UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CIS_3797_2003 (17 February 2004)

 


CIS/3797/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Secretary of State, brought with the leave of the Chairman, against a decision of the Eastbourne Appeal Tribunal made on 14 April 2003. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal, set aside the Tribunal's decision and remit the matter for redetermination by a differently constituted appeal tribunal.
2. On 20 October 2001 the Home Office sent a letter to the solicitors who were acting or had acted for the Claimant in his application for asylum (which had been made on 25 June 2001) notifying him that he had been granted indefinite leave to enter the United Kingdom as a refugee.
3. On 31 October 2001 those solicitors wrote to the Claimant notifying him that he had been granted indefinite leave, and asking him to telephone the solicitors to "to make a mutually convenient appointment to collect your status letter." The solicitors' letter gave certain further advice as to the Claimant's position, although did not given any advice as regards the matter the subject of this decision.
4. Reg. 21ZB of the Income Support (General) Regulations 1987 provides, so far as material, as follows:

"(1) This paragraph applies to a person who has submitted a claim for asylum on or after 3 April 2000 and who is notified that he has been recorded by the Secretary of State as a refugee within the definition in …………….

(2) Subject to paragraph (3), a person to whom paragraph (1) applies, who claims income support within 28 days of receiving the notification referred to in paragraph (1), shall have his claim for income support determined as if he had been recorded as a refugee on the date when he submitted his claim for asylum."

5. By Reg. 6(4D) of the Social Security (Claims and Payments) Regulations, 1987 such a claim "shall be treated as made on the date on which his claim for asylum was recorded by the Secretary of State as having been made." The effect is that the refugee who makes a timeous claim for income support is entitled (subject to satisfying the other conditions of entitlement) to income support as from the date when he claimed asylum, less (see Reg. 21ZB(3)) the amount of payments which he has received from the National Asylum Support Service.
6. The Claimant applied for and was awarded job-seeker's allowance from 8 November 2001. Then he claimed income support on 27 November 2001. This was within 28 days of the date when he personally had received written notification from the solicitors of the grant of asylum, but was probably, although not certainly, more than 28 days after the date when the solicitors had received that notification.
7. On 21 December 2001 the Claimant was notified of a decision (apparently made on 6 December 2001) that "you do not qualify for Income Support as you do not fulfil the conditions of entitlement. This is because you did not contact us within the one month period after your refugee status granted." That notification was of course wrong in so far as it referred to a period of a month, rather than 28 days, and in so far as it implied that the period ran from the date when refugee status was granted, rather than from the date of receipt of notification of refugee status.
8. A letter was written on behalf of the Claimant pointing out that he had not received the asylum decision until the beginning of November 2001. On 19 March 2002 the Benefits Agency replied asserting (again wrongly) that the 28 day time limit ran from the date when the asylum decision was issued.
9. On 9 April 2002 the Claimant appealed, on the ground that he had not received the Home Office notification until the beginning of November 2001, and therefore had applied for income support within the required 28 day period.
10. On 10 June 2002 the decision of 6 December 2001 was reconsidered, and the conclusion reached that on the balance of probability the solicitors would have received the letter from the Home Office "during the week commencing 22 October 2001", and therefore more than 28 days before the Claimant applied for income support. The decision of 6 December 2001 was therefore not revised.
11. The Tribunal allowed the appeal, holding that the Claimant was entitled to income support in respect of the period from 25 June 2001 to 30 October 2001. In its Decision Notice the Tribunal said:

"The tribunal does not accept the decision maker's submission that service on [the Claimant's] solicitors is deemed to be service on [the Claimant]. The words of Reg. 21ZB must, in the absence of a special meaning, be given their ordinary literal meaning (Interpretation Act). The regulation refers to the person who has claimed asylum receiving notification. In this case that is [the Claimant], not his solicitor."

12. In the written submission in support of this appeal it is submitted on behalf of the Secretary of State that

"…….where a person instructs a solicitor to act on his behalf in relation to a claim for asylum, ……………the solicitor is the agent of the claimant in relation to that matter and remains so until the client revokes his instructions. Moreover ……..it follows that the receipt of a document by the solicitor as agent must be imputed to the claimant as principal."

13. In support of that proposition reliance is placed on a decision of the Court of Appeal, reported as R(SB) 17/97, refusing permission to appeal from a decision of a Commissioner. In that case it was held by the Court of Appeal that a sum of £12,000, received by solicitors on behalf of their client as damages for personal injury to the client and held by the solicitors on his behalf for a period of 7 months in 1983 until it was applied for the purchase of a house, was during that 7 month period a capital resource of the claimant for the purpose of determining whether the claimant was entitled to supplementary benefit, and therefore should have been disclosed by him.
14. I am bound to say that I see very little parallel between that case and the present one, where what is in issue is whether receipt of a notification by the solicitor amounted to receipt by the Claimant for the purposes of Reg. 21ZB(2).
15. The general principle is stated in Article 96 of Bowstead & Reynolds on Agency (17^th ed., 2001) as follows:

"A notification given to an agent is effective as such if the agent receives it within the scope of his actual or apparent authority, whether or not it is transmitted to the principal, unless the person seeking to charge the principal with notice knew that the agent intended to conceal his knowledge from the principal."

16. The question would then appear to be whether there is anything in the wording or context of Reg. 21ZB(2) to indicate that that general principle should not apply, and that the 28 day period only begins to run when the refugee himself receives the notification. (If this is so, a question might, I suppose, arise, as to whether oral notification by the solicitor to the Claimant – e.g. in a telephone call, if there was one – was sufficient).
17. In a Direction which I made in this case on 31 October 2003 I requested the Secretary of State to indicate whether there were any provisions in the Immigration Rules, or in any other relevant rules or regulations relation to immigration procedures, which might be of relevance (and in particular provisions indicating in what manner and to whom decisions about immigration status were to be notified, or dealing with the employment of agents or advisers by applicants for asylum). The Secretary of State submits that there is nothing of any assistance. I have myself examined versions of the Immigration Rules, and also the Immigration and Asylum Appeals (Notices) Regulations 2000. Reg. 4(2) of the latter provides that if notice of an appealable decision is given to the representative of the requisite person, it is to be taken to have been given to the requisite person. "Representative" is defined in Reg. 2 as "a person who appears to the decision-maker (a) to be the representative of a requisite person and (b) not to be prohibited form acting as a representative by s. 84 of [the Immigration and Asylum Act 1999]." However, reg. 4 of the 2000 Regulations relates only to appealable decisions, which the decision granting indefinite leave to the Claimant presumably was not.
18. The Claimant has not made any submissions in this appeal in response to those of the Secretary of State.
19. Statutory provisions for the giving of notice frequently make time run from the date when the notice is sent, or alternatively contain provision that a notice is deemed to have been received (say) 2 days after the sending of the notice. Here the requirement is actual receipt, and it is therefore clear that the claimant is not to be prejudiced by postal delays. It might be argued that this requirement of receipt therefore shows that actual receipt by the claimant (and not merely by his representative) is intended, otherwise the claimant would be prejudiced by postal delays in the sending on of the notice by the representative to the refugee. It might further be argued that the ability to claim backdated benefit is potentially a very valuable one (because the immigration process may have taken a considerable time to resolve) and in the light of that the provision should be construed in the refugee's favour in order to give him the benefit of the full 28 days, whereas the Secretary of State's construction in effect cuts it down by the time taken (a) by the representative to get round to sending it to the claimant and (b) by the additional time taken for postal delivery as between the representative and the claimant.
20. However, the result reached by the Tribunal would mean that, in addition to the benefit of not being prejudiced by any postal delays (or indeed by loss in the post), the Claimant would also obtain the benefit of not being prejudiced by inefficiency on the part of his representative. In the end I am not satisfied that there is really anything in either the wording or the context of Reg. 21ZB which indicates that the general rule set out in Bowstead is not to apply. I therefore think that in this case, if the solicitors had either actual or apparent authority to receive the notification of the grant of indefinite leave to remain, that notification was received on the date when the solicitors received it. The terms of the solicitors' letter to the Claimant dated 31 October 2001 would suggest that they were still acting for the Claimant in connection with his application, and therefore that they should probably be regarded as having had actual authority to receive the notification. Even if they did not have actual authority, if (as presumably must have been the case) they appeared to the Home Office still to be acting for the Claimant, they are likely to have had apparent authority to act for the Claimant in receiving the notice. This question of authority will, however, be a matter for the new tribunal to determine. I would suggest that it would be helpful for the Secretary of State to put in evidence the application for asylum and any other communications from the solicitors on behalf of the Claimant which may throw light on the nature of their actual or apparent authority. It will also be for the new tribunal to determine when the notification was received by the solicitors. However, unless it was not received until 30 or 31 October (which seems unlikely in view of the fact that it was dated 20 October) the period of 28 days was exceeded. Unless the Claimant produces evidence that it was not received by the solicitors until 30 or 31 October, the new tribunal should find that it reached the solicitors earlier.
21. In his submission in this appeal the Secretary of State's representative submits that I should remit this matter to a new tribunal (for determination of the issue when the solicitors received the notification, to which I would add the issue of actual or alternatively apparent authority). But for that submission I might have been inclined to make the necessary findings myself on those issues. It would, however, be wrong to do so in circumstances where, possibly influenced by the Secretary of State's submission, the Claimant has not made any submissions in this appeal. My decision is therefore as set out in paragraph 1 above.

(Signed) Charles Turnbull

Commissioner

17 February 2004