UK Social Security and Child Support Commissioners' Decisions

UKSSCSC CIS_579_2004 (12 May 2004)

DECISION OF THE DEPUTY SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for permission to appeal against a decision given on 10 December 2003 by an Appeal Tribunal sitting in Colchester. I held a hearing of the application which was attended by Mr. Cox on behalf of the claimant and Mr. Lewis on behalf of the Secretary of State. I am grateful to both for their considerable assistance in this case.
2. At the hearing I granted permission to appeal and with the consent of both representatives I treat the application as an appeal, and proceed to determine any questions arising thereon as though they arose on appeal.
3. For the reasons set out below, the decision of the Appeal Tribunal given on 10 December 2003 is erroneous in law and accordingly I set it aside.
4. The claimant is a Kosovan national. She claimed asylum in this country on 21 June 1998. It was an in-country claim Under the regulations then in force (the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996), as an asylum seeker who had not submitted her claim for asylum immediately on arrival in the UK the claimant was not entitled to any income-related benefits, including Income Support. In fact the claimant was assisted by the local social services department.
5. This case is concerned with the claimant's entitlement to Income Support under regulation 21ZA(2) of the Income Support (General) Regulations 1987 ("regulation 21ZA(2)"). The effect of this regulation is to allow asylum seekers whose refugee status is recognised by the Home Office to claim payments of Income Support retrospectively for the period they were denied benefit as an asylum seeker. The system of state support for asylum seekers was radically changed with effect from April 2000 under the Asylum and Immigration Act 1999. Regulation 21ZA, however, remains in force for those claimants who, like this claimant, claimed asylum before 3 April 2000 and are subsequently recognised as refugees.
6. The relevant facts are as follows. By a letter dated 4 January 2002 the claimant was granted refugee status by the Home Office. The letter was issued on 21 January 2002 and received by the claimant on 23 January 2003. This meant that the claimant was entitled to claim all benefits under the normal rules at the full rate from the date she was recorded as a refugee; and she was informed by the social services department that they could no longer support her.
7. Accordingly, on 5 February 2002 the claimant went to the social security office to claim Income Support. She was given the standard claim form for Income Support (Form A1) which she completed and returned on 6 February 2002. At the same time she showed the letter from the Home Office to the interviewing officer, who retained and signed a copy.
8. The claimant having received no payment, on 5 June 2002 her solicitor wrote to the Department for Work and Pensions requesting that an interim payment of Income Support be made. By 12 June 2002 no payment yet having been made, the claimant's solicitor telephoned the Department for Work and Pensions, and was informed that a decision had been made on 10 June 2003 that the claimant was entitled to Income Support from 18 February 2002 to 22 April 2002.
9. On 13 June 2002 an award letter was issued to the claimant, informing her that she was entitled to Income Support from 5 February 2002 (not 18 February as had been told over the telephone) to 22 April 2002.
10. Meanwhile, the claimant's solicitors were concerned that the claimant had not been awarded Income Support for the time prior to 5 February 2002 when she had been an asylum seeker. They were of the view that she was entitled to payment for that period pursuant to regulation 21ZA(2). They accordingly sent a letter dated 13 June 2002 to the Department for Work and Pensions saying that the claimant was entitled to backdated Income Support from the date of her claim for asylum (21 June 1998). The letter went on to say "We would be grateful if you could advise us whether this matter is being dealt with, and if not, why not, as soon as possible."
11. The Decision Maker responded in a letter dated 14 January 2003, in the following terms:

"I am writing to you in response to your Solicitor's request to pay the difference between the amount of Income Support which would have been paid and the amount of support you received in vouchers, for the period between the time you applied for asylum and the date it was granted. The Decision Maker has decided that it cannot be paid because you did not apply for this within 28 days of your receiving the notification from the Home Office."

12. The letter informed the claimant that she may appeal against the decision. The claimant did indeed appeal against the decision. On 10 December 2003 the Appeal Tribunal dismissed her appeal. The claimant now appeals to the Commissioner.
13. I accept the submissions of Mr. Lewis, on behalf of the Secretary of State, that the Appeal Tribunal erred in law. I accept his submissions that the tribunal appeared to be confused as to the nature of the rules being considered, holding that the rules providing for deciding the date of a claim also provided rules for deciding entitlement; and that the tribunal took into consideration irrelevant matters which were not founded on the evidence before it. The tribunal's decision must, accordingly, be set aside.
14. Under section 14(8)(a)(i) of the Social Security Act 1998 I have the power to give the decision which I consider the tribunal could have given, if I can do so without making fresh or further findings of fact. Should I exercise that power in this case?
15. The first questions I must consider are procedural ones i.e. what is the status of the claimant's solicitor's letter of 13 June 2002, and what was the substance of the claimant's appeal to the tribunal?
16. Both parties accept that I should treat the letter dated 13 June 2002 as a request to revise the decision of 10 June 2002. In treating that letter as a new claim, the Decision Maker implicitly declined the request to revise the decision of 10 June 2002.
17. Although on its face, the appeal made on 13 February 2003 to the tribunal was against the decision of 14 January 2003, in substance and in reality the claimant was appealing to the tribunal against the decision made on 10 June 2002 that she was not entitled to Income Support for the period 21 June 1998 (the date of her claim for asylum) – 21 January 2002 (the date upon which she was recorded as a refugee).
18. By regulation 31(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 an appeal must be brought within one month of the date of notification of the decision against which the appeal is brought. At first blush, an appeal made on 13 February 2003 against (in substance) a decision made on 10 June 2002 is out of time.
19. However, under regulation 31(2) of the Decisions and Appeals Regulations, where the Secretary of State, following an application for revision, does not revise a decision, the prescribed period of one month shall begin to run from the date upon which the Secretary of State issues a notice that he is not revising the decision.
20. As I have said, in this case a request for revision of the decision of 10 June 2002 was made in the letter dated 13 June 2002; and on 14 January 2003 the Secretary of State issued a notice which implicitly notified the claimant that he was not revising the decision of 10 June 2002. Accordingly, applying regulation 31(2) of the Decisions and Appeals Regulations, I find that the period of one month in which the appeal must be brought against the decision of 10 June 2002 began to run from 14 January 2003. Thus, the appeal made on 13 February 2003, being in substance an appeal against the decision of 10 June 2002, was made in time.
21. As I am able to make a final decision in this case without making any fresh or further findings of fact, in my judgment it is convenient and right that I should do so.
22. I turn now to the substantive issue which I must decide. As I have said, it is submitted on the claimant's behalf that she is entitled to the payment of Income Support for the period during which she was denied benefit as an asylum seeker, pursuant to the provisions of regulation 21ZA, the relevant provisions of which are as follows:

"(1) Where a person has submitted a claim for asylum and is notified that he has been recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28^th July 1951 as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31^st January 1967 he shall cease to be a person from abroad for the purposes of regulation 21 (special cases) and Schedule 7 (applicable amounts in special cases) from the date he is so recorded.

(2) Except in the case of a refugee to whom paragraph (3) refers, a refugee to whom paragraph (1) applies, who claims Income Support within 28 days of receiving the notification referred to in that paragraph, shall have his claim for income support for whichever of the periods referred to in paragraph (4) applies in his case determined as if he had been an asylum seeker for the purposes of regulation 70 (urgent cases) in respect of any such period.

…

(4) The periods to which this paragraph refers are –

(a) in the case of a claimant who made a claim for asylum upon arrival in the United Kingdom, the period from the date on which his claim for asylum was first refused by the Secretary of State or 5^th February 1996 if that is later, to the date he is recorded by the Secretary of State as a refugee;

(b) in the case of a claimant whose claim for asylum is made other than on arrival in the United Kingdom, the period from the date of that claim, or 5^th February 1996 if that is later, to the date he is recorded by the Secretary of State as a refugee."

23. So, under regulation 21ZA the claimant asylum seeker ceased to count as a "person from abroad" on the date that the Secretary of State's recognition of her refugee status was recorded (21 January 2002). From that date she could qualify for full Income Support (or income-based Jobseekers Allowance) under the normal rules. Further, provided she made a claim (to put it neutrally) within 28 days of 23 January 2002, she must have her claim for Income Support for the period 21 June 1998 to 21 January 2002 determined as if she were entitled to payment under the urgent cases provision of regulation 70 of the Income Support (General) Regulations 1987.
24. The legislative history behind regulation 21ZA is important. In broad terms, prior to 5 February 1996 an asylum seeker was not entitled to Income Support (see regulation 21(3) of and Schedule 7 to the Income Support (General) Regulations 1987), but he could be treated as an "urgent case" under regulation 70, in which case he was entitled to receive 90% of the normal Income Support benefit from the submission of his initial asylum application until his claim for asylum had been finally determined (including any appeal).
25. In 1996 Parliament introduced the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996, in order to discourage asylum claims by economic migrants. The effect of these Regulations was to remove all entitlement to income related benefits (including urgent cases payments) to those who sought asylum otherwise than immediately on arrival in the UK (subject to a limited exception) and those whose claims had been rejected by the Home Secretary and were awaiting appeal. In R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants and another [1996] 4 AER 385 the Court of Appeal held that the Regulations were unlawful because they contravened the Asylum and Immigration Appeals Act 1993.
26. Section 11 of the Asylum and Immigration Act 1996 was introduced in response to the Court of Appeal's decision. Section 11(1) expressly authorises the making of regulations to exclude asylum seekers from entitlement to benefits; and section 11(4) and paragraph 2 of Schedule 1 re-instate the 1996 Regulations with effect from 5 February 1996.
27. However, during the passage through Parliament of the 1996 Act, the government made an important concession which is embodied in section 11(2). This provides that regulations may provide that, where a person who has made a claim for asylum is excluded from entitlement to benefits under section 11(1), but is subsequently recorded by the Secretary of State as a refugee, that person may within the prescribed period claim (amongst other things) the whole or any prescribed portion of any Income Support to which he would have been entitled had he been recorded as a refugee immediately after he made the claim for asylum. Hence regulation 21ZA.
28. The issue I have to decide is whether the claimant made a valid claim for Income Support under regulation 21ZA(2). Mr. Cox submitted that there are three alternative ways in which such a claim could be made:
29. 1. First, within 28 days of being notified that he has been recognised a refugee a claimant may make an express claim for backdating under the regulation.
30. 2. Secondly, so long as a claim for Income Support is made within the prescribed 28 day period, it is sufficient if the words used in the claim form are enough in themselves to raise the issue of backdating the claim, or the circumstances are such that a reasonably alert adjudication officer should have considered whether a retrospective approach was appropriate.
31. 3. Thirdly, a claimant may simply make a claim for Income Support within 28 days of being notified that he has been recognised as a refugee, and the claim should then be determined as if he had been recorded as a refugee on the date he submitted his claim for asylum. Under this third alternative there is no requirement for a separate claim or a claim for backdating to be made.
32. I shall consider each of these propositions in turn.

Express claim

33. Section 1 of the Social Security Administration Act 1992 requires a claim to be submitted for any benefit in the manner and in the time prescribed in relation to that benefit by regulations. Claims are required to be in writing on the appropriate prescribed form which must be duly completed (regulation 4(1A) of the Social Security (Claims and Payments) Regulations 1987. The prescribed form for Income Support is Form A1.
34. Of course, an express claim for backdated payment under regulation 21ZA(2) within the prescribed 28 day period would require the Decision Maker to consider and decide upon a claimant's entitlement for that payment.
35. Although Form A1 does not have any specific questions or tick-boxes relating to a claim under regulation 21ZA(2), a claimant may attach a supplementary document or provide details under Part 16 "Please use this space to tell us anything else you think we might need to know." It is accepted that no express claim was made by this claimant.
36. Indeed, I would have thought that in most cases, a claimant who has recently been granted refugee status (and a fortiori has not been entitled to Income Support until the date on which he has been recorded as a refugee) is unlikely to be aware of intricacies of regulation 21ZA, and is accordingly unlikely to make an express claim under it.
37. It is more likely that such a claimant will make an implied claim for benefit under regulation 21ZA.

"Implied claim"

38. The general rule of regulation 19 of and paragraph 6 of Schedule 4 to the Claims and Payments Regulations is that the prescribed time for claiming Income Support is the first day of the period in which the claim is made. However, by regulation 19(8) that general rule does not apply to claims under regulation 21ZA(2). This is because a claim under regulation 21ZA(2) can only be for a period prior to the making of the claim.
39. I have been referred to the Tribunal of Commissioners' decision in R(SB) 9/84, as explained by Mr. Commissioner Williams in CIS/4744/1998. Having considered the relevant authorities, Mr. Commissioner Williams points out that the Tribunal of Commissioners was concerned to refute the previous decision of a Commissioner that all claims for supplementary benefit were automatically backdating claims. However, it did not expressly consider what statements on a claim form short of an express statement would be sufficient to raise the question of backdating.
40. Mr. Commissioner Williams adopted the "practical and pragmatic" approach of CIS/371/1993, namely are the words used by the claimant enough in themselves to raise the issue of the backdating of the claim? He described this as the "narrower test." Mr. Commissioner Williams did not need to consider or resolve the alleged difference between this test and the wider one of CIS/17514/1996 (whether a reasonably alert decision maker should have considered whether a retrospective award was appropriate), because the words used on the claim form he was considering met the narrower test.
41. Before me, both parties submitted that the narrower test was satisfied in this case. I agree, and so, like Mr. Commissioner Williams, do not need to be concerned with the alleged difference between this test and the wider one referred to above.
42. From the claim form and Home Office letter the Decision Maker knew, for example:
43. 1. the claimant was a Kosovan national who had come to the UK on 7 May 1998;
44. 2. her husband needed permission to work;
45. 3. social services had supported the claimant and her husband (specific details of sums paid were given), but now they had indefinite leave to remain from the Home Office that support had ended;
46. 4. the claimant had recently been notified of her refugee status.
47. I find that the words used by the claimant in the claim form were enough in themselves to indicate that her claim for Income Support included the period during which she was seeking asylum, and so the narrower test was satisfied. In other words, I find that the claim, received on 6 February 2002, included a claim for the period 21 June 1998 – 21 January 2002. I remit to the Secretary of State the calculation of the claimant's Income Support entitlement for that period.

"Deemed claim"

48. On behalf of the claimant, Mr. Cox made what he described as a "bold" submission i.e. all a claimant needs to do to make a claim under regulation 21ZA(2) is to make a claim for Income Support within the prescribed 28 day period, and the claim should then be determined as if it included one for the period when (s)he had been an asylum seeker. Mr. Cox said that the regulations do not require a separate claim or a claim for backdating to be made. This submission was opposed by Mr. Lewis, who said that there must always be an express or implied claim for benefit under regulation 21ZA(2).
49. On the basis of my findings above I do not strictly need to consider this issue. However, Mr. Cox urged me to do so. In my view it is right that I should set out below the conclusions that I have reached. Of course, my observations are strictly obiter.
50. Had I had to decide this issue I would have found against the claimant, for the following reasons:
51. 1. Whilst I accept Mr. Cox's submission that the legislative intention in passing regulation 21ZA was clear - in Mr. Cox's words, a person who had been presumed not to "deserve" payment of benefit because he had not applied for asylum immediately upon entry to this country, but who was in fact subsequently determined to be a refugee, should be entitled to the Income Support he would have received had he been recorded as a refugee immediately after he made his claim for asylum - nevertheless, in my judgment, an express or implied claim must still be made.
52. 2. I reject Mr. Cox's submission that had the Secretary of State intended an individual to have to make a separate claim, he could and should have provided for that in the regulations. Whilst I agree that there is no express requirement in regulation 21ZA that a separate claim must be made, there is a general requirement under s1 of the Social Security Administration Act 1992 and regulation 4(1A) of the Claims and Payments Regulations that any claim for Income Support must be submitted (expressly or impliedly) on Form A1.
53. 3. Mr. Cox made the following submission in support of his contentions: The Decision Maker will be well aware of such a claimant's present status as a refugee and past status as an asylum seeker, for to be entitled to Income Support as a refugee the claimant will have had to have presented with the appropriate letter of notification of refugee status from the Home Office. By definition, a refugee must previously have been an asylum seeker. The Decision Maker should also be able to tell, from the face of the Home Office letter, the date upon which the claimant's refugee status was recorded. Thus, on the information before him the Decision Maker will be able to ascertain whether the provisions of regulation 21ZA(2) have been satisfied. I agree with this submission, but I disagree with Mr. Cox upon its implications. In my judgment, it means that in the vast majority of cases the information before the Decision Maker will lead to an implied claim under regulation 21ZA(2). It does not go as far as meaning that an express or implied claim is not required.
54. 4. Mr. Cox referred to regulation 6(4D) of the Claims and Payments Regulations, which provides that a claim under regulation 21ZA(2) shall be "treated as made" on the date of the claimant's claim for asylum. The words "treated as made," submitted Mr. Cox, support the contention that no separate claim is necessary. I cannot agree with this submission. The words simply assume that a claim has been made, and then apply the usual principles that a claim must be for a certain period or from a certain date.
55. 5. I was also referred to paragraph 31175 of the Decision Makers' Guide, which provides as follows with regard to claims for urgent cases payments of Income Support under regulation 21ZA(2): "For retrospective payments to be considered, the refugee had to make a claim for IS within the time limit … But they did not have to ask for that claim to be backdated. Their claim was automatically treated as having been made on the date on which the claim for asylum was first refused.." However, this is not binding upon me, and in my judgment it incorrectly interprets the requirements of regulation 21ZA(2).
56. Accordingly, in my judgment, a claim under regulation 21ZA(2) - for an urgent cases payment of Income Support for the period from the date of the claimant's claim for asylum (or first refusal if the claim was made on arrival) to the date his refugee status is recorded – must be made expressly or impliedly on Form A1 within the prescribed time limit. In the vast majority of cases (as in this one) an implied claim will have been made by virtue of the information required to be supplied by the claimant.

Conclusion

57. For the reasons set out at paragraph 13 above the Appeal Tribunal erred in point of law and I must set aside its decision. However, it is un-necessary for me to remit the matter to a new tribunal for a re-hearing. I can conveniently substitute my own decision, which is that the claim received on 6 February 2002 included a claim for the period 21 June 1998 – 21 January 2002 on the basis that the words used by the claimant in the claim form were enough in themselves to indicate that her claim for Income Support included the period during which she was seeking asylum in this country. I remit to the Secretary of State the calculation of the claimant's entitlement for that period.

(Signed)

Mrs. A. Rowley

Deputy Commissioner

Dated 12 May 2004