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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2003] UKSSCSC CIS_58_2003 (29 May 2003) URL: https://www.bailii.org/uk/cases/UKSSCSC/2003/CIS_58_2003.html Cite as: [2003] UKSSCSC CIS_58_2003 |
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[2003] UKSSCSC CIS_58_2003 (29 May 2003)
R(IS) 3/04
Mr C. Turnbull CIS/58/03
29.05.03
Claim - validity of posthumous claim
A claim form for income support was requested on behalf of the claimant by a hospital social worker on 21 December 2001. By regulation 4(5) of the Social Security (Claims and Payments) Regulations 1987 ("the 1987 Regulations") that date was the date of notification of intention to make a claim, and by regulation 6(1A) if the claimant sent his properly completed form to an appropriate office within one month, the effective date of his claim would be 21 December. The form was not sent out until 7 January 2002, the day on which the claimant died. The claimant's executor completed and signed the form on 18 January 2002 and handed it to the relevant office on that same day, i.e. within the one month time limit. The claim was rejected on the ground that no valid claim had been made because the claimant had died before the form was signed and submitted. A tribunal upheld that decision. Neither regulation 33 (persons unable to act) nor regulation 30 (payments on death) of the 1987 Regulations dealt with a situation where a person had died between the date of notification and the submission of the claim. Regulation 30(5) specifically excluded income support from benefits for which posthumous claims could be made in certain circumstances.
Held, dismissing the appeal, that:
- a person who by the date of his death has merely given notification of intention to claim has not in fact made a claim (paragraph 18(1));
- once the potential claimant has died, he is no longer a person who can claim or on whose behalf a claim can be made, since all agency is terminated by death (paragraph 18(2));
- it followed that express or implied statutory authority was required to enable a claim to be made in respect of a deceased person, and there was no such authority in the 1987 Regulations in relation to income support (paragraph 18(3));
- no implication could be derived from the scheme in the 1987 Regulations that the executor was entitled to make the claim in respect of the deceased and so as it were perfect it. Indeed, the absence of any express provision for the making of the claim in such circumstances suggested the contrary implication, because there was no reason why the legislature should have intended to treat cases where there was a will more favourably than cases where the deceased died intestate (paragraph 18(4)).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"Your declaration
It is important that you sign and date the claim form. If you do not, we will have to send it back to you.
Can I sign the claim form for someone else?
You should only sign the claim form on behalf of someone else if:
1. The person who is making the claim is not mentally able to act on their own behalf, and2. You are willing to act on their behalf in all social security matters, including telling us about any change in their circumstances and collecting their money for them.
You should not sign the claim form for someone who is mentally able to manage their own affairs. Someone who is physically disabled but mentally able will not normally need someone to act on their behalf.
I want to act for someone who is not mentally able to manage their affairs. What happens next?
We will get in touch with you to arrange an interview with you and the person making the claim. We will decide whether the person needs someone to act on their behalf for all social security matters. We call these people appointees. We will explain the responsibilities of appointees to you.
I have power of attorney for the person making the claim. What should I do?
If you have power of attorney or any legal authority to act on behalf of the person making the claim, please sign the claim form on their behalf and send us a true copy of your authority with the claim form. A true copy must be certified and signed by a solicitor as a true copy. We will get in touch with you if we need more details."
(1) The general position emerging from regulation 30(1), (2) and (3) is that accrued entitlements to social security benefits do not abate on death but accrue for the benefit of the deceased's estate.
(2) A person who has given notification of intention to claim income support has, provided he submits the claim form within a month, done what is necessary to fix the date of claim, and there is, especially in the light of (1) above, no reason why, in the event of his death before the claim form is submitted, his estate should be in a worse position.
(3) An executor, who derives his title from the will, stands in the deceased's shoes as from the date of death, and should be considered to have authority to sign and submit the claim form after the death and so as it were perfect the claim. It would be anomalous if that were not so, given that during the claimant's life claim forms can, even without an appointment under regulation 33(1), be signed and submitted on behalf of a claimant who is unable to act or who has duly authorised an agent to do so.
(4) Regulation 30(5) is dealing only with the death of a claimant who has not made a claim within the prescribed time or manner, and therefore the fact that it expressly does not apply to income support does not harm the claimant's case. That case is simply that the effect of regulation 6(1A)(b) is that submission of the claim form within one month of notification of intention to claim has the effect that the claim was made within the prescribed time.
(1) It is in my judgment an inescapable fact that a person who by the date of his death has merely given notification of intention to claim has not in fact made a claim. His position immediately before his death is that, if he makes a valid claim within the one month period, it will be treated as having been made when notification of intention to claim was given.
(2) Once the potential claimant has died, he is no longer a person who can claim or on whose behalf a claim can be made. No-one can purport to act as agent for a deceased person: hence the rule that all agency is terminated by death (Campanari v. Woodburn (1854) 15 C.B. 400). An executor represents the estate of the deceased, but cannot be an agent for the deceased.
(3) It therefore in my judgment follows that express or implied statutory authority is required to enable a claim to be made in respect of a deceased person. There is nothing in the 1987 Regulations which expressly permits such a claim to be made in the case of income support. Regulation 30(5) is the only provision permitting claims to be made in respect of deceased persons, and that expressly does not apply to income support.
(4) Nor can one derive any sort of implication from the scheme in the 1987 Regulations that, where notification of intention to claim income support was given by or on behalf of the deceased during his life, the executor is entitled to make the claim in respect of the deceased and so as it were perfect it. Indeed, the absence of any express provision for the making of the claim in such circumstances suggests the contrary implication, because to permit the executor to sign and submit the claim form would only of course be a solution in cases where the deceased made a will and appointed an executor. It is difficult to see why the legislature should have intended such cases to be treated more favourably than those (which must be very common where small estates are concerned) where the deceased died intestate, and where there is therefore on any view no person who could have authority to sign and submit the claim form.
Date: 29 May 2003 (Signed) Charles Turnbull
Commissioner