CIS 1077 1999

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeJudge E. Jacobs
Judgment Date18 December 2000
Subject MatterHuman rights law
Docket NumberCIS 1077 1999
THE SOCIAL SECURITY COMMISSIONERS

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case Nos: CIS/1077/1999 and CIS/6608/1999

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY ACT 1998

HUMAN RIGHTS ACT 1998

APPEALS FROM DECISIONS OF SOCIAL SECURITY APPEAL TRIBUNALS ON A QUESTION OF LAW

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER JACOBS


Decisions:

CIS/1077/1999

1. My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998.

1.1 The decision of the Whittington House social security appeal tribunal held on 13th March 1998 is erroneous in point of law.

1.2 Accordingly, I set it aside and, as I can do so without making fresh or further findings of fact, I give the decision that the tribunal should have given.

1.3 My decision is to confirm the decision of the adjudication officer that was the subject of the appeal to the social security appeal tribunal.

CIS/6608/1999

1.4 My decision is that the decision of the Birmingham social security appeal tribunal held on 30th September 1998 is not erroneous in point of law.

Reservation of determination of entitlement to damages for breach of Convention right under Article 6(1)

1.5 With the agreement of the parties to both appeals, I reserve to myself or to another Commissioner the issue of whether the claimants are entitled to damages for breach of their Convention right to a fair hearing under Article 6(1) by reason of the delay in the handling of their cases or otherwise, if a Commissioner is held to have jurisdiction over this issue.

The issues arising for decision

  1. These appeals raise four sets of issues. All concern the limitations imposed by immigration law and social security law on access by immigrants to public funds. They are dealt with in separate appendices:

Appendix A Immigration law from paragraph 29

Appendix B Transitional protection from paragraph 86

Appendix C Validity from paragraph 128

Appendix D Human rights from paragraph 152.

The facts of the cases

CIS/1077/1999

  1. In this case, the claimant entered the United Kingdom in November 1993.
  2. He was given limited leave. Conditions could have been imposed on the limited leave under the authority of section 3(1) of the Immigration Act 1971. However, I do not know what conditions, if any, were imposed.
  3. Later, on 21st June 1994, the claimant was granted indefinite leave to remain in the United Kingdom by the Secretary of State acting through the Immigration and Nationality Directorate of the Home Office. That leave was not, and could not be, subject to any condition. There is no statutory authority for attaching conditions to indefinite leave; section 3(1) of the Immigration Act applies only to limited leave. The claimant’s daughter was asked to give, and on 19th May 1994 gave, an undertaking in pursuance of the Immigration Rules.
  4. The relevant parts of the undertaking by the claimant’s daughter are paragraphs 2 and 3. They are in the then standard form and read:

‘2. I [the sponsor] hereby undertake that if [the claimant] is granted leave to enter or remain in the United Kingdom I shall be responsible for his/her maintenance and accommodation in the United Kingdom throughout the period of that leave and any variation of it.

‘3. I understand that this undertaking shall be made available to the Department of Health and Social Security in the United Kingdom 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.’

Paragraph 3 refers to the powers of prosecution and recovery under sections 105 and 106 of the Social Security Administration Act 1992.

  1. The claimant was awarded income support from 5th May 1995. It was paid until 17th July 1997, despite a period of absence in Turkey. The award was terminated on review with effect from 20th December 1996.
  2. The claimant made a fresh claim for income support on 11th August 1997. His sponsor had become unemployed and unable to maintain him. The adjudication officer decided that the claimant was a person from abroad, with the result that the applicable amount used to calculate his entitlement to income support was nil. The result was that he was not entitled to income support and the claim was refused.
  3. The claimant appealed against that decision, but the tribunal confirmed the refusal of the claim.
  4. At the first oral hearing, Ms Bergmann conceded on behalf of the Secretary of State that the decision of the tribunal was erroneous in law in that (a) it had wrongly decided that the claimant’s indefinite leave to remain had not lapsed when he left the common travel area and (b) it had not properly considered the definition of ‘person from abroad’. The oral hearings of this appeal were conducted on the basis that the decision was agreed to be wrong in law and the argument concentrated on how the law should have been interpreted and applied.
  5. The claimant has now been awarded income support. That award takes place from the earliest date to which the claimant would be entitled under my decision, and possibly from an earlier date. A list of his absences from the United Kingdom is at page 105.

CIS/6608/1999

  1. In this case, the claimant entered the United Kingdom in February 1993.
  2. I assume that he was at first given limited leave. Conditions could have been imposed on the limited leave under the authority of section 3(1) of the Immigration Act. However, I do not know what conditions, if any, were imposed.
  3. I do know that on 16th June 1994, the claimant was granted indefinite leave to remain in the United Kingdom by the Secretary of State acting through the Immigration and Nationality Directorate of the Home Office. As in CIS/1077/1999, that leave was not, and could not be, subject to any condition. The claimant’s nephew was asked to give, and on 6th December 1993 gave, an undertaking in pursuance of the Immigration Rules. The relevant parts of the undertaking are the same as in CIS/1077/1999.
  4. The claimant was in receipt of income support at some time in 1995, but on 4th February 1996 he was not receiving income support and had no claim outstanding. The evidence is a little uncertain, but I have dealt with the case on the assumption that he did receive income support in 1995, which is to the claimant’s advantage.
  5. The claimant made fresh claims for income support in 1997 and 1998, which were considered together. The claimant’s sponsor had fallen on hard times and there is evidence that the claimant may have been subjected to domestic violence. The adjudication officer decided that the claimant was a person from abroad, with the result that the applicable amount used to calculate his entitlement to income support was nil. The result was that he was not entitled to income support and the claims were refused.
  6. The claimant appealed against that decision, but the tribunal confirmed the refusal of the claims.
  7. The claimant has now been awarded income support. There is some evidence of his absences, but I do not have a precise list.
  8. The Secretary of State did not concede in this case that the tribunal’s decision was erroneous in law. Mr Cox accepted that if his arguments were rejected, the appropriate decision was that the tribunal’s decision was not wrong in law.

The oral hearings

  1. I directed an oral hearing of the appeal in CIS/1077/1999. The first hearing was held in London on 10th March 2000. The claimant did not attend, but was represented by Mr S Cockain of the North Kensington Law Centre. The Secretary of State was represented by Ms V Bergmann of the Office of the Solicitor to the Departments of Health and Social Security. At the end of this hearing, Mr Cockain agreed to provide a list of the dates when the claimant had been out of the country and I gave Ms Bergmann a chance to make further written submissions on specific issues. Mr Cockain commented in writing on those submissions. In view of the written submissions, I directed that the oral hearing be resumed. I provided the representatives with a draft decision setting out my provisional views in order to identify issues that were in dispute and to focus discussion
  2. In the meantime, a Legal Officer to the Commissioners had directed an oral hearing of the appeal in CIS/6608/1999. It was listed before Mr Commissioner Lloyd-Davies...

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