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From our Social Security LAw CD-Rom.
CIS/812/1992
SOCIAL SECURITY ACT 1986
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. l allow the claimant's appeal. The decision of the Dover social security appeal tribunal dated 22 October 1992 is erroneous in point of law. I set it aside and substitute the following decision which I consider the tribunal should have given.
"The claimant had continuous good cause for her delay in 7 June 1991. Therefore, the delay does not disqualify her for receiving supplementary benefit in respect of the period from 6 February 1987 to 10 April 1988. Further, if she is entitled to supplementary benefit in respect of 10 April 1988, she is deemed to have made a claim for income support in respect of a period from 11 April 1988 to 20 May 1990 and no question of disqualification on grounds of delay arises in respect of that period."
If there is any dispute as to the amount of benefit payable in the light of that decision, the case must be restored before me or another Commissioner.
2. At the oral hearing before me the claimant was represented by Mr Alaster Calder of the County Benefit Unit of Kent County Council. The case was heard with three others. Mr Calder represented the claimants in CIS/813/1982 and CIS/814/1992. The claimant in CIS/465/1992 was represented by Mr Richard Poynter, solicitor, of Sinclair, Taylor and Martin of London W10. As Mr Poynter addressed me first, he bore the principal burden of advancing the arguments in respect of all four claimants. The adjudication officer in each case was represented by Mr Anthony Prosser of Counsel, instructed by the solicitor to the Departments of Social Security and Health. I am very grateful to all three advocates for their clear and helpful submissions.
3. The claimant in the present case has severe learning difficulties and it is common ground that she has for that reason been incapable of managing her own affairs at all material times. She reached the age of 16 on 6 February 1987. On 16 February 1987 the claimant's mother applied on form BF56 "for appointment by the Secretary of State for Social Services to exercise on behalf of any right which he/she may have under the above Acts. The Acts listed at the top of the form of application were the Social Security Acts, the Supplementary Benefits Act, the Child Benefit Act and the Industrial Injuries and Diseases (Old Cases) Act. On 26 February 1987 an appointment was made. The request for the appointment was made in contemplation of claims for attendance allowance and severe disablement allowance under the Social Security Act 1975. No claim under the Supplementary Benefits Act 1976 was contemplated, and none was made, at that time. From 11 April 1988, the Supplementary Benefits Act 1976 was repealed and supplementary benefit was replaced by income support payable under the Social Security Act 1986. No claim for income support was made until 21 May 1990. On 13 June 1990 the claimant's mother was formal appointed to act on the claimant's behalf in respect of that claim and income support was paid from 21 May 1990. No attempt appears to have been made at that stage to have the claim for income support backdated. On 7 June 1991 the Department of Social Security received a claim for supplementary benefit from 6 February 1987 made on behalf of the claimant by Mr Calder. The claimant's mother purported to authorise Mr Calder to make the claim and the claim has always been treated as though it had been made by her. The adjudication officer decided that the claimant was not entitled to supplementary benefit because continuous good cause for the delay in claiming had not been shown. The claimant appealed.
4. There was a considerable amount of common ground before the tribunal, who had the benefit of admirably clear written submissions from both sides as well as oral argument. Both parties were agreed that regulation 49 of the Social Security (Claims and Payments) Regulations 1987 kept alive regulation 5 of the Supplementary Benefit (Claims and Payments) Regulations 1981 for the purposes of claims for supplementary benefit made on or after 11 April 1988 in respect of periods before that date. Regulation 49 of the 1987 Regulations (which has since been revoked with effect from 16 November 1992) provided: -
"(1) Notwithstanding the repeal of the Family Income Supplements Act 1970 and of provisions of the Supplementary Benefits Act 1976, those Acts and the Regulations made thereunder shall continue to apply to any claim for family income supplement or supplementary benefit whether made before or after the coming into force of these Regulations.
(2) In this regulation -
'family income supplement' means benefit under the Family Income Supplements Act 1970;
'supplementary benefit' means benefit under Part I of the Supplementary Benefits Act 1976."
Regulation 5(1) and (2)(a) of the 1981 Regulations provided: -
"(1) Subject to paragraph (2), a claim for a pension or allowance shall be made no later than the first day of the period in respect of which it is made.
(2) Where a claim for a pension or allowance is made in respect of a period earlier than the day on which it is made, it shall be treated as if it had been made -
(a) where in any case the claimant proves that throughout the period between the first day of that earlier period and the date on which the claim was made there was continuous good cause for failure to make the claim before the day on which it was made, on the first day of that earlier period; ..."
The effect of those provisions was that a claimant who could show good cause for delay in claiming supplementary benefit could have the claim backdated. There was no provision in the 1981 Regulations limiting the period for which a claim might be backdated. It was also common ground before the tribunal that regulation 4 of the Income Support (Transitional) Regulations 1987 had the effect that a person entitled to supplementary benefit immediately before 11 April 1988 was deemed to have made a claim for income support from that date so that, if continuous good cause for delay in claiming supplementary benefit could be shown from 6 February 1987 to 7 June 1991, the claimant would not only be entitled to supplementary benefit in respect of the period from 6 February 1987 to 10 April 1988 but would also be entitled to income support from 11 April 1988 to 20 May 1990. The adjudication officer accepted that the claimant had continuous good cause for failing to claim from 6 February 1987 to 12 June 1990 due to her severe learning difficulties. He or she also accepted that the claimant's mother had not been appointed to act on behalf of the claimant for supplementary benefit purposes. Nevertheless, it was submitted by the adjudication officer that: -
"... the key question in this case is whether the responsibility for showing good cause for the delay in claiming passes to the claimant's mother from 13.06.90, in accordance with R(IS) 5/91 ..."
I set out the arguments on this issue later in my decision.
5. The tribunal dismissed the claimant's appeal. The typed copy of their decision fails to show that the decision was not unanimous. In fact, the majority accepted the adjudication officer's argument based on R(IS) 5/91. Mr Calder told me that the dissenting member of the tribunal was the chairman who granted the claimant leave to appeal at the conclusion of the hearing. On 5 November 1993 there was an oral hearing of the appeal before a Commissioner. New arguments, which had not been developed in written submissions, were advanced on behalf of the adjudication officer before the Commissioner. He asked for further written submissions so that Mr Calder might have the opportunity of responding to the new arguments. Further lengthy submissions were received from both parties and Mr Calder asked for a further oral hearing. Unfortunately, the Commissioner who had heard the case in November had died and so the case was transferred to me.
6. The first point on which I heard argument had not been raised in any of the written submissions in this case but had been raised in CIS/465/1992. Mr Prosser submitted that, at the date of claim for supplementary benefit in 1991, regulation 49 of the 1987 Regulations had ceased to have effect and that, because at the date of claim the Supplementary Benefits Act 1976 and the related Regulations had been repealed and replaced by income support legislation, there was then no power to make any award of supplementary benefit to meet the claim. It was submitted that regulation 49 was a transitional provision made pursuant to section 89(1) of the Social Security Act 1986 and had effect only until the income support legislation had come fully into effect. Mr Prosser argued that, in so far as it maintained in force regulation 5(2)(a) of the 1981 Regulations, regulation 49 of the 1987 Regulations lapsed after 12 months because, by that time, regulation 19(4) of the 1987 Regulations (limiting to 12 months the period for which a claim for income support might be backdated for good cause) was fully effective.
7. I admire the ingenuity of the argument but I cannot accept it. There is nothing in regulation 49 to suggest that it had a limited life. As Mr Poynter submitted, a transitional provision is not necessarily transitory. The law relating to claims for supplementary benefit was substantially different from the law relating to claims for income support and regulation 49 preserved the former for so long as it might be necessary. Regulation 49 may well have been made under section 89 of the 1986 Act but the Secretary of State also had the power to make regulations in respect of claims for supplementary benefit under section 51(1) of that Act, as applied by paragraph 2 of Schedule 7. He could therefore, at any time, have provided that the law in respect of income support should apply to claims for supplementary benefit or he could have imposed a time limit for claims for supplementary benefit that would have had the effect of preventing any further claims. (Those powers still exist in section 5(1) of, and paragraph 2 of Schedule 10 to, the Social Security Administration Act 1992.) The Secretary of State has not exercised those powers and it must be presumed that he is content for new claims for supplementary benefit in respect of the period to 10 April 1988 still to be governed by the 1981 Regulations (subject to any argument that might be based upon the revoking of regulation 49 of the 1987 Regulations, which is not relevant to this case).
8. I therefore turn to the question whether there was continuous good cause for the delay in claiming supplementary benefit in this case. It is well established that, where a person has been appointed by the Secretary of State to act on behalf of a claimant, any question whether the claimant has good cause for delay in claiming a benefit is to be judged by considering the reasonableness of the appointee's failure to claim rather than the reasonableness of the claimant's own failure (see R(SB) 17/83). There therefore arises the question whether the claimant's mother has ever been appointed to act on behalf of the claimant for supplementary benefit purposes. Although the local adjudication officer had conceded that there had been no such appointment, I heard argument on the point.
9. For reasons explained in paragraphs 6 to 9 of R(IS) 5/91, it seems to me to be clear that, before the 1987 Regulations came into effect, an appointment made on a claimant's application on form BF156 took effect under regulation 26 of the 1981 Regulations for supplementary benefit purposes only if a claim for supplementary benefit was in contemplation. Therefore, notwithstanding the reference to the Supplementary Benefits Act at the top of form BF56, the appointment of 26 February 1987 cannot have been an appointment for supplementary benefit purposes. As regulation 26 of the 1981 Regulations was continued in force by regulation 49 of the 1987 Regulations, the same approach would seem justified, at first sight, in respect of the appointment of 13 June 1990. In paragraphs 26 and 27 of the written submission of the adjudication officer's former legal representative, consideration is given to whether regulation 9 of the 1987 Regulations affects the issue. That provision permits the Secretary of State to treat a claim for income support as a claim also for supplementary benefit. In a case where a claim for income support was treated as a claim for supplementary benefit, it might be arguable that an appointment for the purposes of the income support claim was effective also as an appointment for supplementary benefit purposes. However, that was not the case here, No one ever treated the claim of 21 May 1990 as a claim for supplementary benefit. The claim for supplementary benefit made on 7 June 1991 was an entirely separate claim that had clearly dot been contemplated on 13 June 1990. Accordingly, in my view, the claimant's mother has never been appointed to act on the claimant's behalf for supplementary benefit purposes. Neither has anyone else.
10. I therefore come to the point considered by the tribunal: if the claimant's mother had not been appointed to act on the claimant's behalf for supplementary benefit purposes, was the reasonableness of the mother's delay in claiming supplementary benefit relevant? In R(SB) 9/84 a Tribunal of Commissioners said: -
"9. ... it would clearly follow from the views expressed by the Commissioner in R(SB) 17/83, with which we agree, that responsibility should not be imputed to a claimant for delay or failure to act by an unappointed person who lodges on a claimant's behalf a claim which is refused.
10. An element of artificiality in the foregoing proposition is however introduced where, as was the case in three of the appeals before us, the 'unappointed' person actually holds an appointment to act on behalf of the claimant for the purposes of some other benefit. Statutory provision exists not only in supplementary benefit cases but also in cases under other Acts such as the Social Security Acts and the Child Benefit Act for the appointment of a person to act on behalf of another person unable to act by reason of mental or other incapacity. Although the application form is common to applications under all of the statutes concerned there is no common appointment (or statutory provision for such) and separate appointment is made by the Secretary of State as and when a question of entitlement to any benefit under one or other of the relevant Acts is raised. A person appointed to act in connection with a benefit under the provisions of the Social Security Acts and Regulations is therefore not regarded by the Secretary of State as holding an appointment to exercise any rights on behalf of the claimant under the Supplementary Benefits Act. Such a person is for supplementary benefit purposes therefore no different from any other unappointed person until specifically appointed for the purpose and in our opinion the proposition that liability is not to be imputed to the claimant for delay by such a person remains applicable."
The dissenting chairman of the tribunal held that it followed from R(SB) 9/84 that it was necessary, in the present case, to look at the reasonableness of the claimant's failure to claim supplementary benefit before 7 June 1991 without regard to the reasonableness of her mother's failure to claim.
11. The majority of the tribunal relied upon paragraphs 12 and 13 of R(IS) 5/91. In that decision, the Commissioner found that the claimant's wife, who had been appointed to act on his behalf in respect of other benefits, had not been appointed to act on his behalf for supplementary benefit purposes. On that ground, he set aside the tribunal's decision because they had approached the case incorrectly and directed that the appeal be reheard by a differently constituted tribunal. He then said: -
"12. The problem which will face the claimant at the new hearing is whether or not he can establish good cause for delay between 20 October 1988, when a claim for income support was lodged on his behalf, and 31 January 1989 when a request was made on his behalf for backdating to 11 April 1988. It could be said that, although good cause had been shown up to 20 October 1988, from thence onwards the management of his financial affairs had been unequivocally taken over by his wife, with the aid of Mr Jones as the claimant's solicitor, and it was incumbent upon her to show that, after putting on foot the claim of 20 October 1988, she had good cause, continuously up to 31 January 1989, for not seeking backdating. It would seem not to be in dispute that the claimant himself was incapable of mounting a claim, either initially or by way of a review, and it would appear that his financial affairs had devolved on his wife (or conceivably on Mr Jones as his solicitor). His position would seem to be similar to that of the nun in a closed religious order (R(S) 2/51), who had entrusted her affairs to the Prioress.
'She is in the same position as a person who has an agent appointed to exercise on her behalf any rights to which she may be entitled, because she is unable to act for herself. In such cases, it is the agent who has to show, in the case of a late claim for benefit, that there was a good cause for the agent's failure to make the claim before the date on which the claim in fact was made'.
13. I have considered whether I could conveniently substitute my own decision for that of the tribunal. However, I accept the submissions of Mr Jones, from which Mr Reid did not dissent, that I do not really have enough information as to the circumstances surrounding the claimant's wife on the basis of which I could properly determine whether or not she had good cause for her delay. Accordingly, I direct that the appeal be reheard by a differently constituted tribunal."
12. Mr Poynter's argument before me echoed the argument advanced in this case by Mr Calder before the tribunal which was accepted by the dissenting chairman. He submitted that paragraphs 12 and 13 of R(IS) 5/91 were obiter. I disagree. The Commissioner recorded that it seemed "not to be in dispute that the claimant himself was incapable of mounting a claim" and the only reason the matter was being referred to a tribunal was so that they could determine whether his wife had good cause for her delay.
13. Mr Poynter then submitted that paragraphs 12 and 13 of R(IS) 5/91 were inconsistent with R(SB) 9/84 and that I should follow the latter decision because it was a decision of a Tribunal of Commissioners. He argued that R(S) 2/51, upon which the Commissioner deciding R(IS) 5/91 relied, was wrongly decided. He invited me to set the passage from R(S) 2/51 cited in R(IS) 5/91 in its context. In R(S) 2/51 the Commissioner said: -
"4. It seems quite clear that the claimant had no thought herself of initiating any action in relation to her right to benefit under the National Insurance Act, 1946 or of making inquiries as to what rights she had or what she had to do to obtain them. She left the matter wholly to her superior authorities.
5. There are no regulations making special provision for such exceptional cases, and it seems to me that where a person withdraws herself, as the claimant has done, from ordinary human affairs she must be regarded as having authorised the person or persons who normally conduct on her behalf any necessary contacts with the outside world to act on her behalf, and as having accepted responsibility for their failure to act or their erroneous action, if such should occur. She is in the same position as a person who has an agent appointed to exercise on her behalf any right to which she may be entitled, because she is unable to act for herself. In such cases, it is the agent who has to show, in the case of a late claim for benefit, that there was good cause for the agents failure to make the claim before the date on which the claim in fact was made. (Compare decision CWG/6/1950 (reported))."
Mr Poynter submitted that CWG/6/1950 was not authority for the proposition advanced in R(S) 2/51. In CWG/6/1950, the Commissioner said: -
"6. It sometimes happens that a claimant temporarily entrusts his national insurance affairs to a relative or friend owing to some emergency caused for example by illness or domestic or business pre-occupation. In such a case it may be possible to hold that the claimant did all that could reasonably be expected of him in the circumstances and that he ought not to be prejudiced by any mistake made by the relative or friend. But when an agent is appointed by the Minister under regulation 17 to act on the claimant's behalf, that agent stands in the claimant's shoes for all purposes relating to claiming and obtaining payment of benefit. Anything the agent does in relation to those matters counts in law as if it were done by the claimant in person. It makes no difference that the claimant has no control over what the agent does; for indeed the agent can only be appointed if the claimant is unable to act for himself, and that usually means that he is also unable to instruct or control his agent."
Mr Poynter argued that in CWG/6/1950 the Commissioner had drawn a clear distinction between, on the one hand, agents appointed by the Minister and, on the other hand, relatives or friends entrusted by claimants with their national insurance affairs. He submitted that R(S) 2/51 was inconsistent with the CWG/6/1950 because the same distinction was not drawn. Alternatively, he submitted that R(S) 2/51 was distinguishable from CWG/6/1950 on the ground that it involved a deliberate delegation by the claimant, in which case it did not support the Commissioner's approach in R(IS) 5/91 where, if the claimant was incapable of managing his affairs, there had been no such deliberate delegation.
14. Mr Prosser submitted that paragraphs 12 and 13 of R(IS) 5/91 were not inconsistent with R(SB) 9/84. He first referred me to the classic description of "good cause" to be found in CS/371/1949 and subsequently approved in R(S) 2/63 and R(SB) 6/83.
"'Good cause' means, in my opinion, some fact which, having regard to all the circumstances (including the claimant's state of health and the information which he had received and that which he might have obtained) would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did."
Mr Prosser stressed the words "all the circumstances" and submitted that the necessarily implied that one should consider whether it would have been reasonable for the claimant's mother to make a claim for supplementary benefit earlier than she did. I do not derive any assistance from CS/371/1949. The question whether it was necessary to consider the reasonableness of the actions or inaction of anyone other than the claimant herself did not arise in that case.
15. Mr Prosser then submitted that the Commissioner deciding R(IS) 5/91 must have had paragraph 10 of R(SB) 9/84 in mind because he set out much of it at paragraph 8 of his own decision. He submitted that the Commissioner was answering the point that there was an "element of artificiality" in cases where an appointee for some benefits was not an appointee for supplementary benefit purposes and he suggested that the Tribunal deciding R(SB) 9/84 did not direct their minds to the case where a person who was not an appointee had taken over management of the claimant's financial affairs. He also submitted that R(S) 2/51 supported R(IS) 5/91 because it was a case in which the claimant had given "no thought" to her affairs and, necessarily, a person incapable of managing his or her affairs due to mental handicap could give "no thought" to those affairs.
16. I reject Mr Poynter's first submission that R(S) 2/51 is inconsistent with other authorities and was wrongly decided. The decision arose out of its own special facts but was clearly intended to be consistent with what was said in CWG/6/1950. In my view, the principle enunciated in R(S) 2/51 is limited to cases where a person, fully capable of managing his or her affairs, delegates responsibility for those affairs with no intention of exercising any supervision over the delegate. If R(S) 2/51 has the limited application I have suggested, there is considerable force in Mr Poynter's alternative submission that it was not relevant to the issue before the Commissioner in R(IS) 5/91. Although there was some question in that case whether the claimant, although severely brain damaged, retained sufficient mental capacity to enable him to exercise supervision over his wife, the Commissioner did not appear to draw a distinction between claimants who were mentally incapable of supervising a delegate and those who were not. Mr Prosser's submission, based upon the words "no thought", is inconsistent with CWG/6/1950 - and countless other decisions to the same effect - and I reject it.
17. Ultimately, I have found it impossible to reconcile paragraphs 12 and 13 of R(IS) 5/91 with paragraphs 9 and 10 of R(SB) 9/84. On their facts, the cases appear indistinguishable. I am unable to accept Mr Prosser's argument that R(IS) 5/91 is merely a development of the law, taking account of a refinement not previously considered. The Tribunal of Commissioners deciding R(SB) 9/84 expressly recognised the artificiality arising from their decision in a case where an appointee for other benefits was not the appointee for supplementary benefit purposes. That artificiality arises because that appointee is likely to be managing the relevant part of the claimant's affairs. It must clearly be the case that some other person (or persons) is (are) managing the financial affairs of a person who is incapable of managing them himself or herself. I do not think that the Tribunal overlooked that point. I must follow a decision of a Tribunal in preference to a decision of a single Commissioner. Therefore, for reasons which are substantially the same as those recorded by the dissenting chairman, I find that, the decision of the social security appeal tribunal in the present case was erroneous in point of law.
18. In the written submission of the adjudication officer's former legal representative, it was submitted that the effect of deciding in favour of the claimant would be that she could "both have her cake and eat it". However, as Mr Poynter submitted, there are many instances where the law permits a person under a disability to take advantage of his or her actions while protecting him or her from suffering disadvantages.
19. I was also referred to CIS/638/1991 in which the Commissioner took the view that a claim was wholly invalid where it was made on behalf of a person who was mentally incapable of managing his own affairs by a person who had not formally been appointed to act on his behalf in respect of the relevant benefit. Indeed, he also held the subsequent decision of a social security appeal tribunal to be a nullity. The claimant in that case has appealed and the case is now awaiting a hearing date in the Court of Appeal (Walsh v. Chief Adjudication Officer). Mr Prosser conceded, without prejudice to anything the Chief Adjudication Officer might wish to argue in the Court of Appeal, that CIS/638/1991 was inconsistent with R(SB) 9/84 in which, at paragraph 8, the Tribunal of Commissioners said: -
"We are unable to accept the proposition that a determination made by a benefit officer upon an 'unauthorised' claim made on behalf of a person unable to act is invalid in the sense of being a nullity. A supplementary benefit officer has a statutory duty to adjudicate upon any question raised before him relating to a person's entitlement to supplementary benefit. See section 2(1) of the Act and regulation 3(1) and (3) of the Supplementary Benefit (Determination of Questions) Regulations 1980. Where that question takes the form of a claim which is determined, the Secretary of State must in our view in the absence of any challenge at the time be deemed to have been satisfied that it was made in sufficient manner for a claim for supplementary benefit and similarly the supplementary benefit officer must be taken to have been satisfied that it constituted such a claim. The proposition that a claim on behalf of a person unable to act, even if made by an unappointed person, can be accepted as a claim for determination by the supplementary benefit officer received some support from the provisions of regulation 26(1) of the current Claims and Payments Regulations the wording of which extends to the case of 'any person by whom or on whose behalf a claim has been made'. (Our emphasis.) We therefore conclude that any determination issued on such a claim can be treated as validly made under the Act and regulations. It does not however follow that such a determination need be given an effect which is prejudicial to the actual person on whose behalf the claim has been made. More specifically, we do not consider that the mere existence of such a determination precludes the operation of regulation 5(2) of the current Claims and Payments Regulations in an appropriate case so as to treat a subsequent claim as if made before, on, or after the date of the previous determination. These conclusions do not appear to us to be at variance in any material respect with the observations of the Commissioners in the cases cited to us on behalf of the claimants. In particular we refer to R(SB) 17/83 paragraph 3 and the unreported decision CG/2/1979 (paragraph 9) referred to therein."
It appears that neither party was legally represented before the Commissioner in CIS/638/1991 and his attention does not seem to have been drawn to paragraph 8 of R(SB) 9/84. He was referred to R(IS) 5/91 (on file CIS/278/1989), where the Commissioner had not doubted the validity of the claimant's subsequent proceedings, but distinguished it on the ground that, in R(IS) 5/91, "an appointment (though invalid) was a matter of convenience". In my respectful opinion, there is no material distinction between the two cases. I therefore accept Mr Prosser's concession and do not follow CIS/638/1991.
20. In doing so, I am mindful of the fact that in R(SB) 9/84 there had been appointments after the four claims giving rise to the appeals to the Tribunal of Commissioners (see paragraph 2) and that the Tribunal were largely concerned with the validity of determinations in respect of earlier claims. However, it is implicit in the Tribunal's decision that the fact that the appointments were made after the later claims did not mean that those later claims were invalid; they were in effect validated by the subsequent appointment. It could hardly be otherwise because applications for appointment are usually made either at the same time as claims or else later and it must be very rare for appointments themselves to be made before receipt of a claim.
21. In the present case the claimant's mother and the Department of Social Security have both been aware, ever since the claim for supplementary benefit was made, that the claimant was incapable of acting on her own behalf and that it was possible for the claimant's mother to be appointed to act for her. Not only has the claimant's mother not sought appointment but also the Department has not advised her to do so. It seems to me to follow from paragraph 8 of R(SB) 9/84 that any appointment now would validate the claim and subsequent proceedings and that an appointment is, in any event, not strictly necessary unless the Secretary of State insists one, as he is entitled to do. Therefore, if Mr Prosser had wished to take the point that the claimant's mother had not been appointed to act in the proceedings before me, I should merely have deferred giving a decision until she had had the opportunity of applying to the Secretary of State for appointment. It is unlikely that he would have been entitled to refuse to appoint her to act on the claimant's behalf unless he had some evidence suggesting that she was unsuitable or there was a rival applicant (see Julius v Bishop of Oxford (1880) 5 App. Cas/214). However, I take the view that I have jurisdiction to give a decision despite the lack of appointment and that I can treat the claim and subsequent determinations of the adjudication officer and the tribunal as valid. It is open to the Secretary of State to insist on a formal appointment before the case is considered further or before any payment is made.
22. Finally, Mr Prosser accepted that, if I were to hold that it was necessary to look only at the reasonableness of the claimant's own failure to claim supplementary benefits, good cause for the delay was shown and that, assuming there was entitlement to supplementary benefit immediately before 11 April 1988, a claim for income support in respect of the period from that date would be deemed to have been made under regulation 4 of the Income Support (Transitional) Regulations 1987 so that no further question of delay arose. I therefore give the decision set out in paragraph 1 above.
(Signed) M. Rowland
Commissioner
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