Krasniqi v. Chief Adjudication Officer and Anor. CIS 16992 1996
| Jurisdiction | UK Non-devolved |
| Judge | Judge M. Rowland |
| Judgment Date | 10 December 1998 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Commissioners' procedure and practice |
| Docket Number | CIS 16992 1996 |
| Appellant | Krasniqi v. Chief Adjudication Officer and Anor. |
R(IS) 15/99
(Krasniqi v. Chief Adjudication Officer and Anor.)
Mr. M. Rowland CIS/16992/1996
23.12.97 CIS/2809/1997 CFC/1580/1997
CA (Stuart-Smith, Thorpe and Buxton LJJ)
10.12.98
Commissioner - judicial precedent - whether Commissioner bound by a single High Court judge exercising the supervisory jurisdiction of the High Court
Person from abroad - transitional protection - whether entitled to benefit “before the coming into force of” the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996
Person from abroad – discrimination on ground of nationality - whether Council Regulation (EEC) 1408/71 applies to a case that is wholly internal to a Member State
Family credit - person from abroad - transitional protection - whether continuing after the expiry of the award current on the coming into force of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996
In CIS/16992/1996, the claimant was given indefinite leave to remain in the United Kingdom, having been sponsored by his son. His son ceased to be able to support him and he was awarded income support from August 1995 until November 1995 when he went to India. He returned to the United Kingdom on 14 March 1996 and again claimed income support. His claim was disallowed by the adjudication officer on the ground that he was a person from abroad whose applicable amount was nil by virtue of regulation 21 of the Income Support (General) Regulations 1987 as amended by regulation 8(2) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 and he was not entitled to urgent cases payments under regulation 70 of the 1987 Regulations as amended by regulation 8(3)(a) of the 1996 Regulations. The amendments had come into force on 5 February 1996. He appealed to a tribunal who allowed his appeal on the ground that he had been entitled to income support “before the coming into force of these Regulations” and so was entitled to transitional protection under regulation 12(2) of the 1996 Regulations. The adjudication officer appealed to the Commissioner
In CIS/2809/1997, the claimant arrived in the United Kingdom on 5 December 1995 and claimed asylum on 2 January 1996. He was awarded income support which was paid until 1 February 1996. On 2 February 1996, he started work. He claimed income support again on 2 August 1996 and the adjudication officer disallowed his claim on the ground that he was not an asylum seeker for the purposes of regulation 70 of the 1987 Regulations as amended by regulation 8(3)(c) of the 1996 Regulations because he had not claimed asylum on his arrival. He appealed to a tribunal who allowed his appeal on the ground that he had been entitled to income support “before the coming into force of these Regulations” and so was entitled to transitional protection under regulation 12(1) of the 1996 Regulations. The adjudication officer appealed to the Commissioner
In CFC/1580/1997, the claimant arrived in the United Kingdom on 30 September 1994 and claimed asylum on 10 October 1994. She was subsequently awarded family credit and was entitled to it at the time the 1996 Regulations came into force on 5 February 1996. An adjudication officer disallowed a renewal claim made in September 1996 on the ground that, under regulation 3(1)(aa) and (1A) of the Family Credit (General) Regulations 1987 as amended by regulation 6 of the 1996 Regulations, the claimant could not be treated as being in Great Britain because she was an asylum seeker. She appealed to a tribunal who allowed her appeal on the ground that she had been entitled to family credit before the coming into force of the 1996 Regulations, her entitlement had not been reviewed and so, under regulation 12(3) of the 1996 Regulations, the 1987 Regulations continued to have effect as if regulation 6 of the 1996 Regulations had not been made. The adjudication officer appealed to the Commissioner.
Held, by the Commissioner, allowing all three appeals, that:
1. decisions on substantive issues of social security law made by the High Court in exercise of its supervisory jurisdiction were to be regarded as made in a jurisdiction co-ordinate with that of Commissioners and therefore a Commissioner was not bound to follow a decision of a single High Court judge although he should do so unless convinced that it was wrong (paragraph 19);
2. the decision of Dyson J in Regina v. Secretary of State for Social Security, ex parte Vijeikis, Okito and Zaheer [1998] COD 49 was to be followed and a claimant was not entitled to transitional protection under regulation 12 of the 1996 Regulations unless he or she was entitled to the relevant benefit at the time those Regulations came into force on 5 February 1996 (paragraph 20);
3. the claimant in CIS/2809/1997 could not rely on Council Regulation (EEC) 1408/71 because any discrimination which a refugee might suffer under the law of the Member State where he or she had claimed asylum fell within the scope of that law and must therefore be dealt with within the framework of the internal legal system of that State (paragraph 26);
4. regulation 12(3) of the 1996 Regulations should be construed so that transitional protection continued only during the period covered by the award of benefit that was current on 5 February 1996 (paragraph 35).
The Commissioner substituted his own decisions to the effect that the claimants were not entitled to benefit. The claimant in CIS/2809/1997 appealed to the Court of Appeal. By the time of the hearing he had been granted asylum and paid arrears of urgent cases payments of income support but, relying on Council Regulation (EEC) 1408/71, he contended he should have been paid income support at the ordinary rate.
Held, by the Court of Appeal, dismissing the appeal, that:
1. in the absence of very specific indications to the contrary, a European Community provision did not apply to a case that was wholly internal to a single Member State and this was particularly the case where the provisions related to the freedom of movement and the freedom to provide services: Saunders [1979] ECR 1129; Uecker [1997] CMLR 963; Petit [1992] ECR 4973;
2. the powers under which Council Regulation (EEC) 1408/71 was made were limited to powers to facilitate the movement of workers between Member States so that any construction that sought to extend the Regulation to cover cases where there was no such movement would render the Regulation ultra vires: Spruyt [1986] ECR 685;
3. a reference to the European Court of Justice was not necessary because in Petit the Court had already held that Council Regulation (EEC) 1408/71 could not be applied to activities that were confined within one Member of State.
[Note: The decision of Dyson J was upheld by the Court of Appeal in Regina v. Secretary of State for Social Security, ex parte Vijeikis (unreported, March 5, 1998). The decision of the Commissioner in CFC/1580/1997 was considered by the Court of Appeal in Regina v. Chief Adjudication Officer, ex parte B [1999] 1 WLR 1695.]
Decision of the social security commissioner
1. These three appeals all raise questions as to the proper construction of regulation 12 of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996. I heard the appeals together. Mr. Stephen Cooper, of the Office of the Solicitor to the Departments of Social Security and Health, appeared on behalf of the adjudication officers, Ms. Pamela Fitzpatrick, a welfare rights advisor at the National Association of Citizens Advice Bureaux, appeared on behalf of the two claimants of income support and Ms. Jackie May, a case worker at Leicester Law Centre, appeared on behalf of the claimant of family credit. I am grateful to all three advocates for the assistance they have given me.
- The 1996 Regulations came into force on 5 February 1996 and made several amendments to legislation concerning social security benefits. In each of the cases before me, the relevant claim for benefit was made after 5 February 1996. The question in each case is whether the claimant was entitled, on that claim, to the transitional protection afforded by regulation 12 of the Regulations. It is common ground that, if the claimants were entitled to the transitional protection so that the legislation is to be applied as though the amendments had not been made, each of these claimants would be entitled to benefit. It is also common ground that, if the...
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