SKG v Secretary of State for Work and Pensions (JSA) (Claims and payments : late claim: other benefits) [2014] UKUT 430 (AAC)

UKUT-AAC
SKG v Secretary of State for Work and Pensions (JSA) (Claims and payments : late claim: other benefits)
[2014] UKUT 430 (AAC) · 2014-09-24
[1]This appeal is about a back-dated claim to jobseeker’s allowance (JSA) for a period of two weeks. The legal issues it raises relate to the proper interpretation of regulation 19(5)(b) and 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968, as amended; “the Claims and Payments Regulations”). These provisions concern various specified circumstances in which a claim for benefit can be backdated (or, perhaps to put it more accurately, in which the prescribed time for claiming benefit can be extended). A summary of the facts[2]The Appellant claimed JSA online on 21 September 2012. The Department for Work and Pensions (DWP) decision maker decided that she was entitled to JSA from that date. The Appellant sought to backdate her JSA entitlement to 6 September 2012. She explained that she had been unwell since the first week in September with severe shoulder pain. She said that during the fortnight in question she had been unable to make a claim online or by telephone. She had understood from DWP literature and from its website that these were the only ways to make a JSA claim. She therefore argued that she had good cause for her late claim. The decision of the First-tier Tribunal[3]The Appellant lodged an appeal against the DWP’s decision, enclosing a letter from her GP confirming that she had been seen in A&E on 4 September 2012 due to severe shoulder pain. The First-tier Tribunal (“the Tribunal”) dismissed her appeal, concluding on the decision notice that “her condition was not so serious that it made it impracticable for her to make the claim or if necessary seek assistance to do so from another”. The Tribunal’s statement of reasons elaborated on this finding, adding that she could have completed an online or paper claim form “for about 10 minutes at a time despite her restrictions”. The proceedings before the Upper Tribunal[4]Judge Williams gave the Appellant permission to appeal to the Upper Tribunal following an oral hearing on 4 February 2014. It was at this hearing that the possible application of regulation 19(5)(d) in the context of official website advice was raised for the first time.[5]Following Judge Williams’s retirement, I held an oral hearing of the appeal on 8 September 2014. The Appellant attended in person and made her points ably and clearly. Mr Stephen Cooper, Solicitor, representing the Secretary of State for Work and Pensions, also attended; he did not support the appeal. I am grateful to both the Appellant and Mr Cooper for their careful arguments. Did the First-tier Tribunal’s decision involve an error in law? Did regulation 19(5)(b) apply?[6]The Tribunal treated the Appellant’s appeal as though the only way that her backdated claim could succeed was on the basis of regulation 19(5)(b) of the Claims and Payments Regulations (as substituted by regulation 6 of the Social Security (Miscellaneous Amendments) (No.2) Regulations 1997 (SI 1997/793)). By virtue of regulation 19(4), a claim may be backdated for up to three months where: “(b) except in the case of a claim for jobseeker’s allowance, the claimant was ill or disabled, and it was not reasonably practicable for the claimant to obtain assistance from another person to make his claim;”.[7]The Tribunal focussed its attention on the extent of the Appellant’s temporary disability (her shoulder pain) and the issue of whether it was reasonably practicable for her to obtain assistance from another. In doing so, the Tribunal overlooked the proviso in the opening words of regulation 19(5)(b), namely “except in the case of a claim for jobseeker’s allowance”.[8]The Appellant’s principal argument on this point of statutory interpretation was that regulation 19(5)(b) was anomalous and inconsistent with other rules which, in effect, allow JSA claimants to self-certificate illness for a maximum of a fortnight at a time. This was a reference to regulation 55 of the Jobseeker’s Allowance Regulations 1996 (SI 1996/207), headed ‘Short periods of sickness’, which allows a JSA award to continue during a period of the claimant’s short-term illness. This is permitted for up to a fortnight, and to two such periods in any 12 months. I do not accept the Appellant’s argument.[9]First, the opening words of regulation 19(5)(b) are crystal clear and do not permit of any exception. They exclude reliance on this provision when claiming jobseeker’s allowance. Only claims for the other means-tested benefits covered by regulation 19(4) may be backdated for up to three months on account of illness, providing it is “not reasonably practicable” to obtain assistance, etc.[10]Second, the anomaly the Appellant seeks to identify is apparent rather than real. Regulation 55 only applies to existing JSA claimants. There is an obvious rationale in that it is to the advantage of both claimants and the DWP that JSA recipients who fall ill for a short period should not have to chop and change between claiming JSA and employment and support allowance (ESA). That rationale does not apply on fresh claims for benefit. As Mr Cooper argued, a person who is about to claim benefit and is not fit to work should in the first place be making a claim for ESA, not JSA, as the latter benefit requires one to be available for and actively seeking employment.[11]It follows that I agree with Mr Cooper’s analysis. The Tribunal overlooked the opening proviso to regulation 19(5)(b). It therefore asked itself the wrong question by going on to explore the facts as to the extent of the Appellant’s shoulder pain problem and the reasonable practicability (or otherwise) of her seeking assistance from a third party. The Tribunal fell into error of law to that extent, although it reached the right outcome decision, namely that there was no basis on which to backdate the claim to JSA to 6 September 2012. Did regulation 19(5)(d) apply?[12]As noted above, the potential application of regulation 19(5)(d) was identified by Judge Williams when giving permission to appeal. It had not been considered at all by the Tribunal. Given the inapplicability of regulation 19(5)(b), it now becomes relevant to do so. The backdating provision in regulation 19(5)(d) (as amended) applies where: “the claimant was given information by an officer of the Department for Work and Pensions ... which led the claimant to believe that a claim for benefit would not succeed;”.[13]The Appellant stated that she had a letter from the DWP in August 2012 stating that a JSA claim “could either be made by telephone or online. I was not led to believe that a claim would succeed by any other method.” She also advised me that she had checked the DWP website in early September 2012 and had also understood from the information posted there that a claim had to be made online or by phone. There had been no reference on the website to any alternative arrangements. For example, she was unaware she could have gone into a DWP Jobcentre Plus (JCP) office and a member of staff might have assisted her to complete a claim form. She argued on this basis that she fell within regulation 19(5)(d).[14]I should add at this stage that I am in no doubt that the Appellant was given the clear impression, and so understood, that a JSA claim had to be made either online or by telephone (with no third way). The current version of the website in question (see now the relevant page at https://www.gov.uk/jobseekers-allowance/how-to-claim , accessed 24 September 2014, and I have no reason to believe the version consulted by the Appellant was materially different) under the heading ‘How to claim’ indicates first, under the heading “Claim JSA online”, that “You can claim JSA online”. This is then followed with this text (in turn followed by a series of JCP telephone numbers):
“Claim JSA by phone Contact Jobcentre Plus if you can’t apply online.”
[15]There is no mention on the direct.gov website of any other possible way(s) of claiming JSA. In particular, there is no suggestion that a claimant can walk into a JCP office and collect a paper claim form or be assisted by a member of staff in completing such a form. The August 2012 letter was not in the appeal bundle. I gave the Appellant the opportunity to provide a copy after the hearing, but understandably she had not retained the letter in question. Given her evidence, and given DWP practice, on the balance of probabilities I am satisfied that it was a standard letter drafted in essentially the same terms as the generic information on the website.[16]Mr Cooper argued that regulation 19(5)(d) did not apply in the present circumstances. He made four points in response. First, while the DWP may encourage people to make claims online or by phone, the basic requirement in the legislation remained that claims for JSA should be in writing on an approved form (Claims and Payments Regulations 1987, regulation 4(1A)(a). Second, it was important to distinguish between being advised that a claim must be made online or by phone and being told that a claim could be made online or by phone. Third, regulation 19(5)(d) applied only where “the claimant was given information by an officer of the Department for Work and Pensions”. Mr Cooper argued this did not cover material on a DWP website: there were an unknown number of people interposed between those in the Department who wrote the original text and those who placed it on the direct.gov website. He agreed with the written submission by Mr Kevin McClure for the Secretary of State, namely that “being given information by an officer implies an interchange of some kind between the officer and the enquirer, and that situation does not seem to have arisen here”. Fourth, he raised a causation point: regulation 19(5)(d) applied only where the information given by the DWP officer had “led the claimant to believe that a claim for benefit would not succeed” – whereas in this situation the most that could be said was that the Appellant may have misunderstood the possible methods of making a claim.[17]I agree with the third of Mr Cooper’s four submissions. It seems to me that this argument by itself rules out the Appellant being able to rely on regulation 19(5)(d) as regards the website information. T he wording of regulation 19(5)(d) is significant. It applies where “ the claimant was given information by an officer of the Department for Work and Pensions” (emphasis added). It does not say “ the claimant was given information by the Department for Work and Pensions”. The insertion of the words “by an officer of” must be there for a purpose. Whilst, as Judge Mesher has held, “the words of regulation 19(5)(d) are not to be given any artificially restricted meaning” (see R(IS) 3/01 at paragraph 14), that statutory purpose is surely to confine the exception to the situation where a claimant is given information by a DWP officer as part of some specific interchange or transaction relevant to their personal circumstances. This would also be consistent with the wording of regulation 19(5)(e) and (f), which both cover situations where the claimant is given written advice (regulation 19(5)(e)) or written information (regulation 19(5)(f)) by certain specified third parties about their situation.[18]In this context I note that a Tribunal of two Northern Ireland Social Security Commissioners held as follows in R1/01 (IS)(T), a case which turned on the proper construction of the equivalent provision in Northern Ireland legislation:
“35. We consider that the giving of information requires the transfer of factual data from an officer to a claimant. In the context of regulation 19(5)(d) such giving of information, in our view, will consist of the handing over by an officer, either orally or in some written or similar form, of factual data to the claimant. Examples of such information that could lead a claimant to believe that a claim for benefit would not succeed, would include, by way of illustration, (1) a statement by an officer to a claimant that capital of under £5000 will disqualify a claimant from Income Support and (2) a statement by an officer to a claimant that the only benefit available for people unable to work is Incapacity Benefit. Statements such as these, which clearly provide inaccurate information, could undoubtedly lead a claimant to believe that a claim for benefit would not succeed.”
[19]It follows that regulation 19(5)(d) does not cover general information on a DWP website which is not tailored to the claimant’s particular circumstances and which is not provided as part of some specific interchange between the claimant and DWP officer. This not to say that information provided online may never fall within regulation 19(5)(d). For example, it is common nowadays when dealing online with e.g. utility companies to be asked “Do you wish to chat with our online adviser?” If such a facility were to be available in the context of benefit claims, and specific information be given in the course of an online conversation, then that might well count as a case where “the claimant was given information by an officer of the Department for Work and Pensions”. However, that is not this case.[20]I have also considered whether the August 2012 letter meant that “the claimant was given information by an officer of the Department for Work and Pensions”. Clearly that was a letter sent by the Department to the Appellant and so might be seen as part of some specific interchange between the claimant and DWP officer. However, as noted above I am satisfied that it was a standard letter drafted in essentially the same terms as the generic information on the website. This brings into play Mr Cooper’s fourth submission, which is supported by the Northern Ireland decision in R1/01 (IS)(T). On the causation point, the Tribunal of Commissioners held in that case that “Even if information has been provided by an officer, it is the information given, not the absence of further information, which must lead ‘the claimant to believe that a claim for benefit would not succeed’” (paragraph 39).[21]Mr Cooper in effect sought to draw a distinction between the claimant being led to believe that a claim for benefit could be made in a certain way and a claimant being led to believe that a claim for benefit would not succeed. I accept that this is a fine distinction, but it seems to me a valid one in the context of the statutory wording. The mischief at which regulation 19(5)(d) is directed is misleading official information about the substantive outcome of a claim (“… led the claimant to believe that a claim for benefit would not succeed”). It is not directed to official information about the process or method of claiming which may be accurate so far as it goes but incomplete. So did the First-tier Tribunal’s decision involve an error in law?[22]Yes it did. The Tribunal treated this as a case in which the answer was whether regulation 19(5)(b) applied on the facts. That was an error of law, as regulation 19(5)(b) cannot apply where a claimant seeks to backdate a JSA claim. The Tribunal did not consider the possible application of regulation 19(5)(d). That omission was not material, as it could not have assisted the Appellant in any event.[23]I therefore (technically) allow the appeal as the Tribunal’s decision involves an error of law. However, I re-make it to arrive at the same outcome, namely to confirm the DWP decision maker’s decision dated 12 October 2012 that the date of claim was 21 September 2012 and there are no grounds to backdate the claim to 6 September 2012. Official information about how to claim JSA[24]It would be remiss not to make some comments on this matter in the light of the submissions received. I refer to Mr Cooper’s first two submissions above (paragraph 16). I note that although the starting position is undoubtedly that JSA claims must be made in writing on an approved form (regulation 4(1A)(a)), this does not tell the whole story. This is because now JSA claims “may be made by telephone call to the telephone number specified by the Secretary of State” (regulation 4(11A)) and “may be made ... by means of an electronic communication” (regulation 4ZC and Schedule 9ZC).[25]The advantages of making online claims are obvious. The extension of the facility to make online claims to JSA was implemented through amendments to the Claims and Payments Regulations made by the Social Security (Electronic Communications) Order 2011 (SI 2011/1498). The accompanying Explanatory memorandum stated (at paragraph 4.3) that:
“Electronic communications are being introduced to complement existing channels. Those who do not wish, or do not have the means, to communicate electronically will still be able to use existing postal, face to face and telephony channels. Existing claimants will be invited to switch to the new service if they wish to do so. When the service is fully implemented, new claimants will be able to access it via the DirectGov website and will be encouraged to do so.”
[26]In addition Mr McClure, in his written submission on behalf of the Secretary of State, has referred me to internal guidance to Jobcentre Plus staff. This makes it clear that in response to telephone enquiries “claimants wishing to claim JSA should be directed to do so online ” (emphasis in the original). For other claimants “including JSA claimants who are vulnerable, claiming benefit through the Contact Centre [i.e. via a designated phone link in the Jobcentre to the Contact Centre] is the preferred method, although a clerical or face to face is also available”. The advice concludes that if the claimant refuses to claim online, or making a claim by telephone would be difficult, then the claimant “should be seen by a fully trained face to face officer who will gather information”.[27]Be that as it may, and as noted above, I am in no doubt that the Appellant in the present case was given the clear impression by the DWP website that claims could only be made by telephone or online. The Child Poverty Action Group Welfare benefits and tax credits handbook 2013/2014 hints both at this being a not uncommon misunderstanding and a wider problem. It states that “JSA claim forms are only available from Jobcentre Plus offices. Seek advice if you are unable to use a telephone or claim online and the Jobcentre Plus office tells you that you cannot start your claim in any other way” (p.730).[28]Whatever the advantages (especially to the DWP) of encouraging claimants to make claims online or by telephone, there will clearly be cases where this is either not possible or inappropriate. This may well be the case for claimants with certain types of mental health problems (there is no suggestion this was an issue in the present appeal). There is always the risk that the official mantra of “the DWP encourages claimants to make claims online or by phone but where appropriate can provide face to face support” will be interpreted by busy staff (and so the message conveyed to claimants) as “the DWP requires claims to be made either online or by phone”. In those circumstances it would perhaps be helpful if the DWP’s public-facing information services (whether its website or standard letters) included something to the effect that “If claiming online or by phone is difficult or impossible for you, you should contact Jobcentre Plus staff to explain why” and the guidance to staff reinforced. Conclusion[29]I do not doubt that the Appellant had a nasty shoulder injury. However, regulation 19(5)(b) cannot assist her to backdate her JSA claim precisely because that provision does not apply to JSA. Nor am I satisfied that she falls within the scope of regulation 19(5)(d). I therefore allow this appeal, but in name only and not to the ultimate advantage of the Appellant. The Tribunal’s decision involves an error of law and I set aside its decision (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The decision that the Tribunal should have made is as set out at the head of these reasons (section 12(2)(b)(ii)). Signed on the original Nicholas Wikeley on 24 September 2014 Judge of the Upper Tribunal

Cited in 2 later judgments