CIB 1454 2002
| Jurisdiction | UK Non-devolved |
| Judge | Judge P. L. Howell Q.C. |
| Judgment Date | 09 January 2003 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIB 1454 2002 |
| Subject Matter | Tribunal procedure and practice (including UT) |
PLH Commissioner's File: CIB 1454/02
SOCIAL SECURITY ACTS 1992-1998
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Claim for: Incapacity Benefit
Appeal Tribunal: Sutton
Tribunal case ref: U/45/176/2000/03663
Tribunal date: 27 June 2001
Reasons issued: 21 December 2001
[ORAL HEARING]
Introduction
- This is an appeal by the claimant against the decision of the Sutton appeal tribunal consisting of a chairman sitting alone on 21 June 2001, when she determined that the claimant could not be treated as having made a claim for incapacity benefit before she actually submitted a properly completed claim form on 21 February 2000, and consequently confirmed the decision of an officer on behalf of the Secretary of State to refuse the additional entitlement the claimant was seeking on that claim for the period from 1 September 1991 to 20 November 1999; that is a period of over eight years extra benefit in addition to the maximum normal backdating of her benefit for three months before her actual claim, which has already been awarded and is undisputed
- I held a combined oral hearing of this and two other cases in which the tribunal’s power to deal with such “claims” questions at all was put in issue by the Secretary of State. In this case CIB 1454/02 the claimant was represented by Rory O’Kelly, welfare benefits adviser to Mind in Croydon. In cases CIS 540/02 and CIS 758/02 (which were respectively an appeal by the claimant against the decision of a tribunal determining that he had not submitted a valid claim until certain details omitted from the original claim form were supplied, and an appeal by the Secretary of State against the decision of a tribunal that the claimant should be treated as having made a valid claim for income support despite not having supplied evidence expressly stated in the claim form to be required), the claimants were represented by Stewart Wright, solicitor and Legal Officer of the Child Poverty Action Group which was backing them as test cases. The Secretary of State was represented in all three cases by James Maurici of Counsel, instructed by the solicitor to the Department for Work and Pensions, assisted by Mr W Spencer and other members of the department. Since the oral hearing which covered the main issues of principle I have had the benefit of further written submissions from the parties in each case on their practical effects. To all who appeared and contributed to the oral and written arguments I am grateful, not only for the comprehensive material provided to assist me, but also for putting up over two full hearing days with the inadequate court accommodation in which the Commissioners and those who appear before them have for too long been expected to try and do their work: the prolonged administrative inaction over this is unfair to everyone involved.
Appeal jurisdiction on claims questions
- In these three cases it has been contended on behalf of the Secretary of State that appeal tribunals constituted under the Social Security Act 1998 no longer have the jurisdiction possessed by their predecessor tribunals under the United Kingdom social security schemes before that Act was brought into force, to decide whether in any individual case a claim for benefit has been validly made in accordance with the formal requirements prescribed by the Secretary of State, and if so when was the effective date of that claim.
- These are questions needing to be decided in virtually every case as part of determining entitlement to benefit. They currently arise in most cases under regulation 4 Social Security (Claims and Payments) Regulations 1987 SI No. 1968, which prescribes the formal manner in which a claim for benefit is to be made. The regulation has had various amendments and additions made to it from time to time so that it now also imposes a set of requirements of some complexity, in particular for income support and jobseekers allowance claimants, about the information and evidence that has to be provided before a claim is to be treated as complete and effective.
- Compliance with those requirements (whether correctly viewed as substantive, or merely formal) is made an essential condition of entitlement to benefit in all but a small minority of cases, by section 1(1) Social Security Administration Act 1992 which lays down that:
“1. - (1) Except in such cases as may be prescribed … no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied –
(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or
(b) he is treated by virtue of such regulations as making a claim for it.”
- The relevant regulations are the Claims and Payments Regulations just cited, made under powers now in section 5 of the 1992 Act. They require the making of a claim in compliance with the specified requirements for all benefits except a small category of exceptions under regulation 3, which does not apply to any of these cases. As already noted, the present form of regulation 4 imposes more detailed and stringent requirements on claims for income support or jobseekers allowance, by a set of amending regulations introduced from 6 October 1997.
- It is accepted by all sides, and in my view clear beyond argument, that any question whether the requirements prescribed in the Claims and Payments regulations have been complied with in any particular claimant’s case so as to meet the first essential condition of entitlement to benefit under section 1 of the 1992 Act is a question that arises either as part of deciding a claim for a “relevant benefit” or as one that falls to be decided “under or by virtue of a relevant enactment” for the purposes of section 8 Social Security Act 1998, by which the initial determination of all such questions under the Act is to be made by the Secretary of State: see section 8(1)(a), 8(1)(c).
Previous law
- Under the law before that section came into force, there is in my judgment no doubt that when a disputed question of fact arose between the claimant and departmental administrative staff over whether, or when, an effective claim in compliance with the prescribed requirements had been made so as to meet the first condition of entitlement, it would have been a question to be determined by an adjudication officer under section 20 Social Security Administration Act 1992, with a consequent right of appeal to an appeal tribunal. That was the accepted position established by Commissioners’ decisions and applied in practice over many years, a clear distinction being recognised between such factual questions which were matters for the “statutory adjudicating authorities” (the adjudication officer and the appeal tribunal), and the prescribing of the forms to be used, or the exercise of administrative discretion to waive their use in individual cases, which were questions expressly reserved to the Secretary of State and carried no right of appeal: see in particular decisions R(U) 9/60 and R(SB) 5/89
- The principle of those decisions, and that well understood distinction, remained in my judgment fully applicable and unaffected at all times down to the coming into force of the 1998 legislation. In particular, it remained unaffected by the introduction of the more complicated requirements for income support and jobseekers allowance claims (from 6 October 1997, by 1997 SI No 973). As before, while the claim was required to be made on a form approved by the Secretary of State and certain matters were expressly reserved for his discretion, the essential questions whether an individual claimant had or had not complied with the requirements, or fell within any of the newly specified classes of exceptions for inability to produce full information at the time of the original claim, were all questions of objective fact, falling to be determined on evidence in the normal way. If disputes arose on such questions, there was nothing in the 1997 amendments that took their resolution away from the statutory adjudicating authorities, and it would have been surprising if there had been.
- I do not therefore agree with the departmental view reflected in the very helpful historical note provided by Mr Spencer at the hearing, suggesting that the 1997 amendments to the content of what was required to constitute a completed claim had in some way operated to alter the existing jurisdiction, or cut...
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