CIS 3508 2001
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 12 August 2002 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 3508 2001 |
| Subject Matter | Residence and presence conditions |
DECISION OF THE SOCIAL SECURITY COMMISSIONER
-
My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998
- The decision of the Harrow appeal tribunal under reference U/04/035/2001/00372, held on 24th May 2001, is erroneous in point of law
- I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
- My decision is that the claimant is not entitled to income support on her claim made on 21st November 2001.
The appeal to the Commissioner
- This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a district chairman of tribunals. The Secretary of State supports the appeal, but not in a way that is to the claimant’s advantage.
The history of the case
- The claimant was born in 1929. She lived in Bangladesh until she came to the United Kingdom to live with her son on 25th August 1999.
- On 20th January 2000, her son signed this undertaking:
- I hereby undertake that if [the claimant] who was born in … on … is granted leave to enter or remain in the UK I shall be responsible for her maintenance and accommodation in the UK throughout the period of that leave and any variation of it.
- During her stay in the UK, the sponsored person will reside at …
- I understand that this undertaking shall be made available to the Department of Social Security in the UK 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.
- On 29th January 2000, the claimant was granted indefinite leave to remain in the United Kingdom. On 21st November 2000, she claimed income support. The Secretary of State refused the claim because of her immigration status. She exercised her right of appeal to an appeal tribunal, but the tribunal confirmed the Secretary of State’s decision.
Did the tribunal go wrong in law?
- Yes, it did.
The human rights arguments
- The tribunal dealt very briefly with the arguments put by the claimant’s son under the Human Rights Act 1998. As the tribunal went wrong in law in other respects, I do not have to decide whether this aspect of the tribunal’s reasons was inadequate. I only say that, as the arguments were not particularised in any detail, the tribunal could only deal with them in very general terms.
The relevant legislation
- The tribunal went wrong in law first by applying the wrong law. It applied the law as set out in the Income Support (General) Regulations 1987. That is not surprising, as that was the legislation cited in the Secretary of State’s submission to the appeal tribunal. However, the relevant legislation, at the date of claim, was section 115 of the Asylum and Immigration Act 1999 and the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. However, in the circumstances of this case, the law is the same. So nothing turns on that error.
- Section 115 provides:
(1) No person is entitled to
(e) income support,
under the Social Security Contributions and Benefits Act...
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