JFP-v-Department for Social Development (DLA) [2012] NICom 267

Decision No:  C29/09-10(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 12 June 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The decision of the appeal tribunal dated 12 June 2009 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

2.    I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.  My revised decision is that the appellant is entitled to the higher rate of the mobility component and the highest rate of the care component of disability living allowance (DLA) from 10 April 2008 to 12 May 2009.

 

       Background

 

3.    This appeal has had a long and somewhat complicated background.  Throughout the proceedings before the Social Security Commissioners, the appellant has been represented by Mrs Carty of the Law Centre (Northern Ireland) and the Department through Mr Gorman of Decision Making Services (DMS). Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.  Gratitude is also extended to the appellant for her patience in awaiting the outcome of these proceedings.

 

4.    On 6 December 2007 a claim form to DLA was received in the Department from the appellant.  The accepted date of claim was 5 November 2007 this being the date on which the Department had received the request for the claim form to DLA.  Following the compilation of relevant evidence and an examination by an examining medical practitioner, on 27 June 2008 a decision-maker of the Department decided that the claim to DLA should be disallowed from and including 5 November 2007.  Correspondence in connection with the disallowance decision was received in the Department on 3 July 2008.  On 8 August 2008 and following receipt of additional specialist advice, another decision-maker of the Department reconsidered the decision dated 27 June 2008.  On 15 October 2008 an appeal against the decision dated 27 June 2008 was received in the Department.

 

5.    Following a series of postponements and adjournments, the substantive oral hearing of the appeal took place on 12 June 2009.  The appellant was present and was represented by Mrs Carty of the Law Centre (Northern Ireland).  The Department was represented by Mr Galbraith and Mr McNamara.  The appeal tribunal allowed the appeal and substituted its own decision to the effect that the appellant was entitled to the higher rate of the mobility component and the highest rate of the care component of DLA from 10 April 2008 to the ‘… date of her operation for insertion of catheter in May 2009,’

 

6.    On 9 July 2009 a request was made to correct the decision notices for the appeal tribunal’s decision in accordance with regulation 56 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  On 29 July 2009 the request for a correction was refused by the legally qualified panel member (LQPM).  On 31 July 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 5 August 2009 the application for leave to appeal was granted by the LQPM.  In granting leave to appeal, the LQPM identified the following point of law:

 

‘Whether the claimant is entitled to residence in the United Kingdom as the spouse of a worker and to whom Regulation 2(2) of the Social Security (Immigration & Asylum) Consequential Amendments Regulations (Northern Ireland) 2000 applies.’

 

       Proceedings before the Social Security Commissioner

 

7.    On 28 August 2009 the appeal was received in the Office of the Social Security Commissioners (OSSC).  The Department was now represented in the proceedings by Mr Gorman of Decision Making Services (DMS).  On 6 October 2009 written observations on the appeal were received from Mrs Carty.  Written observations on the appeal were shared with Mr Gorman on 7 October 2009.  On 5 November 2009 written observations in reply were received from Mr Gorman which were shared with the appellant and her representative on the same date.  On 9 November 2009 I directed an oral hearing of the appeal.

 

8.    The oral hearing of the appeal took place on 14 January 2010.  The appellant was present and was represented by Mrs Carty and the Department was represented by Mr Gorman.  At the oral hearing, Mrs Carty alluded to a possible reference to the European Court of Justice on matters which were relevant to the issues arising in the present appeal.  Following the oral hearing of the appeal, Mrs Carty wrote to OSSC, in correspondence received on 10 February 2010, to advise that it had come to her attention that a reference had been made to the European Court of Justice in the case of Gerardo Ruiz Zambrano but did not, as yet, have more comprehensive details of the case.  The correspondence was shared with Mr Gorman who, in his response, indicated that the Department would have no objection to the appeal being ‘stayed’ pending the outcome of the proceedings before the European Court of Justice.

 

9.    On 14 April 2010, and after further clarification, I directed that the appeal should be stayed.  On 20 October 2010 a copy of the opinion of the Advocate General in Zambrano was forwarded to Mrs Carty and Mr Gorman.

 

10.   On 14 March 2011 correspondence was received from Mrs Carty, attaching a copy of the decision of the European Court of Justice in the case of Zambrano (Case C-34/09) and including a submission on the relevance of that decision on the issues arising in the present appeal.  That correspondence was shared with Mr Gorman on 22 March 2011 and further observations were received from him on 1 April 2011.  These were shared with Mrs Carty on 13 April 2011.  There then followed a further exchange of written observations and observations in reply.  Finally, further correspondence was received from Mr Gorman in May 2011.

 

       Errors of law

 

11.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

12.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)      making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)      failing to give reasons or any adequate reasons for findings on material matters;

(iii)      failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)      giving weight to immaterial matters;

(v)      making a material misdirection of law on any material matter;

(vi)      committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

       The agreed factual background

 

13.   The appellant is a citizen of the United States of America.  She is married to a citizen of the United Kingdom who was born in England.  The appellant came to Northern Ireland with her husband on 11 October 2007.  The appellant’s passport contains a United Kingdom entry clearance visa, valid for the period from 2 October 2007 to 2 October 2009 and endorsed ‘no recourse to public funds’.

 

       The relevant legislative background

 

14.   Section 71(6) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that

 

‘… a person shall not be entitled to a disability living allowance unless he satisfies prescribed conditions as to residence and presence in Northern Ireland.’

 

15.   The prescribed conditions are set out in regulation 2 of the Social Security (Disability living Allowance) Regulations (Northern Ireland) 1992, as amended:

 

‘Conditions as to residence and presence in Northern Ireland

 

2.—(1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of section 71(6) of the Act as to residence and presence in Northern Ireland in relation to any person on any day shall be that-

 

(a)      on that day-

(i)       he is ordinarily resident in Northern Ireland; and

(ia)     he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or section 115 of that Act does not apply to him for the purposes of entitlement to disability living allowance by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000,

(ii)      he is present in Northern Ireland; and

(iii)      he has been present in Northern Ireland for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day; and

 

16.   Section 115 of the Immigration and Asylum Act 1999, so far as relevant, is in the following terms:

 

‘Exclusion from benefits

 

115.—(1) No person is entitled to income-based jobseeker’s allowance under the Jobseekers Act 1995 or to—

(a)-(c) …

(d) disability living allowance,

(e)-(k) …

 

under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

 

(2) No person in Northern Ireland is entitled to … —

(a) …, or

(b) any of the benefits mentioned in paragraphs (a) to (j) of subsection (1),

 

under the Social Security Contributions and Benefits (Northern Ireland) Act 1992 while he is a person to whom this section applies.

 

(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

 

(4) Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies.

 

(5)-(8) …

 

(9) “A person subject to immigration control” means a person who is not a national of an EEA State and who—

(a)      …

(b)      has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c)-(d) …

 

(10)    …’

 

17.   The Department for Social Development has exercised the power given in section 115(3) and (4) to make regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000.  As it is applicable in the instant case, regulation 2 reads as follows:

 

‘Persons not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999

 

2.—(1) …

 

(2)      For the purposes of entitlement to … disability living allowance, under the Contributions and Benefits Act, … a person falling within a category or description of persons specified in Part II of the Schedule is a person to whom section 115 of the Act does not apply.

 

(3)      For the purposes of entitlement to … disability living allowance under the Contributions and Benefits Act, … a person in respect of whom there is an order made under section 155 of the Social Security Administration (Northern Ireland) Act 1992 giving effect to a reciprocal agreement in respect of [that] benefit, … is a person to whom section 115 of the Act does not apply.

 

(4)      For the purposes of entitlement to—

(a)      …

(b)      … disability living allowance… under the Contributions and Benefits Act, … a person who is entitled to or is receiving benefit by virtue of paragraph 11(8) of regulation 12 is a person to whom section 115 of the Act does not apply.

 

(5)-(6) …’

 

18.   Part II of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000 reads as follows:

 

‘PART II

 

Persons not excluded under section 115 of the Immigration and Asylum Act from entitlement to attendance allowance, severe disablement allowance, invalid care allowance, disability living allowance a social fund payment or child benefit

 

1.       A member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993.

 

2.       A person who is lawfully working in Great Britain and is a national of a State with which the Community has concluded an agreement under Article 310 of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families.

 

3.       A person who is a member of a family of, and living with, a person specified in paragraph 2.

 

4.       A person who has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation.’

 

       What did the appeal tribunal decide?

 

19.   In the statement of reasons for its decision, the appeal tribunal outlined its conclusions on what it termed the appellant’s ‘immigration status’ and whether the substantive rules of entitlement to DLA were satisfied.

 

20.   In connection with the issue of ‘immigration status’ the conclusions of the appeal tribunal were as follows:

 

‘Issue of Immigration Status

 

       The appellant is a United States citizen who was admitted to Northern Ireland on a two year visa in October 2007 as she is married to a United Kingdom citizen who was working in Northern Ireland at that time.  Her visa contained a condition that she should not have recourse to public funds.

 

       Section 115 of the Immigration Act 1999 precludes such visa holders from claiming a number of benefits including Disability Living Allowance.  However, there are exceptions to the restrictions set out in the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000.  Regulation 2(2) provides that those coming within part 2 of the Schedule to the regulations are not excluded from claiming Disability Living Allowance.  Paragraph 1 specifies family members of a national of a state which is a contracting party to the Agreement on the European Economic Area signed in Oporto on the 2^nd of May 1992 as adjusted by the protocol signed at Brussels on the 17^th of March 1993.

 

       This provision was considered by Commissioner Poynter in CDLA/708/2007.  The claim was made by a sibling of a child with Irish nationality.  He concluded that the clear words of paragraph 1 applied only to families of EU workers exercising freedom of movement rights.  He therefore upheld the disallowance of the claim for benefit.

 

       In this appeal, the claimant is the spouse of a worker in the United Kingdom.  The decision maker decided that as he is not exercising EU workers rights, then paragraph 1 of the 2000 regulations does not apply.  The claim was therefore disallowed.

 

       Clearly the facts of this appeal are significantly different to those in CDLA/708/2007.  The claimant’s husband is a worker in a country of the European Union.  She is a member of his family.  The tribunal therefore finds itself bound by the clear words of paragraph 1 of Part II of the schedule of the 2000 regulations.  The claimant is therefore entitled to claim Disability Living Allowance.

 

       The tribunal is satisfied that the claimant is ordinarily resident in Northern Ireland and was present for 26 weeks prior to the 10^th of April 2008.’

 

21.   In connection with whether the substantive rules of entitlement to DLA were satisfied, the appeal tribunal noted that agreement had been reached between the parties that the conditions of entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA.  The appeal tribunal accepted the concessions made by the Departmental presenting officer in this regard and set out its further reasons why it agreed that such a concession was correct.  The only remaining issue for the appeal tribunal, therefore, in connection with the substantive rules of entitlement was whether the conditions of entitlement set out in section 72(1)(c) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, were satisfied.  The conditions set out in section 72(1)(c) are that the claimant:

 

‘(c) … is so severely disabled physically or mentally that, at night,—

 

(i)          he requires from another person prolonged or repeated attention in connection with his bodily functions; or

 

(ii)         in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.’

22.   If the conditions of entitlement set out in section 72(1)(c) were satisfied the accepted entitlement to the middle rate of the care component would become an entitlement to the highest rate of the care component.  The appeal tribunal reasoned, as follows:

 

‘The evidence of the appellant was accepted.  She explained that she suffered from incontinence and that consequently, until she had had a catheter fitted, she experienced considerable problems at night when she needed to use the toilet.  She was unable to move herself in bed without assistance and could not rise and return to bed without help.  She also experienced some difficulty in taking her medication at the right time during the night.  Looking at the evidence as a whole, the tribunal concluded that the claimant did require prolonged and repeated attention at night in connection with her bodily functions most of the time.’

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

       The submissions of the parties

 

23.   In his initial letter of appeal, Mr Gorman submitted that as the appellant’s visa restricted her from recourse to public funds, she was a person subject to immigration control.  In accordance with section 115 of the Immigration and Asylum Act 1999 she had no entitlement to DLA.  The appellant could not avail of the exceptions to section 115, provided for in the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, as amended.  This was because of the interpretation given to the parallel Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 by the Deputy Social Security Commissioner in CDLA/708/2007.  The Deputy Commissioner’s interpretation of paragraph 1 of Part II of the Schedule to the 2000 Regulations meant that the appellant could not come within the definitions contained within that paragraph.  The appeal tribunal had erred in its conclusion that the appellant’s husband was a ‘worker’ without giving an explanation or providing adequate reasons as to how it had reached this conclusion.  The appeal tribunal had failed to take account of the decision in CDLA/708/2007 and did not fully explain why it was not considered to be relevant.  The appellant’s husband could not be considered to be a ‘worker’ under relevant European Union legislation as he was a United Kingdom national residing in the United Kingdom and not, therefore, exercising a right of freedom of movement.

 

24.   In Mr Gorman’s initial letter of appeal, there is no mention of the ‘residence and presence’ conditions set out in section 71(6) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 2 of the Social Security (Disability living Allowance) Regulations (Northern Ireland) 1992, as amended. I shall deal, however, with those requirements in more detail below.

 

25.   In reply, Mrs Carty submitted that the appellant did not rely on any provision or interpretation of European Union law at any point of the appeal.  Her appeal was grounded on an interpretation of an instrument of domestic law, namely the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, as amended.  It had not been submitted that the appellant’s spouse was exercising or had exercised any right arising under European Union law.  The simple argument had been that the applicable provisions of the 2000 Regulations were clear and unambiguous.  The appeal tribunal’s conclusions with respect to the interpretation of the 2000 Regulations were correct.  Mrs Carty thought, however, that it was unfortunate that the appeal tribunal did not set out, in more clear terms, why it had concluded that the decision in CDLA/708/2007 was incorrect.  Nonetheless, Mrs Carty submitted that should I find that the appeal tribunal’s reasons were inadequate to explain why the appeal tribunal had rejected the reasoning in CDLA/708/2007, I should go on to reconsider the applicability of that case.

 

26.   In this regard, Mrs Carty submitted that the decision in CDLA/708/2007 was wrong.  The reasons for that submission are as follows:

 

‘Deputy Commissioner Poynter stated at the outset of his reasoning at para 16,

 

16.  “Paragraph 1 is plainly intended to comply with the United Kingdom’s international obligations under the EEA agreement.  In my judgment it follows that the phrases “member of a family “ and “national of a State contracting party to the Agreement on the European Economic Area” should both be interpreted in accordance with that Agreement.”

 

It is submitted that Deputy Commissioner Poynter has gone wrong in finding that paragraph 1 is plainly intended to comply with the United Kingdom’s international obligations under the EEA agreement.

.

At paragraph 23 Deputy Commissioner Poynter sets out that,

 

23.  “Annex V to the Agreement (to which effect is given by Article 28(5) gives effect to Directive 2004/38/EC (the Citizenship Directive) and Council Regulation (EEC) No 1612/68 throughout the EEA.  Annex VI to which effect is given by Article 29) gives similar effect to Council Regulation (EEC) 1408/71.

 

Having confirmed that Regulations 1612/68 and 1408/71 have been given effect throughout the EEA, Deputy Commissioner Poynter crucially fails to set out what international obligation under the EEA agreement the UK was intending to comply with by the introduction of the provisions of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000.  EU Regulations are directly applicable in the UK.  He fails to identify any obligation under the EEA agreement which would require the introduction of domestic provisions in relation to attendance allowance, severe disablement allowance, invalid care allowance, disability living allowance, a social fund payment or child benefit such as those in regulation 2 and Part II to the Schedule of the 2000 Regulations.  If the reasoning of Deputy Commissioner Poynter is adopted, then it is submitted that the drawing up of these exceptions was a pointless exercise as all EEA nationals who are exercising rights and freedoms under the EEA Agreement, and their family members, would be entitled to claim the stated benefits without seeking to rely on the exception.  It is submitted that in singling out these six benefits the legislature decided to go beyond the rights afforded to such claimants under EU law.

 

The Explanatory Note to the 2000 Regulations simply states that,

 

Regulation 2 and the Schedule to these Regulations make provision for certain people not to be excluded from entitlement to benefits under section 115 of the Immigration and Asylum Act who would otherwise be excluded under that section.

 

It is submitted that the 2000 Regulations are closely linked to the Immigration and Asylum Act 1999 under which they are made and should be read in conjunction with the provisions of the 1999 Act and the Immigration Rules.  Deputy Commissioner Poynter does not take into consideration the fact that the immigration rules do not regard DLA as public funds in a case such as this.  Para 6B of the Immigration Rules provides that,

 

“6B.  A person shall not be regarded as having recourse to public funds if he is a person who is not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.”

 

The legislature has made clear provision in other benefits such as IB, JSA, IS and HB for entitlement to benefit to rely upon compliance with detailed residence rules.  It cannot be presumed that the legislature has simply made a mistake in the wording of this provision and has omitted in error that only family members of those exercising rights or freedoms under the EEA agreement can benefit from the provision.

 

In his decision Deputy Commissioner Poynter failed to address the issue that the relevant provision refers to six specific benefits, namely: disability living allowance, attendance allowance, severe disablement allowance, invalid care allowance, social fund and child benefit.  He does not offer any explanation for why the provision deals specifically with these benefits.  He does not consider the issue of how applications are treated for other benefits.

 

The decision of Deputy Commissioner Poynter fails to acknowledge that regulation 2 was amended in or around 1998 to provide that a person’s right to reside or remain in Northern Ireland was not to be treated as if it subject to limitation if he was a national or a family member of an EEA member state.  This was clearly before the Immigration (EEA) Regulations 2000, the Citizenship Directive and the Immigration (EEA) Regulations 2006.’

 

27.   In his reply to Mrs Carty’s written observations on the appeal, Mr Gorman, as might be expected, submitted that the decision of the Deputy Commissioner in CDLA/708/2007 was correct.  Mr Gorman referred to paragraph 26 of the decision of the Deputy Commissioner where he had concluded that to give paragraph 1 of Part II to the Schedule of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 its ordinary meaning would be to bestow a right under the domestic law of the United Kingdom which a claimant would not be entitled to assert under European Union law.

 

28.   When the decision of the Court of Justice of the European Union in Zambrano was issued, Mrs Carty made a further submission that it had a direct relevance to the issues arising in the present appeal.  She submitted that the decision was authority for the proposition that citizens of member States of the European Union may rely on rights accruing to them as European Union citizens in a situation where they have never moved to another member State to exercise Treat rights.  Any decision that the appellant’s spouse was not a family member of an EEA national would deny the appellant’s husband the genuine enjoyment of the substance of the rights attaching to his status as a citizen of the European Union and would lead to him being treated less favourably than the citizen of a Member State other than the United Kingdom.

 

29.   In response Mr Gorman submitted that the decision in Zambrano:

 

‘… concerned the protection of the fundamental right of a child who is an EU citizen to reside in the Member State of which they are a national and the granting of a right to reside to a non-EU relative in the ascending line in order to give effect to that right and to protect the child from the threat of removal from the EU.  Although (the claimant’s spouse) is also an EU citizen he is an adult who can provide for himself as he is free to reside and work in his home Member State, as well as being free to exercise his right to move to another member State.  Furthermore he is in no danger of being removed from the EU.  His rights as an EU citizen do not therefore lack effect and are not reliant on anyone else.  The Department submits that his circumstances are so dissimilar to those of Mr Zambrano’s children that the claimant can gain no advantage from the judgement as (the claimant’s spouse) has not been deprived ‘of the genuine enjoyment of the substance of his rights attaching to the status of European Union citizen.’

 

30.   In response to Mr Gorman’s response Mrs Carty reiterated the comments which she had made in her substantive observations on the appeal and in connection with the applicability of the decision in Zambrano.

 

       What was decided in CDLA/708/2000?

 

31.   In CDLA/708/2007, the facts were as follows:

 

(a)        The claimant was 13 years old and, unfortunately, suffered from a severe learning disability with associated communication difficulties and behavioural problems.  He was born in India and is an Indian national.  He lived with his mother and her husband (who are also Indian) and with his younger sister who is now 8 years old.  The claimant’s sister was born in Belfast and was a citizen of the Republic of Ireland under the jus soli provisions of Irish law as they existed before 1 January 2005.

 

(b)        The claimant came to the UK to join his mother on 30 January 1999 when he was just four years old.  His leave to enter the United Kingdom was subject to the condition that he should not have recourse to public funds and it was not in dispute that subsequent grants of leave to remain have also been subject to the same condition.

 

(c)        Despite that condition, the claimant’s mother (who has been appointed to exercise the claimant’s rights under regulation 43 of the Social Security (Claims and Payments) Regulations 1987) claimed DLA on his behalf in October 1999.  The claimant’s mother disclosed the fact that the claimant was an Indian national.  At the time, she does not appear to have been asked more detailed questions about his immigration status.

 

(d)        On 1 April 2000, the claimant was awarded, and subsequently received, the lower rate of the mobility component and the middle rate of the care component of DLA from 25 October 1999 to 5 December 2005.  In August 2005, his mother submitted a renewal claim and, on 11 September 2005, a further award was made at the same rates for seven years from 7 December 2005 to 6 December 2012.

 

(e)        However, on 31 October 2005, following more detailed enquiries about the claimant’s immigration status, a decision-maker acting on behalf of the Secretary of State revised the decisions of 1 April 2000 and 11 September 2005.  The revising decision was that the claimant was not entitled to DLA from and including 25 October 1999 because he was a ‘person subject to immigration control’ and was therefore excluded from entitlement to benefit by section 115 of the Immigration and Asylum Act 1999 (‘the 1999 Act’).

 

(f)         The claimant appealed against that decision on the grounds that he was not excluded from entitlement to DLA because he was a ‘member of the family’ of an EEA national (ie, his younger sister).  The tribunal rejected that argument and confirmed the Secretary of State’s decision.  The claimant appealed to the Commissioner with the leave of a district chairman.

 

32.   The Deputy Commissioner began his analysis at paragraphs 14-17, as follows:

 

‘14      However, the Republic of Ireland is a contracting party to the EEA Agreement.  It is therefore argued on behalf of the claimant that his sister is ‘a national of a State contracting party to the Agreement on the European Economic Area’ within paragraph 1 of Part II and that he is a ‘member of [her] family’.  Therefore, it is said, section 115 does not apply to him and he is not excluded from entitlement to DLA either under that section or under regulation 2 of the DLA Regulations.

 

The EEA Agreement

 

15      At first sight that submission seems unanswerable.  The claimant’s sister is an EEA national and, at least while they continue to live in the same household, it would be ordinary use of English to say that he is member of her family.

 

16      However, I have concluded that matters are not quite so straightforward.  Paragraph 1 is plainly intended to comply with the United Kingdom’s international obligations under the EEA agreement.  In my judgment it follows that the phrases ‘member of a family’ and ‘national of a State contracting party to the Agreement on the European Economic Area’ should both be interpreted in accordance with that Agreement.

 

17      The following provisions of the Agreement are relevant.’

 

33.   Certain provisions of the EEA Agreement were then set out.  He continued at paragraphs 24 to 28:

 

‘24      Taking into account the Agreement as a whole, and the provisions quoted above in particular, I have concluded that the scheme of the Agreement is to extend the provisions of European Community law relating to the free movement of goods, persons, services and capital to the EFTA states.  That geographical extension of the single market is subject to the modifications stipulated in the various Annexes and Protocols.  But the effect of those modifications is generally to restrict the rights of certain EEA nationals rather than to extend them.  I therefore conclude that:

 

(a)            the claimant’s sister has no greater rights under the EEA Agreement than she does as an Irish national and EU Citizen under EC law;

 

(b)            under the EEA Agreement, the claimant derives no greater rights from his relationship with his sister than he derives from that relationship under EC law.

 

25      Under EC law, the claimant has no rights as a member of his sister’s family because:

 

(a)            he is not her spouse, or an ascendant or descendant relative.  Neither is he dependent on her.  He is therefore does not her ‘family member’ for the purposes of the citizenship Directive (see, Article 2(2), of the Citizenship Directive);

 

(b)            Council Regulation (EEC) 1408/71 has no application to the case because the sister has never been employed or self-employed is therefore outwith the personal scope of that Regulation (see Article 2); and

 

(c)            The claimant’s sister is not a ‘worker’ for the purposes of Council Regulation (EEC) No 1612/68 and, in any event, the claimant does not fall within any of the categories of family member upon whom rights are conferred by Title III of Part I of the Regulation (Workers Families).

 

26      As the claimant has no rights under EC law by virtue of being his sister’s brother, and as I have concluded that the EEA agreement does not confer any greater right on him, it cannot be correct to interpret paragraph 1 of Part II of the Schedule to the 2000 Regulations as bearing its ordinary English meaning.  To do so would be to interpret a provision that is intended to give effect to the EEA Agreement as bestowing a right under the domestic law of the UK that the claimant is not entitled to assert under that Agreement or under EC law.

 

27      I therefore conclude that:

 

(a)            ‘national of a State contracting party to the Agreement on the European Economic Area’ in paragraph 1 must be construed as a reference to an EEA national who is exercising his or her rights or freedoms under the EEA Agreement (whether or not he or she also has equivalent rights under EC law); and that

 

(b)            ‘member of a family’ of an EEA national must be interpreted as meaning a person who has rights under the EEA Agreement as such a family member.

 

28      Even if, which in my view is doubtful, the claimant’s sister was exercising an EEA right by her residence in the UK, the claimant does not derive any rights under the EEA Agreement by virtue of his relationship with her.  Therefore paragraph 1 of Part II of the Schedule to the 2000 Regulations does not apply to him and he is a person subject to immigration control with no entitlement to non-contributory benefits, including DLA.’

 

       Analysis

 

34.   I conclude that the decision of the appeal tribunal is in error of law in that:

 

(i)          The appeal tribunal has not provided adequate reasons for its conclusion that the appellant’s husband was a ‘worker’ in a country of the European Union and the relevance of that conclusion for the purposes of the application of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, as amended.

 

(ii)         The appeal tribunal has not set out in sufficient detail its reasons why it concluded that the decision of the Deputy Commissioner in CDLA/607/2007 could be distinguished or, in the alternative, was wrongly decided.

 

35.   In relation to the error at (i), I am of the view that the appeal tribunal did not intend to place an undue emphasis on the status of the appellant’s husband as a ‘worker’ in the United Kingdom.  In this sense the wording utilised by the appeal tribunal is more clumsy than erroneous.  The appeal tribunal’s statement is awkward as an apparent conclusion that the appellant’s husband was a ‘worker in a country of the European Union’ suggests that the status was acquired through European Union rights.  What I think the appeal tribunal meant to say was that for the purposes of paragraph 1 of Part II of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, the appellant’s husband was ‘a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993’ and that for the purposes of the same paragraph, the appellant was a family member of his as such a national.

 

36.   A finding that the decision of the appeal tribunal was in error of law is not the end of the matter, however.  Although I set aside the decision of the appeal tribunal, I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given.  In the first instance that requires me to set out (i) why the relevant legislative provisions are applicable to the appellant and (ii) why I am in disagreement with the decision of the Deputy Commissioner in CDLA/708/2007.

 

37.   As was noted above, section 71(6) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that ‘… a person shall not be entitled to a disability living allowance unless he satisfies prescribed conditions as to residence and presence in Northern Ireland.’  The prescribed conditions are set out in regulation 2 of the Social Security (Disability living Allowance) Regulations (Northern Ireland) 1992, as amended.  I conclude that for the purposes of regulation 2(1)(a)(i) and 2(1)(a)(ii), the appellant was ordinarily resident in Northern Ireland and was present in Northern Ireland.  Further I agree with the appeal tribunal that at the date of the commencement of the award made by it, that is 10 April 2008, the appellant had, for the purposes of regulation 2(1)(a)(iii) been present in Northern Ireland for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding 10 April 2008.

 

38.   That leaves, however, the final and potentially more tricky residence and presence condition set out in regulation 2(1)(a)(ia) ie that the appellant was not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or that section 115 of that Act does not apply to him for the purposes of entitlement to DLA by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000.

 

39.   Section 115 of the Immigration and Asylum Act 1999 is headed ‘Exclusion from benefits’.  Section 115(2) provides that no person in Northern Ireland is entitled to a number of benefits, including DLA, if they fall into the category of person to whom the section applies.  Section 115(3) provides that the section applies to a person subject to immigration control unless that person falls within such category or description, or satisfies such conditions, as may be prescribed.  Section 115(9)(b) states that a ‘person subject to immigration control’ includes someone who is not a national of an EEA State and who has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds.

 

40.   At first glance, therefore, the appellant – who is not a national of an EEA State and whose leave to enter Northern Ireland is subject to the condition that she does not have recourse to public funds – is excluded from entitlement to DLA by the application of section 115.  Can she, however, bring herself within any excepted prescribed category or person for the purposes of section 115(3) and (4)?

 

41.   As was noted above, the Department for Social Development has exercised the power given in section 115(3) to make regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000.  Regulation 2 is headed ‘Persons not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999’.  Regulation 2 specifies a number of categories of person who are not excluded from entitled to specified benefits under section 115 of the Immigration and Asylum Act 1999.  The only category which has a potential application in the instant case is that provided for in regulation 2(2) which provides that for the purposes of entitlement to DLA, under the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, a person falling within a category or description of persons specified in Part II of the Schedule of the Regulations is a person to whom section 115 of the Act does not apply.

 

42.   In turn, Part II of the Schedule provides for four categories of person not excluded from entitlement to a number of specified benefits, including DLA, under section 115 of the Immigration and Asylum Act 1999.  The only category which has a potential relevance in the instant case is that provided for in paragraph 1 of Part II which is ‘… a member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993’.  The United Kingdom is a contracting party to the Oporto/Brussels Agreement.

 

43.   Does the appellant fall within the category provided for in paragraph 1 of Part 11 to the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, as amended?  I conclude that she does.  She is a member of a family of a national of the United Kingdom, a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993.  Accordingly she falls within the category of person not excluded from entitlement to a specified benefit, such as DLA, under section 115 of the Immigration and Asylum Act 1999, and provided for in regulation 2(2) of the 2000 Regulations.  In turn that means that she satisfies the final residence and presence condition set out in regulation 2(1)(a)(ia) ie that section 115 of that Act did not apply to her for the purposes of entitlement to DLA by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000.

 

44.   I have arrived at this conclusion by applying what are, in my view, the clear and unambiguous legislative provisions set out above.  Those provisions are straightforward, are logical in sequence and application, and are not capable of ambiguity or uncertainty.  There is no requirement, in my opinion, to look behind or further analyse the wording of those legislative provisions to attempt to identify a purpose or construction which was clearly not intended.

 

45.   I cannot ignore, however, the decision of the Deputy Commissioner in CDLA/708/2007.  I would note, to begin with, that the Deputy Commissioner has ignored the plain and unambiguous meaning of the relevant provision – in his case paragraph 1 of Part II to the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 - in favour of an interpretative approach based on purpose.  With respect, I have two difficulties with this approach taken by the Deputy Commissioner.  Firstly, and as was noted above there is no requirement to adopt an interpretative approach based on purpose when the meaning of the legislative provisions is clear and unambiguous.  Secondly, the Deputy Commissioner has adopted a very narrow and restrictive construction of the relevant exception based on rights arising in European Union law which, in my view, is not warranted.

 

46.   It seems to me that if an interpretative approach based on purpose is required then the starting point should be the purpose of the legislative provisions themselves - matters of domestic United Kingdom law - rather than an approach based on rights arising in European Union law.  The Explanatory Note to the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000 indicates that they are made ‘… by virtue of, or consequential upon, provisions in the Immigration and Asylum Act 1999 … which includes provision for new arrangements for asylum seekers’.  In turn, the Explanatory Notes to the Immigration and Asylum Act 1999 begin with this stated background:

 

‘The Government’s White Paper Fairer, Faster And Firmer – A Modern Approach To Immigration And Asylum, published on 27 July 1998, provides the background to the Act.  The White Paper (to which all later references in these explanatory notes to “the White Paper” refer, unless otherwise stated) set out a range of proposals to modernise and integrate the immigration and asylum system.  The overall aim of the planned reforms is to develop a more flexible and streamlined system of immigration control capable of providing an improved quality of service to British citizens and those who qualify to enter or remain in the United Kingdom, as well as strengthening the necessary controls on those who do not.’

 

47.   The relevant White Paper had set out the background to proposed changes in the provision of support to asylum seekers, at paragraphs 8.12 to 8.26:

 

‘Existing support arrangements for asylum seekers

 

8.12  The present support arrangements for asylum seekers have evolved through the charges to asylum seekers’ entitlement to welfare benefit in 1996 and, for adults, the intervention of the courts following these changes.  Under the changes to welfare benefits, help for asylum seekers was generally limited to those who apply for asylum on arrival at a UK port and only then until their asylum claim has been decided.  People recognised as refugees or granted ELR have full access to the benefits system.

 

8.13  Those asylum seekers not entitled to welfare benefits under the 1996 changes were effectively put at risk of destitution until in October 1996 the High Court ruled that local authorities had a duty under section 21 of the National Assistance Act 1948 to provide care and accommodation to asylum seekers and appellants who were without any other means of support and who could, therefore, be considered to be a category at risk for the purposes of the 1948 Act.  This was upheld by the Court of Appeal in February 1997.  In Scotland, a similar system of support has been provided by local authorities under section 12 of the Social Work (Scotland) Act 1968.  Unaccompanied children, and families with children, have been supported under the Children Act 1989 and the Children (Scotland) Act 1995.

 

8.14  The result has been support arrangements which are messy, confusing and expensive, currently costing about £400 million a year and liable to rise to £800 million a year by 2001/02 if no action is taken to deal with the backlogs and delays in the process.  The Court of Appeal judgment relating to the 1948 Act meant that, without warning or preparation, local authority social services departments were presented with a burden which is quite inappropriate, which has become increasingly intolerable and which is unsustainable in the long term, especially in London, where the pressure on accommodation and disruption to other services has been particularly acute.

 

Arrangements in other countries

 

8.15  The arrangements made in other EU countries vary widely, reflecting national differences in welfare provision generally and the number of asylum seekers in each country.  It is, therefore, difficult to draw specific conclusions, although some general points emerge:

 

·                 a significant number of EU countries provide accommodation and other support in kind rather than by payment of cash allowances.  In Germany, all benefits are paid in kind with a small cash payment for everyday needs.  The Netherlands, Belgium and Denmark provide reception centre or similar communal accommodation for most or all asylum seekers.  In Belgium, asylum seekers receive no support if they choose not to live in one of the centres;

 

·                 in countries where a cash payment is made, such as France and Italy, the period of payment is strictly limited; and

 

·                 in almost all countries, the provision for asylum seekers is separate from the standard welfare and other support for residents of that country.

 

8.16  At EU level, the Amsterdam Treaty provides for co-operation in the development of minimum standards on the reception of asylum seekers.  The Government will participate in the development of such co-operation if it is in the national interest to do so.

 

Objectives for a new support system

 

8.17  In considering what form support arrangements for asylum seekers should take, the Government believes that they should satisfy the following objectives:

 

·                 to ensure that genuine asylum seekers cannot be left destitute, while containing costs through incentives to asylum seekers to look first to their own means or those of their communities for support;

 

·                 to provide for asylum seekers separately from the main benefits system; and

 

·                 to minimise the incentive to economic migration, particularly by minimising cash payments to asylum seekers.

 

Access to social security benefits

 

8.18  To deliver these objectives the Government believes that it must start from the position that people who have not established their right to be in the UK should not have access to welfare provision on the same basis as those whose citizenship or status here gives them an entitlement to benefits when in need.  Any support for asylum seekers should operate on a separate basis, with provision offered as a last resort to those who have no other means including support from relatives or friends to which they can turn.  The corollary of this is that asylum applications must be resolved much more quickly than at present, so that those who can establish an entitlement to remain in the UK are promptly distinguished from those who cannot.

 

Basis of a safety net scheme

 

8.19  Asylum seekers are temporary residents here and with few exceptions have no established residence status.  Many should be able to support themselves, with help if necessary from relatives, friends and community groups, during the period when their application is being considered.  Some, however, would be in genuine hardship if there were no publicly provided safety net.  The Government is committed to providing such a safety net, but is determined to do so in a way which minimises the incentive for abuse by those who do not really need the support or who would make an unfounded asylum application in order to obtain the provision.

 

8.20  The Government has considered carefully the evidence, including that from other countries described in paragraph 8.15, about the best means of provision and in particular the relative advantages and disadvantages of cash-based support and provision in kind.  Cash based support is administratively convenient, and usually though not inevitably less expensive in terms of unit cost.  Provision in kind is more cumbersome to administer, but experience has shown that this is less attractive and provides less of a financial inducement for those who would be drawn by a cash scheme.  The number of asylum applications fell by 30% following the withdrawal of some social security benefits in 1996, and despite a long-term underlying upward trend and the intervention of the courts in the 1948 Act case, remains at a lower level than in the year before the changes.  Take-up of provision in kind offered under the National Assistance Act 1948 is estimated at 15% for single adults compared to an estimated 85% take-up of cash benefits by the equivalent eligible group.

 

8.21  The Government has therefore concluded that support for asylum seekers should no longer generally be founded on cash payments.  Support will therefore be provided separately from the existing statutory benefits arrangements, and will be available only where it is clearly necessary while an application is awaiting decision or appeal.  Accommodation, in such circumstances, will be provided on a no choice basis, with no cash payment for this purpose being made to the asylum seeker.  Other basic needs will also be met where there is a genuine risk of hardship, including food and other living essentials as well as facilities to enable asylum seekers properly to pursue their applications, for example by telephoning their representatives or travelling to attend an interview at the Immigration and Nationality Directorate.  The Government intends to explore further the extent to which support of this kind might be provided through vouchers or other non-cash means, so as further to reduce the incentive to abuse of the asylum system.

 

How a safety net scheme will operate

 

8.22  The administration of a new support scheme for asylum seekers, entirely separate from social security benefits, will require new national machinery to plan and co-ordinate provision, obtaining information from around the country and purchasing places either directly or by contracting with local agencies.  Asylum seekers would be expected to take what was available, and would not be able to pick and choose where they were accommodated, but where possible placements would take account of the value of linking to existing communities and the support of voluntary and community groups.  An advantage of a national scheme will be the ability to plan strategically for such factors and to do so in consultation with local authorities, voluntary organisations and other concerned parties.  This nationwide approach will help to relieve the burden on provision in London, where the majority of asylum seekers are currently concentrated.  The budget and the machinery for administering it will be operated by the Home Office.  The body responsible for obtaining and allocating accommodation would also be responsible for assessing whether applicants were in genuine need either by doing so itself or by contracting out the process to another agency.  Provision would be made for a speedy independent review of decisions to refuse support.

 

8.23  The 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able bodied asylum seekers.  This role will fall to the new national support machinery.  The Government envisages that this will involve contracting with a range of providers to secure accommodation, including voluntary bodies, housing associations, local authorities and the private sector.  The Government is particularly concerned to explore ways of harnessing the energy and expertise of voluntary and independent sector bodies in providing the safety net.  Local authorities’ current responsibilities to asylum seekers under the homelessness legislation will be removed and replaced by these new arrangements, but they will be expected to assist wherever possible (for example by making available any spare accommodation on a contractual basis).  Where an authority unreasonably fails to co-operate the Secretary of State would, as a last resort, be empowered to direct the authority to provide information or accommodation (subject to appropriate reimbursement).

 

Families and unaccompanied children

 

8.24  Families and unaccompanied children account for a relatively small proportion of asylum applicants, around 15%.  The Government will ensure that in providing a safety net for asylum seekers the needs of children are fully respected and their welfare and rights safeguarded.  Appropriate access to education will continue to be afforded to the children of asylum seekers.  Provision will continue to be made under the Children Act 1989 and the Children (Scotland) Act 1995 for unaccompanied children claiming asylum, but social services departments will no longer be expected to provide for asylum seeking families in the absence of special needs requiring a social services response.  Where the need can be demonstrated, families will be provided with safety net support.  The Government recognises that this will involve additional considerations to those which apply to single adults, and special care will be taken to ensure that provision for accommodation, clothing, food and other living essentials is sufficient and flexible enough to support the children’s well-being during the period when their asylum application is under consideration.

 

8.25  The Government accepts that some form of support should be available to an asylum seeker in need to the point where he or she has exhausted all appeal rights.  But to continue support thereafter whilst the failed asylum seeker remained in the UK unlawfully would not be justified.  As a general principle the safety net will not extend to such people, although as at present there will be measures to safeguard the welfare of children and other vulnerable persons.

 

Further consultation and strategic planning in the new arrangements

 

8.26  Considerably more detailed work will be necessary to set up the innovative arrangements which the Government proposes to introduce.  The Government will consult widely with local authorities, the voluntary sector, community groups and other providers of accommodation, about the operation of the proposed arrangements.  Once established, the arrangements themselves should derive the maximum benefit from the opportunity which a national scheme provides to develop a comprehensive and strategic planning approach.  This planning process will also be carried out on a consultative basis, so that strategic decisions will be informed by the knowledge and concerns of those who will have a role in managing the outcome at the local and national levels.’

 

48.   The Summary section of the Explanatory Notes outlines the contents of the 1999 Act as follows:

 

‘The Act includes provisions which touch on all areas of the immigration and asylum system.  There are provisions which address the conditions which will apply to persons before they come to the United Kingdom; provisions which will affect the way in which persons are dealt with at ports when arriving in the United Kingdom; and provisions which will affect how they are dealt with once they are here.  The Act contains provisions which are intended to contribute to genuine travellers being dealt with more quickly and, on the other hand, provisions for combating illegal entry and strengthening powers to deal with other persons not entitled to enter or remain in the country.  The Act contains new support arrangements for asylum seekers in genuine need and includes other safeguards in the form of the regulation of immigration advisers and new provisions for the grant of bail to persons detained under immigration legislation.  The Act also clarifies or strengthens some existing powers and offences.’

 

49.   In relation to the provision of support to asylum seekers, the Summary section states, at paragraph 13:

 

‘13.  The Act will create new support arrangements for asylum seekers.  The Act will:

 

·                  remove from the main benefits system those subject to immigration control in certain respects, including those whose only status here is as an asylum seeker.  Unaccompanied children seeking asylum will continue to be dealt with under current arrangements;

 

·                  create a new safety net support scheme for asylum seekers in genuine need.  The scheme will be funded and administered nationally by the Home Office, thus lifting the current burden on local authorities;

 

·                  allow for accommodation to be provided with no choice about location.  Other support will predominantly be provided in kind (eg vouchers or directly) rather than by cash payments;

 

·                  create a system for the review of decisions to refuse or to withdraw support.’

 

50.   In connection with Section 115, the Explanatory Notes give the following explanation, at paragraphs 336-339:

 

‘Section 115: Exclusion from benefits

 

336.    The intention of Part VI is to substitute a new set of welfare provisions for entitlement to the majority of the existing social welfare benefits that are available to permanent residents.  This section (and sections 116, 117, 120 and 121) provides the basis for this, by excluding a “person subject to immigration control” from specified benefits.

 

337.    Subsection (1) removes entitlement from all non-contributory social security benefits in Great Britain.  From commencement of this provision, all existing payments of social security benefits to asylum seekers would cease (subject to any savings or transitional provisions).  Those asylum seekers who as a result were destitute would be entitled to assistance under the new support arrangements set out in Part VI.  Subsection (2) makes comparable provision for Northern Ireland.

 

338.    Subsection (3) provides that the section applies to a person subject to immigration control unless he falls within a prescribed category or description or fulfils prescribed conditions.  Subsection (4) gives the Secretary of State power to remove a person from this definition for particular purposes only.  For example, he might be removed in relation to disability living allowance but not in relation to income support.  The power under section (3) would be used, inter alia, in relation to those people who have rights under international conventions to which the United Kingdom is party, such as the European Convention on Medical and Social Assistance and the European Social Charter; if they have entered this country lawfully such people are entitled to normal welfare benefits, even if they are seeking asylum.  Subsections (5), (6), (7) and (8) make provisions as to the making of the regulations under subsection (3).

 

339.    Subsection (9) defines “a person subject to immigration control” as someone who is in the United Kingdom unlawfully (either an illegal entrant, or someone who has overstayed his leave); someone who is here on limited leave with a condition that he will have no recourse to public funds (eg a visitor or a student); someone who is here under a maintenance undertaking; or someone whose leave has been extended to allow him to pursue an appeal.  These classes embrace asylum seekers if they are subject to immigration control in this sense (an application for asylum does not itself confer an entry status or leave to remain), and a number of other persons subject to immigration control.’

 

51.   When the Immigration and Asylum Bill was considered in Special Standing Committee on 11 May 1999, Mr Mike O’Brien said the following about the purpose of Clause 95 which would become section 115 of the Act:

 

‘Clause 95 is a necessary step in the creation of the new scheme for asylum seekers.  It excludes persons subject to immigration control from income-based jobseeker's allowance and from other specified social security benefits.

 

The current position is something of a mess.  Asylum seekers who make their asylum claims at ports of entry are able to obtain social security benefits, at least until their initial application has been determined.  After that, they cease to be able to claim ordinary social security benefits and they are supported by local authorities.  Those who apply in country are not able to obtain social security benefits.  Instead, they must look to social services legislation for emergency support, using it in a way that was never intended.  That has also meant that, where the benefits are local authority based, certain areas have suffered an excessive burden.

 

Some authorities have sea ports or airports within their compass; others, either through tradition or through natural accretion, have become home to concentrations of particular groups.  Asylum seekers have tended to gravitate towards those areas, or finding themselves there, have remained there by inertia.  That has resulted in some areas shouldering more of the social and financial burdens of providing for asylum seekers than others.  That is inherently unfair.

 

Direct cash benefits provided under the social security system have proved to be a magnet, drawing economic migrants to the United Kingdom and undermining the integrity of the asylum system.  Our objective is to restore its integrity.  Economic migrants have placed intolerable demands on the system, making it more difficult to give swift consideration to the cases of genuine asylum seekers.  It is essential that we deal with the problems in the system, enable genuine refugees to be recognised and helped quickly and deal with the backlog.

 

Removing access to benefit, which is a factor for economic migrants, will, in the long term, help to restore integrity to the system and enable genuine refugees to be recognised more quickly.  Less of a burden will be provided by those seeking mere economic migration rather than having a genuine claim under the 1951 convention.  That group is important for the purpose of excluding people from a range of benefits.  Therefore, I hope that the Committee will support the clause.’

 

52.   Overall the appearance is for a scheme of law to include, inter alia, new provisions for the support of asylum seekers, with a primary purpose of removing entitlement to social security benefits for those subject to immigration control but subject to exceptions for those falling within a prescribed category or description or fulfilling prescribed conditions.  The exclusion of EEA nationals in the definition in section 115(9) and the inclusion of the family members of nationals of a State contracting party to the Agreement on the European Economic Area, including the United Kingdom, in regulation 2 and paragraph 1 of Part II to the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, as amended, was intended to ensure that the rights of those individuals, because of their (then) EEC status, would not be affected in the same adverse way as other categories of asylum seekers.  As was noted above, the relevant provisions are measures of United Kingdom law dealing with the benefit rights of certain persons entering the United Kingdom from abroad, taking account of the rights of certain EEA nationals and their family members as required to do so by European Union law.

 

53.   The Deputy Commissioner, at paragraph 16 of CDLA/708/2007, concludes that:

 

‘… Paragraph 1 is plainly intended to comply with the United Kingdom’s international obligations under the EEA agreement.’

 

54.   It was on that basis that he concluded that he was obliged to construe the meaning of paragraph 1 in accordance with the EEA agreement.  With respect to the conclusion of the Deputy Commissioner I cannot accept that reasoning.  It cannot be said that paragraph 1 of Part II of the Schedule to the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 was made for the purposes of complying with an international obligation under the relevant EEA agreement.  Paragraph 1 mentions the relevant EEA Agreement but, it seems to me, in the context of defining a category of person, who, under United Kingdom domestic law would not be excluded from entitlement to a specified benefit, such as DLA, under section 115 of the Immigration and Asylum Act 1999, and who would, accordingly, satisfy final residence and presence condition set out in regulation 2(1)(a)(ia) ie that section 115 of that Act did not apply to her for the purposes of entitlement to DLA by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000.

 

55.   At paragraph 26 of his decision, the Deputy Commissioner concludes that:

 

‘… It cannot be correct to interpret paragraph 1 of part II of the Schedule to the 2000 Regulations as bearing its ordinary English meaning.  To do so would be to interpret a provision that is intended to give effect to the EEA Agreement as bestowing a right under the domestic law of the UK that the claimant is not entitled to assert under that Agreement or under EC law.’

 

56.   As was noted above, I cannot agree that the provision is intended to give effect to the EEA Agreement.  Nonetheless, I am also not sure of the weight attached to the conclusion that the plain interpretation of paragraph 1 is not permitted as it would have the effect of bestowing a right under the domestic law of the United Kingdom greater than that which could be claimed under EC law.  The most significant European Union Directive on the free movement of rights – 2004/EC/38/EC – implements the rights of entry and residence of the citizens of the European Union.  Article 37 of the Directive provides, however, that:

 

‘The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.’

 

57.   Accordingly if rights of entry and residence are not to be construed restrictively, why should provisions relating to benefit entitlement be interpreted in terms of weight of favour accruing?

 

58.   It seems to me that had the legislature intended that the definition of the excepted category of person should be construed in the restrictive manner suggested by the Deputy Commissioner then it would not have been difficult to draft the Regulations accordingly.  The Immigration (European Economic Area) Regulations 2006, for example, which implement Directive 2004/38/EC contain a carefully drafted definition of ‘EEA national’ as a’… national of an EEA State’.  In turn the definition of ‘EEA State’ excludes the United Kingdom.

 

59.   Finally, I have noted that the Department, in the official guidance given to its decision-makers, has made it clear that its interpretation of the relevant legislative provisions provides for an exemption from the effects of section 115 of the Immigration and Asylum Act 1999, in respect of, inter alia, entitlement to DLA, to ‘a member of the family of a national of the European Union …’ – see paragraph 070836 of the Decision Maker’s Guide.

 

       In C1/03-04(HB), the Chief Commissioner said the following, at paragraph 19:

 

‘However, when considering identically worded legislation in this part of the United Kingdom, I am obliged to take fully into account what Commissioners and the Courts in Great Britain have decided in relation to that legislation.’

 

60.   With regret, however, I cannot agree with the decision of the Deputy Commissioner in Great Britain and I decline to follow it.

 

       Does the appellant satisfy the substantive rules of entitlement to DLA?

 

61.   The appeal tribunal concluded that the appellant satisfied the conditions of entitlement to the higher rate of the mobility component and the highest rate of the care component of DLA.  As was noted above, the appeal tribunal noted that agreement had been reached between the parties that the conditions of entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA.  The appeal tribunal accepted the concessions made by the Departmental presenting officer in this regard and set out its further reasons why it agreed that such a concession was correct.  The only remaining issue for the appeal tribunal, therefore, in connection with the substantive rules of entitlement was whether the conditions of entitlement set out in section 72(1)(c) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, were satisfied.  If the conditions of entitlement set out in section 72(1)(c) were satisfied the accepted entitlement to the middle rate of the care component would become an entitlement to the highest rate of the care component.  I accept the appeal tribunal’s assessment of the available evidence, its findings in fact, and its reasoning with respect to the rules of entitlement to DLA.  I am of the view, however, that the appeal tribunal was slightly confused with respect to the evidence concerning the fitting of a catheter.  I am of the view, however, that this minor error goes more towards the establishment of a potential end date of an award rather than whether the conditions of entitlement were satisfied.

 

       The period of the award

 

62.   The decision notices record that the award of entitlement to the higher rate of the mobility component and the highest rate of the care component of DLA were made from 10 April 2008 to ‘… date of her operation for insertion of catheter in May 2009.’ I have no difficulty with the commencement date of the award. The third residence and presence condition, set out in regulation 2(1)(a)(iii) of the Social Security (Disability living Allowance) Regulations (Northern Ireland) 1992, as amended, is that the claimant must have been present in Northern Ireland for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding the first potential day of entitlement. The appellant’s date of entry to the United Kingdom was 11 October 2007 and, accordingly, this third condition could not be satisfied until 10 April 2008.

 

63.   I have greater difficulty with the appeal tribunal’s decided end date of the award.  This is for two reasons.  Firstly, I am of the view that appeal tribunals, when deciding to make an award of entitlement to DLA for a fixed period, should ensure that the end date of that period is clearly established.  In the instant case, an enquiry could have been made by the LQPM as to the date which it had in mind for an end date to the award in May 2009.  Evidence could have been taken about this at the appeal tribunal hearing or further enquiries could have been made subsequent to the oral hearing.  Secondly, following the issue of the decision notices an application was made by an officer in the Department to have the date of the awards, both commencement and end-date, clarified and, where necessary, to have the decision notice corrected under regulation 56 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  The response of the LQPM was quite correctly, to confirm that the commencement date was accurate, but to fail to deal with the further query with respect to the end date.

 

64.   I have made further enquiries of the Department and the appellant’s representative in connection with further claims to DLA.  In response, Mr Gorman provided the following information, (which was also confirmed by Mrs Carty):

 

‘The claim which is subject to the current proceedings is that which was originally made on 5^th November 2007, and was heard by the Appeal Tribunal on 12^th June 2009.  Subsequent to that claim, a further claim was made on 27^th April 2009, effective from 20^th April 2009.  The Decision Maker on 6^th May 2009 disallowed the claim as the Residence and Presence conditions were not satisfied.  Reference was made in the narrative of the decision to the fact that appeal proceedings were ongoing in respect of an earlier claim.

 

A further claim was made on 30^th November 2009.  This was treated as an application to supersede the earlier decision of 6^th May 2009, on the grounds that it was erroneous in law.  On 15^th February 2010 an award of the higher rate mobility component and the highest rate care component was made from and including 13^th May 2009 for an indefinite period.  There are no extant appeals before the appeal tribunal.

 

Following receipt of the decision of the appeal tribunal dated 12^th June 2009, the Department applied for correction of the decision due to the fact that a specific end date was not given for the award.  The Chairman on 29^th July 2009 refused the application.  An officer of the Department then telephoned the customer on 10^th August 2009 to establish the date she had a catheter fitted, so that the decision of the appeal tribunal could be implemented.  The record of the telephone call states “The customer informed me that she didn’t actually have a catheter fitted though she had a procedure performed on 12^th May 2009 to have injections etc. in her bladder.”  The officer subsequently accepted 12^th May 2009 as the date the Tribunal intended the award to end, and this end date was subsequently input to the Department’s computer system.’

 

65.   On this basis, I make the award of entitlement to the higher rate of the mobility component and the highest rate of the care component of DLA from 10 April 2008 to 12 May 2009.

 

       The additional issues arising

 

66.   Having made my decision on the basis of my interpretation of what are, in my view, clear and unambiguous United Kingdom and Northern Ireland domestic legislative provisions, I do not require to consider the other European Union issues which arose in this appeal.

 

       Disposal

 

67.   The decision of the appeal tribunal dated 12 June 2009 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

68.   I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.  My revised decision is that the appellant is entitled to the higher rate of the mobility component and the highest rate of the care component of DLA from 10 April 2008 to 12 May 2009.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

12 March 2012