Secretary of State for Work and Pensions CIS 3182 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Mitchell |
| Judgment Date | 22 April 2015 |
| Neutral Citation | 2015 UKUT 202 AAC |
| Subject Matter | Claims and payments |
| Respondent | LM (IS) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 3182 2014 |
| Appellant | Secretary of State for Work and Pensions |
IN THE UPPER TRIBUNAL Case No. CIS/3182/2014
ADMINISTRATIVE APPEALS CHAMBER
Before: E Mitchell, Judge of the Upper Tribunal
Decision: The Secretary of State’s appeal is refused. The making of the decision of the Walsall East First-tier Tribunal on 31st March 2014 (reference SC 028/14/00036) did not involve it making an error on a point of law.
REASONS FOR DECISION
What this appeal is about
1. This appeal is about evidence connected to time limit disputes, in this case for claiming social fund funeral expenses payments. Such claims can be made by delivering or sending them to a Jobcentre.
2. The Secretary of State appeals a First-tier Tribunal decision that a claim was in time because it was made at a Jobcentre. The claim form was not stamped by the Jobcentre. The Secretary of State objects to that finding. However, he provided no evidence to the First-tier Tribunal about arrangements for receiving claim forms at Jobcentres and transferring them to specialist benefit processing centres. It is not open to him to challenge the Tribunal’s finding by reference to evidence that he could and should have put before it.
Background
3. Mrs M’s husband sadly died in 2013 and his funeral was held on 27th June 2013. Mrs M decided to make a claim for a funeral expenses payment.
4. Mrs M wrote in her appeal form that she “deposited” the claim form at Borehamwood Jobcentre on 20th September 2013 having been told by an unspecified person to leave it there. In other correspondence, Mrs M referred to having “sent” the claim form to Borehamwood Jobcentre and to it having been “sent, via the Job Centre in Borehamwood, during September well within the time limit”.
5. Mrs M forgot to sign the claim form.
6. Mrs M’s claim form was received by a DWP office responsible for processing funeral payments claims on 3rd October 2013. As the claim form was un-signed, on 10th October it was returned to Mrs M for her signature.
7. The signed claim form was received at that same DWP office on 16th October 2013.
8. On 20th December 2013, the Secretary of State refused Mrs M’s claim. He said her claim was “invalid” until signed. The earliest date on which she claimed was 16th October 2013 when her signed claim form was received. That was outside the time limit of three months from the date of the funeral. But, even if the 3rd October 2013 claim was valid, it was still out of time under the three month rule. So far as Mrs M’s claim that her claim was received by Borehamwood Jobcentre before the end of the time limit was concerned, the Secretary of State’s said “there is no evidence of any earlier claim having been received by DWP or the Jobcentre”.
9. Date stamps feature in this appeal and so I shall identify what role they played in the case as presented to the First-tier Tribunal.
10. The Secretary of State’s written submission simply said “there is no evidence of any earlier claim [i.e. earlier than the un-signed claim form received on 3rd October 2013] having been received by DWP or the Jobcentre”. Nothing was said here about normal arrangements when claim forms are received by Jobcentres for benefits that are administered at different offices.
11. As part of the mandatory reconsideration (MR) stage, Mrs M had a conversation with a DWP official. They discussed what happened after she returned her unsigned claim form on 10th October 2013. My reading of this is that Mrs M said she had spoken to a social fund official who said she returned her claim form in an envelope pre-addressed to an office in Sheffield. The MR official said this could not have happened because there was no Sheffield stamp on the form. I note that the MR document says nothing at all about postal arrangements at Borehamwood or any other Jobcentre.
12. The Secretary of State did not consider whether Mrs A met the other entitlement conditions.
13. Mrs M appealed to the First-tier Tribunal (“the Tribunal”). Neither party requested a hearing.
14. On 31st March 2014 the Tribunal allowed Mrs M’s appeal. It accepted Mrs M’s written evidence. The absence of a September 2013 date stamp from Borehamwood Jobcentre on the claim form was not conclusive because “post and incoming documents can be received without that confirmation in a busy office”. The Tribunal referred to a date stamp because it understood the Secretary of State to rely on its absence. However, I cannot see that this argument was put forward by the Secretary of State unless it is to be inferred from the assertion there was “no evidence” of a claim having been received at Borehamwood Jobcentre.
15. The Tribunal went on to decide that, under the relevant regulations, its finding that the claim was delivered to the Jobcentre on 20th September meant Mrs M claimed within the three month time limit.
What the legislation says
16. Identifying the rules about time limits for claiming funeral expenses payments involves a surprisingly complex paper chase.
17. Regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 (the “2005 Regulations”) contains the cumulative entitlement conditions for funeral expenses payments. Regulation 7(6) provides that “the third condition is that the claim is made within the prescribed time for claiming a funeral payment”.
18. By regulation 3(1) of the 2005 Regulations, the “prescribed time for claiming” means the “appropriate period during which a…funeral payment may be claimed pursuant to regulation 19 of, and Schedule 4 to, the Social Security (Claims and Payments) Regulations 1987”. Subsequently, I refer to these as the “1987 Regulations”.
20. The claiming window is found in Schedule 4 to the 1987 Regulations. For funeral expenses payments, this provides that the time for claiming is the “period beginning with the date of the death and ending 3 months after the date of the funeral”.
21. The time for claiming provisions need to be considered in conjunction with the provisions about what a claim is.
22. Regulation 2(2) of the 1987 Regulations provides that, unless the context otherwise requires, any reference in the Regulations to “a benefit” includes “any social fund payments such as are mentioned in section 32(2)(a) and section 32(2A) [of the Social Security Act 1986]”. Funeral expenses payments were (and still are) payments out of the social fund. Section 32 of the Social Security Act 1986 has been repealed. However, it is re-enacted in section 138 of the Social Security Contributions and Benefits Act 1992. The adaptation of references provision in section 17(2) of the Interpretation Act 1978 therefore applies. Accordingly, the reference in the 1987 Regulations to section 32 of the Social Security Act 1986 is to be construed as a reference to section 138 of the Social Security Contributions and Benefits Act 1992. The upshot is that the rules in 1987 Regulations about making claims for benefit apply to claims for funeral expenses payments.
23. Regulation 4(1) of the 1987 Regulations provides that “every claim for benefit…shall be made in writing on a form approved by the Secretary of State…for the purpose of the benefit for which the claim is made”. However, that is not an absolute rule since regulation 4(1) goes on to provide that a claim may be made “in such other manner, being in writing, as the Secretary of State…may accept as sufficient in the circumstances of any particular case”. Regulation 4(11) allows claims for funeral expenses payments to be made by telephone call in certain cases but that is...
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