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[2008] UKUT 16 (AAC) (05 November 2008)

 


IN THE UPPER TRIBUNAL Appeal No. CP/327/2008

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge E A L Bano

Attendances:

For the Appellant: The appellant in person

For the Respondent Mr Stephen Cooper, Solicitor

Decision: My decision is that the claimant's appeal is dismissed.

REASONS FOR DECISION

1. This is an appeal, brought with my leave, against the decision of the tribunal given on 8 November 2007, dismissing the claimant's appeal against a decision made on 4 May 2007 that he was not entitled to an adult dependant's increase in retirement pension in respect of his wife, backdated to 15 May 2001. The oral hearing of the appeal on 3 June 2008 took place before the functions of the Social Security Commissioners were transferred to the Upper Tribunal on 3 November 2008, under the Transfer of Tribunal Functions Order 2008.
2. The claimant, having reached state retirement age on 15 March 2001, made a claim for retirement pension and was awarded retirement pension from that date. It is accepted that he ticked the box in Part 9 of the claim form indicating that he wished to claim adult dependant's increase in pension in respect of his wife. The text next to the "Yes" tick box on the claim form reads: "Please tell us who you want to claim for, we will send you a form", and the computer screen print has an entry indicating that an adult dependant's increase claim form BF 225 was sent to the claimant on 3 April 2001. However, there is no record of the form having been returned and no increase in pension was paid until 2007.
3. On 12 March 2007 a claim for adult dependant's increase was finally made in the proper form, and on 4 May 2007 the increase was awarded back dated to 13 December 2006, that is, three months before the date of the claim. However, backdating to 2001 was refused, and it is against the decision of the tribunal upholding that refusal that the claimant now brings this further appeal.
4. By section 1(1) of the Social Security Administration Act 1992, entitlement to benefit depends on the making of a claim in the prescribed time and manner, and by regulation 4(1) of the Social Security (Claims and Payments) Regulations 1987 ("the 1987 regulations") a claim for benefit must be made in writing on a form prescribed by the Secretary of State, subject to the Secretary of State's power to accept any form of written claim as sufficient in the circumstances of the case. Regulation 2(3) of the 1987 regulations provides that every increase of benefit shall be treated as a separate benefit, so that in this case no valid claim for adult dependant's increase was made in the prescribed form until 12 March 2007.
5. Regulations 4(5) and (7) of the 1987 regulations provide:

(5) "Where a person who wishes to make a claim for benefit and who has not been supplied with an appropriate from of claim notifies an appropriate office (by whatever means) of his intention to make a claim, he…shall be supplied with, without charge, with such form of claim by such person as the Secretary of State or the Board may appoint or authorise for that purpose.

(7) If a claim other than a claim for income support or jobseeker's allowance is defective at the date when it is received in an appropriate office, or other office specified in paragraph (6B) where that paragraph applies, or has been made in writing but not on the form approved for the time being, the Secretary of State or the Board 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 within one month, or such longer period as the Secretary of State or the Board may consider reasonable, 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."

6. In CP/3447/2003 the claimant also indicated on his claim for retirement pension that he wished to claim adult dependant's increase, but no claim form for dependant's increase was issued in response to that indication. The claimant wrote a letter the following year querying whether he was receiving the increase, and in response to that inquiry a claim form was issued, which the claimant completed and returned within a month. Mr Commissioner Howell QC held, disagreeing with CP/216/01, that the original indication on the retirement pension claim form that the claimant intended to claim a dependant's increase was "a claim in writing", so that once the claim for dependant's increase was made, within one month of the issue of the claim form, the Secretary of State was obliged to backdate the award of dependant's increase to the date when the claim for retirement pension was made.
7. Mr Cooper submitted that I should not follow CP/3447/2003 because it was based on a concession by the Secretary of State that the indication on the retirement pension claim form that the claimant wished to claim a dependant's increase was a sufficient claim for the purposes of regulation 4(7), but in my view it is unnecessary to decide that point. On the basis that the concession in that case was correctly made, regulation 4(7) only required backdating to the date of the retirement pension claim if a properly completed claim form for adult dependant's increase was received within one month of the date when the claim form was supplied, or such longer period as might be considered reasonable. It was not in dispute in that case that there was a breach of regulation 4(5) of the 1987 regulations, and that the claimant was not supplied with a claim form until he wrote more than a year after his retirement pension claim asking whether the increase had been awarded.
8. In this case, on the other hand, there is an entry in the computer screen print indicating that Form BF225, which is the prescribed claim form for a dependant's increase, was issued on 3 April 2001. The award of adult dependant's increase cannot be backdated to the date of the retirement pension claim under regulation 4(1) of the 1987 because the Secretary of State would not have issued a claim form if the indication of an intention to claim dependant's increase was considered sufficient to constitute a claim, and it cannot be backdated under regulation 4(7) if the claimant was supplied with a claim form, but failed to return it. The claimant denies that he ever received a claim form prior to 2007, and It is therefore necessary to consider whether the claimant was "supplied" with the claim form in April 2001. In order to avoid if possible a reference back to the tribunal, I took evidence from the claimant at the hearing of the appeal.
9. I am satisfied from the entry on the computer records that a claim form BF225 was sent to the claimant on 3 April 2001, and on the balance of probabilities it seems to me that it must have been sent to the address given by the claimant on the claim form for retirement pension. In his evidence the claimant stated that he did not receive the form, but in the absence of any reason why it should not have reached him, I consider it more likely than not that the form was in fact received by the claimant.
10. However, I have also reached the conclusion that it is not necessary to establish whether the form in fact reached the claimant in order to decide if it was "supplied" by the Secretary of State. The term 'supply' does not always require actual delivery, so that in Customs and Excise Commissioners v Bass [1993] S.T.C. 42 a hotel was held to have made a taxable supply for VAT purposes when it agreed to guarantee the availability of a room and the customer did not cancel or occupy the room before the end of the reservation period. I consider that the duty imposed on the Secretary of State by regulation 4(5) of the 1987 regulations to "supply" a claim form cannot have been intended to require the Secretary of State to ensure that the form actually reaches the claimant and, in my view the term "supply", rather than a term such as "send", is used in the regulation to cover those cases where a claim form is handed to a claimant, or perhaps someone acting on the claimant's behalf, rather than sent by post. I consider that the terms "supply" and "supplied" in paragraphs 4(5) and (7) must be construed in the same way, and in my judgment a claim form is "supplied" to a claimant whenever the Secretary of State takes whatever steps are reasonably necessary in the circumstances of the particular case to ensure that the form reaches the claimant. If such steps are taken, the Secretary of State will in my view have complied with the duty to supply a claim form in regulation 4(5) of the 1987 regulations, and the claim form will have been "supplied" for the purposes of regulation 4(7) even if, for some reason, the claim form does not actually reach the claimant.
11. I therefore hold that in this case a claim form for adult dependant's increase was supplied by the Secretary of State, but that the claimant cannot avail himself of regulation 4(7) of the 1987 regulations in order to backdate his award of adult dependant's increase because the claim form was never returned. Since regulation 4(7) provides the only means by which the award could have been backdated, it is not necessary to make findings on some of the other factual issues which were canvassed at the appeal, such as whether the claimant was notified of increases in his pension between 2001 and 2007.
12. The claimant's main complaint is in fact that the DWP did not have systems in place to monitor the issue and return of claim forms. However, that complaint does not raise any issue of law and, for the reasons I have given, I consider that the decision of the Secretary of State disallowing the backdating of adult dependant's increase to 2001 was correct in law.
13. The tribunal's decision was in fact in error on a point of law because it failed to consider regulation 4(7) of the 1987 regulations. However, section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 confers on me a discretion whether to set aside the decision of the tribunal below. Since I have concluded that the tribunal reached the correct result, I consider that no useful purpose would be served by setting aside their decision.
14. For those reasons, I give the decision set out above.

E A L Bano

Judge of the Upper Tribunal

5 November 2008