I must admit my heart sank when i read commissioner Jacob's decision and now the DMG memo...

but was it _really_ a defective claim? i'm looking at an A1 and i can't see where the claim form asks for verification of child benefit. i don't know whether i can't see for looking or what, but i really want to know whether the claim was actually defective, or whether the child benefit benefit verification request was part of the verification framework. can anyone point out where the child benefit verification is requested on the claim form - i admit i'm overdue an appointment with an optician, but now i'm getting confused as well...

Part 10 page 21 of the form asks;

"Are you or your partner getting any of these benefits etc etc..."

Child benefit is included in the list.

I've just spent an hour reading these 2 decisions again and analyzing reg 6(1A) of the Claims & Payment Regs. I cannot for the life of me understand the DWP guidance saying that the reported decision should be preferred.

The 2 decisions are distinguished. One deals with a request for backdating, the other concerns a request for the date of claim to begin on a later date than the claimant first notified the Department that she wished to make a claim.

Thus commissioner Jascobs carefully deconstructs reg6(1A), specifically analyzing the relationship between sub-paras(b) and (c) and the priority between (c)(i) and (c)(ii). Commissioner Mesher does not do this because that case did not call for a thorough analysis of that reg, precisely because that was not warranted in that case.

In that case the application of reg 6(1A) was pretty straightforward. What was called for, and done, was an analysis of reg 19.

However, it is perfectly possible that I have missed something as commissioner Jacob's analysis of reg 6(1A) takes some getting your head round and my subsequent disorientation may be clouding my understanding. Anyone want to put me out of my misery.

steve, yes, but...but...where does it ask for proof of child benefit?

on page 23 it asks for proof of war widow's pension and war disablement pension, but where does it ask for child benefit?
if the form doesn't ask, it was not a defective claim.

paul, i can't get my head around any of it while i'm thinking that the claim wasn't defective in the first place!!! the DMG is very carefully worded, explaining that the verification of child benefit which the form asked for wasn't provided within time etc... and call me suspicious...lol! if the form didn't ask for it, it wasn't a defective claim, and i just want somebody to point out where the form asks for child benefit verification and then i'll say "Doh!" but at the mo, i'm thinking it was an evidence requirement, given verbally, when it needs to be in writing, and the month for providing evidence can be extended where reasonable, which is a whole other set of regulations...and i'm wondering whether the whole thing went to the Commissioner on the assertion that it was a defective claim, but actually wasn't and is a wrongly disallowed verification framework case, ie defectively identified as defective...oh dearie me what a muddle...

Jan

In CIS 2726 the claimant notified the Department on 21/7/04 that she wished to make a claim for IS from 2/8/04 and asked for a claim form. The (allegedly) defective claim form was received in the appropriate office on 2/8/04. The defect was remedied on 31/8/04.

In calculating the 1-month back from 31/8/04 commissioner Jacobs is effectively saying that the deemed notification (of intention to make a claim) can be the actual notification date (21/7/04) or the date that the department received the defective claim (2/8/04). As Reg 6(1A)(c) does not prioritise which date should be used then the claimant can rely on either date to her advantage. Therefore, counting back from 31/8/04, the date 2/8/04 falls within the 1-month period then benefit can be awarded from that date.

In R(IS) 16/04 the defective claim was rectified more than 1 month after the notification of intention to make a claim and 1 month after the date that the defective claim was received by the Department. Thus, under reg 6(1A) benefit could only be paid from the date that the claim was rectified, 31/12/02, subject to backdating provisions of reg 19. That is the main reason why the 2 cases are distinguished. In my view the 2 decisions are not in conflict.

regards
Paul

I would like to know why the DWP is rejecting this decision?

is it because it has realized that the claim wasn't defective?

In R(IS) 16/04, the claim was defective, because -

"The claim form instructed that proof of all savings had to be provided if they were worth more than £2,500 in total (as the claimant’s were)."

The claimant did not provide verification of capital within the time limit, when it was specified on the form that he was required to do so.

There is a commissioner's decision, which i can't recall off the top of my head, you will know it, which clarifies what a defective claim is. We can all guess that an unsigned form, or one completed in pencil or purple crayon, would be considered defective, but what about forms submitted without payslips, bank statements etc? the decision i'm thinking off (i wish I had a better head for numbers, or they would give commissioner's decisions names, like hurricanes : ) ) made it clear that if the claim form specifies that provision of particular evidence is required on the form, a claim received without it is defective until the evidence is provided, and as we know, being the subject of these two decisions, there is a time limit.

there are green boxes throughout the A1 specifying what evidence is required, and i can't find a requirement to provide verification of child benefit. (i sometimes literally cannot see things right in front of my face, so i'm insecure about having missed something obvious) - but the DWP doesn't want everything verified - they don't want to verify IB for example - it's just unnecessary paper, and they can check on their systems. the form asks whether child benefit is in payment for each child separately, and they have internal communications with CBC, 'though they are a bit dodgy. before direct payments, it would have been decidedly problematic - they definitely did not want people sending in child benefit books - they were treated as valuables, and cancelled on receipt! the A1 print i have is April o4 - i don't know whether they changed to a later version, but it would certainly be problematic if people had to request duplicate copies of award notices from child benefit centre!

there are some real muddled issues in the area of claims, and with the situation with jobcentreplus and CMS being as it is, i wouldn't like to see the waters getting even muddier.

defective claims can be simply refused as defective, but shouldn't be confused with _valid_ claims where the claimant has failed to meet an evidence requirement under reg 7. In addition to requiring the claimant to submit certain proofs with the claim, the sec of state in empowered to require any evidence he needs to determine entitlement, providing the request is reasonable. there was a problem with those claims too, with some DM's disallowing claims on failure to provide evidence, under reg 7. There was another commissioner's decision which said that was incorrect, - reg 7 is just an empowering reg - the claim still has to be determined on the evidence available. this will most likely be an adverse decision if evidence necessary to prove the claim is not provided, but not necessarily in all cases, and of course, the regs under which the disallowance is made, is variable, according to the particular claim, and which bit of the claim the claimant was unable to show that he satisfied. it was a problem area deriving from the 'old days' when there were sec of state's decisions against which there was no right of appeal.

on top of this, there are the rules for backdating of claims.

then there was the verification framework, which threw a new spanner in the works, and a raft of commissioner's decisions was needed to spell out that the framework was administrative, and not law. (slap that benefit agency!)

i'm sorry to be anal about this, but people are reporting claims being closed down on failure to provide evidence, and one wonders whether the DWP knows what it is doing. i've had a client who was disallowed on failure to provide evidence, after waiting 5 months for any payment under CMS, and providing verification 3 times because they kept losing it! (sorted now). added to which, we know that claims are being in effect, verbally disallowed, without right of appeal, by telling people, over the phone at the call centre, or in person at the jobcentre, that they can't claim xxxx benefit because they are not entitled to it. in these circumstances, being clear about what the law around claims actually means is extremely important, because once again, the DWP has lost sight of the law, in preference to its admin systems. (i know you know all of this, and better than i do. : ) )

i have other related concerns, which is why i would really like confirmation of whether or not the claim which was the subject of commissioner Jacob's decision was in fact defective. at the moment, i cannot see for myself that is was defective, so i don't believe that it was.

working on that premise until i have reason to believe otherwise, it raises many questions about the DWP... i have been concerned for a while about the quality of some, not all, appeal submissions to the the tribunal, and whether badly prepared submissions can harm a claimant's appeal. i had tended to think that when an appeal gets to the Commissioner stage, the SoS people will have gotten their act together and know what they're doing - and would helpfully (to all parties) sort out and clarify any defects or mistakes in the Sec of State's position discovered in a careful consideration stage, because afterall, law is being created, and they would impartially wish to get it right, (my old HEO who was a demon appeals vetter from the old days when the DSS took tribunals very seriously, would have been driven skitty when the clearance targets became the most important consideration...)but i'm no longer so sure of that assumption. looking at the Commissioner's decision again, it looks like quite a struggle - with possibly an absence of 'helpfulness'from quarters where it might be expected, or am i mistaken as usual? the regs have been made horribly complicated (but i tremble at the thought of them being re-drafted and made worse!) and i can't help wondering whether it was presented as a fact from the original submission onwards, that the claim was defective, when in fact the claim wasn't defective. that really would be pretty annoying.

anyway, the DMG letter states clearly that the claim was defective -

"The claim form was returned on 02.08.04 but without the
verification of CHB that the form requested, making it a defective claim."

I can't find the request on the claim form - can somebody please put me out of my misery on this point, and then i'll shut up? : )

hello paul

i've managed to go a little beyond the allegedly defective claim issue and get to reflect a little on the decision. you are right, the Commissioner went to a lot of trouble in considering the regulations. i agree that the two decisions are not in conflict, for the reasons you pointed out, which unfortunately still heads me back to the puzzling DMG letter. it appears to imply that the Sec. of State does not accept that the DWP's application of reg. 6 was incorrect.


The Commissioner states that the Secretary of State’s approach to regulation 6(1A)(b)" was a source of his initial confusion, so I would have thought the DWP would have given more careful consideration before advising DM’s to disregard the decision on the basis of an argument that won’t fly.

In this case, the claimant notified an intention to claim in advance of the period from which she intended to claim, which was from 31/7/04, the day after her maternity pay ended.

she submitted either a properly completed claim or a defective claim on 2/8/04, which she completed on 31/8/04, by providing verification of the child benefit award. the decision-maker treated the date of claim as 31/8/04, so she lost a full month's benefit. it is not surprising that she appealed. it is surprising that the decision got through a process of reconsideration, appeal preparation and a tribunal hearing, and had to go to a Commissioner before the claimant obtained a remedy to a very unfair decision, which left her without basic financial support for a whole month, when she had just had a baby.

the Commissioner had to analyze the function of regulation 6 (1A) (b, to find that it was not intended to operate to the detriment of the claimant - which was the way the DWP had applied it, on behalf of the Secretary of State. One hopes that the concept of regulations actually benefiting the claimant has not now become alien to the DWP’s understanding of social security law/

On a practical level, the DWP's approach, in applying reg 6 (1A)(b), was to apply it as a stand alone regulation, as far as i can see. There appears to be no justification for this approach. It is clear that sub-paras (a), (b) and (c) have to be read in conjunction as a whole.

if the law is set out in the appeal submission, along with how it is applied in the particular case, how could the submission avoid stating that the date of claim could be either 31/7/04 (the day she notified her intention to claim from) or 2/8/04, the date she made a defective claim which was completed within the month allowed in order for it to be made a properly completed claim, whichever is most advantageous to the claimant - in this case, the latter? (if, as a matter of fact, the claim made on 2/8/04 was a properly completed claim, the former would have been the most advantageous date to the claimant.)

It also occurs to me that if the claimant had not yet been awarded child benefit on 2/8/04, and advised the DWP of that fact, then the verification required did not exist, and the claim could not have been defective.

Hi Jan

Thanks for that.

In its guidance the DWP quote the following from the commissioner in R(IS)16/04: -

“But even if it had been received within one month, regulation 6(1A)(b) could not have operated to make the date of claim 28 November 2002. That is because the month in regulation 6(1A)(b) runs from the date of first notification. In the present case, the date of first notification was 23 October 2002 and on any footing the properly completed claim was received more than one month from that date. So the actual date of claim is 31 December 2002”.

As you say the commissioner in this case is only dealing with the effects of reg 6(1A)(b) in isolation. Whereas in CIS/2676/2005 the commissioner states that 6(1A)(b) has to be read with 6(1A)(c) and thus de-constructs and then re-constructs the whole of the reg.

If this is the wrong approach then it will take a new commissioner’s decision, which deals with both CD’s and decides what the true approach should be. It is not enough to simply say that the reported decision should be preferred (under the principle of stare decisis).

That is not, in my view, the proper approach to precedent when the point of law decided in one case develops and builds on the point of law decided in a previous case.

Regards
Paul

Thank you Paul

I suspect I’ve put rightsnet to sleep with this one : ) but your post has had me looking yet again more closely at the 2 Commissioner’s decisions, and the DMG letter. My creaking little brain has now satisfied itself with regard to the two decisions, as you say, developing and building upon the point of law, and I now have only my anxiety neuroses about the DMG letter to resolve. <grin>

I agree with all you have said, and have concluded that the DWP’s claims for R(IS) 16/04 (on the basis of his italicizing the word “first”) don’t stand up to scrutiny.
I've had the same problem with its claims that the decision held that the reg “provides a single option for backdating” or anything as explicit as “earliest contact” as the start of the one month period, that I had with the invisible child benefit verification instructions, unfortunately.!!!??

In addition, in R(IS) 16/04, there was no detailed submission by the Secretary of State on reg. 6 (1A)–referred to in order to determine the date of claim as 31/12/02 - at the time, the SoS believed there was no right of appeal against date of claim decisions, and the Commissioner stated he had no need to explore it. He rightly considered the date of claim to conclude that the Secretary of State was correct about it being 31/12/02, before moving on to consider the regulation 19 backdating issues. He was silent on 6(1A)(c), which couldn’t help the claimant in that case, unlike the later case.

(I can't get the date of claim to any date other than 31/12/02, "on any footing", as the Commissioner says, either.)

With regard to context -The DMG letter quotes part of para 8, but not the opening sentence –

"Applying those provisions to the present case produces the following result."

The point the DWP has seized upon was not reported as a legal ruling on that point, given in the context of the particular case - the reported rulings were on back-date issues – although, not a million miles away from the Sec of State’s approach on date of claim – which Commissioner Mesher rejected – the Sec of State submitted that unreasonable delay in an earlier expressed period of the claim would prevent a claimant from benefiting when reg. 19 conditions applied immediately before the date of claim -

“"It would be inconsistent with that intention if claimants were deprived of the benefit of those provisions merely because there had been some unjustified delay at an earlier stage." (para 19)

Commissioner Jacob’s decision addresses the potential conflict in interpretation of 6(1A)(b) by clarifying the referent of “that” in reg. 6(1A) and ruling that the correct starting point is the fully completed claim, employing the approach, which _was_ reported in Commissioner Mesher’s decision on backdating, of working backwards from the date of claim, not forwards from the first notification – a nice symmetry, I thought. : )

It certainly strikes me as wrong for the DWP to advise DM’s that the earlier Commissioner’s decision _correctly_ stressed etc, implying that they are the authority on correct interpretation of the law, and Commissioner Jacobs got it wrong.

It looks as if they are looking for another case, to get another bite of the cherry, which adds another ironic layer of symmetry…


Jan

ps - it has helped me to discuss this, thanks for your patience. : )

Jan

Have you seen the new DWP guidance on this, published on the news section of this sight. I really do despair!

For crying out loud, its site you idiot!

: ) just, paul. it gave me a victor meldrew moment or two.

the really frustrating thing is, that when you strip away all the precise verbiage that is part and parcel of legal reasoning - of necessity it is long hand (administrative jargon, abbreviations, and short cuts through language are expedient, but prone to lead into error), you are left with a ruling that meets not only the requirements of the law, and of fairness, but also the demands of commonsense, and of basic logic.

the department has got itself stuck on the word 'first', and its obduracy beggars belief and borders on cretinous.

the substance of ACI's advice to D-Ms - to disregard the decision, indicates that the notion that the purpose of the regulations is to empower the DWP to deprive claimants of their entitlement by any possible means, is deeply embedded into the cultural mindset of the department.

that this rot emantates from the Adjudication and Constitutional Issues department is disturbing. Should we assume that the Secretary of State endorses the advice? It seems we must. Why didn't he appeal against the decision, and argue his case, so that we can all see where the law says that only one's first attempt at claiming can count. Choosing not to, shouldn't he abide by it?

his chosen option, not to challenge the ruling but to ignore it, is...!!$%*"@!!!...what it is...

...and verging on Hoonish...

i'll be on holiday next week, if i ever get to the bottom of my 'piles'...

most likely back in welf-world soon...

“The substance of ACI's advice to D-Ms - to disregard the decision, indicates that the notion that the purpose of the regulations is to empower the DWP to deprive claimants of their entitlement by any possible means, is deeply embedded into the cultural mindset of the department”. That’s about the size of it.

The guidance says “... (we) consider that R(IS) 16/04 represents a more accurate interpretation of the regulations than R(IS) 10/06 ... because it gives proper emphasis to the key word 'first' in the regulations. In addition, the Commissioner in R(IS) 10/06 makes no reference to R(IS) 16/04”. So what! There is no need to refer to R(IS) 16/04. R(IS) 16/04 as we have said is mainly concerned with reg 19 of the Claims and Payments Regs.

And as it only deals with reg 6(1A)(b) in isolation whereas R(IS) 10/04 deals with reg 6(1A) in its entirety then how on earth does it represent a more accurate interpretation of the regs.

Reg 6(1A)(c) states that “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”.

The commissioner states “subparagraph (c) is expressed as a deeming provision. Its function, though, is more akin to a definition. It sets out the circumstances in which a person is treated as notifying an intention to make a claim. If heads (i) and (ii) are read into paragraph (b), it reads:
‘where a properly completed claim is received in an appropriate office within one month of first notification of intention to make that claim, which may be shown by (i) a notification in accordance with regulation 4(5) or (ii) a defective claim, the date of claim shall be the date on which that notification is deemed to be made or the first day in respect of which the claim is made if later’.

Set out like that, no issue of priority arises. The claimant is given a choice to rely on one month from the date of notification or from the date of defective claim”.

The key phrase is “if heads (i) and(ii) are read into paragraph (b)…” Thus, in my view, this argument deals quite adequately of how the word first is to be interpreted in the reg and I do not see how the Department’s argument bears scrutiny.

I just think that it is an example of the mean spiritedness of the Department at its worst.