IN THE UPPER TRIBUNAL	Case No.  CG/525/2011
ADMINISTRATIVE APPEALS CHAMBER

1.	This is an appeal by the Secretary of State, brought with my permission, against a decision of a First-tier Tribunal sitting at Blackpool on 1 October 2010. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by a differently constituted First-tier Tribunal. 

2.	The issue before the First-tier Tribunal was whether the Claimant had made a claim for carer’s allowance by 5 January 2010, which depended on whether a claim form had been received by the Department by that date. The Department asserted that it had no record of such a claim form being received. The Claimant’s evidence was that one had been posted on 21 December 2009. The First-tier Tribunal found that on a balance of probability it had been received. 

3.	The Claimant cares for her brother. It is a condition of entitlement to carer’s allowance, in the Claimant’s case, that her brother have an award of at least the middle rate of the care component of disability living allowance. On 5 October 2009 an appeal tribunal allowed her brother’s appeal and awarded the middle rate from 19 November 2008 (the date of claim). 

4.	An award of carer’s allowance was required to be backdated to 19 November 2008, provided that the claim for carer’s allowance was made within 3 months of the decision awarding DLA – i.e. by 5 January 2010.  

5.	On 8 February 2010 the Department received a claim form (which had been signed on 2 February) claiming carer’s allowance. On 10 February 2010 a decision was made awarding carer’s allowance at the rate of £53.10 per week from 9 November 2009 (i.e. from 3 months before the date of claim). Backdating for the period 19 November 2008 to 8 November 2009 was not permitted “because you did not claim within the time limit”. The notification of the decision did not say what the time limit was. 

6.	On 26 February 2010 the Claimant wrote asking that the claim be backdated to 19 November 2008 as she had been the sole carer from 19 June 2008. She continued: 
	
	“I wanted to claim carer allowance from the 19 November 2008 but an adviser from Law Centre advised me that until appeal is settled I could not apply CA this is why I waited to settle the appeal decision. It was not my negligence to delay applying for CA but as a decision maker you should consider that I was misguided by a professional, moreover you know I performed my duty and took the responsibility of the carer roles. I believe you could consider my claim from 19 November 2008 on the discretionary basis that I am the carer from that date and date before he has been entitled to DLA middle rate care.” 

7.	It is to be noted that the Claimant did not in that letter say that a previous claim form had been sent, but that may have been because she did not understand the possible significance of an earlier form having been sent. 

8.	On 6 March 2010 the Claimant signed an Appeal Form. In that she did say that she had sent a claim form on 21 December 2009, but had not received a reply. She continued that when she did get in contact, the wrong form was sent, and that she then got in contact again and was sent the right form, but by that time the time limit had expired. 

9.	On 9 March 2010 Oldham Law Centre wrote to the DWP on behalf of the Claimant, repeating the assertions in the Appeal Form, and stating that they would attempt to gather evidence to demonstrate that the correct forms were sent within three months. 

10.	By letter dated 16 March 2010 the Law Centre enclosed a copy of the claim form said to have been sent on 21 December 2009. The letter stated that also enclosed was “proof that the incorrect form (DLA1) was sent to our client after she contacted your offices to enquire whether her claim had been processed”. (However, according to the Secretary of State’s submission in this appeal no copy of that form was enclosed with the letter. The Secretary of State denies that the Carer’s Allowance Unit would have been able to supply a DLA clam form). 

11.	Notification of the appeal, together with the DWP’s written submission and attached papers, was received by the First-tier Tribunal on 19 May 2010. As regards the question of the claim form said to have been sent on 21 December 2009 the DWP submission stated simply (in para. 8 of Section 5):

	“I submit that there is no record of any claim for CA being received prior to the one received on 8 February 2010”

12.	The submission referred to the decision of the Court of Appeal in R(G) 2/06, holding that a claim is not made until it is actually received. 

13.	By letters dated 9 August 2010 the parties were notified that the appeal had been listed for hearing on 1 October 2010. 

14.	On 29 September 2010 the First-tier Tribunal received from the Law Centre a letter dated 27 September enclosing a written submission on behalf of the Claimant. This repeated the assertions which had previously been made, but included more detail. It was said that the first claim form had been posted by the Claimant’s husband, and that he had made the telephone call to enquire why they had heard nothing “in late January” (which would of course already have been too late; the question whether a DLA claim form was or could have been sent therefore seems to be a complete red herring, save in so far as it might go to the accuracy of the recollection of the Claimant’s husband generally). 

15.	The submission concluded:

	“The overwhelming majority of mail posted via Royal Mail is delivered to the correct address. Therefore, without evidence to the contrary and using the balance of probability, we can reasonably assume that [the Claimant’s] application was delivered to the Carer’s Allowance Section. 

	The Claimant has demonstrated that a claim was submitted; she has provided a copy of the initial claim which was sent “in time”. The Secretary of State has an obligation to provide evidence of attempts to establish non-receipt. 

	There is no proof within the papers that the application has been searched for but not located. 

	In the absence of such a search we submit that it is reasonable to assume that the application was delivered. It should therefore be considered to be a valid claim.” 

16.	At the hearing the Claimant appeared and was represented by Ms. Blackman from the Law Centre. Evidence was given by the Claimant’s husband. The First-tier Tribunal allowed the appeal, finding that the first claim form had been posted and received by the DWP by 5 January 2010. 

17.	The Secretary of State then applied for the First-tier Tribunal’s decision to be set aside under Regulation 37 of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008 on the ground that the Department had not received Ms Blackman’s written submission until the afternoon of 29 September 2010 “and therefore, were unable to respond timeously to it.” That application was refused. 

18.	In its short Statement of Reasons the Tribunal noted that the Department said that the first claim form had not been received, and stated that “there was no evidence from the Department that a search for the form had been made.” 

19.	The Statement of Reasons then continued as follows:

	“3.	 Tribunal found that the evidence from the Appellant’s husband was credible. It was clear and detailed. On the balance of probability the form had been posted to and received by the DWP prior to 4 January 2009 i.e. within 3 months of the successful appeal for [DLA]. Consequently carer’s allowance was payable from 19 November 2008 i.e. the start date of the middle rate care component of DLA. 	

	4.	The Tribunal took note of the decision R(G) 2/06 and noted that it was the date of receipt of the claim that was relevant and not the date of posting. The Tribunal decided that, on the balance of probability, the claim form was posted on 21 December 2009 and would have been received by the Department before 4 January 2010. The Tribunal Judge noted that the claim had been posted shortly before Christmas and might have been delayed in the Christmas post. However, from his own experience in recent years, Christmas post had been delivered quickly and reliably in almost all cases. There was no evidence from the department that the claim form had been received later than the 4th January or received at all. No evidence was given by the Department as to procedures on receiving post; the Tribunal decided that it was far from unlikely that a large organisation receiving large quantities of post would have misplaced a form.

	5.	In the light of the above the appeal was allowed.” 

20.	Following provision of the Statement of Reasons, the Secretary of State applied for permission to appeal on two grounds. First, that if the First-tier Tribunal considered the Department’s procedures on receiving post to be important, it could and should have directed an adjournment for further evidence to be supplied. Secondly, that the First-tier Tribunal erred in law in finding that “it was far from unlikely that a large organisation receiving large quantities of post would have misplaced a form.” It was submitted that 

	“For the tribunal’s reasoning to be correct in law, I submit that it would have to be able to find, on the balance of probabilities, not only that the Department had misplaced a form, but that it had, after receiving it, misplaced the form in question. I submit that to reasonably reach this conclusion the tribunal would have to show, to satisfy the balance of probabilities, that more than 50% of all claim forms are misplaced after receipt.” 

Analysis and conclusions
21.	There were, essentially, three possibilities as to what had happened, which the First-tier Tribunal had to choose between: (i) that (contrary to the evidence given by the Claimant’s husband) the first claim form had not been posted; (ii) that it had been posted but was mislaid by Royal Mail before reaching the point where it was (or was required to be treated as) received by the DWP or (iii) that it was mislaid (either by Royal Mail or the DWP) after the point where it was (or was required to be treated as) received by the DWP. In using the words “required to be treated as” I am assuming that the DWP was using a Royal Mail post opening service such as that which operated in the claim under consideration in R(G) 2/06. (The evidence in that case is described in detail in my decision in CG/2973/2004, which was the decision under appeal to the Court of Appeal in that case). That assumption may be borne out by the stamps (e.g. “53 POST”) on some of the copy letters to the DWP in the evidence. 

22.	In my judgment the First-tier Tribunal’s reasoning was wrong in law in at least two respects. First, it is in my judgment insufficiently clear that, having accepted that the claim form was posted, the First-tier Tribunal considered that its task was then to decide which of (ii) and (iii) in para. 21 above was more probable. The First-tier Tribunal appears to have concentrated on whether it was possible or probable that the DWP might have lost the form without recording it, without considering whether that was more likely than the other possibility of Royal Mail having lost it. The Tribunal did refer to the reliability in the postal service, but only, it seems, in relation to whether delays at Christmas were likely. 

23.	Secondly, the statement that it was “far from unlikely that a large organisation receiving large quantities of post would have misplaced a form” does appear to give the impression that the Tribunal considered that claim forms are lost in a significant proportion of cases. There is of course no basis for such an assumption. I suspect that this impression is due more to looseness of language, than to what the chairman actually thought, but nevertheless the sentence reads very oddly. 

24.	As I said in CG/2973/2004, the task of deciding which of possibilities (ii) and (iii) was more likely to have occurred is an extremely difficult, indeed arguably impossible one, however much evidence is available as to the procedures of Royal Mail and the Department. But it seems to me to be one which the Tribunal (if it concludes that the form was indeed posted) must attempt in each case. 

26.	I must of course emphatically reject the Secretary of State’s submission (if that is indeed what is being submitted) that in order to find in favour of the claimant in such a case the Tribunal needs to find that more than 50% of claim forms are lost. The issue before the Tribunal is not whether it is more probable than not that any given claim form which arrives at the DWP will be lost without being recorded, but whether it is more likely that this particular claim form, having been been found to have been posted, was lost by the DWP than lost in the post. 

27.	With regard to the extent of the evidence which it is incumbent on the DWP to provide as to its procedures, the following is submitted by the Secretary of State’s representative:

	“6.	……..I submit that the post-receiving arrangements are, and are intended to be, standardised across the country. In R(G) 2/06, paragraph 2 records the brief facts of the process as presented to the Commissioner, and accepted by the Court of Appeal: 

	“All post in the London area was transported overnight to the Royal Mail post operating facility in Glasgow where it was opened and sorted and from where it was distributed to the relevant cluster at the Glasgow Benefits Centre.” 

	7.	The same principles should apply, and the same essential process be followed, in all cases where, as in the present case, the Royal Mail is responsible for opening and sorting the post for the Department.”

28.	In fact the procedures which are relevant are not only those relating to post opening, but also those followed by the DWP in order to record a claim form when received. In CG/2973/2004 there was evidence before me from the DWP in relation to each of those matters. However, it can be argued (as I think the submission writer is probably arguing) that it really makes no difference how much detail the DWP provides. The argument would run as follows: it can be assumed that the DWP has in place a system for recording the receipt of claim forms which, if operated properly, will result in all claim forms which are received being recorded. A claim form will therefore only not be recorded if something goes wrong with the operation of the system. A tribunal cannot judge how probable it is that something may have gone wrong, because that depends essentially on the efficiency of the staff, as to which he can really form no view. There seems to me to be some force in that argument. The same applies, however, in the case of the procedures operated by Royal Mail. 
	
29.	In CG/2973/2004 I concluded, on a broad consideration of the complexity and intricacy of what Royal Mail and the Department each had to do, that it was somewhat more likely that something would have gone wrong with Royal Mail procedures than with the DWP procedures. That was a finding of fact, on the evidence in the particular case, which Pill LJ said (in para. 51) was a finding which was not and could not have been challenged on an appeal on a point of law only. However, he went on to say that a contrary finding on the balance of probabilities would be possible. 

30.	However, although the finding of fact which I made, on the evidence in CG/2973/2004, cannot bind decision makers or tribunals in other cases, it might be argued that it is indicative of the more likely outcome in the broad run of cases where the fact finder accepts that the form was posted and where (as will be usual) there is no evidence of a history of inefficiency in the particular DWP office concerned, or of postal disruption at the relevant time. 

31.	I do not think that I can helpfully or properly say more than that it does come down to a question of fact on the evidence in each case. It is for the Department to decide in each case how much evidence it puts forward as to its procedures in relation to dealing with and recording claims for the particular benefit at the particular office concerned,  and what evidence it is relying on in the particular case for saying that no form was received. If it gives no evidence as to those matters it may be at risk of the tribunal finding that it has not put forward sufficient evidence to enable the fact finder to determine, on a balance of probability, which system (i.e. that of Royal Mail or the DWP) is more likely to have gone wrong, and therefore that an inference should be drawn against it. It does not seem to me that that would necessarily be an impermissible approach on the part of a tribunal. The Secretary of State will therefore need to consider what further evidence to put forward in the present case. The application which was made for a set aside suggested that further evidence might have been put forward, had time been available. 

32.	I emphasise that the new tribunal will not of course be bound to find that the form was posted. In the absence of persuasive evidence by or on behalf of a claimant that a form was posted, the fact that the DWP has no record of receipt would suggest the most probable outcome as being that it was not posted: plainly, the vast majority of claim forms which are posted do arrive and are recorded as received. The new tribunal will therefore need critically to assess the credibility and reliability of the evidence that it was posted. I have referred above to the Secretary of State’s contention that the Carer’s Allowance Unit could not have sent a DLA form. That might be considered (if and when properly supported by evidence from the DWP) to cast some doubt as to the accuracy of the Claimant’s husband’s recollection more generally. I have also referred above to the fact that the Claimant’s letter dated 26 February 2010 did not say that an earlier claim form had been sent. 

Charles Turnbull
Judge of the Upper Tribunal 
14 October 2011