Isaac Hogarth of 12 King’s Bench Walk, instructed by Dushal Mehta of Field Fisher, both acting pro bono, successfully appealed against a decision of the DWP by which the appellant’s mother had been denied a payment under the 2008 Diffuse Mesothelioma Scheme (‘the 2008 Scheme’).
The appellant’s mother, Dorothy Wright, had been diagnosed with mesothelioma in January 2012. She had made an application under the 2008 Scheme in March 2012. Very sadly, she then died in April 2012. Several months later, as no response had yet been received, Field Fisher enquired as to the progress of the application, attaching a photocopy of the form signed by Mrs Wright. The DWP denied that the application had ever been received, and refused the application on the basis that it was the receiving of a form, rather than the sending of a form which was relevant for the purposes of deciding when a claim was made. Further, as Mrs Wright’s children were not dependents under the terms of the 2008 Scheme, and Mrs Wright was deceased, no application could now be made.
Mrs Martin objected to the DWP’s stance and requested a review.
A review was undertaken and the application refused on the following basis:
“Mrs Wright signed an application form which was sent in to the department by her solicitor, however this was not received. The solicitor later submitted a copy of the application form. The regulations state that a photocopy of an application form cannot be accepted…”
Mrs Martin appealed to the First Tier Tribunal (Social Entitlement Chamber), where there were two principal issues for determination: (1) whether a valid claim was made within Mrs Wright’s lifetime, (2) whether the DWP should have accepted the photocopied form.
When is a claim made?
The DWP had relied on the restrictive terms of the Social Security (Claims & Payments) Regulations 1987, interpreted as per Levy v Secretary of State for Work and Pensions  EWCA Civ 890. In that case, it was held that a claim for widows’ benefit was made when received, rather than sent.
On behalf of Mrs Martin, it was argued that the SS(C&P) Regulations 1987 did not apply to the 2008 Scheme, and that in the absence of restrictive statutory language as to when an application is made, the court should apply s.7 of the Interpretation Act 1978 and principles of common sense to find that if an application is sent, it should be held to have been received. Reliance was also placed on the case of R (on the application of Latimer) v Bury Magistrates Court  EWHC 2213 (Admin), in which Levy was distinguished in similar circumstances.
Is a photocopy permissible?
The DWP had argued that the regulations governing the 2008 Scheme do not afford the Secretary of State a discretion to accept a photocopied application form.
On behalf of Mrs Martin it was argued that this was incorrect. Regulation 2(2) of the Mesothelioma Lump Sum Payments (Claims and Reconsiderations) Regulations 2008 provides that, although a claim ought normally to be made on a form approved by the Secretary of State, “a claim may be made in such other manner, being in writing, as the Secretary of State may accept as sufficient in the circumstances of any particular case”.
The Tribunal’s findings
District Tribunal Judge D Turrell found in relation to the first issue that, in accordance with the arguments made on behalf of Mrs Martin, the SS(C&P) Regulations did not apply, and that in the absence of evidence of the infallibility of the post, there was a presumption that the form had been received.
In relation to the second argument, the Judge found as follows:
“The appointee’s barrister raised a number of alternative points, which were closely argued in his skeleton, and for completeness, the Tribunal was unable to fault them and in the alternative adopts them as its own findings of fact and law.”
This is a welcome decision under a statutory scheme that has yet to generate any reported case law. The DWP had twice refused to make a payment, having misunderstood the provisions of a scheme it had a duty to administer. It is particularly important in relation to a scheme where there will be a high mortality rate amongst applicants that there is clarity in the event that applications go astray once made. Hopefully, this decision will provide that.
In terms of the judgment’s wider application, it bolsters the findings made in Latimer that unless there is clear statutory language to displace it, the common sense presumption applies that a document that has been posted will duly have been received.
24th June 2014.