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Selected Cases and Summaries of Completed Investigations - April to September 2000

Volume 3 - 3rd REPORT - SESSION 2000-2001

Chapter 1

LEGAL SERVICES COMMISSION

11. Case No. C.1075/00

Benefits Agency: refusal to pay the equivalent of benefit lost between 1991 and 1995; following misdirection concerning entitlement to disability or sickness benefits by the Employment Service

Summary

In June 1998 the Employment Service accepted that their officials had probably misdirected Mr S, who had signed on as an unemployed person since June 1991 but who had been unfit to work. They agreed to pay him, with interest, the equivalent of disability premium calculated by Benefits Agency as having been lost - £6,739.29 in all. The Benefits Agency declined to award Mr S the equivalent of other disability benefits on the ground that he had not met the criteria for payment. The Ombudsman found no evidence that the Benefits Agency had erred in their consideration of entitlement, although there had been handling errors and delays. At the Ombudsman's invitation the Benefits Agency agreed to place all the medical evidence on file before Medical Services afresh, but Medical Services and the Benefits Agency confirmed that Mr S had not established that he had lost entitlement to other benefits as a consequence of being misdirected. The Benefits Agency made a consolatory payment of £150 to Mr S for their poor handling of his case.

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Full text

1. Mr S complained that the Employment Service, an executive agency of the Department for Education and Employment, misdirected him in 1991 concerning entitlement to benefits; and that the Benefits Agency (BA), an executive agency of the Department of Social Security, refused to compensate him for consequent financial loss of benefit between 1991 and 1995. He also complained that BA delayed his appeal against a decision to withdraw disability living allowance.

2. My investigation began once the Ombudsman had obtained comments from the Chief Executive of the Employment Service and the then Chief Executive of BA. I have not put into this report every detail investigated by the Ombudsman's staff and a number of papers have been routinely destroyed. I am satisfied, as best I can be, that no matter of significance has been overlooked.

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Background

3. Attendance allowance was a non-means tested benefit for those who were severely disabled either physically or mentally, and who needed looking after for at least six months. The allowance was paid at two rates, higher and lower, depending on the degree of attendance needed. The attendance allowance board, an independent adjudication authority, or its delegated medical practitioners, took decisions on medical questions based on reports by an examining medical officer. Entitlement to benefit was then decided by an adjudication officer. Mobility allowance was payable to those who were unable or virtually unable to walk and who were likely to remain so for at least 12 months. Adjudication officers also decided entitlement on a similar basis as for attendance allowance, with rights of appeal on medical matters to independent medical boards or tribunals. On non-medical matters decisions by adjudication officers carried a right of appeal to a different tribunal. Appeals on a point of law from any tribunal decision could be made to a social security commissioner.

4. From 6 April 1992 mobility allowance and attendance allowance for people under 65 were replaced respectively by the mobility and care components of disability living allowance. Care component has three rates: highest, middle and lowest. Mobility component has two rates: higher and lower. An adjudication officer decided all entitlement questions to that benefit, including medical ones, with a right of review to a different adjudication officer and a subsequent right of appeal to a tribunal.

5. Other benefits were available to those who were sick or unemployed. Sickness benefit was a contributions-based benefit payable to those who were unable to work because of illness or disability. It was payable for a maximum of 28 weeks at which point, if the claimant remained unfit for work, invalidity benefit became payable. (In April 1995 incapacity benefit replaced both benefits.) A person receiving incapacity benefit or disability living allowance (or their earlier equivalents) might qualify for a disability premium. Unemployment benefit was a cash benefit to those who satisfied the contributory conditions and were available for and actively seeking work. Income support provided other help for those not in full-time work whose resources were insufficient for their needs. It was a non-contributory means-tested benefit payable to those who did not meet the contributory conditions for sickness and unemployment benefits. BA first assessed the amount of income support a person required to meet their needs, then offset any other benefits that were being paid and paid any outstanding amount. When payment of arrears was being made BA considered recovering any income support that would not otherwise have been paid had the arrears of benefit been awarded on time.

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6. As a general rule it is for benefit claimants to establish whether they may have rights and when in doubt they should make sufficient enquiries to find out what those rights are. An award of benefit is usually linked to the date of receipt of the application. Under regulations introduced in 1987 the time limit for claiming sickness benefit was one month. It could be extended up to 52 weeks if continuous "good cause" could be shown for the delay in claiming. Provided a claim was made by a specified date, disability living allowance could be awarded from the date of issue of the claim pack, but there is normally a qualifying period of three months before benefit is payable. Social security regulations made in April 1997 introduced a maximum global period of backdating of three months, and repealed the "good cause" provisions (which, in any event, did not apply to delayed claims to disability living allowance).

7. During the period covered by Mr S's complaint the Employment Service were mainly concerned with helping unemployed people return to work and paying unemployment benefit and income support to those unable to find work. Employment Service advisers had access to guidance about other benefits, such as sickness benefit, attendance allowance and mobility allowance but decisions on entitlement to such benefits remained the responsibility of BA.

8. Both BA and the Employment Service have a non-statutory scheme to compensate those who have suffered unacceptable delay in the payment of benefits or who have been denied benefit as a direct result of clear and unambiguous departmental error. They may also make consolatory payments, in exceptional circumstances, to those who have suffered severe inconvenience.

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Jurisdiction

9. The Ombudsman does not decide entitlement to any social security benefit. That is a matter for the adjudication and appellate authorities. The Ombudsman cannot question a medical opinion such as that given by an examining medical practitioner, and nor can he question a discretionary decision taken in the absence of maladministration. This report is concerned only with the administrative actions of BA and the Employment Service.

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Investigation

10. 1991-1995
Mr S claimed unemployment benefit, or income support, for the period 18 June 1991 to 3 August 1995 at his local jobcentre. According to Mr S an Employment Service disability officer advised him in July 1995 that, as he was unfit for work, he should apply for disability benefits. He duly claimed incapacity benefit on 8 August, backdated to 1 June 1991. Mr S said that he had suffered from a blood disorder for about seven years and had been diagnosed as suffering from post viral fatigue syndrome (known popularly as "ME") in 1994. He said that his enforced redundancy in May 1991 had coincided with increasingly poor health. Mr S said that he had told the jobcentre on many occasions that his medical condition was affecting his ability to find a job. He submitted medical forms to BA covering the period from 15 May 1995 and a letter from the doctor (who had taken over as Mr S's general practitioner in May 1995) saying that Mr S had "probably been unfit for work since 1991". After making some enquiries of the jobcentre, which established that Mr S had missed appointments because of illness, an adjudication officer awarded incapacity benefit from 8 July 1995. He decided that Mr S had not shown "good cause" for the period 8 August 1994 and 7 July 1995 (paragraph 11.6). Mr S did not receive any arrears of incapacity benefit because of the recovery of income support he had received over the same period (paragraph 11.5).

11. Meanwhile, in October 1995 BA received Mr S's application to disability living allowance. On the claim form Mr S said that the condition establishing his mobility and care needs had existed for 1_ years. Similar statements were made to the examining medical practitioner who completed a medical report on Mr S on 4 December. An adjudication officer subsequently decided that Mr S was not entitled to the mobility component, but awarded the lowest rate of care component from 30 August 1995 (the date the claim pack had been sent - paragraph 11.6) to 29 August 1997. Mr S requested a review of that decision on 22 December.

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12. 1996
After receiving further information from Mr S about his condition a reviewing adjudication officer on 7 March 1996 awarded the middle rate of care component and the higher rate of mobility component from 30 August 1995 to 29 August 1997. On 22 April BA received Mr S's appeal against the decision to limit his incapacity benefit (paragraph 11.10), notified to him on 6 February. His main ground was that the jobcentre had misdirected him by failing to point out over the years that he was entitled to other incapacity benefits. He said that he had explained the nature of his illness to jobcentre staff engaged in conducting the Employment Service "restart" interviews. His attendance for those had been compulsory, even though he had felt ill. Mr S said that he had "signed on" for income support purely as a means of receiving national insurance credits. BA made enquiries of the jobcentre manager who confirmed that Mr S had made references to sickness, but had (at one time) expressed an interest in becoming self-employed. In July 1995 an Employment Service disability officer had established that Mr S had been obtaining medical notes from his doctor but not submitting them. The officer had accordingly advised Mr S about other benefits.

13. A tribunal allowed Mr S's appeal on 14 October deciding that he was entitled to incapacity benefit from 8 August 1994 to 7 July 1995, the maximum permitted under the "good cause" rule. The tribunal made a number of findings of fact including:

• between June 1991 and July 1995 Mr S had repeatedly advised Employment Service disability officers that he considered himself unfit for work;
  
  
• Mr S received no advice about "signing off" or claiming sickness or other benefits;
  
  
• by continually not providing such advice to Mr S Employment Service staff led him to conclude that he did not require medical certificates from his doctor and that he should not hand in any certificates that had been issued as he was obliged to "sign on" (as an unemployed person).
  
  
• The tribunal concluded: "As a minimum the officers in the jobcentre should surely have put the issue of claiming sickness benefit before Mr S in order that he could make a decision about it".
  
  
• (BA subsequently recovered income support from the arrears of benefit payable as a consequence of the tribunal's decision, and Mr S received no payment - paragraph 11.5.)

14. On 21 October BA received a request from Mr S for disability living allowance to be backdated from July 1991 to August 1995. He relied on the tribunal's determination to the effect that the Employment Service had misdirected him.

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15. 1997
After noting that the "good cause" provisions did not apply to disability living allowance, an adjudication officer decided on 4 March 1997 that there did not exist any documentation which could be treated as an earlier claim. In response Mr S asked for a review on the grounds of misdirection and lack of departmental advice. He also enclosed the copy of a letter (of 8 October 1996) from his doctor which had been placed before the tribunal. That explained the nine occasions between March 1989 and August 1994 that Mr S had been a hospital day patient for withdrawal of blood - relating to his blood disorder, polycythaemia - and that he had suffered from ME since the middle of 1991. The doctor considered Mr S to be "unfit for remunerable employment". On 21 May another adjudication officer decided that disability living allowance could not be paid before 30 August 1995.

16. Meanwhile on 30 April BA had received Mr S's renewal claim to disability living allowance. A BA medical officer asked for a full assessment of Mr S's medical needs and an examining medical practitioner completed a report on 26 June. On 9 July an adjudication officer disallowed both mobility and care components with effect from 30 August (ie on expiry of the 1996 review award - paragraph 11.12). On 7 August Mr S asked for a review of the refusal to renew his disability living allowance. He said that his condition had slowly worsened over two years.

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17. In August BA referred Mr S's misdirection claim to their specialists. They in turn passed the papers to the jobcentre manager for investigation, through the BA local office, on 30 September.

18. 1998
In January 1998 BA discovered that the papers concerning the misdirection allegation had not reached the Employment Service, and sent duplicates. On 24 April the Employment Service reported that, because of the passage of time and in the absence of records, they could not confirm or deny Mr S's allegations. In the light of the tribunal's comments on "good cause", however, the Employment Service were prepared to accept that their staff had not given correct information at the time. Mr S should have been advised to claim (from BA) appropriate benefits if he had not been well enough to work. Accordingly the Employment Service asked BA to consider whether Mr S had suffered financial loss, drawing particular attention to a disability premium (paragraph 11.5). At an unknown date between 20 May and 8 June an adjudication officer accepted that Mr S had a disability which at times prevented him from working during periods from 1991. But from the evidence available he concluded that Mr S did not satisfy the conditions for mobility allowance or attendance allowance before 5 April 1992, or for disability living allowance between 6 April 1992 and 29 August 1995. In June BA concluded that Mr S had not incurred actual financial loss as a result of (accepted) misdirection.

19. The Employment Service notified Mr S of the decision on 13 June. Nevertheless on 19 June the Employment Service's special payments team reconsidered the position. They felt that Mr S should have been advised about sickness and incapacity benefits and, in the light of what was known about his disability, that he would have been unfit for work. In all probability Mr S would have qualified for benefit and a disability premium. Since the amount of unemployment benefit or income support was the same as the amount he would have received had he claimed sickness or incapacity benefit, any loss suffered would have been confined to the amount of disability premium he would have received had he claimed the latter. After consulting BA the special payments team made an ex gratia award of £5,513.01, equivalent to the disability premium payable between 18 June 1991 and 3 August 1995. They also paid Mr S £1,226.28 as compensation for the loss of use of that sum.

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20. A tribunal heard Mr S's appeal on 24 June, deciding that he was entitled to the lowest rate of care component only from 30 August 1997 to 29 August 1999. The Independent Tribunal Service sent the tribunal's findings of fact and the reasons for their decision to the parties on 5 October; they said there were three months in which to appeal on a point of law to a social security commissioner (paragraph 11.3).

21. Mr S continued to make representations concerning the impact of the misdirection by the Employment Service. To that end he submitted a report of 27 October from his doctor. That said that following fluctuating symptoms of tiredness in the legs, headaches, blurred vision and general fatigue, a (named) hospital physician made a diagnosis of ME in 1996. The doctor said that Mr S had been reluctant to complain about his difficulties and that certain physical characteristics could give a false impression of his fitness. In the doctor's opinion Mr S would have been able to walk only short distances without suffering significant pain in the four years from June 1991.

22. 1999 On 2 February 1999 an adjudication officer sought advice from a Medical Services doctor who examined Mr S's representations of 21 October 1996, the general practitioner's report of 27 October 1998 and other papers. The following day the Medical Services doctor reported on Mr S's position:

"In my opinion he probably did have symptoms of the conditions in question (polycythaemia and ME) and his ability to walk may have diminished from what it once was, but it is quite likely that his level of disability overall did not amount to a severe disability most of the time between 1 June 1991 and 29 August 1995."

In the light of that advice the adjudication officer considered that the entitlement conditions to disability living allowance (or equivalents) would not have been satisfied between the dates in question.

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23. The Employment Service's special payments team informed Mr S that misdirection had not caused him loss of disability living allowance. Given that it had taken almost 2_ years to reach a decision Mr S on 19 February asked BA to provide him with the evidence upon which that decision had been reached. In April Mr S made a hypothetical application to disability living allowance, as if made in 1991, to assist a specialist in haematology in providing a report. The specialist made a "to whom it may concern" report on 9 April based on notes taken from March 1989 when Mr S had first been seen. At that time he had complained of tiredness which began troubling him over the previous nine months, and of regular chest colds. Before that Mr S had been fit and able to walk 30 to 40 miles a week. A diagnosis of polycythaemia had been diagnosed. Over succeeding appointments Mr S had regularly complained of extreme tiredness with some slight breathlessness. The specialist had no accurate measurements of how far he had been able to walk. Mr S had been diagnosed as having ME after referral to another specialist in 1996. The specialist in haematology concluded that Mr S's quality of life had been very poor since she had first seen him in 1991. On 4 May an adjudication officer acting on behalf of the Secretary of State said that it was clear that Mr S had had a continuing medical problem since 1989. Nevertheless she considered that the specialist's report of 9 April did not contain any new evidence that would lead to the overturning of the Medical Service doctor's opinion of 3 February. Accordingly BA told Mr S that he would not have qualified for disability living allowance from an earlier period.

24. On 11 June the Member complained to BA's then Chief Executive that staff had shown an unhelpful attitude to Mr S from the start, that there was no appeal structure in place regarding misdirection, and about delays. The Chief Executive replied the following month. He explained that entitlement to mobility allowance, attendance allowance and disability living allowance did not depend on the fact that a person had an illness or disability alone but on the need for help with mobility and personal care arising from that illness or disability. He pointed out that on his first claim form for disability living allowance Mr S had stated that he had required help only since April 1994 (paragraph 11.11). Different adjudication officers had expressed non-statutory opinions, not reviewable by an independent tribunal, that Mr S would not have qualified for benefit had he made an earlier claim. Mr S's only recourse, if he believed that facts had been overlooked or if fresh evidence could be supplied, would be to ask for the question of earlier entitlement to be reconsidered. The Chief Executive acknowledged that the matter of misdirection had taken some time to resolve.

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25. On 20 July BA noted a telephone call from a supervisor at the Independent Tribunal Service. Mr S had been granted leave to appeal to a social security commissioner (paragraph 11.20) but documents had been weeded and the Independent Tribunal Service wished to borrow BA's original documents. In November the Independent Tribunal Service produced details of requests for papers which had been made of BA additionally in November 1998 and April 1999. Meanwhile on 6 August an adjudication officer decided that Mr S should continue to receive the lowest rate care component for a further two years, to 29 August 2001, but no mobility component. As part of a review requested by Mr S a different adjudication officer called for a report by an examining medical practitioner.

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Comments on the complaint by the Employment Service

26. The Chief Executive of the Employment Service said that he had been concerned by Mr S's allegation that jobcentre staff had failed to advise him about alternative benefits. His initial thoughts had been that the Employment Service would have been unlikely not to advise him about disability related benefits after he had brought his disabilities to their attention. Nevertheless he regarded the decision to award arrears of disability premium, in the light of the tribunal's decision (paragraphs 11.18 and 11.19), to be a satisfactory outcome so far as Mr S's dealings with the jobcentre had been concerned.

Comments on the complaint by BA

27. The then Chief Executive of BA outlined what he had told the Member in July 1999 (paragraph 11.24). He said that the acceptance by the Employment Service that Mr S had been misdirected did not mean that a special payment would be made to him automatically. He accepted that in some instances Mr S had not received the standard of service he was entitled to expect and had apologised personally to him. He had asked BA's special payments team to consider whether it would be appropriate to make a payment to Mr S.

Subsequent developments

28. On 20 December BA's special payments team concluded that Mr S had suffered gross inconvenience due to persistent official error over a long period. They noted that Mr S's request for the backdating of disability living allowance had been received on 21 October 1996 but that a decision had not been made until early February 1999. They regarded the delay between March and August 1997 as legitimate because statutory action on review and renewal of claim always took priority over extra-statutory action such as the consideration of a claim to misdirection. Thereafter there had been delays in asking the Employment Service to investigate misdirection. Had matters been handled well Mr S would have received a decision very much earlier. Furthermore Mr S's appeal to a social security commissioner had been delayed because of BA's failure to supply documents. The special payments team awarded £150 to Mr S by way of consolation.

29. I understand from BA that a social security commissioner ruled on 8 May 2000 that the tribunal's decision of 24 June 1998 had not been erroneous on a point of law, and consequently dismissed the appeal. I also understand that Mr S currently has an appeal outstanding against the refusal to review his current award of disability living allowance.

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Findings

30. Once the Employment Service realised that Mr S had made a formal allegation of misdirection by jobcentre staff, they fairly quickly accepted, on balance, that Mr S had reasonable grounds. Although they were hampered by a lack of contemporary records, the Employment Service gave due weight to the views expressed by the tribunal in October 1996. Strictly the tribunal's findings were of persuasive authority only, given that their remit was to determine "good cause", and I welcome the Employment Service's essentially pragmatic approach to the matter. I also commend the initiative taken by the Employment Service to identify an actual loss, of disability premium, had Mr S claimed sickness and incapacity benefits from June 1991 instead of income support as an unemployed person. Their award of £6,739.29 in June 1998 (paragraph 11.19), including compensation for loss of use, put Mr S back fully in the position he would have been in, so far as those benefits are concerned, but for misdirection by Employment Service officials.

31. The position regarding the alleged loss of disability living allowance is not so straightforward, however. As the then Chief Executive of BA has rightly said, the criteria for an award of disability living allowance is based on the needs arising from the disability, not the disability itself (paragraph 11.24). Put simply the criteria are different and distinct from those relating to sickness and incapacity benefits. Mr S has inevitably faced a difficult task in producing evidence some years later in support of a backdated claim. As I see it, the evidence going to the effects of disability (as opposed to unfitness for work) is contained in the general practitioner's letter of 27 October 1998 and the specialist's report of 9 April 1999 (paragraphs 11.21 and 11.23 respectively). The main thrust of the doctor's letter was the impact of Mr S's condition on his mobility. Before considering the position on a claim to benefit, however, the adjudication officer obtained and took into account the views of a Medical Services doctor (paragraph 11.22). I see nothing maladministrative in any of that. The specialist's report also focussed on mobility problems, but frankly acknowledged that such contemporary records as were available cast no light on how far Mr S had been able to walk. While the adjudication officer was entitled, in her discretion, to conclude that the specialist's report would have no influence on the advice given by Medical Services, I think it a pity that she did not give the doctor concerned an opportunity personally to comment further. At that time only some nine or ten weeks had elapsed since the earlier referral.

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32. The then Chief Executive of BA has pointed to a further difficulty for Mr S. When Mr S first claimed disability living allowance, in October 1995, he indicated - both on the claim form and to the examining medical practitioner - that his care and mobility needs ran from about April 1994 (paragraph 11.11). That was a year before Mr S's allegation of misdirection, and arguably a more valid indicator of needs (being more contemporary). On that rationale, the earliest potential date for backdating would be July 1994, given the normal three-month qualifying period (paragraph 11.6). In the final analysis it can only be somewhat speculative as to whether, and if so to what extent, Mr S has suffered unremedied injustice as a consequence of misdirection on the part of the Employment Service. Given my remarks above I asked the new Chief Executive of BA whether she would be prepared to refer the medical evidence in this case, and in particular the specialist's report of 9 April 1999, for further medical advice. And, in the light of that advice, for an experienced adjudication officer (or a decision maker under current arrangements) to decide whether Mr S can establish entitlement to disability living allowance from July 1994 only. In reply the Chief Executive said that she had arranged for Medical Services to reconsider all the evidence in Mr S's case. They had decided that the evidence did not indicate that Mr S would have satisfied the conditions for entitlement to any rate of disability living allowance prior to his already existing award. In the light of that advice BA adjudication specialists had confirmed that none of the conditions of entitlement had been satisfied for attendance allowance or mobility allowance up to 5 April 1992, or for disability living allowance between 6 April 1992 and 29 August 1995. I regard those decisions as having been taken without maladministration and, in the light of the restrictions on his jurisdiction, the Ombudsman cannot take the matter further (paragraph 11.9).

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33. I now turn briefly to other aspects of Mr S's complaint. I accept that consideration of Mr S's statutory entitlements must take precedence over his misdirection claim. I also accept that BA were right first to establish whether there existed any evidence amounting to a prior claim (paragraph 11.15). Nevertheless BA delayed unnecessarily their referral to the Employment Service for investigation of the allegation of misdirection and in monitoring progress. From my examination of the case papers it appears that BA misplaced their file in November 1998, that is around the time the Independent Tribunal Service first made contact concerning the documentation of Mr S's appeal to a social security commissioner (paragraph 11.25). While that does not condone BA's subsequent inaction, it may in part explain it. BA's special payments team properly reflected on all those failings in deciding, in December 1999, to award a consolatory payment of £150 to Mr S. I welcome that acknowledgement of the frustration and inconvenience caused.

Conclusion

34. BA's general handling of Mr S's allegation that he had been misdirected, albeit by Employment Service staff, was poor. Nevertheless I have seen no fundamental flaws in the analysis and judgements made in the exercise of discretion as to whether admitted misdirection led to quantifiable financial loss. I welcome BA's consolatory payment of £150 to Mr S.

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Last updated: 4 April 2005