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[2009] UKUT 54 (AAC) (19 March 2009)
Claims and payments
late claim: other benefits

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the Kettering appeal tribunal (held on 17 September 2008 under reference 037/08/00184) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal (Social Entitlement Chamber).

DIRECTIONS:

The tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

In particular, the tribunal must investigate and decide the claimant's entitlement to a disability living allowance on her claim that was treated as made on 1 February 2008 in accordance with my analysis of regulation 13A of the Social Security (Claims and Payments) Regulations 1987. In doing so, the tribunal must not take account of circumstances that were not obtaining during the period from the date of claim to the date of the decision under appeal (23 April 2008): see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

Reasons for Decision

A. The issue

1. The issue in this case is this. Assuming that the claimant satisfied the conditions for an award of disability living allowance within three months of the date when she submitted her claim but more than three months after she asked for a claim pack, could the Secretary of State and the tribunal make an advance award of disability living allowance under regulation 13A of the Social Security (Claims and Payments) Regulations 1987? (All regulations mentioned in this decision are from those Regulations.)

B. History and background

2. The evidence is not relevant to this issue. All that matters is the sequence of events:

1 February 2008: the claimant asked for a disability living allowance claim pack.

13 February 2008: she had her operation.

14 March 2008: the completed claim pack was received.

23 April 2008: the Secretary of State refused the claim.

8 May 2008: the claimant's appeal was received.

13 May 2008: the earliest date for an award following the claimant's operation.

C. Was the appeal a new claim?

3. The claimant's representative argued that the Secretary of State should have treated the appeal as a claim or referred this to the Secretary of State. The tribunal refused to treat the appeal as a claim, because the Secretary of State had not given a decision on that issue. That was correct. The tribunal only has power on appeal against a decision. It had no power to act on its own initiative on this issue.

D. Could the tribunal make an advance award?

4. The tribunal also held that the date of claim for the purposes of regulation 13A of the Social Security (Claims and Payments) Regulations 1987 was 1 February 2008 when the claimant asked for a claim pack. I gave the claimant permission on the issue whether this was correct. The Secretary of State (represented by Kevin McClure) has argued that the date of claim for the purposes of regulation 13A is fixed by regulation 6(8) as the date when the claimant asked for a claim pack. The claimant's representative has argued that that is incorrect, relying on decisions of Mrs Commissioner Parker.
5. I have decided that the tribunal's interpretation of regulation 13A was wrong. These are my reasons.

E. Analysis

6. In order to be entitled to disability living allowance, the claimant must make a claim: section 1(1) of the Social Security Administration Act 1992.
7. Having made a claim, the date of claim is important, because section 76(1) of the Social Security Contributions and Benefits Act 1992 provides that 'a person shall be not be entitled to a disability living allowance for any period preceding the date on which a claim is made or treated as made on his behalf.'
8. The normal rule for the date of claim is that it is the date on which a properly completed claim form is received: regulation 6(1). However, regulation 6(8) contains an exception for disability living allowance claims. If the claimant requests a claim form and returns it within the time allowed, 'the date on which the claim is made shall be the date on which the request was received in the appropriate office.' The time allowed is six weeks or such longer period as the Secretary of State may accept (regulation 6(9).
9. Although it is not worded as a deeming provision, that is what in substance regulation 6(8) is. As such, it is not to be applied more widely than its purpose requires: Lord Brown in Szoma v Secretary of State for Work and Pensions reported as R(IS) 2/06 at paragraph 25. In the case of regulation 6(8), its purpose is self-evidently to benefit the claimant by allowing time to complete the claim form. Its beneficial effect is particularly important in view of section 76(1), as it provides for entitlement before the claim was actually made. There is no reason to carry the effect of this provision across to a different context.
10. A claim, once made, is 'treated as made for an indefinite period': regulation 17(1). However, this does not allow a decision-maker to decide that a claimant's entitlement may begin at any date in the future. The Commissioners decided that the decision-maker had to take account of any change of circumstances between the date of claim and the date of decision (as confirmed by the Tribunal of Commissioners in R(S) 1/83 at paragraph 10) and a tribunal on appeal had power to take account of any change down to the date of the hearing (as confirmed by the Tribunal of Commissioners in R(S) 2/98).
11. Regulation 13A was made in that context. It provides:

'13A Advance award of disability living allowance

(1) Where, although a person does not satisfy the requirements for entitlement to disability living allowance on the date on which the claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day ("the relevant day") not more than 3 months after the date on which the claim is made, then the Secretary of State may award disability living allowance from the relevant day subject to the condition that the person satisfies the requirements for entitlement on the relevant day.'

This allowed the decision-maker to take account of future changes and avoided the need for a claimant to appeal in order to obtain an award on the basis of changes that occurred shortly after the decision. The power for tribunals to deal with change of circumstances between the date of decision and the date of hearing has now been removed by section 12(8)(b) of the Social Security Act 1998. However, that cannot affect the interpretation of regulation 13A. It remains part of the context of that regulation as made.

12. As I have said, there is no reason to give effect to regulation 6(8) beyond its context and purpose. Regulation 13A, in contrast to regulation 6(8), is concerned with the future, not the past. There is no need or reason to allow that provision to control the power to make an advance award. The natural meaning of 'the date on which the claim is made' in the context of regulation 13A is the date on which it is received. If the Secretary of State's argument is correct, the effectiveness of regulation 13A is significantly reduced. Potentially six weeks (or longer at the Secretary of State's discretion) may have past before the claim is even received and further weeks may pass while the Secretary of State obtains medical evidence and decides the claim. In that context, there may be little or not scope for an advance award if the 3 months begins on the date the claimant asked for a claim pack.

F. Previous decisions

13. My analysis reaches the same conclusion as that of Mrs Commissioner Parker and Upper Tribunal Judge Turnbull.
14. In CSDLA/0852/2002, Mrs Commissioner Parker decided:

'4. Regulation 13A thus permits an award of DLA where a claim is made no more than 3 months before the date from which the award takes effect, if the DM considers that by that date the claimant will satisfy the 3 months qualifying period for DLA and is then likely so to satisfy the qualifying conditions for a further 6 month period. The claim subsists until the matter is determined by the DM (s.8(2)(a) of the Social Security Act 1998).

'5. A claim is to be treated as being continuously made until it is determined. Therefore, although Regulation 13A only benefits the claimant if the claim is made within the relevant 3 month period, it applies provided that the DLA conditions in question are satisfied by the date of the Secretary of State's decision under appeal and seemed likely to continue for both the 3 month qualifying period and the 6 month prospective period, so that the Secretary of State could then have made an advance award.

'6. The issue for the tribunal was, therefore, whether … when the claim was decided by the Secretary of State (and beyond which circumstances could not be taken because of section 12(8)(b) of the Social Security Act 1998), circumstances existed, (even if proved by later evidence not available to the DM at the time) which justified an award under regulation 13A.'

Mrs Parker repeated this reasoning in CSDLA/0553/2005.

15. In CDLA/3071/2008, the Secretary of State (represented there by Anna Woods) drew attention to Mrs Parker's reasoning in supporting the appeal. Judge Turnbull accepted that submission:

'5. However, in the light of the decision of Mrs Commissioner Parker in CSDLA/852/02 (to which I would add the decision to similar effect in CSDLA/553/05) the Secretary of State accepts, in my judgment rightly, that for this purpose at any rate the claim should be regarded as continuing down to the date when it was decided. The "date on which the claim is made" in reg. 13A should therefore be regarded as meaning every date from that on which the claim was initially made down to the date of the decision on it. If, therefore, the new tribunal were to find that the Claimant began to satisfy the primary qualifying conditions on 13 August 2007, so that (looking at the matter as at 17 October 2007, which the new tribunal would be bound to do) the 3 month qualifying period would be complete by 13 November 2007, the new tribunal could and should make an award commencing on 13 November 2007, because that would be within 3 months of the date of the decision (13 October 2007), which would be regarded as the latest day on which a claim was made for this purpose.'

16. My reasoning is slightly different from those decisions, but to the same effect.
17. Mr McClure has drawn my attention to the fact Mrs Parker later took a different approach in another case. However, that does not affect my reasoning, which is based directly on an analysis of the legislation.

G.

H.

I. Disposal

18. I allow the appeal and direct a rehearing.

Signed on original on 19 March 2009

Edward Jacobs Upper Tribunal Judge