IN THE UPPER TRIBUNAL	Case No.  CIS/1249/2012
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

	The Appellant was represented by Mr Neil Bateman, a freelance welfare rights advisor.

The Respondent was represented by Mr Stephen Cooper, solicitor, of the Office of the Solicitor to the Department for Work and Pensions

Decision:  	The claimant’s appeal is unsuccessful.  The decision of the First-tier Tribunal dated 15 November 2011 is set aside but there is a substituted a decision to the same effect.  The claimant is not entitled to income support in respect of any period between 8 June 2009 and 1 March 2011 (the date of the Secretary of State’s decision).

REASONS FOR DECISION

1.	The claimant was in receipt of incapacity benefit in 2009 but the award was converted to an award of contributory employment and support allowance from 20 January 2011 and he appears subsequently to have been awarded income-related employment and support allowance with effect from the same date.

2.	On 7 February 2011, Mr Bateman, the claimant’s representative, wrote to Burnley Benefits Centre asking for a Special Payment (i.e., an extra-statutory ex gratia payment) equivalent to the benefit that would have been received had the Department acted on a letter that it was said that the claimant had sent on 8 June 2009.  What was alleged to be a copy of the letter was enclosed.  That copy letter stated simply: “I wish to apply for Income Support.”  The claimant’s name, address and National Insurance number were given and the letter was addressed to: “DSS, Orchard House, Penny Street, Blackburn.”

3.	Mr Bateman’s letter of 7 February 2011 bears two date stamps and it is possible that it was initially returned to him because the claimant’s signed authority was not enclosed.  In any event, the later date stamp records that it was received on 18 February 2011.  The Department responded by sending the claimant an income support claim form and asking him to complete it with his details as they had been in 2009.  That could have been a perfectly proper way of simply gathering for the purposes of a claim for a Special Payment the information necessary to determine the amount of benefit to which the claimant might have been entitled had a claim been made in 2009.  However, when the form was issued, the officer issuing it completed the front page on the basis that the claimant had “asked for this claim form on 8 June 2009”, which might be taken to imply an acceptance that the claimant’s letter of that date had been received.  Nonetheless, when the form was returned, it was treated as a claim for income support made by the claimant on 18 February 2011.  That claim was rejected on 1 March 2011 on the grounds that it could not be backdated and that the claimant was currently in receipt of employment and support allowance.  The decision-maker referred the case for consideration of a Special Payment but, Mr Bateman told me, that too was refused.

4.	That the claimant could not be awarded income support from 18 February 2011 is uncontroversial, because entitlement to employment and support allowance precludes entitlement to income support (section 124(1)(h) of the Social Security Contributions and Benefits Act 1992).  What the claimant sought was income support from 8 June 2009 to 19 January 2011.  If the information provided in the claim form was correct, the claimant was clearly entitled to that benefit but for the question whether a valid claim in respect of the period had been made within the prescribed time.  It is a condition of entitlement that such a claim has been made (section 1(1) of the Social Security Administration Act 1992) and the prescribed time for claiming income support is “[t]he first day of the period in respect of which the claim is made” (regulation 19(1) of, and paragraph 6 of Schedule 4 to, the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), hereinafter “the 1987 Regulations”), subject to what is informally known as “backdating” (under regulation 19(4) or (6)).

5.	Although he had originally sought only a Special Payment, the claimant appealed on the ground that he had made a valid claim for income support on 8 June 2009 by way of the letter of that date.  The First-tier Tribunal, having been referred to Levy v Secretary of State for Work and Pensions [2006] EWCA Civ 890 (reported as R(G) 2/06), found as facts that the claimant had sent the letter dated 8 June 2009 but that it had not been received by the Secretary of State.  Its reasoning was –

“It is possible that the letter was received but it is also possible that it was mishandled by the Royal Mail.  Whilst the Tribunal had no reason to doubt what was said by Mr Bateman, it follows that if he was told that 25% of his correspondence had not been received (however improbable that may seem), 75% of it had, and was acted upon.  On balance as no claim form was issued to the appellant after he sent his letter of 8.06.2009, the Tribunal was satisfied that that letter had not been received.”

The First-tier Tribunal further decided that, as the letter had not been received by the Secretary of State, there had been no valid claim until February 2011.  Mr Bateman having conceded that there had been no ground for backdating the claim, it dismissed the claimant’s appeal.  The claimant now appeals against that decision with permission granted by Upper Tribunal Judge Lloyd-Davies.

6.	If the First-tier Tribunal rightly identified the issue it had to determine as the question whether or not the letter written on 8 June 2009 was received by the Secretary of State, it seems to me that it either misunderstood Mr Bateman’s argument or was illogical in its reasoning or both.  I accept Mr Cooper’s submission that the finding was not perverse in the sense of being one that was not open to the First-tier Tribunal on the evidence before it, but illogicality is as much an error of law as perversity.

7.	Mr Bateman’s argument before the First-tier Tribunal was that, if the First-tier Tribunal accepted that the letter of 8 June 2009 had been sent on that date, it should also be accepted that it had been received.  This argument was based on his claimed experience that 25% of letters sent by him to the Department for Work and Pensions had been said by the Department not to have been received whereas, although post does go astray, Royal Mail is said correctly to deliver over 99% of articles entrusted to it.  He submitted to the First-tier Tribunal that those figures suggested that it was probable that the majority of the letters said by the Department not to have been received had in fact been received but subsequently mislaid and that it should therefore be concluded that, if it was accepted that the claimant had in fact sent the letter of 8 June 2009, it was more likely that it had been received and then lost than that it had not been received at all.  

8.	There were respectable reasons for not accepting that argument (although the argument could perfectly properly have been accepted).  It was impossible to tell how robust Mr Bateman’s figures were and they did not in any event relate to a specific office of the Department.  The incorrect addressee and the lack of a postcode might have increased the risk of this particular letter not being delivered and the fact that the letter did not require linking to existing post and did not require any response other than the issuing of a claim form with appropriate instructions might have reduced the chance of this particular letter being mislaid if it was delivered.  There might also have been a question as to whether Orchard House was really the correct place to which an income support claim should have been sent.

9.	But the First-tier Tribunal did not reject the argument on any of those grounds.  Instead, it seems to have thought it significant that the alleged claim by the Department that only 25% of Mr Bateman’s letters were received implied that 75% were received and acted upon.  The implication may have been correct but it was totally irrelevant.  The fact that 75% of letters were received and acted upon carries no weight one way or the other on the question whether those not acted on were received or not.  It seems that the First-tier Tribunal may not have understood that Mr Bateman was arguing that it should not accept the claim that he said the Department had made as to the proportion of letters that had not been received.  In any event, if the middle sentence that I have quoted in paragraph 5 above was the First-tier Tribunal’s reasoning, it appears illogical.  If that sentence was not the First-tier Tribunal’s reasoning, there does not appear to be any reasoning at all.  For this reason, I set aside the First-tier Tribunal’s decision.

10.	However, it does not really matter whether the letter of 8 June 2009 was received by an officer or agent of the Department or not.  This case concerned income support rather than a widow’s benefit, as in Levy, or a carer’s allowance, as in Secretary of State for Work and Pensions v SB (CA) [2011] UKUT 422 (AAC).  The legislation in respect of income support claims is different from that in respect of other benefits.

11.	Most importantly, by virtue of regulation 4(1A) of the 1987 Regulations, a claim for income support may be made only on an approved form.  A claim made otherwise than on an approved form is defective by virtue of regulation 4(9) and, by virtue of regulation 4(7A), the Secretary of State must advise the claimant of the defect and of the relevant provisions of regulation 6(1A).   Until references to telephone claims were inserted, regulation 6(1A) provided, so far as is relevant –

“(1A) In the case of a claim for income support— 
    (a)	subject to the following sub-paragraphs, the date on which a claim is made shall be the date on which a properly completed claim is received in an appropriate office …; 
    (b)	where a properly completed claim is received in an appropriate office within one month of first notification of intention to make that claim, the date of claim shall be the date on which that notification is deemed to be made …; 
    (c)	a notification of intention to make a claim will be deemed to be made on the date when an appropriate office receives— 
    (i)	a notification in accordance with regulation 4(5); or 
    (ii)	a defective claim.”

12.	The letter of 8 June 2009 was clearly either a notice of intention to make a claim or a defective claim and in either event a notification of intention to make a claim was made only when the letter was received, if it was received at all.  However, the effect of regulation 6(1A)(b) is that a notification of intention to make a claim is irrelevant unless a properly completed claim form is received within a month of the notification being made.  If the notification has been made more than a month before the properly completed claim form is received, the date of claim is the date on which the claim form is received, unless another statutory provision provides otherwise which is not the case here.

13.	The claim form in this case was not received until late in February 2011.  Mr Bateman sought to get round this difficulty by arguing that a document is not “received” for the purpose of regulation 6(1A)(c) until the recipient realises that it has been received and in that sense the letter of 8 June 2009 had not been received until February 2011.  That is almost exactly the opposite of the argument advanced to the First-tier Tribunal, which was that the letter of 8 June 2009 had been received a day or two after it was sent, but, in any event, it does not assist the claimant.  I have some difficulty in seeing how the person who opens a letter, whether that person is an officer of the Secretary of State or an agent, can fail to realise that the letter has been received.  Therefore, if the letter of 8 June 2009 ever arrived, the notification of intention to claim or the defective claim that was constituted by that letter must have been received in, or shortly after, June 2009 – unless, of course, it was unopened, which seems fanciful.  That was considerably more than a month before the properly completed claim form was received.  Moreover, even if, as Mr Bateman suggested, the notification or defective claim was “received” only in February 2011, that would not found entitlement to income support from June 2009, given the terms of regulation 6(1A)(b) and the inapplicability of the powers to backdate claims.  I observe that 

14.	The effect of these provisions, and of the limited power under regulation 19(6) to extend the time for claiming by a month on the ground of “adverse postal conditions” (see regulation 19(7)(c)), is to require a claimant to chase up a claim or notification of intention to claim within a month if no acknowledgement has been received and the claimant wishes to avoid any risk of losing income support due to the claim or notification having been lost.  This is presumably deliberate even though the provisions could lead to what might be perceived as injustice in an individual case.  However, it is not obvious that there is any more injustice in the present case than is inherent in any time limit.   The claimant says that he did not follow up his letter because he presumed it had been decided that he was not entitled to income support.  Had it in fact been wrongly decided in 2009 that he was not entitled to income support and had he been informed of that decision and of his right of appeal but not challenged it, it would have been too late to appeal by February 2011.  It is arguable that he should not be in a better position when he failed to take any action for over eighteen months on a mere presumption that his claim had been rejected.

15.	In any event, it is clear that the claim form in this case was not received within one month of the letter of 8 June 2009 even if that letter was ever received by an officer or agent of the Department.  There might be an argument as to when a notification of intention to claim in the form of Mr Bateman’s letter of 7 February 2011 was first received by the Department but, as that letter was not written until after the claimant had become entitled to employment and support allowance and no grounds for backdating the claim have been advanced, it does not appear to matter when that letter was first received.  The claim could not be treated as made any earlier than February 2011 and by that time the claimant was entitled to employment and support allowance.  This appeal must therefore be dismissed.

16.	The Department may still, of course, decide that a Special Payment should be made if it accepts that a relevant letter was received by, or on behalf of, the Department but was not acted upon.  If the refusal to make a Special Payment in this case was based on the First-tier Tribunal’s flawed decision that the letter of 8 June 2009 was sent but never received, the Department could now reconsider the question whether that letter was received a day or two after it was sent but then mislaid and not acted upon.  Plainly, if the letter was received, a claim form should immediately have been issued.  However, the refusal of the Special Payment may have been based on other factors.  In any event, I do not consider that I should express a view on the relative likelihood of the letter having been lost in the post or lost after its receipt or on any other issue arising on the claim for a Special Payment.  Nor do I consider that I should give guidance as to what (if any) evidence ought to be provided by the Department in cases where the issue whether a letter has been lost in the post or after its receipt is a matter for a tribunal, as Mr Bateman invited me to do.  Special Payments do not fall within the jurisdiction of tribunals and it can be unwise to try to give guidance on a question that does not arise in the particular case under consideration.

Mark Rowland
28 June 2013