EE v City of Cardiff (HB)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Poynter |
| Neutral Citation | [2018] UKUT 418 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Residence,presence conditions,Housing,council tax benefits - recovery of overpayments,presence conditions - persons subject to immigration control,Poynter,R |
| Date | 11 December 2018 |
| Published date | 30 January 2019 |
EE v City of Cardiff (HB) [2018] UKUT 418 (AAC)
CH/3592/2017 1 11 December 2018
Appeal No. CH/3592/2017
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Poynter
DECISION
The appeal does not succeed.
The decision of the First-tier Tribunal given at Cardiff on 1 August 2017 under
reference SC188/17/02409 did not involve the making of any material error on a point
of law.
Therefore that decision continues to have effect, so that:
1. The claimant is not entitled to housing benefit from and including 25 April
2016;
2. The claimant has been overpaid the sum of £877.30 as housing benefit for
the period from 25 April 2016 to 7 August 2016; and
3. That overpayment is recoverable in full from the claimant.
REASONS FOR DECISION
Introduction
1. The claimant appeals to the Upper Tribunal with my permission, against the
above decision of the First-tier Tribunal. That decision confirmed an earlier decision
by Cardiff City Council, which was to the same effect as I have set out above.
2. Neither party has requested an oral hearing of the appeal to the Upper Tribunal
and I am satisfied that I can decide this appeal fairly and justly without holding such a
hearing.
3. The appeal is about whether the claimant is a “person subject to immigration
control”. If so, he is excluded from entitlement to non-contributory social security
benefits—including housing benefit—by section 115 of the Immigration and Asylum
Act 1999. In that case, he has been overpaid housing benefit and there is a further
issue about whether that overpayment is recoverable from him.
4. I have set out the relevant parts of section 115 at paragraph 8 below. The other
statutory provisions that are material to my decision are set out—as they were
EE v City of Cardiff (HB) [2018] UKUT 418 (AAC)
CH/3592/2017 2 11 December 2018
worded at the time the First-tier Tribunal had to consider—in the Appendix to this
decision.
5. When discussing those provisions, I will refer to:
(a) the Immigration Act 1971 as “the Immigration Act”;
(b) the Interpretation Act 1978 as “the Interpretation Act””;
(c) the Social Security Contributions and Benefits Act 1992 as “the
Contributions and Benefits Act”
(d) the Immigration and Asylum Act 1999 as “the 1999 Act”;
(e) the Nationality, Immigration and Asylum Act 2002 as "the 2002 Act”;
(f) the Immigration, Asylum and Nationality Act 2006 as “the 2006 Act”; and
(g) the Housing Benefit Regulations 2006 as “the Regulations”.
Where I refer to a numbered regulation without giving further context, the reference is
to the provision of the Regulations with that number.
The facts of the case
6. The First-tier Tribunal decided that the facts of the case were as follows:
“(a) [The claimant] is a Nigerian national.
(b) He had discretionary leave to remain in the UK which expired on 13
August 2015.
(c) Before his discretionary leave expired he applied for an extension to
his leave on Human Rights grounds on 7 August 2015. He remained
in the UK pending a decision on his extension application, as was his
right.
(d) The Secretary of State for the Home Department rejected his human
rights application on 9 November 2015. She wrote to him to inform
him of the decision.
(e) On 26 November 2015 [the claimant] appealed against that Home
Office decision. Once his appeal was lodged he continued to have
leave to remain in the UK pending a decision on his appeal.
(f) The leave he had for that period pending appeal was automatic
under section 3C or 3D of the Immigration Act 1971. After 26
November 2015 the only basis on which he had leave to remain in
the UK was one or other of those sections.
(g) He applied for Housing Benefit on 22 April 2016, and it was awarded
and put in payment. When he applied, he told the local authority
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