UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CIS_3508_2001 (12 August 2002)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998.
2. 1. The decision of the Harrow appeal tribunal under reference U/04/035/2001/00372, held on 24^th May 2001, is erroneous in point of law.
3. 2. I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
4. 3. My decision is that the claimant is not entitled to income support on her claim made on 21^st November 2001.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a district chairman of tribunals. The Secretary of State supports the appeal, but not in a way that is to the claimant's advantage.

The history of the case

6. The claimant was born in 1929. She lived in Bangladesh until she came to the United Kingdom to live with her son on 25th August 1999.
7. On 20th January 2000, her son signed this undertaking:

I hereby undertake that if [the claimant] who was born in … on … is granted leave to enter or remain in the UK I shall be responsible for her maintenance and accommodation in the UK throughout the period of that leave and any variation of it.

During her stay in the UK, the sponsored person will reside at …

I understand that this undertaking shall be made available to the Department of Social Security in the UK who may take appropriate steps to recover from me the cost of any public funds paid to or in respect of the person who is the subject of this undertaking.

8. On 29th January 2000, the claimant was granted indefinite leave to remain in the United Kingdom. On 21st November 2000, she claimed income support. The Secretary of State refused the claim because of her immigration status. She exercised her right of appeal to an appeal tribunal, but the tribunal confirmed the Secretary of State's decision.

Did the tribunal go wrong in law?

9. Yes, it did.

The human rights arguments

10. The tribunal dealt very briefly with the arguments put by the claimant's son under the Human Rights Act 1998. As the tribunal went wrong in law in other respects, I do not have to decide whether this aspect of the tribunal's reasons was inadequate. I only say that, as the arguments were not particularised in any detail, the tribunal could only deal with them in very general terms.

The relevant legislation

11. The tribunal went wrong in law first by applying the wrong law. It applied the law as set out in the Income Support (General) Regulations 1987. That is not surprising, as that was the legislation cited in the Secretary of State's submission to the appeal tribunal. However, the relevant legislation, at the date of claim, was section 115 of the Asylum and Immigration Act 1999 and the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. However, in the circumstances of this case, the law is the same. So nothing turns on that error.
12. Section 115 provides:

(1) No person is entitled to

(e) income support,

under the Social Security Contributions and Benefits 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.

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

(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking'.

(10) 'Maintenance undertaking', in relation to any person, means a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person's maintenance and accommodation.

The maintenance undertaking

13. Inevitably, the tribunal next went wrong in law by failing to consider whether the claimant had been granted leave to enter and remain in the United Kingdom 'as a result of a maintenance undertaking' for the purposes of section 115(9)(c). There was no evidence that that was the case. There was evidence that the claimant's son had signed the undertaking, but no evidence that it had resulted in the grant of indefinite leave to remain. The tribunal should have investigated this matter. It should then have interpreted the words I have quoted and applied them to the facts that emerged from its enquiry.

The interpretation of 'as a result'

14. The issue that arises under these words is: what degree of influence must the maintenance undertaking have had on the decision to grant the claimant leave to enter or remain in the United Kingdom?
15. There are, in theory, three possible relationships between a maintenance undertaking and the grant of leave to enter or remain.
16. The first possible relationship is that a maintenance undertaking must have been essential in order for leave to be granted.
17. The second possible relationship is that the existence of a maintenance undertaking must have been a relevant factor, but not essential.
18. The third possible relationship is that the existence of a maintenance undertaking is irrelevant.
19. The first possibility is inappropriate as an interpretation in the context, because a maintenance undertaking will never be essential in law before leave can be granted. There may be classes of case in which it to all intents and purposes essential as a matter of practice, but that is not the same as essential in law. The third possibility is obviously ruled out by the statutory language.
20. That leaves the second possibility. Given the way that decisions on grants of leave are made and recorded, it is not in practice possible to identify degrees of relevance. So, the only possible and workable interpretation is that the presence of a maintenance undertaking must have been a factor in the grant of leave.
21. I have not been able to find any authority that is directly in point and none has been cited to me. The claimant's representative has expressly declined to make submission on the interpretation of section 115. However, there is authority that supports the view that the maintenance undertaking need not be essential to the grant of leave.
22. The most relevant authority I have been able to find is the decision of the Court of Appeal in R v Reilly [1982] 3 All England Law Reports 27 and the cases cited therein. The issue was whether loss had been suffered 'as a result of' the offence of conspiracy, if the loss was not caused directly by the conspiracy but by the acts undertaken in putting the conspiracy into effect. The court held that, taking a common-sense meaning of the words, there need not be a direct and immediately causal link between the conspiracy and the loss. The statutory context and the circumstances of the case are very different from the legislation that I have to interpret. However, this case is authority for taking a common-sense view and that, in my view, supports my conclusion. The brief report of R v R in [1991] Crown Office Digest 369 is also supportive of this approach to those words.
23. I have considered Pidduck v Eastern Scottish Omnibuses Ltd [1990] 2 All England Law Reports 69, but have not found it useful.

The facts of this case

24. There is no direct evidence of what factors influenced the immigration decision-maker in this case. However, the Home Office has provided, on my direction, the general guidance under which the decisions are made.
25. The claimant was granted leave under paragraph 318 of the Immigration Rules as a parent. The paragraph provides that

'Indefinite leave to remain in the United Kingdom as the parent … of a person present and settled in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 317(i)-(v) is met.'

Of those requirements, two are relevant. They are that the person seeking indefinite leave:

'(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and

'(iv) can, and will, be maintained and accommodated adequately … without recourse to public funds in accommodation which the sponsor owns or occupies exclusively'.

26. The Home Office has provided extracts from the guidance issued to case workers, which contains this passage:

'Where the applicant is over the age of 65 detailed enquiries will not be necessary. However the sponsor should still be requested to complete a RON 112 (sponsorship declaration form).'

The Home Office added this comment to the extracts from the guidance:

'The main factor in the grant of ILR was the fact that she was over 65 but some weight would have been given to the sponsorship declaration.'

27. I approach the case on the basis that the immigration decision-maker acted in accordance with the Immigration Rules and the guidance issued to decision-makers. That guidance shows that the maintenance undertaking was a relevant factor in the decision to grant leave. It may not have been the, or even a, major factor. But it is sufficient that it was of some relevance.

Summary

28. I allow the appeal and give the same decision as the tribunal gave, but based on the correct legislation.

Signed on original

Edward Jacobs Commissioner 12th August 2002