England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 1st March 2001

LORD JUSTICE BUXTON :

1. This appeal concerns entitlement to income support. That benefit is dealt with in the relevant legislation in the same terms as council tax benefit and housing benefit. For ease of reference the legislation is set out hereafter and discussed solely in terms of income support, but the general conclusions of this judgment apply equally to the other two benefits mentioned.
2. Mr Yildiz is a Turkish Kurd, who arrived in the United Kingdom on 7 February 1994, and claimed asylum on 23 February 1994. He and his family were effectively destitute. By regulation 70 of the Income Support (General) Regulations 1987, as amended by the Income Support (General) Amendment No 3 Regulations 1993 he was entitled to an "urgent case" payment of income support, albeit at a lower level of payment than would have been the case if he had been a regular claimant. He was so entitled because he fulfilled the regulations' definition of "asylum seeker", as a person who had submitted a claim which the Secretary of State was bound under the Convention to determine, and which had not yet been determined.
3. As is well known, in 1996 that position was altered by the Social Security (Persons From Abroad) Miscellanenous Amendments Regulations 1996. By regulation 8(3)(c) of the 1996 Regulations, the category of "asylum seeker" entitled to benefits was limited to those who had made a claim for asylum on arrival in the United Kingdom. The Social Security Advisory Committee, acting under section 174(1) of the Social Security Administration Act 1992, had expressed concern about those arrangements when they were proposed, to the extent that they advised that the 1996 amending Regulations should not be brought into force. The Secretary of State did not accept that advice, but in the reply that he was obliged by section 174(2) of the 1992 Act to make to the Committee's report he said that the Regulations would be substantially expanded to protect the position of persons (such as Mr Yildiz) who were already in the United Kingdom and in receipt of benefit at the date of commencement of the new regime, but who would otherwise thereafter fall outside the benefit regime because they had not claimed asylum on arrival. The Secretary of State said (Cm 3062, para 29) that the effect of the new arrangements would be that:

"... all asylum seekers who are in receipt of Income Support….when the new regulations take effect will retain entitlement to these benefits up to the point of the next decision made on their asylum claim."

4. Those "transitional" provisions were expressed in regulation 12 of the 1996 Regulations. The proper construction of that regulation is the issue in this appeal, and it is necessary to set out a considerable part of it:

"12(1) Where before the coming into force of these Regulations [i.e. 5 February 1996] a person who becomes an asylum seeker under…the Income Support Regulations…is entitled to benefit under …those Regulations those provisions of those Regulations as then in force shall continue to have effect as if regulation…8(3)(c)…of these Regulations had not been made.

12(2) [makes similar provision in respect of persons in respect of whom undertakings of support had been given by other persons].

12(3) Where before the coming into force of these Regulations a person is receiving attendance allowance [or other identified medically-related benefits]…the Attendance Allowance Regulations [and the regulations relating to the other benefits dealt with in this sub-regulations] shall, until such time as his entitlement to that benefit is reviewed under section 25 or 30 of the Social Security Administration Act 1992 have effect as if [the provisions in the 1996 Regulations equivalent to regulation 8(3)(c)] had not been made."

5. Mr Yildiz continued to be unemployed, and to receive income support, until 10 August 1998. He then secured remunerative work, and thereby ceased to be entitled to income support. That job however lasted only until 4 September 1998. He then received jobseekers allowance from 8 September 1998 until 7 March 1999. On the termination of that allowance he again claimed income support. That claim was rejected on the ground that his claim was a fresh claim, and the provisions of regulation 12(1) only applied to an actual claim that was in existence on 5 February 1996. By taking employment, albeit for a short time, Mr Yildiz had brought his 5 February 1996 claim to an end, and with it any further entitlement to income support.
6. That argument was upheld by the Social Security Appeal Tribunal and, on appeal from them, by Mr Commissioner Mesher. It seems clear from his judgment that Mr Mesher had some doubts about that conclusion, but he felt constrained to follow a previous decision in the same sense of another Commissioner. Mr Yildiz now appeals to this court. So far as Mr Yildiz himself is concerned, his asylum claim was finally determined on 23 March 2000, over six years after his application was made, with Mr Yildiz and his family being granted exceptional leave to remain until 2004. That determination in any event brought to an end any rights that he had under regulation 70, since those rights are contingent upon his being an asylum seeker. He however still seeks the benefit unpaid between the rejection of his claim in 1999 and the decision on his asylum claim. We were also told that the appeal is of more general importance, to a considerable number of cases in which decisions in the same terms as that in Mr Yildiz's case have been taken.
7. The appeal involves a short point on the construction of regulation 12(1). Before turning to that, however, it will be convenient to set out a number of issues that are already decided. First, this court decided in R v Secretary of State ex p Vijeikis (unreported, 5 March 1998) that a precondition to the application of regulation 12(1) was that the claimant should have been "entitled" to income support on the date of commencement of the regulations, 5 February 1996. Mr Vijeikis had not been so entitled, because he had been in paid employment on that date. The court adopted the observation at first instance of Dyson J:

"It would be inept to speak of someone who once was, but no longer is, entitled to benefit as a person as regards whom the provisions 'continue' to have effect. For something to continue it must exist. It cannot be something that once existed but no longer exists"

8. Second, this court held in R v Chief Adjudication Officer ex p B [1999] 1 WLR 1695 that entitlement to disability living allowance, a benefit addressed in regulation 12(3), terminated upon the review mentioned in that sub-regulation, and could not be revived.
9. In her very clear argument on behalf of the Secretary of State Miss Lieven principally relied on considerations affecting regulation 12 as a whole that, she said, supported the decision of Mr Commissioner Mesher. First, she said that there was no parallel anywhere in social security law for a "transitional" provision that operated in the way claimed by the appellant, of restoring a transitionally protected benefit once it had been lost. Ex p B was an example of such an approach having been rejected. We viewed that argument with some caution. "Transitional protection" is not a term of art, and nothing follows of necessity from the fact that a provision can be labelled as transitional. That is in our view demonstrated by the authoritative article of Professor Anthony Ogus, (1999) 6 JSSL 111, which was shown to us by Mr Pleming QC. To the extent, if at all, that anything was said obiter in the judgments in Ex p B that gives a more technical meaning to the concept of a transitional provision, I am not able for the reasons already stated to adopt that approach.
10. Second, and more particularly, Miss Lieven argued that continuation of Mr Yildiz's right to benefit would be inconsistent with the purpose and general structure of regulation 12. She took us to paragraph 106 of the decision of Mr Commissioner Jacobs in application CIS/1077/1999, where the learned Commissioner reviewed the various decisions of the courts on the various sub-paragraphs of regulation 12, and continued:

"On my reading of regulation 12, there is a theme that clearly runs through all three paragraphs. Put crudely, it is that protection is given to preserve rights that existed on 4 February 1996, but that protection is brought to an end at the first decent opportunity. That means at the end of the current award of benefits of last resort and at the first review, if earlier, for the other benefits."

11. Miss Lieven said that the Secretary of State adopted the analysis of Commissioner Jacobs, even if not the exact language in which it was expressed. Her submission was that the theme throughout regulation 12 was that protection came to an end when the specific entitlement that existed on 5 February 1996 comes to an end. That was to be seen in the context that the 1996 Regulations as a whole were indeed intended to be, as this court had regarded them in R v Secretary of State ex p JCWI [1997] 1 WLR 275, Draconian; and it was therefore to be expected that any transitional protection from the effect of the Regulations would be minimal.
12. Support for this thesis was sought from the decision of this court in Ex p B. The first opportunity for removal of disability living allowance that in that case was being paid on 5 February 1996 came with the review that was required at the end of the two-year period of initial grant. That review, irrespective of its outcome, was held, by the terms of regulation 12(3), to bring entitlement to disability living allowance to an end. It was argued that, by the same token, a break in entitlement to income support, such as arose in Mr Yildiz's case, should by the operation of regulation 12(1) terminate any such entitlement for good. And it was said to be absurd that (as Schiemann LJ pointed out in Ex p B at p 1708b was the effect of the decision in that case) a medical review that might in the particular case have confirmed or reinforced the need for disability allowance should nonetheless terminate entitlement for good; but an interruption that did indeed remove the basis of entitlement, as in the case of the taking of work by a person in receipt of income support, should not have that same effect.
13. These submissions would have force if it were open to the court to apply the supposed policy direct to the facts of the case, without the intervention of the statutory words in which the policy was sought to be expressed. However, when making the Regulations the Secretary of State did not express the transitional provisions in the terms adopted by Commissioner Jacobs, nor in the recension of those terms offered by him in this appeal. Nor, one has to say, would such an expression of policy have been easy to reconcile with what the Secretary of State said to Parliament in his response to the report of the Advisory Committee: see paragraph 3 above. But in any event what we have to apply and construe is the legislative language that the Secretary of State did in fact use: the terms of regulation 12, in its different paragraphs.
14. In Ex p B the court found itself driven to its conclusion by the specific words "until such time as his entitlement to that benefit is reviewed" in regulation 12(3). No such words are to be found in regulation 12(1). The regulation addresses, not the benefit in general terms, but the specific case of a person "who becomes an asylum seeker under regulation 70(3A)(a) of the Income Support Regulations": that is, who had submitted a claim for asylum which remained undetermined on 5 February 1996. In the case of such a person, if on that date he was entitled to benefit, the Income Support Regulations continue to have effect "as if regulation….8(3)(c)….. of the [1996] Regulations had not been made." Regulation 8(3)(c) is, as we have seen, the provision that amended the definition of "asylum seeker" in the Income Support Regulations to confine it to those who submitted an asylum claim on arrival. The effect of disapplying that provision, as regulation 12(1) does, is to continue the status of the applicant as an asylum seeker under the existing regulations: which status confers on him the right to urgent case payments under regulation 70 of the Income Support (General) Regulations 1987. That right is not expunged simply by a period of employment.
15. Under the terms of regulation 12(1), the fact that Mr Yildiz was entitled to benefit on 5 February 1996 is the pre-condition to the application to his case of the transitional provisions: see the decision in Vijeikis, described in paragraph 7 above. But once that pre-condition is established, the operation of the transitional provisions is controlled by their terms, and not by the pre-condition. Their terms, as we have seen, provide that an applicant such as Mr Yildiz continues to be entitled to claim because he continues to have the status of an asylum seeker for the purposes of the 1987 Regulations. He does not lose that status by reason of a period of employment. He only loses it, as regulation 70(3A)(b) of the Income Support Regulations says, when his asylum claim is finally determined.
16. That analysis is entirely consistent with the observation of Dyson J in Vijeikis that was adopted by this court: see paragraph 7 above. The question was, as Dyson J said, whether the provisions continue to have effect. Mr Yildiz qualified under the Vijeikis test as someone entitled to benefit under the Regulations on 5 February 1996: and it was those Regulations, in their original form, that indeed continued to have effect in respect of him.
17. On the plain wording of regulation 12(1), therefore, Mr Yildiz's right to urgent case payments under the income support provisions did not disappear for all time as soon as he took employment. Those provisions continued, subject to his fulfilling the other qualifying conditions, until the determination of his asylum claim. If the Secretary of State really wished to implement the policy suggested on his behalf in this case, and subject Mr Yildiz and other asylum seekers in his position to what was described by Simon Brown LJ in the JCWI case, [1997] 1 WLR at p 292F, as a life so destitute that no civilised nation can tolerate it, then he would have to use very clear words to that effect. In fact, he has used words that on their clear meaning avoid that unhappy outcome.
18. There is no answer to the arguments advanced by the appellant, and the appeal must succeed.

LORD JUSTICE WARD:

19. I have had the advantage of reading in draft the judgment of Lord Justice Buxton and I agree with it. It is only because we are differing from the views of some of the Commissioners and because the outcome is of particular importance to a number of asylum seekers that I venture to express as shortly as I can my reasons for allowing this appeal.
20. The literal and grammatical meaning of regulation 12(1) is as plain as plain can be as far as I am concerned. It sets out a qualifying precondition introduced by the clause "Where, before the coming into force of these Regulations, a person who becomes an asylum seeker under ... the Income Support Regulations ... is entitled to a benefit under ... those Regulations ...". Whether a person is so entitled may present difficulties, as Judge L.J. found in R. v Secretary of State for Social Security Ex Parte Vijeikis (Court of Appeal, Unreported, 5th March 1998):-

"Although the impact of these regulations on these particular individuals will plainly be severe - indeed particularly in the case of Vijeikis very harsh, because the effect of the decision is to penalise him and his family for trying to find work and avoid, as is now the current phrase, "dependency" - the proper interpretation of these regulations does not, in my judgment, permit a more generous construction of them than would otherwise be appropriate when their meaning is clear."

21. Those difficulties do not arise in this case because it is common ground that immediately before the coming into force of these regulations on 5th February 1996 Mr Yildiz was recognised to be entitled to benefit because he was in fact receiving it. So the precondition is satisfied.
22. The crucial question for determination in this appeal is, therefore, what follows from his being a qualifying person. The consequences, in the words of regulation 12(1) are:-

"... those provisions of those Regulations as then in force shall continue to have effect as if regulation ... 8(3)(c) ... of these Regulations had not been made."

23. "Those provisions of those Regulations as then in force" refer back by virtue of the interpretation provision in regulation 1(2) of the Miscellaneous Amendments Regulations 1996 to the Income Support (General) Regulations 1987. Regulation 8(3)(c) of the 1996 regulations changed the rules and limited the entitlement to income support to those who had made a claim for asylum on arrival in the United Kingdom. So the crucial question becomes: what is it that shall continue to have effect as if the rules had not been so changed? The answer is plain. It is those provisions of the 1987 General Regulations as were then in force. "Then in force" means in force immediately before the coming into force of the 1996 Regulations, i.e. those Regulations as were in force on 4th February 1996. It is common ground that as at 4th February 1996 an asylum seeker was entitled to income support even though he had not claimed asylum on his arrival. It is not challenged by the Secretary of State that the effect of the 1987 General Regulations which continue to have effect, permit such an asylum seeker to claim and to receive benefit, to lose it if and when and for the duration of any employment he may take up but to re-apply and again to become entitled to income support after the determination of that employment. The plain ordinary meaning of regulation 12(1) is once entitled to benefit under the 1987 Regulations then always so entitled.
24. Since Mr Yildiz was able to move in, out and back into entitlement to benefit under the 1987 General Regulations, he continued to enjoy in full the rights conferred upon him by those 1987 General Regulations.
25. Miss Lieven submits that the court should give the regulation a purposive construction. She submits, and as always attractively submits, that the regulation is intended only to give minimal protection for so long as the entitlement to benefit continues and that when entitlement has ceased as it would cease on taking up employment, then the regulations cease to exist and do not come back to life. That flies in the face of the language. The regulations do not cease to exist. On the contrary they continue to have effect. The regulations do not state, as they easily could, that the qualifying asylum seeker loses his entitlement to benefit if at the time of the coming into force of the regulations or at any time thereafter he is in employment or takes up employment.
26. She relies on the observation of Dyson J. in Vijeikis that:-

"... the purpose of the 1996 Regulations is plain and obvious. It is, inter alia," (I emphasise those two words) "to curtail the rights to benefit of asylum seekers."

27. Of course that is the purpose of the changes being made by the 1996 Regulations but those changes do not give any sufficient clue to the purpose of the transitional provisions. Dyson J. recognises there is more than one purpose to the regulations as a whole. Miss Lieven disavows Mr Pleming Q.C.'s submission that the best clue to the purpose of the transitional provisions is to be found in the Secretary of State's response to the report of the Social Security Advisory Committee in Cm. 3026, paragraph 29. That recites that:-

"The Government has therefore decided to amend substantially the effect of the regulations on asylum seekers who are in receipt of benefits when the regulations come into force. The effect will be that all asylum seekers who are in receipt of Income Support ... when the new regulations take effect will retain entitlement to those benefits up to the point of the next decision made on their asylum claim."

28. For my part I cannot see why that does not accurately define the government's purpose in the enacting of regulation 12(1). Its literal meaning gives plain effect to that purpose.
29. Miss Lieven also relies on the opinion of Mr Commissioner Jacobs in Commissioner's Cases Nos: CIS/1077/1999 and CIS/6608/1999 where he says in paragraph 106:-

"On my reading of regulation 12 there is a theme that clearly runs through all three paragraphs. Put crudely, that is that protection is given to preserve rights that existed on 4th February 1996, but that protection is brought to an end at the first decent opportunity."

30. That leaves unanswered what the first decent opportunity is. I confess to a little surprise that the Secretary of State should be contending in this case that the decent opportunity at which to terminate entitlement is not that provided for in regulation 70(3A)(b) of the Income Support Regulations namely when the asylum claim is finally determined. The decent thing for the Secretary of State to do is that which he has done on my construction of the regulations, that is to leave the qualifying asylum seekers in the position they were in without any change to their position. Their entitlement continues until the Secretary for State for the Home Department decides the asylum claim. It borders on indecency to leave these claims undetermined for years and years and if the purse of the Department of Social Security is to be protected then the Home Secretary should make more effective arrangements for the quicker disposal of asylum claims.
31. I have no hesitation in allowing the appeal.

LORD JUSTICE HENRY:

32. For the reasons set out above, I also agree that this appeal should be allowed.
ORDER: Appeal allowed with costs permission to appeal to House of Lords refused. (Order does not form part of approved Judgment)