England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOCIAL SECURITY APPEAL TRIBUNAL
(DEPUTY COMMISSIONER)

		Royal Courts of Justice Strand London WC2 Wednesday, 6th December 2000

Wednesday, 6th December 2000

1. LORD JUSTICE WARD: This is an application, firstly, to extend the time for appeal and, secondly, for permission to appeal the order of the Deputy Social Security Commissioner, Mr Michael Mark. He dismissed the applicant's appeal from the tribunal decision who, in turn, dismissed her appeal from an adjudication officer in relation to her claim for a job seeker's allowance.
2. In a nutshell the facts are these. The applicant's husband, a citizen of Nigeria, lives in Nigeria and she, being in this country obviously with permission to be here applied for him to join her. The British High Commissioner in Lagos wrote to her on 30th April 1996 pointing out that the necessary immigration rules, in particular the old paragraph 281(vi), provided that:

" ... the parties will be able to maintain themselves and any dependants adequately without recourse to public funds."

3. She was anxious not to jeopardise her husband's opportunity to come to this country. She was working but lost her job at the end of August 1996. She was told about the powers to obtain a job seeker's allowance. In November 1966 she obtained the appropriate forms. Her case is that having looked at the qualifications for that allowance she concluded that it would amount to a recourse to public funds which would imperil her husband's application, he still being in Nigeria at that time. Consequently, she did not attend a meeting set up at the employment bureau. It was not until she called at the Citizens Advice Bureau for wholly unrelated advice that she was finally told that she could make this application without prejudice to her husband's position. Therefore, she applied in February 1997 and was given her job seeker's allowance from that time onwards but there was no back-dating to September when she became unemployed. The reason for this is that the tribunal concluded that she was ignorant about her rights as set out in paragraph one of their reasons. It said:

"It is well settled that ignorance of one's rights does not constitute good cause for late claiming. It can only do so if it is reasonable for the individual concerned to have made no enquiries at all in the belief that there was nothing to enquire about."

4. Her complaint about that decision is that the tribunal totally failed to have regard to the letter from the High Commissioner and its apparent embargo upon her resorting to any public funding at any time.
5. She appealed to the commissioner. He upheld the tribunal's decision concluding at paragraph 10 of his order:

"There appears to me to have been evidence to justify such a finding in the claimant's own statements as to obtaining a claim form and arranging an interview in August/September, and in her own statement at p.9 that she did not know whether she could claim or not because of her husband. In my view the tribunal was entitled to conclude that the claimant ought at that stage, in view of her stated uncertainty, to have enquired as to her rights and that she had not shown good cause (the burden of this being on her) for her delay."

6. I am troubled about the prospects of success because the applicant did not attend at the tribunal. Her own statement that she did not know whether she could claim or not is not altogether consistent with her oral statement to me today that she firmly believed that she could not claim, and based that belief entirely on the letter from the High Commissioner. The amount involved may seem small. It may be about 20 weeks and the rate of the benefit that she was receiving was, she tells me, in the region of £80. But that could be a vast sum of money for her and undoubtedly she ran into considerable debt. That is her explanation for not making her application to appeal in time.
7. On a very fine balance I am not prepared to dismiss her application today. I think there should be notice to the respondent department concerned to appear on a resumed hearing particularly to explain to me why there is a total absence of reference to the High Commissioner's letter, why there is no consideration of the question whether or not that letter in itself gave reasonable cause for the belief which they found that she did have. I am troubled about the delay in making the application to this court, but I accept that she had no money. It may be that if the prospects of success are high enough, the court may overlook that long delay.
8. The application will be resumed on notice to the Social Security Department. A copy of this judgment will be given to the applicant at public expense.
(Application for permission to appeal granted; copy of judgment to be given to applicant at public expense)