Commissioner's File: CIS/642/94

SOCIAL SECURITY ACTS 1975 TO 1990
SOCIAL SECURITY ADMINISTRATION ACT 1992 CLAIM FOR INCOME SUPPORT
DECISION OF THE SOCIAL SECURITY COMMISSIONER

Appeal Tribunal: Truro 

1. My decision is that the decision of the Truro Social Security Appeal Tribunal dated 7 April 1994 is a nullity.

2. This is a purported appeal by            with the leave of the tribunal chairman against the majority decision of the appeal tribunal.

3. I have the submission of the adjudication officer dated 9 November 1994 in respect of which I have observations dated 2 December 1994. No purpose is to be served by my setting out these matters afresh here.              was appointee in respect of his wife, by an appointment dated 24 January 1990, copies of which are at pages T19 and 105 of the case papers. The appointment is in respect of an "Application For Appointment To Act On Behalf Of A Person Unable To Act By Reason Of Mental Or Other Incapacity". 
The grounds of the application which is dated 23 January 1990 are:- 
"My wife is unable to communicate either verbally or by writing so I have to deal with all her benefits for her." 
On the face of the record of the appeal tribunal dated 7 April 1994 the appellant is shown as "           (Appointee for the late               )". The reference to the appointment of             is in paragraph 2 of the findings of the appeal tribunal which are:- 
"At the same time that          was made the appointee to his late wife, i.e. in January 1990, he also declared as appointee the up-to-date situation with regard to their overall situation ……"
The current legislative provisions where an appointment is made in respect of a person who is unable to act are contained in Regulation 33 of the Social Security (Claims and Payments) Regulations 1987. However, the claimant has from the face of the record of the appeal tribunal died prior to the date of that appeal tribunal and on the face of their record as indicated in their Findings of Fact              is referred to as the "appointee". The 1990 appointment is not in respect of a deceased but in respect of a person unable to act. Appointments in respect of a deceased person are dealt with by a different regulation that is Regulation 30 of the Social Security (Claims and Payments) Regulations 1987 which is a distinct and different form of appointment. In the absence of an appointment under Regulation 30 the proceedings are a nullity. Authority for that proposition is found in my decision being Decision R(SB)8/88 and in particular I refer to paragraph 5 of that decision. Where a claimant has died, the Secretary of State may appoint a person to act. Unless the Secretary of State does so the tribunal has no jurisdiction to proceed in the absence of action by a personal representative under a grant of probate or letters of administration. I would also refer to Decision R(SB)5/90 to the effect that the appointment of a person to act by the Secretary of State operates retrospectively. Paragraph 8 of the decision of the Tribunal of Commissioners being Decision R(SB)9/84 referred to at paragraph 5 of the Consent Order made by the Court of Appeal in Walsh v the Chief Adiudication Officer on 19 January 1995 has in any event no relevance in the instant case. With the greatest respect I do not see that paragraph 8 of R(SB)9/84 is authority for the proposition that a claim made by a person who "is unable for the time being to act" cannot be determined by an adjudication officer and of course by an appeal tribunal (or a Commissioner) to be a nullity. A claim as well as a decision (and that is well established) is valid until set aside. I can see no reason why under Section 21(2) by which:- 
"Section 21(2) ... the adjudication officer may decide a claim or question himself or refer it to a Social Security appeal tribunal." 
the adjudication officer cannot decide the claim to have been a nullity on the grounds that that "person is unable for the time being to act". No claim has been made by a person with capacity and it would to me appear to be the obvious solution. Paragraph 8 of R(SB)9/84 the Tribunal decision states:- 
"A supplementary benefit officer has a statutory duty to adjudicate any question raised before him relating to a person's entitlement to supplementary benefit." 
I cannot see why such an adjudication cannot be that the claim, (although when originally made by an incapacitated person in some sense existed) could be set aside as a nullity necessitating an adjudication officer's decision to that effect. The Tribunal of Commissioners, also in paragraph 8, purport to derive support for the proposition that a determination made by an adjudication officer cannot be a determination of a nullity from the provisions "of Regulation 26(1) of the current Claims and Payments Regulations…".
The present regulations as to a person unable to act are contained as I indicate above in Regulation 33 of the Social Security (Claims and Payments) Regulations 1987. On the construction of regulation 33(1) I would have thought that the opposite is the case. Regulation 33(1) provides so far as relevant:- 
"Where - 
(a) a person is, or is alleged to be, entitled to benefit, whether or not a claim for benefit has been made by him on his behalf; and 
(b) that person is unable for the time being to act; and either 
c) no receiver has been appointed by the Court of Protection with power to claim, or as the case may be, received benefit on his behalf; or 
(d) in Scotland, his estate is not being administered by any tutor, curator or other guardian acting or appointed in terms of law,"
The provisions of regulation 33(1) (apart from the position where a Court of Protection in England and Wales and the situation in Scotland arises which are comparable to the case where the claimant dies and in England and Wales probate or administration is taken out or the appropriate action is taken in respect of Scotland) apply clearly where a claimant makes a claim and later becomes "unable for the time being to act" or where the claimant is "unable for the time being to act" prior to the time a claim would normally have been made by him if he were able to act. The provisions operate as a question of construction satisfactorily where the claimant made a claim while able to act and subsequently became unable to act as where the claimant was from the commencement unable to act. The words "for the time being" in regulation 33(b) support this. The cases cited at note 10 of p. 648 of the 4th Edition of "The Law on Social Security" Ogus, Barendt and Wikely support this view that a claim can be determined to be a nullity. If that is not the case what is the point of the appointment provisions of regulation 33? The jurisdiction in respect of persons of unsound mind is statutory and was originally De Praerogativa Regis (variously dated between 1255 and 1290). The 9th Chapter related to idiots and the l0th Chapter to lunatics. I cannot see that such an idiot's or lunatic's purported claim totally incomprehensible apart from such words as "I want my rights" could be disposed of by an adjudication officer (or for that matter any court or tribunal) other than by being declared a nullity. Some regard must be had to the general law of incapacity. Be that as it may in the instant case the claimant has died and there is no valid appointment under Regulation 28. The only appointment is one in respect of inability to act under Regulation 30. (See rider).

4. In accordance with my jurisdiction my decision is that the decision of the appeal tribunal is a nullity. My grounds for this are dealt with in the paragraph immediately preceding.

5. Accordingly the decision of the appeal tribunal is a nullity.
  
(Signed) J B Morcom
  
Commissioner
(Date) 3 May 1995