Novitskaya v London Borough of Brent
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Elias,Lord Justice Mummery |
| Judgment Date | 01 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1260 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 December 2009 |
| Docket Number | Case No: C3/2009/0861 |
[2009] EWCA Civ 1260
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY
AND CHILD SUPPORT COMMISSIONERS
Deputy Commissioner Mrs Ramsay
Before: Lord Justice Mummery
Lady Justice Arden
and
Lord Justice Elias
Case No: C3/2009/0861
Mr Adrian Berry (instructed by Hansen Palomares Solicitors) for the Appellant
Mr Donald Broatch (instructed by LB Brent Legal Services) for the 1st Respondent
Mr Tim Buley (instructed by DWP Litigation Division) for the 2nd Respondent
Hearing date : 10 November 2009
Lady Justice Arden :
This appeal is about whether a claim for housing benefit can be made for the purposes of the Housing Benefit (General) Regulations 1987 (“the 1987 regulations”) without using explicit wording to indicate that a claim for that benefit is being made. The London Borough of Brent (“Brent”) contends that this question must be answered in the negative. Among other reasons for this, Brent argues that there is no claim for housing benefit if the benefit is not identified in terms. The appellant, Mrs Irina Novitskaya, and the Secretary of State for Work and Pensions (“SSWP”), disagree with Brent. This appeal therefore requires us to consider what makes for a valid claim for housing benefit. References in this judgment are to the 1987 regulations in force at the time of the events in question, ignoring any other amendments.
BACKGROUND
Mrs Novitskaya arrived in the United Kingdom from Uzbekistan on 29 July 1999. Her ethnic origin is Russian. She claimed asylum on the day of her arrival. She was not, however, granted refugee status until 6 May 2004. She was notified of this on 12 May 2004. By virtue of schedule A1 to the 1987 regulations, housing benefit can be backdated to the date on which the claim for asylum was recorded if an appropriate claim is made within 28 days of notification of the grant of refugee status. I refer to this below as a “retrospective claim”. Thus, by virtue of the grant of refugee status, Mrs Novitskaya had until 9 June 2004 to claim housing benefit. I will call this “the primary period”.
On 18 May 2004, Mrs Novitskaya became entitled to income support. The regulations also provide that, where a person is entitled to income support, any claim for housing benefit made within 28 days of the claim for income support will be deemed to be made on the first date on which the claimant was entitled to income support (reg 72(5), set out below). I will call this “the secondary period”. The secondary period expired on 15 June 2004. That meant that Mrs Novitskaya could submit a housing benefit claim up to that date even though the primary period had expired.
Mrs Novitskaya was given a claim form for housing benefit at the offices of the Department of Work and Pensions (“DWP”) on 10 June 2004. Her retrospective claim was worth some £29,000 in unpaid benefit. However, she did not deliver a duly completed claim form for housing benefit until 24 June 2004. This last-mentioned date was too late for a claim for retrospective housing benefit.
However, on 10 June 2004, on the day when Mrs Novitskaya was given a claim form for housing benefit, she completed and gave to the DWP the following statement (“the 10 June statement”):
“DEPARTMENT OF SOCIAL SECURITY [sic]
STATEMENT HB + Income Support
Notes ….
I, Novitskaya Irina
of 70A King's Road,
London NW10 2BN
state that I would like my benefits income support or whatever else I am intaital [sic] to, to be backdated from the date I became asylum seeker – which by 29.07.88 (because) according to an advice form “welfare benefit and tax credit' hand book” – 2004–05 by Child Poverty Action Group page 665–666. I'm applaing [sic] only now because I've become refugee from 14.05.09. Sincerely hope for your help.
* The above has been read over to me and I agree that it is a true and complete record of what I have said. I declare that the information I have given on this form is correct and complete.
Signature
Date 10.06.04
Witnessed by”
(signature)
Mrs Novitskaya made this statement on a pre-printed form marked “MF47” at the bottom. Counsel for the SSWP, Mr Tim Buley, informs us that the form MF47 is used for taking a claimant's statements on any matter that is relevant to their claim to an award of benefit. The code MF47 is used when re-ordering the form from stationery suppliers. It has no other significance. The words “HB + Income Support” were added to the top of the statement but it is not known by whom. “HB” is obviously a reference to housing benefit. The parties have proceeded on the basis that the word “intaital” appearing in the text of the statement meant “entitled”.
There is also in evidence a letter dated 11 June 2004 which arguably makes a claim. However, there is no finding as to when it was delivered to the DWP. It was attached to the completed form dated 24 June 2004 and therefore it is likely that it was delivered with that form. It does not appear that a case was made below that this letter was delivered within the secondary period. As this case does not turn on the letter of 11 June 2004, I say no more about it.
If the 10 June statement is a “claim” for housing benefit, then, even though it is incomplete and does not give Brent all the information necessary for a claim for housing benefit, it may qualify as a “defective claim” under the provisions considered below. If so, the defects were cured by the delivery of a completed form on 24 June 2004.
The Deputy Commissioner wrote a long and careful decision but she did not focus on whether the document of 10 June 2009 was a defective claim for housing benefit which, although outside the primary period of 28 days commencing on 12 May 2004, was within the secondary period of 28 days running from 21 May 2004. In paragraph 11 of her decision, the Deputy Commissioner dealt with the 10 June statement. She referred to the case of Commissioner Turnbull in CG/3844/2006 (considered below). The Deputy Commissioner then proceeded directly to the statement: “Further I note that even if the statement of 10 June 2004 had been accepted as a claim, it would still have been outside the 28 day limit”. Therefore, as I read the Deputy Commissioner's decision, she reached no conclusion as to whether the 10 June statement was a defective claim. She decided that the appeal failed because the 24 June 2004 claim for housing benefit was outside both the primary period and the secondary period.
HOUSING BENEFIT (GENERAL) REGULATIONS 1987
Social security legislation is enacted primarily for the benefit of social security claimants. Its meaning can therefore be tested from the perspective of such a claimant, or her adviser. A claimant may have sought advice from the Citizens' Advice Bureau or a local law centre, instead of a lawyer. Alternatively, as here, the claimant may use sources of guidance available in public libraries or on the internet. In this case Mrs Novitskaya used the Child Poverty Action Group's Welfare Benefits and Tax Credits Handbook.
The first thing a claimant would ask is what she needs to do to make a valid claim. She would expect to have to fill in a form. If she fills in the right form in the right way and at the right time, no issue arises about what is a “claim”.
Although the 1987 regulations do not define “claim”, it is clear from the context that it refers to a form of words. The 1987 regulations stipulate that a claim must also have a particular objective, namely, it must be a claim for housing benefit. It must also be made in writing and on a particular form:
“2(1)..
'claim' means a claim for housing benefit;
….
Time and manner in which claims are to be made
72 (1) Every claim shall be in writing and made on a properly completed form approved for the purpose by the relevant authority or in such written form as the relevant authority may accept as sufficient in the circumstances of any particular case of class of cases and be accompanied by or supplemented by such certificates, documents, information and evidence as are required in accordance with regulation 73(1) (evidence and information) [ or paragraph 5 of Schedule A1 (treatment of claims for housing benefit by refugees).
(2) The forms approved for the purpose of claiming shall be provided free of charge by the relevant authority or such persons as they may authorise or appoint for the purpose.
(3) Each relevant authority shall notify the Secretary of State of the address to which claims delivered or sent to the [appropriate DWP office] are to be forwarded.
(4) A claim-
(a) may be sent or delivered to the appropriate DWP office where the claimant or his partner is also claiming income support incapacity benefit or a jobseeker's allowance;……
(5) Subject to paragraphs (11), (16) and (17), and to regulation 72A the date on which a claim is made shall be-
(a) in a case where an award of income support, state pension credit which comprises a guarantee credit or an income-based job seeker's allowance has been made to the claimant or his partner and the claim for housing benefit is made is made within 4 weeks of the date on which the claim for that income support, state pension credit which comprises a guarantee credit or jobseeker's allowance was received at the appropriate DWP office, the first day of entitlement to income support…”
The opening clause of reg 72(5) refers to paras (11), (16), (17) of reg 72 and to reg 72A but none of these provisions is...
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