Not an uncommon scenario: Claimant posts HB claim form to LA who months later insist they have never received it and then refuse to date the claim from the date it would have been received. Claimant thus has huge rent arrears and eventually ends up with a Suspended Possession Order. The LA in question is one of the most infamous for poor quality HB administration (I'll spare their blushes by not naming them).

Claimant is not on IS so the conditions for date of claim as per Reg 72 (5) (d) HG Gen Regs are not met.

Aside from arguments about backdating and good cause, I understand that in English law (assume Scots law is similar), a letter sent by post is deemed to have been received unless the recipient can prove otherwise on balance of probability. Thus the LA should accept the previous date of claim without the claimant having to prove good cause if the claimant can supply a credible statement about when and how they posted it. If there have been problems with the post, then good cause should be accepted.

Does anyone know the legal authority for this postage and receipt rule?

Off the top of my head there is CSIS/48/92 which may contain some useful points for you although the case in question was different and the authority is a bit old now. I guess there may be other better authorities but if you want a copy of this then give me your fax no and i will send it.

CSIS/48/92 is available in the cmmrs decisions on rightsnet area of swopshop.

Thanks for your help. A letter is on its way the LA in question.

It would be helpful if the standard textbooks covered this point because it is such a common problem.

It is covered (briefly) on pages 927 (Analysis of reg 2) and 874 of the 2003/2004 edition of Findlay. There are different rules for documents sent to the LA (or Appeals Service) by a claimant than for those sent to the claimant by the LA.

This particular legislation only appears to relate to appeal, revision and supersession correspondence and imposes a stricter test of receipt than the deeming to have been received after posted principle for claims.

The legislation actually applies to all HB Decision making not just to appeals.
(See SI 2001/16050

Although the decision below refers to an I/S claim, the same principle should apply to LA claims - in addition of course, the Post office now admit to losing thousands of items per day.

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CIS 759/92
Decision
SOCIAL SECURITY ACT 1986
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the social security appeal tribunal given on 10 August 1992 is erroneous in point of law, and accordingly I set it aside. I direct that the appeal be reheard by a differently constituted tribunal who will have regard to the matters mentioned below.

2. This is an appeal by the claimant, brought with the leave of a Commissioner, against the decision of the social security appeal tribunal of 10 August 1992.

3. On 31 March 1992 the claimant applied for income support in respect of the periods from 29 July 1991 to 6 August 1991, 26 August 1991 to 7 September 1991, and 23 September 1991 to 18 November 1991. Manifestly, the claim was out of time, and must fail unless the claimant could show continuous good cause for such lateness. On 8 June 1992 the adjudication officer decided that good cause had not been established, and as a result he disallowed the claim. In due course, the claimant appealed to the tribunal, who in the event upheld the adjudication officer.

4. However, the claimant contended before the tribunal that he had in fact put in claims for the relevant periods at a time earlier than 31 March 1992, and that such claims were timeous. However, no trace could be found of their receipt.

5. On this issue the tribunal found as follows:-

“It seemed improbable that all three forms should have gone astray in the ‘post or been mislaid in the office. But it was not beyond the realms of possibility. However that may be, the evidence suggested that, having made each claim, the claimant made no great effort to pursue the matter until 1992.”

However, in CSIS/48/92 the Commissioner at paragraph 8 considered the provisions of sections 8 end 23 of the Interpretation Act 1978 and of regulation 4(6) of the Social Security (Claims and Payments) Regulations 1987, the letter of which provides that:-

“Every claim shall be delivered or sent to an appropriate office, ...”

The Commissioner concluded that:-

“A claim for social security benefit is, therefore, a document authorised by an Act to be served by post and which is presumed to have been served (or delivered) in the ordinary course of post unless it is proved not to have been so delivered.”

6. Accordingly, the adjudication officer now concerned, who supports the appeal, contends that the tribunal were required to consider:-

“ (i) Whether they accept on the balance of probabilities that the claim forms had been posted as overred, and

(ii) if they were posted the presumption of delivery rebutted, on the balance of probabilities by the adjudication officer.”

The adjudication officer now concerned argues, that the tribunal did not properly go into these matters, and as a result there was a breach of regulation 25(2)(b) of the Adjudication Regulations. I agree.

7. It follows that I must set aside the tribunal’s decision and I direct that the appeal be reheard by a differently constituted tribunal who will have regard to the criticisms made above.



(Signed) D.G. Rice
Commissioner
(Date) 4 January 1994 MR/SH/3

Don't you mean 12001/1605? Which particular Regulation has the effect you suggest? It's quite a long Statutory Instrument.

And even if this does apply to all decision making, surely from the wording of Reg 2 of the HB D & A Regs, there's a distinction between a claim and date thereof and any subsequent decision? This is also implicit in the notes in Findlay which are clearly only discussing revisions, supersessions and appeals.

I don't think it is limited to that. 2001/1605 deleted HB reg 78 which dealt with "any notice or other document that is to be given or sent to an authority" and replaces it with Reg 2 in the Decision Making and Appeal regs.

The Findley commentary to Reg 78 before it was deleted included claim forms. See page 375 in the 2000/2001 Findley for example.

Having had another look at Reg 2 of the HB/CTB D & A Regs, even if this does specify the date of receipt of a claim form, the two Commisioners Decisions cited above still apply.

Ss 7 & 23 Interpretation Act 1978 which are cited in CSIS 48/92 are very clear on this point and effectively deem a date of receipt which fits with a reading of Reg 2 of the D & A Regs. Therefore a claim form which is lost in the post or by the LA should still be treated as having been received.

I agree the decisions still apply.

a form received by an LA but then lost is still received.

A form lost in the post is not received, but the burden of proof sits with the LA to show that on balance of probability the form was not received.

There is a new decision on this CG/2973/2004

Commissioner Turnbull says CSIS/48/92 and CIS/759/1992 does not apply to claim forms.

In summery it appears to say that even where it is established that a claim has been posted s.7 of the Interpretations Act does not apply.

from the cmmrs site ....

CG/2973/2004

Looks like this will eventually have to be decided by a Tribunal of Commissioners if CG2973/2004 does not go to the Court of Appeal.

Just because CG2973/2004 is a later decision does not give it more weight than CSIS48/1992. CSIS48/1992 was followed by CIS759/1992 and has not as far as I know been departed from until recently

My initial thoughts (like Stainsby's) are that this new decision is of equal authority to the previous ones - so a DM or Tribunal could still rely on the previous decisions. Tribunals have been known to prefer older decisions when faced with conflicting decisions on the basis that older ones are stronger precendent.

The Commisisoner still leaves open the option of using S 7 in limited circustances, see para 29.

The Commissioner also refers to the slightly unsual facts of this case in para 18 in reaching the view that he did - so one might distinguish this decision on the facts.

Claimants and advisers would be well advised to hand deliver claim forms and to get a receipt - not ideal and an added burden, but it puts the question of date of receipt beyond doubt.