his retirement pension in respect of his wife for the period before 17 April 2000. I set aside the decision and exercise the power in section 14(8)(a) Social Security Act 1998 to substitute the one I am satisfied the tribunal should have given on the undisputed facts, namely that the claimant was entitled to the adult dependency increase for his wife at all material times from the start of his pension on 22 March 1999, the beginning of the first pension week after his 65^th birthday on the 19^th.
2. There is no dispute that the claimant and his wife in fact met all the qualifying conditions for the increase from the start of his pension, subject to there being a valid claim for it. It is also undisputed that in the original claim form for his pension in 1999 the claimant gave a clear written indication that he wanted the increase for his wife. The only reason he did not get it from the outset was that the local benefit office failed to send him a further form as they should have done, to fill in some extra details that were needed about his wife. As a result his application for the increase never went any further at that time and his pension was calculated and paid to him without including it. The omission unfortunately did not come to light until the following year when the claimant wrote to enquire whether he was getting the increase after a query on his tax return.
3. The required form was then finally issued to him, the claimant duly completed it and it showed he should have had the increase for his wife all along. The Secretary of State however refused to pay it back to the start of the pension, on the ground that it had never been effectively claimed before the completed form was received back on 27 July 2000 and the maximum period of entitlement under the regulations was limited to the three months before that. That argument was adopted in the tribunal chairman's decision subject to a minor adjustment in the claimant's favour suggested by the Secretary of State who was willing to accept the claimant's letter of enquiry some ten days earlier as the claim, so that the three months was measured back from that.
4. This case has a rather long drawn out procedural history (and I am sorry that the time it has had to await its turn for decision at this final stage has not helped) but the important facts are as I say not disputed, and the merits of the claimant's appeal are also accepted in the extremely helpful written submission of Mr W Spencer on behalf of the Secretary of State dated 27 October 2003 at pages 168 to 171, supporting it.
5. The claimant is a man now aged 70 who duly claimed his retirement pension on the proper form at the right time in advance of his 65^th birthday on 19 March 1999. His wife, who is some years younger than he and had not then attained her own pensionable age of 60, has at all material times been living with him and dependent on him. Those facts entitled him to a dependency increase in respect of her under section 83 Social Security Contributions and Benefits Act 1992 from the commencement of his own pension on Monday 22 March 1999 subject only to any formalities needed to claim this increase as part of or in addition to his basic entitlement to pension for himself.
6. Under section 1 Social Security Administration Act 1992 it is a condition of entitlement to this, as for almost all other benefits, that a claim for it must be made in the manner and within the time prescribed by regulations. The relevant regulations are the Social Security (Claims and Payments) Regulations 1987 No. 1968 which contain a provision in regulation 2(3) that an adult dependency increase is to be treated as a "separate benefit" for claim purposes, which has the effect that the requirements about making a claim in the prescribed manner apply to it separately from the main benefit itself. Regulation 4 contains an extensive set of provisions prescribing the required form and manner for making a complete and effective claim for benefit.
7. Because the circumstances that have to be covered by the forms may vary widely, and to avoid claimants having to answer a lot of inappropriate questions unnecessarily, the Secretary of State makes use of supplemental or additional forms tailored to particular cases when the answers given on the original standard form show these to be needed. So the standard claim form for a retirement pension issued to the claimant around the time he reached retiring age asked him to give details of his wife including her date of birth, and to indicate if he wanted to claim the increase of his pension for her should he be entitled to it, for example if she was under 60. Part 8 of the form said:

"Claiming extra money added on to your Retirement Pension. If you want to claim extra money, please tell us who you want to claim for. ... If you have ticked that you want to claim extra money for someone, we will send you a form to fill in".

The original claim form filled in by the claimant is no longer available, having been destroyed in what the Secretary of State's submission to the tribunal disarmingly described as "... the Department's policy on document retention", but it is accepted that the claimant did duly complete part 8 clearly indicating that he wanted his claim to include the increase for his wife, and he also sent in both their birth and marriage certificates to show he was entitled to it. As frankly acknowledged in the departmental letter of 7 November 2001 at pages 24 to 25, the local office dealing with the claim then failed to issue him with the further form that this ought to have generated, and that was the reason no action was taken about the increase until his enquiry the following year when the form was finally issued to him and promptly completed, and his entitlement confirmed.

8. Well before the case came before the tribunal the Secretary of State had accepted, in my view entirely correctly, that the original decision measuring the date of claim only from the final receipt of the additional form on 27 July 2000 was wrong. The claimant's letter of enquiry about whether he had been getting the pension increase he thought he was entitled to, received in the appropriate office on 17 July 2000, was very properly accepted as amounting to a sufficient claim in writing subject to any required details being provided (as they duly were) on the approved form once issued to him: see pages 1B, 1J. The legislative provision for this is in regulation 4(7) of the Claims and Payments regulations which prescribes so far as material that:

"4. - (7) If a claim…is defective at the date when it is received…, or has been made in writing but not on the form approved for the time being, the Secretary of State…may refer the claim to the person making it or, as the case may be, supply him with the approved form, and if the form is received properly completed one month…from the date on which it is so referred or supplied, the Secretary of State…shall treat the claim as if it had been duly made in the first instance".

9. There is thus no doubt that (a) the Secretary of State validly exercised his power under this regulation by supplying the claimant with the approved supplemental form for the increase for his wife after he had made a claim for it in writing but not on that form; (b) the form was received properly completed and well within the month after it was eventually issued; and therefore (c) the Secretary of State thereupon became bound by the express terms of regulation 4(7) to treat the claim as if it had been duly made in the first instance. The question for the tribunal was whether "in the first instance" meant on the particular facts of this case the original indication given by the claimant in writing on his claim form in 1999 that he wanted the increase for his wife, or only the letter of enquiry in July the following year when he queried whether he had in fact been getting it.
10. At the tribunal stage the Secretary of State and the tribunal considered they were bound to hold that regulation 4(7) could only operate by reference to the enquiry letter in July 2000, and the original claim form was incapable of constituting a claim for this purpose. Their main reason for that view was the decision of another tribunal chairman sitting as a deputy Commissioner in case CP 216/01, where on somewhat similar facts he had held no claim could be treated as having been made until the fully completed supplemental form was actually received in the appropriate office, saying:

"Part 8 in the original form is a trigger to the issue of a claim form and no more. Completion of that section does not of itself found a claim. Failure by the Benefits Agency to act upon that request does not turn it into a claim under regulation 4(1)."

11. The chairman's statement of reasons in the present case made it clear that while very properly following CP 216/01 as a decision having the status of that of a Commissioner he regarded it as wrongly decided, and I have to say I agree with him. In the first place, to pronounce categorically that a clear written indication in a signed claim form of the kind in point here cannot possibly "found a claim" for the purposes of regulation 4(1) seems to me in danger of trespassing on the discretion of the Secretary of State under that regulation to accept any manner of written claim as sufficient in a particular case, which is a matter for him. Secondly and in any event, what is said in the decision fails to address the possible application of regulation 4(7) at all, despite its apparent relevance in that case since it was expressly referred to in an earlier paragraph.
12. It may be that as suggested by the chairman in the present case a different view might have been taken in CP 216/01 in the light of the more recent decision in CIS 540/02 (now R(IS) 6/04) which was not available at the time, or that as suggested by Mr Spencer in his submissions what was there said should be understood as directed only at regulation 4(1), the provisions of regulation 4(7) being for some reason inapplicable on the facts of that case. However that may be, the proposition quoted above by which the chairman in the present case felt himself bound was in my judgment too sweeping and should not be followed as if it were a general statement of principle applicable to all cases: even if (which I doubt) it was ever really so intended.
13. As Mr Spencer's submission correctly records, whether a claim for benefit in any of the terms referred to in the various paragraphs of regulation 4 has or has not been made is a question of fact to be determined according to the evidence and circumstances in the particular case, and within the jurisdiction of the tribunal to determine in any case of dispute. That is so even though it is for the Secretary of State to determine under regulation 4(1) whether written claims otherwise than in the prescribed form may be accepted as "sufficient", and under regulation 4(7) what action to take on receipt of a defective or otherwise imperfect written claim, such as asking supplemental questions or issuing a further form to enable it to be completed: R(U)9/60 paragraph 6, R(S)1/63 paragraph 4, R(SB) 5/89 paragraph 10, and R(IS)6/04.
14. On the facts of this present case the submission expressly concedes (on page 170, paragraph 8) that the clear indication given by the claimant in part 8 of his original retirement pension claim that he wished it to include the increase for his wife was an express and unambiguous statement sufficient to constitute a claim in writing within the explanation of that term in R(S)1/63 and that "it is hardly possible to conceive of a clearer or more express statement of intention to claim", as the claimant did everything the form stipulated as necessary to put this on record. Without needing or purporting to pronounce as a matter of general principle on whether ticking boxes in a form in the expectation of receiving a further one to fill in ought in all circumstances be accepted as the making of a "claim in writing" for the benefit concerned, it seems to me that concession was clearly right in the particular, and I hope unusual, circumstances of the department's own administrative error in this case. Even though it was not on the approved form required with all the details to enable it to be processed as a completed claim for the increase under regulation 4(1), it was a clear enough written indication that the claimant wanted the increase to bring regulation 4(7) into play, so the Secretary of State could not have properly treated the case for that purpose as one where no claim at all had been made.
15. In those circumstances, given that (a) a claim in writing for the increase is now accepted as having been made in the first instance by the claimant in early 1999 as part of the original claim for his pension, and (b) the Secretary of State did in fact exercise his powers in regulation 4(7) to supply the claimant with the approved form which was returned duly completed well within the month stipulated, the conditions under which the Secretary of State is bound to treat the claim as if it had been duly made "in the first instance" are in my judgment satisfied in reference to the original date of claim in 1999, not just the enquiry letter the following year. Since the requirement to treat the claim as duly made "in the first instance" is mandatory once the conditions are met, there is no further exercise of discretionary or administrative judgment for the Secretary of State to make under regulation 4(7) before the effect in terms of entitlement to benefit can be properly determined. Although it was only in response to the further enquiry that the form was eventually supplied the Secretary of State could not in my judgment possibly rely on that as an argument for saying that the existence of the first claim should be ignored, when the failure to supply the form in the first instance was admittedly an administrative error by his own local officials and should never have happened at all.
16. For those reasons I allow the appeal and set aside the tribunal decision, and rather than remit the case for the Secretary of State to reconsider regulation 4(7) as suggested by Mr Spencer, it seems to me that I can properly substitute what I am satisfied is the only possible decision on entitlement on the undisputed facts of the case. This is that the claimant, having made a claim in writing for the adult dependency increase at the time of his original pension claim and having duly complied with everything required of him under regulation 4(7) once the approved form was eventually supplied to him, was entitled to it from the commencement of his retirement pension on 22 March 1999 as if his claim for the increase had been duly made and completed in the first instance before that date.

(Signed)

P L Howell

Commissioner

5 May 2004