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[1993] UKSSCSC CIS_509_1990 (21 June 1993)

R(IS) 9/94

Mrs. R. F. M. Heggs CIS/509/1990

21.6.93

Young person receiving relevant education - whether Somali national of necessity having to live away from his parents - whether parents "prohibited from entering Great Britain"

The claimant, a Somalian national, came to the UK on 28 January 1988 to study English supported by his family in Somalia. He was sponsored by a family friend in the United Kingdom with whom he stayed until November 1988 when he moved to Sheffield. He claimed income support in November 1988 because his family's assets had been frozen following the outbreak of war in Somalia. His family had fled to Ethiopia and were last known to be in a refugee camp. He was paid income support as a "person from abroad".

On 8 March 1990 the adjudication officer determined that the claimant, who was by then 17 years old and had been granted further leave to remain in the United Kingdom, was not entitled to benefit because he was to be treated as engaged in relevant education and was not estranged from his parents. Visas had been issued authorising his parents to enter the United Kingdom but they were unable to finance the journey. On appeal, the tribunal upheld the adjudication officer's decision. The claimant appealed to the social security Commissioner.

Held that:

in the context of regulation 13(2)(d) and (e) of the Income Support (General) Regulations 1987 a sponsor is not the same as a person acting in the place of a parent (para. 13);

the "physical or moral danger" and "serious risk to his physical or mental health referred to in paragraph (d)(ii) and (iii) of regulation 13(2) need not emanate from the claimant's parents (para. l4);

subject to certain exceptions, all persons who are not British citizens are prohibited from entering Great Britain for the purposes of regulation 13(2)(e)(iii) "unless given leave to do so" under the provisions of section 3 of the Immigration Act 1971 (para. 17).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 9 May 1990 is erroneous in point of law and accordingly I set it aside. However, as I consider it expedient to make further findings of fact and to give such decision as I consider appropriate in the light of them, I further decide that the claimant is entitled to income support for 8 March 1990, and for so long as he continues to satisfy one of the conditions of entitlement referred to in regulation 13(2) of the Income Support (General) Regulations 1987 ("the Regulations), provided all other conditions of entitlement are satisfied.

This is an appeal on behalf of the claimant against the decision of the social security appeal tribunal of 9 May 1990, leave having been granted by the tribunal Chairman. I held two oral hearings of the appeal. The claimant did not attend and was not represented at the first oral hearing. The adjudication officer was represented by Mr. Heath from the Solicitor's Office of the Departments of Health and Social Security. The claimant attended the second oral hearing and was represented by Mr. C. Walker from the Sharrow Citizens Advice Bureau. The adjudication officer was represented by Mr. N. Butt from the Solicitor's Office of the Departments of Health and Social Security. I am grateful to them both for their detailed submissions.

The claimant, a Somali national born on 26 June 1972, arrived in the United Kingdom on 28 January 1988 in order to study English. He was given leave to enter until 28 July 1988. He was in possession of a student visa. His sponsor in the United Kingdom was Mrs. Fatima Harad, who lived in London and was a friend of the claimant's family. His school fees were paid by his father. His father had given him enough money to maintain him for one year.

In May 1988 civil war broke out in northern Somalia. The claimant's family and members of their tribe were in great danger. The claimant's two uncles and his elder brother were killed. The claimant's family fled to Ethiopia and were last known to be in a refugee camp. The family's assets were frozen.

The claimant lived with Mrs. Harad in London but on 9 November 1988 he moved to Sheffield. On 10 November 1988 he claimed income support. He was paid as a "person from abroad" under the Urgent Cases Regulations until he changed his address on 5 March 1990. He returned his order book for adjustment, the order book having been cashed up to and including 7 March 1990.

The claimant's student visa was extended to 2 November 1989, subject to the same conditions initially imposed. On 7 November 1988 the claimant applied for political asylum. On 14 July 1989 he was granted leave to remain until 14 July 1993, with no employment or business restrictions. The letter from the Home Office advised that the effect of such leave enabled the claimant "... to use the National Health Service and the Social Services and other help provided by local authorities as you need them. You will be able to get Social Security Benefit (including supplementary benefit) if you meet the ordinary conditions ...".

The adjudication officer referred the claimant's claim to the Severe Hardship Claims Unit on 19 March 1990. However, the Secretary of State decided that the claimant was not a person to whom section 20(4A) of the Social Security Act 1986 ("the Act") applied and therefore special hardship payments could not be made. On 30 March 1990 the adjudication officer decided that the claimant was not entitled to income support for 8 March 1990. This was because he was treated as receiving relevant education and was not estranged from his parents.

The records of the Immigration and Nationality Department show that in June 1990 visas were authorised for the claimant's parents in Ethiopia to join him in the United Kingdom. Subsequently Entry Clearances were also exceptionally authorised for the claimant's brother, three sisters and two of his sister's children. Mr. Walker told me that the family were still in Ethiopia being unable to finance the journey to the United Kingdom.

An appeal to the tribunal was submitted on behalf of the claimant against the adjudication officer's decision. The grounds of appeal were that as the claimant satisfied the conditions of regulation 13(2)(e)(iii) of the regulations, he was entitled to income support.

The claimant and his representative attended the hearing of the appeal before the tribunal on 9 May 1990. In the event the tribunal dismissed the appeal. The findings of fact read, so far as material:

"The basic facts are set out in the first paragraph of box 1 overleaf... he is in receipt of "relevant education". He is living away from his parents who are believed to be in a refugee camp in Ethiopia. He is not estranged from his parents in the connotation of emotional disharmony. His parents cannot support him financially. His parents have not been refused permission to enter the UK. There is no evidence that they have applied for permission to enter ..."

The reasons for decision read, so far as material:

".. the tribunal was unable to accept that, for the purposes of Social Security Law, the appellant's parents were prohibited from entering Great Britain by virtue of Section 3 of the Immigration Act 1971. The tribunal was likewise unable to find that the appellant of necessity has to live away from his parents for any of the reasons set out in Income Support (General) Regulations 13(2)(b). He cannot be certain where his parents are or indeed if they are still alive and, in these circumstances, physical danger and/or risk to health cannot be implied even if, contrary to the submission of the presenting officer the danger and risk do not arise in the context of a breakdown of family relationships."

Regulation 25(2)(b) of the Social Security (Adjudication) Regulations 1986 provides that every tribunal chairman shall include in the record of the decision a statement of the reasons for such decision and of the findings on material questions of fact. In the present case the decision was inadequate for several reasons: a reference to the chairman's note of evidence in box 1 of the relevant form AT3 does not constitute findings of fact material to the decision; the chairman's note of evidence records that the claimant had "applied for entry permit for his two parents", which is inconsistent with the tribunal's finding that there was no evidence that the claimant's parents had applied for permission to enter; the decision is silent as to whether there was any person acting in the place of the claimant's parents for the purposes of regulation 13 of the regulations. The decision failed to comply with the statutory requirements and is erroneous in law in consequence.

On 8 March 1990 the claimant was aged 17. The general rule under section 20(3)(d)(ii) of the Act is that if a claimant of or over the age of 16 is receiving relevant education he is not entitled to income support. It is not in dispute that at the material time the claimant was in receipt of relevant education for the purposes of regulation 12 of the regulations. Regulation 13 allows certain claimants to receive income support although in relevant education. It provides, so far as material:

"13.-(1) Notwithstanding that a person is to be treated as receiving relevant education under regulation 12 (relevant education) he shall, if paragraph (2) applies to him and he satisfies the other conditions of entitlement to income support, be entitled to income support.

(2) This paragraph applies to a young person who -

(a)-(c) ...

(d) of necessity has to live away from his parents or any person acting in the place of his parents because -

(i) he is estranged from his parents or that person; or

(ii) he is in physical or moral danger; or

(iii) there is a serious risk to his physical or mental health;

(e) is living away from his parents and any person acting in the place of his parents in a case where his parents are or, as the case may be, that person is unable financially to support him and -

(i)-(ii) ...

(iii) prohibited from entering or re-entering Great Britain; or

(f)-(h) ..."

Regulation 13(3) provides so far as material:

"(3) In this regulation -

(a) any reference to a person acting in the place of a young person's parents includes-

(i) for the purposes of paragraph (2)(c) and (d) a reference to a local authority voluntary organisation where the young person is in their care under a relevant enactment, or for a person with whom the young person is boarded out by a local authority or voluntary organisation whether or not any payment is made by them; and

(ii) for the purposes of paragraph (2)(e), any person with whom the young person is so boarded out;

(b) ..."

It is not in dispute that the claimant was a "young person" in terms of regulation 2(1) and 14 of the regulations.

I now turn to the meaning of "any person acting in the place of his parents" for the purposes of regulation 13(2)(d) and (e). Mr. Butt argued that the categories of persons envisaged was wide. In the present case Mrs. Harad was an old friend of the claimant's family and was his sponsor and acted "in the place of his parents" while he was in the United Kingdom. In his view the duties of a sponsor were the same as those of a parent and the fact that the claimant no longer lived with her in London was irrelevant. I reject this submission. A sponsor's duties are limited to the maintenance and accommodation of the dependent without recourse to public funds, in accommodation of his/her own which he/she occupies. An undertaking in writing to this effect is normally required and is enforceable if necessary by prosecution for failure to maintain under section 26 of the Act. The sponsor is not responsible for any other aspect of the dependent's life. The duties are limited and do not equate with the duties of a parent or person in loco parentis. Regulation 13(3)(a) specifically includes for this purpose foster parents and local authorities and voluntary organisations who have children in care. Although a person acting in the place of parents may include an informal relationship, for example where a person is claiming child benefit in respect of a young person, paragraph (3) provides for circumstances where the young person is subject to a formal care order or other formal arrangement. On 14 July 1989 the claimant was granted leave to remain in the United Kingdom as a refugee until 14 July 1993. He was no longer subject to a formal care order or other formal arrangement. On 14 July 1989 the claimant was granted leave to remain in the United Kingdom as a refugee until 14 July 1993. He was no longer subject to the condition of sponsorship imposed when he was in possession of a student visa. The claimant told me and I accept his evidence that he had had little or no contact with Mrs. Harad since he moved to Sheffield on 9 November 1988. I agree with Mr. Walker that on 8 March 1990 Mrs. Harad was not a person acting in the place of the claimant's parents for the purposes of regulation 13(2)(d) and (e).

The claimant lived away from his parents and the next issue for determination is whether he did so of necessity because of one of the conditions referred to in regulation 13(2)(d) of the regulations. With regard to sub-paragraph (i) the claimant was not estranged from his parents, estrangements having "connotations of emotional disharmony" (R(SB) 2/87). With regard to the physical or moral danger referred to in sub-paragraph (ii), Mr. Butt submitted that such physical or moral danger had to emanate from the parents. In the present case there was no evidence to warrant such a finding and the claimant was unable to satisfy this condition. I reject this submission and agree with Mr. Walker that such physical or moral danger should be given a wide interpretation to include any form of physical or moral danger which necessitated the claimant living away from his parents. I accept that the situation in northern Somalia was very dangerous and I accept that the claimant's evidence that his two uncles and elder brother were killed. In those circumstances I am satisfied that the claimant of necessity has to live away from his parents because he was otherwise in physical or moral danger. For the same reasons the claimant in my view also satisfies the conditions set out in sub-paragraph (iii) because there was a serious risk to his physical or mental health. The tribunal erred in law in concluding that they were "unable to find that the appellant of necessity has to live away from his parents for any of the reasons set out in Income Support (General) Regulations 13(2)(d)".

In his grounds of appeal to the tribunal the claimant's representative relied on regulation 13(2)(e)(iii) of the regulations because on 8 March 1990 the claimant's parents were "prohibited from entering or re-entering Great Britain". The tribunal rejected this argument because they were "unable to accept that, for the purposes of Social Security Law, the appellant's parents were prohibited from entering Great Britain by virtue of section 3 of the Immigration Act 1971". Section 3(1) provides so far as material:

"3 General provisions for regulation and control

(1) Except as otherwise provided by or under this Act, where a person is not a British citizen-

(a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act;

(b)-(c) ..."

Under the heading "Criminal Proceedings" in Part III of the Immigration Act 1971, section 24(1) provides, so far as material:

"24. Illegal entry and similar offences

(1) A person who is not a British citizen shall be guilty of an offence punishable on summary conviction of a fine of not more than ... or with imprisonment for not more than 6 months, or with both, in any of the following cases:

(a) if contrary to this Act he knowingly enters the United Kingdom ... without leave;

(b)-(g)

Mr. Butt submitted that regulation 3(2)(e)(iii) should be given a narrow interpretation. In order to satisfy the condition there had to be a specific order of prohibition or any other form of formal decision prohibiting entry into Great Britain. In his view no one was prohibited from entering for the purposes of subparagraph (iii) until such time. He submitted that the tribunal did not en in law in reaching this conclusion. I do not agree. Such argument takes no account of the provisions of the Immigration Act 1971. 1 agree with Mr. Walker that the provisions of section 3 are clear and absolute. Subject to certain exceptions which do not apply in the present case, all persons who are not British citizens, are prohibited from entering the United Kingdom "unless given leave to do so in accordance with this Act". Section 24 supports this conclusion. On 8 March 1990 the claimant's parents had no such leave and were not authorised to enter Great Britain. As a result the claimant satisfied the conditions of sub-paragraph (iii). The tribunal erred in law in concluding otherwise.

It should be noted that the conditions contained in the sub-paragraphs of regulation 13(2)(d) and (e) are in the alternative and not cumulative. A young person in relevant education need satisfy only one of the conditions to establish entitlement to income support, provided all other conditions of entitlement are satisfied. In the present case I have referred to all the conditions which were argued before the tribunal and before me.

For the reasons stated above the tribunal's decision was erroneous in law. However as I consider it expedient to give the decision the tribunal should have given, I give the decision set out in paragraph 1 as I am empowered by section 23(7)(a)(ii) of the Social Security Administration Act 1992.

Date: 21 June 1993 (signed) Mrs. R. F. M. Heggs

Commissioner