Novitskaya v London Borough of Brent & Anor [2009] EWCA Civ 1260

Just a brief note on this appeal from the Social Security Commissioners. At issue was what could constitute a claim for housing benefit, albeit a ‘defective’ claim.

Ms N was granted refugee status on 6 May 2004, having claimed asylum in 1999. She was notified on 12 May 2004. Housing benefit could be backdated to the date of her application for asylum if she made the claim within 28 days of notification – by 9 June 2004. In addition, on 18 May 2004, Ms N became entitled to income support. Where a person is entitled to income support, any claim for housing benefit made within 28 days of the claim for income support will be deemed to be made on the first date on which the claimant was entitled to income support. This extended the initial period to 15 June 2004. MS N’s claim was worth some £29,000.

On 10 June 2004, Ms N was given an HB claim form by the DWP, but a completed form was not returned until 24 June 2004, outside the time limits.

However, on the same day, 10 June, that she had been given an HB claim form, Ms N had handed in an (extremely polite) statement:

“DEPARTMENT OF SOCIAL SECURITY [sic]
STATEMENT HB + Income Support

Notes ….

I,[name]

of [address]

state that I would like my benefits income support or whatever else I am intaital [sic] to, to be backdated from the date I became asylum seeker – which by 29.07.88 (because) according to an advice form “welfare benefit and tax credit’ hand book” – 2004-05 by Child Poverty Action Group page 665-666. I’m applaing [sic] only now because I’ve become refugee from 14.05.09. Sincerely hope for your help.

*The above has been read over to me and I agree that it is a true and complete record of what I have said. I declare that the information I have given on this form is correct and complete.

[signature]

It appeared that ‘HB + Income Support’ had been written at the top by someone else, presumably at the DWP.

Did this constitute a claim, albeit as conceded a ‘defective’ one that was only rectified by the submission of the full form?

Ms N argued yes, supported by the Secretary of State for Work and Pensions. The Respondent Council argued no on the basis that it was not a “claim” and because it made no express reference to housing benefit. Further, the Respondent submitted:

there are three stages to the rectification of a defective claim under the 1987 regulations. The stages are: (i) a defective claim is made (ii) a claim form is supplied to the claimant; and (iii) the claimant then submits the properly completed form. Mr Broatch submits that the three stages were not completed if Mrs Novitskaya did not receive a claim form in response to her defective claim because she had been given such a form already. Therefore there was no defective claim on 10 June 2004 and thus no retrospective claim for housing benefit was made within either the primary or secondary period.

This did not go down well with the Court, after all “it would mean that Brent could, by its own default, prevent Mrs Novitskaya’s defective claim being timeously rectified.

Held:
Following Kerr v Department for Social Development [2004] 4 All ER 385, “the distribution of benefits is different from many other areas of civil law. It is concerned not simply with recognising rights or enforcing liabilities but also with sustaining members of the community whom Parliament has decided should be sustained through the welfare state”. There is no justification for a requirement that every benefit being claimed must be expressly named. Reg 72 Housing Benefit (General) Regulations 1987 does not say that.

The claimant might, after all, not know the correct name of the benefit that she needed. It cannot have been the intention of Parliament that she should go without the benefit because she did not know the right name. In my judgment, it is clear from paragraphs (6), (7) and (8) of reg 72 that Parliament did not intend that the courts should approach the question of what is a claim in an over-technical way: that would defeat the object of the legislation. The form, after all, was to be completed by persons who included refugees [who] would only have arrived in this country relatively recently. I do not consider that the reasonable official would be under any doubt but that, if Mrs Novitskaya was arguably entitled to housing benefit, she was making a claim for that benefit. This is confirmed by the fact that (as it appears) an official applied the words “HB and income support” to her statement.

As this claim of 10 June was a defective claim, it was cured by the full claim of 24 June. But the relevant date of claim was 10 June. There was therefore no need to deal with Brent’s circular argument that a defective claim could not be made because Ms N had already been given a claim form, which was in any event ‘perilously technical’ as an argument.

So under these Regs, a claim for benefit, if expressed as a claim ‘for the benefits to which I am entitled’ is a claim, whether or not it mentions the actual benefits. It may be a defective claim, requiring ‘curing’ by further information later, but as a date of claim, it is valid. This could well be useful in arguing for backdates, for example.

The general view that the distribution of benefits is distinct from other areas of civil law, which appears to mean that a purely technical approach is not to be encouraged, may be of wider application.