UK Social Security and Child Support Commissioners' Decisions

[2007] UKSSCSC CIS_1917_2006 (25 April 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is disallowed. The decision of the Birmingham appeal tribunal dated 31 January 2006 is not erroneous in point of law, for the reasons given below, and therefore stands.
2. This case involves the complex interaction of the special rules for the backdating of claims for income support when a person is granted asylum in the United Kingdom with the rules about the way in which a valid claim for income support can be made. The claimant has been caught out not just by the complexity of these rules, but by some failures in good administration. I should say at the outset that I have been considerably assisted by the written submissions made to me by Mr Beton of J M Wilson solicitors on behalf of the claimant and by representatives of the Secretary of State, in particular Mr Spencer in his submission dated 20 September 2006.

The relevant legislation

3. The main provision on entitlement is regulation 21ZB(1) and (2) of the Income Support (General) Regulations 1987. Paragraph (1) applies to a person who has claimed asylum here on or after 3 April 2000 and who is notified that he has been recorded by the Secretary of State (for the Home Department) as a refugee within the meaning of the Geneva Convention. Then paragraph (2) provides:

"(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."

Paragraph (3) provides for the deduction of amounts of Home Office support from any award of income support. Those provisions fall within the scheme of section 115 of the Immigration and Asylum Act 1999, which makes persons subject to immigration control (including people who require leave to remain in the United Kingdom but do not have it) not entitled to a number of benefits including income support, except as prescribed to the contrary. Section 123 allows the making of regulations, where a person to whom section 115 applies is recorded as a refugee, providing for claiming within a prescribed period "any benefit to which he would have been entitled had the refugee been so recorded when he made his claim for asylum". The completion of the provisions on entitlement is paragraph 18A of Schedule 1B to the Income Support Regulations, which sets out the categories of person who can qualify for entitlement if the other conditions are met:

"18A. A person to whom regulation 21ZB (treatment of refugees) applies by virtue of regulation 21ZB(2) from the date his claim for asylum is made until the date the Secretary of State makes a decision on that claim."

Thus an asylum-seeker who at the time was excluded from entitlement to income support by section 115 of the Immigration and Asylum Act 1999, once granted asylum as a refugee, automatically comes into a qualifying category in relation to the period when the asylum application was pending. But that only works if income support is claimed within the 28 days prescribed in regulation 21ZB(2).

4. There are two specific provisions on claims in these circumstances. Regulation 4(3C) of the Social Security (Claims and Payments) Regulations 1987 provides:

"(3C) In the case of a claim for income support for a period to which regulation 21ZB(2) of the Income Support (General) Regulations 1987 (treatment of refugees) refers, the claim shall be made by the refugee or in the case of a couple both of whom are refugees, by either of them."

Regulation 6(4D) provides:

"(4D) In the case of a claim for income support to which regulation 4(3C) (claim by refugee) refers, the 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."

At first sight, regulation 6(4D) could seem to make the date of claim for the purposes of regulation 21ZB(2) the date of the application for asylum. But that cannot work to get a claimant over the obstacle created by the rule in regulation 21ZB(2) for the time within which a claim must be made. First, regulation 21ZB(2) plainly refers to the time after the notification of the grant of asylum within which a claim for income support is actually made. The condition of claiming within 28 days cannot be met by the deeming of a claim to have been made before the notification. Second, if that condition could be satisfied by the deeming in regulation 6(4D), which seems to operate merely on the making of a claim, however long after notification, for the period when an asylum application was pending, that would deprive the condition in regulation 21ZB(2) of all meaning.

5. However, I see no reason why the "ordinary" rules about what amount to a claim for income support and about the date on which claims for income support are to be treated as made should not be applied. Once those rules were satisfied within the relevant 28 days, regulation 6(4D) would then apply to meet the condition in paragraph 6 of Schedule 4 to the Claims and Payments Regulations that a claim for income support is to be made on the first day of the period in respect of which it is made. I do not, with respect to Mr Commissioner Howell QC, share the doubts expressed by him in decision CIS/3438/2004 about that limited role for regulation 6(4A). As he decided that case in favour of the claimant on the "ordinary" rules, I do not regard his doubts as establishing any authoritative view. As regulation 6(4D) of the Claims and Payments Regulations has the limited application explained above, it does not oust the ordinary rules in their application to regulation 21ZB(2) of the Income Support Regulations.
6. Regulation 4(1A) of the Claims and Payments Regulations provides:

"(1A) In the case of a claim for income support or jobseeker's allowance, the claim shall--

(a) be made in writing on a form approved by the Secretary of State for the purpose of the benefit for which the claim is made;

(b) unless any of the reasons specified in paragraph (1B) applies, be made in accordance with the instructions on the form; and

(c) unless any of the reasons specified in paragraph (1B) applies, include such information and evidence as the form may require in connection with the claim."

Regulation 4(1B) lists a number of reasons why sub-paragraphs (1)(b) or (c) would not apply. I need not set them all out. The potentially relevant ones here are that the claimant is unable to satisfy one or both of those sub-paragraphs because of a physical, learning, mental or communication difficulty and it is not reasonably practicable for him to obtain assistance from another person and that the information or evidence required does not exist. Regulation 4(7A) provides:

"(7A) In the case of a claim for income support, if a defective claim is received, the Secretary of State shall advise the person making the claim of the defect and of the relevant provisions of regulation 6(1A) relating to the date of claim."

Regulation 4(9) provides:

"(9) In the case of a claim for income support or jobseeker's allowance, a properly completed claim is a claim which meets the requirements of paragraph (1A) and a defective claim is a claim which does not meet those requirements."

7. Regulation 6(1A) of the Claims and Payments Regulations provides:

"(1A) In the case of a claim for income support--

(a) subject to the following sub-paragraphs, the date on which a claim is made shall be the date on which a properly completed claim is received in an appropriate office or the first day in respect of which the claim is made if later;

(b) where a properly completed claim is received in an appropriate office within one month of first notification of intention to make that claim, the date of claim shall be the date on which that notification is deemed to be made or the first day in respect of which the claim is made if later;

(c) a notification of intention to make a claim will be deemed to be made on the date when the appropriate office receives--

(i) a notification in accordance with regulation 4(5); or

(ii) a defective claim."

The appeal to the appeal tribunal

8. The appeal tribunal was concerned with two decisions, dated 14 July 2005 and 3 October 2005, that the claimant was not entitled to income support from the date of his application for asylum (now known to have been 15 July 2004) down to the day before 14 March 2005 (the first day covered by a claim for jobseeker's allowance, with an award from 17 March 2005) on the ground that the claims were not made in time. It was accepted on behalf of the claimant before the appeal tribunal that no award of income support for the period in question could possibly be made on the claim that led to the decision of 3 October 2005. Therefore I concentrate on the decision of 14 July 2005, although there will have to be some mention of the effect of the lodging of a claim on 22 September 2005.
9. While the claimant, who was born in the Sudan on 5 March 1981, was seeking asylum he received support from the National Asylum and Support Service (NASS), for the periods and of the type shown on the undated NASS35 document now at page 16a. In a letter dated 4 March 2005 the Appeals Implementation Unit of the Immigration and Nationality Directorate of the Home Office wrote to him to say that he had been recognised as a refugee and granted asylum, with indefinite leave to remain in the United Kingdom. The letter said that the claimant's Immigration Status Document was enclosed. The residence permit endorsed with indefinite leave to remain was issued on 8 March 2005. It is not at all clear when the claimant received the letter and enclosures or when he first learned that his application for asylum had been successful. On 14 March 2005 he made a claim for JSA, which was awarded as above, and also obtained an income support claim form. He signed the form on 21 March 2005 and returned it to the local social security office on 22 March 2005. A copy of that form is at pages 4a to 4x.
10. As the claimant's English was then fairly poor, he got a friend to help him complete the form. The first page of the form (on which "Backdating Request" is written) recorded the date of request for the form and contained the printed information that payment of benefit could be considered from that date if the claimant answered all the questions on the form that applied to him and sent back the completed form and all the documents asked for by a date that was left blank. There was a warning that if that was not done, he might only get benefit from the date that all the information needed was supplied. On page 4ww the claimant clearly indicated that he wanted to claim backdated income support for the period while his claim for asylum was pending. On page 4ss he had ticked that he had recently had a successful decision on his asylum claim and had been supported by the Home Office while waiting for the decision. There were these instructions underneath those questions:

"You must send us proof of your immigration status and details of any support provided by the Home Office. For example, a letter from the Home Office which explains these things.

You may lose benefit if you do not provide original documents by the date on the front of this form. If you cannot provide these documents, please tell us why in Part 17."

It is common ground that no original documents or copies were returned with the form on 22 March 2005.

11. In Part 8 of the claim form (pages 4i and 4ii) were questions about savings and property. The first question asked whether the claimant had any of a list of types of savings or investments. The printed instruction was "You must answer for every item on the list". There was a tick in the no box for bank accounts, but there were no ticks either yes or no against any other item and the box for the total value of savings was left blank. Over the page all the no boxes were ticked for the particular assets mentioned there. At some point someone has put in ink large crosses against the blank tick boxes and underlined the instruction in ink. That was done in the way in which an officer of the Department would indicate to a claimant, if a form were being returned to him, a part of the form that needed completion. I am satisfied that they were not put there by the claimant or his friend, as they are done differently from the way in which the rest of the form was completed.
12. This letter, dated 24 March 2005, was sent to the claimant from the local office:

On 22.3.05 you notified us of your intention to claim Income Support. This letter informs you that unfortunately we cannot process your claim to Income Support.

This is because you do not satisfy the Evidence Requirements.

`Evidence Requirement' means that in order for a claim for Income Support to be valid it must be in writing on an official claim form for the benefit claimed, in accordance with the instructions on the form, and include any information or evidence as is required. In order for benefit to be payable from the date claimed a valid claim, as specified above, must be received within one month of the initial request to claim Income support.

You have not provided us with form NASS 35 and you letter from the Home Office granting you refugee status as a result we cannot make a decision on any potential entitlement to Income Support.

You must contact us if you cannot provide the information and evidence asked for. You may not be entitled to benefit from the date you first claimed if you do not tell us why you are unable to provide the documents we need. You will only be exempt from providing the evidence required if you satisfy the provisions of The Social Security (Claims and Payments) Regulations 1987, Regulation 4(1B).

The above information and/or documents need to be received no late than 22.4.05. I have enclosed a pre-paid addressed envelope for your use. If you do not supply the information requested by the date specified you may only get benefit from the date we receive all the information and evidence we need."

13. The copy of that letter in the papers has an official received date-stamp on it of 5 April 2005. The claimant's case to the appeal tribunal was that he had not received the Home Office letter and Immigration Status Document until 29 March 2005, and that the NASS35 document arrived a few days later. His case was that on or about 29 March 2005 he took photocopies of the documents he then had, with the letter of 24 March 2005, to the local office and gave them to a security officer, who told him to post them in the pillar box outside the office, which he did. The appeal tribunal did not accept that case, but concluded on the evidence from the Department that, although it received back its letter of 24 March 2005, there was no trace of receipt of the asylum documents, that the claimant did not include the photocopies of those documents. It may well be that that was a conclusion that the appeal tribunal was entitled to reach on the evidence and which cannot be faulted as in error of law. However, without exploring that, I consider below whether the appeal tribunal's decision would have been correct in law even if all the available documents had been provided by the claimant on 29 March 2005.
14. After 29 March 2005 the income support functions of the office that had been dealing with the claim were transferred to another office and the claimant also changed address. On 11 July 2005 an officer at the new office noted that the claim from for backdated income support had not been processed and asked whether the claimant should be contacted for his NASS35. Another officer on 13 July 2005 recorded conclusions that the claimant had not returned any of the requested Home Office documents, merely the letter of 24 March 2005, and had not completed the savings page, so that the claim was defective and not a valid claim under regulation 4(1A) of the Claims and Payments Regulations. As I read the signature at the end of that record (page 9A), it was the same officer who, acting as a decision-maker, made the formal decision of 14 July 2005 on page 10. This stated, in contrast to the previous note, that the normal evidence requirement provisions did not apply, because the date of claim had to be determined in accordance with regulation 21ZB of the Income Support Regulations, and the claim could not be treated as defective. But, as the claimant had not provided verification of his leave status or when he was granted asylum, on the balance of probabilities he had not claimed income support within 28 days of notification of his asylum decision.
15. Although there were apparently some enquiries on behalf of the claimant, the next formal step was the lodging of a further income support claim for backdating, fully completed and with the necessary supporting documents, on 22 September 2005. The decision given on 3 October 2005 was to refuse the claim on the ground that the claim was not made within 28 days of receipt of notice of the asylum decision. The claimant's solicitors appealed on his behalf against both decisions. On reconsideration on 29 November 2005 neither decision was altered. The explanation of the first decision was based on the first claim having been defective and never having been a valid claim. The Secretary of State's written submission to the appeal tribunal did not add anything.
16. The claimant attended the hearing on 31 January 2006 with Mr Hawadle, a support worker with a Housing Association. His solicitors had put in a comprehensive written submission. The claimant repeated his account as above of delivering copies of the Home Office documents. The appeal tribunal disallowed both appeals. On the first decision, as noted above, the statement of reasons contained the appeal tribunal's conclusion that it was more likely that the Home Office documents were not sent back with the Department's letter of 24 March 2005. But it also noted the failure to complete the section of the form on capital according to the instructions and found that regulation 4(1B) of the Claims and Payments Regulations did not apply to exempt the claimant from the obligation to complete the form in accordance with regulation 4(1A). That was because it was reasonably practicable for the claimant to obtain assistance from another person to complete the form, despite his language difficulties. The appeal tribunal then considered that my decision R(IS) 4/93 should be applied in relation to regulation 7 of the Claims and Payments Regulations, so that the appropriate decision was that the claimant had not proved that he satisfied the conditions for entitlement to income support in the period before 14 March 2005. The second claim failed because it was made more the 28 days after the grant of asylum.

The appeal to the Commissioner

17. The claimant now appeals against that decision with my leave. When granting leave, I said that there was an issue that would benefit from further consideration on appeal after a submission from the Secretary of State. I noted that there might be an argument that the claimant could get within regulation 4(1B) of the Claims and Payments Regulations if he had not received the Home Office documents on 22 March 2005, but continued:

"But none of that would do the claimant any good if the claim of 14 March 2005 was defective by reason of the omission to answer all the questions on capital. It appears that [neither] the claim form [nor] the page on capital was [...] sent back to the claimant with the letter of 24 March 2005 despite the large crosses added at the side and the underlining of the instruction to answer for every item on the list (page 4i) as might have been done to indicate to a claimant where omitted questions have to be answered. The letter of 24 March 2005 does not refer to any questions on the form and the minute of 13 July 2005 (page 9) gives the impression that the non-completion of the page was being picked up for the first time. Commissioner's decision CIS/3173/2003 decides that there can be no extension of the month specified in regulation 6(1A)(b) because the Secretary of State fails to point out the defect in the claim as required by regulation 4(7A). Leave to appeal to the Court of Appeal was apparently granted in that case, but no appeal seems actually to have been lodged. I wish to have the views of the Secretary of State as to whether CIS/3173/2003 was correctly decided on that point and as to whether it might affect the outcome if, as here, the Secretary of State has advised the claimant of some alleged defects in the claim, but not of another defect that is later relied on in a decision that no valid claim has been made within the time specified for a claim within regulation 21ZB of the Income Support (General) Regulations 1987."

18. Mr Spencer's submission of 20 September 2006 on behalf of the Secretary of State drew attention to the variations in approach of different officers of the Secretary of State mentioned in paragraph 14 above, but submitted that the correct approach was that the requirements of regulation 4(1A) had to be met for a claim under regulation 21ZB as well as for an ordinary claim and that the appeal tribunal had applied that approach. He also drew attention to what he called the brute fact that the claim form signed on 21 March 2005 was not fully completed as to capital in accordance with the instructions on the form, regardless of what the claimant had intended, so that regulation 4(1A) was not satisfied. He submitted that the appeal tribunal had been right to conclude that the claimant did not meet any exempting condition in regulation 4(1B). On the point that I had raised about decision CIS/3173/2003 and the fact that the Secretary of State had not advised the claimant of that defect as required by regulation 4(7A), he submitted that CIS/3173/2003 was rightly decided and that there was no indication in the highly detailed scheme of regulations 4 and 6 of the Claims and Payments Regulations of an intention that the one-month limit specified in regulation 6(1A)(b) was to be altered if the Secretary of State failed to carry out the duty in regulation 4(7A). As a result, it was argued, a properly completed claim was not made within the one-month limit of regulation 6(1A), so that there had not been a claim for income support within 28 days of receiving notification of the grant of asylum. However, Mr Spencer did very helpfully and properly mention the possibilities of the claimant or his solicitors approaching the Parliamentary Ombudsman (through his MP) or applying for extra-statutory compensation for financial loss from the Department for Work and Pensions in relation to the administrative failure to carry out the duty imposed by regulation 4(7A) so far as the answers on capital were concerned. Mr Spencer had made enquiries which showed that the claim form signed on 21 March 2005 was not sent back to the claimant for further completion and that there was nothing to suggest that he was informed of the defective answers on capital.
19. In his reply dated 25 October 2006, Mr Beton submitted that the present case was different from the "ordinary" case such as CIS/3173/2003 in that the penalty suffered by the claimant for failure to lodge a properly completed claim within a month of lodging the defective claim was not merely that entitlement to income support started some weeks later than it otherwise would have done, but was the complete loss of entitlement to backdated income support from the date of the application for asylum in July 2004. He submitted that, if nevertheless the same rule had to be applied, the difference in effect amount to discrimination contrary to Article 14 of the European Convention on Human Rights (ECHR). There were further submissions on the human rights argument from the Secretary of State, dated 30 November 2006, and Mr Beton, dated 23 January 2007. I shall deal with those arguments separately below.

Regulations 4(1A) and (7A) and 6(1A) of the Claims and Payments Regulations

20. On the question of the interaction of regulations 4(1A) and (7A) and 6(1A) of the Claims and Payments Regulations, I would be driven to accept Mr Spencer's submission for the Secretary of State even if decision CIS/3173/2003 did not exist. He cited a number of Commissioners' decisions by way of analogy, about the effect of a failure on behalf of the Secretary of State to supply a claim form on notification of a wish to claim (as required by regulation 4(5)) or to meet the standards for the use of Welsh agree with the Welsh Language Board. The cases on regulation 4(5) (CI/2000/2004 and CIS/2901/2005, to which can now be added CIS/926/2005 and CG/4060/2005) although dealing with a slightly different problem, do recognise that regulations 4 and 6 constitute a highly detailed and restrictive code which must in general be regarded as exhaustive and hold that a delay in supplying a claim form under regulation 4(5) does not alter the time limit in regulation 6(1A). In the present case, that code as it applies in income support cases, although using the words of duty in regulation 4(7A), contains absolutely no words to suggest that a failure by the Secretary of State in that duty alters the time fixed in regulation 6(1A) to run from the date of receipt of the defective claim, not from the date of being advised of the defect. By contrast, regulation 4(7), which had contained the general rule for all benefits until the introduction of the amendments with effect from April 1997, provides for the reference back to a claimant of an improperly completed claim form and for the month or longer period for returning it properly completed to run from the date of the reference back. The difference in the structure can only be regarded as intended.
21. In practice, if a claimant has sent off or delivered a claim form that has not been properly completed (for instance, by mistakenly omitting to answer some questions in a long and complicated form) he can scarcely reasonably be expected to take action to remedy that defect unless he is advised of its existence. Nor can he possibly complete the answers on a particular form unless it is sent back to him. But despite that large practical hole in the scheme of regulations 4(1A) and (7A) and 6(1A), I cannot find any plain legislative intention (as discussed in paragraphs 31 to 33 of CI/2000/2004) that that hole was not intended to exist and should be filled in some specific way. The intention to be inferred from the contrast mentioned above and from the statements of the new rules in the documents attached to the report of the Social Security Advisory Committee on the Social Security (Miscellaneous Amendments) (No 2) Regulations 1997, Cm 3586, clearly describing the one-month limit as running from the date of first notification, including submitting a defective claim, is positively to the contrary. Finally, although it seems somehow worse for the Secretary of State to have advised the claimant of some defects but not others (as in the present case), rather than have done nothing, I cannot see how that circumstance can alter the conclusions of law expressed above.
22. In addition to those reasons, I would be obliged to follow CIS/3173/2003 unless satisfied that it was wrongly decided. In CIS/3173/2003 the claimant did not enclose with her claim form the payslips required by the instructions on the form. The social security office did not contact her to ask for the payslips until about eight weeks after the form had been received. Mr Commissioner Pacey held, without any elaborate discussion, that regulation 4(7A) did not exempt the claimant from the consequences of the rules in regulation 6(1A). I am satisfied that that was the right result and follow that decision, as I also follow the Commissioners' decisions on regulation 4(5) mentioned above.
23. The consequence is that the claimant's appeal against the decision of 14 July 2005 had to fail on the application of the Claims and Payments Regulations, because no properly completed claim for income support for the period while his application for asylum was pending had been made by 14 July 2005 and he had not claimed within 28 days of being notified of the grant of asylum. His appeal against the decision of 3 October 2005 had to fail because the claim made on 22 September 2005 was also outside the 28 day period and was also made more than three months after he had started to receive income-based JSA, so that regulation 19, being limited to going back three months before the date of claim, could not help him in relation to entitlement to income support prior to his JSA entitlement.

The Human Rights Act 1998

24. Mr Beton's argument that the claimant was discriminated against by comparison with an ordinary income support claimant, contrary to Article 14 of the ECHR in conjunction with Article 1 of Protocol 1 provoked a submission on behalf of the Secretary of State on the questions of whether income support could be a possession within Article 1 of Protocol 1 and of the scope of "status" under Article 14. I do not need to consider either of those questions. In my judgment the Human Rights Act argument for the claimant necessarily fails at another point.
25. Regulation 21ZB of the Income Support Regulations sets up a special regime for asylum-seekers who are granted asylum. It allows claims for and entitlement to income support for long periods in the past (not subject to the ordinary absolute limit in income support cases of three months before the date of claim) and sets up, through the provisions mentioned in paragraphs 3 and 4 above, a mechanism for deeming the circumstances in the past period from the date of the application for asylum to be different from what they actually were at the time and to allow awards of entitlement to be made. Successful asylum-seekers have thus been made the beneficiaries of a particular scheme not available to other income support claimants. They may legitimately complain of the unfair effects of the rules on when a properly completed claim is made. But what they cannot do is to argue that the consequences of a failure to make a properly completed claim within 28 days of notification of the grant of asylum, ie the complete loss of the benefit of that particular scheme, constitutes discrimination by comparison with the treatment of ordinary income support claimants. Either they are not in analogous circumstances, because of the existence of the particular scheme, or the loss of the benefit of that particular scheme, without losing the benefit of the ordinary rules on the "backdating" of ordinary income support claims (see Commissioners' decisions CIS/926/2005 and CJSA/4383/2003), is simply not discrimination. The claimant here was not prevented by law from making an argument that his claim for income support should be treated as made up to three months before it actual date under regulation 19 of the Claims and Payments Regulations. The inability to gain any practical advantage from that provision was that a valid claim was not made until 22 September 2005, by which date the claimant had been receiving JSA for well over three months.
26. The provisions of the Claims and Payments Regulations discussed above are therefore not inconsistent with any ECHR right put forward on behalf of the claimant. They must be applied to the present case as found above.

Conclusion

27. Accordingly, I conclude that there was no material error of law in the appeal tribunal's decision such as to justify setting its decision aside. Although, for the reasons explained in paragraph 13 of Mr Spencer's submission of 20 September 2006 (which I do not need to repeat), the appeal tribunal went off in a wrong direction in relying primarily on my decision in R(IS) 4/93 and regulation 7 of the Claims and Payments Regulations, there was ample support for its conclusion on the other grounds it identified and on the basis that I have explored above. The claimant's appeal to the Commissioner is dismissed.

(Signed) J Mesher

Commissioner

Date: 25 April 2007