DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner's Case No:  CJSA/4143/2001

1.	The Secretary of State's appeal is allowed. The decision of the Whittington House appeal tribunal dated 13 March 2001 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute the decision on the claimant's appeal against the decision given on 18 May 2000 (Social Security Act 1998, section 14(8)(a)(i)). My decision is that the claimant is entitled to income-based jobseeker's allowance for the period from 3 December 1999 to 6 February 2000, benefit already having been awarded from 7 February 2000 in a separate decision.

2.	The first issue before the appeal tribunal was whether the time for claiming income-based jobseeker's allowance (JSA) for the period from 3 December 1999 should be extended to 7 February 2000. The claim had been accepted as made and benefit awarded from 7 February 2000. The appeal tribunal decided that, because of what happened when the claimant and his wife went to the Benefits Agency in November 1999 to claim whatever was the appropriate benefit, the conditions for the extension of time were met. In the subsequent appeal to the Commissioner, the Secretary of State challenged that conclusion. However, in the further submission dated 5 March 2002 the representative of the Secretary of State has accepted that the appeal tribunal did not err in law in this respect. I agree and need say no more about this issue.

3.	The second issue before the appeal tribunal was whether the claimant was entitled to income-based JSA for the period from 3 December 1999 to 6 February 2000. The potential obstacle to entitlement was that the claimant was a "person from abroad" and so, under regulation 85 of and paragraph 14 of Schedule 5 to the Jobseeker's Allowance Regulations 1996, entitled to an applicable amount of nil. The claimant was a citizen of Pakistan. He entered the United Kingdom on 9 September 1995 with entry clearance as a visitor and was granted six months' leave to enter on that basis. On 27 November 1995 a claim for asylum was made on his behalf. At that point the claimant came within paragraph (j) of the definition of "person from abroad" in regulation 85(4). as he had submitted a claim for asylum. But that definition only applies while the claim "is not finally determined". On 15 June 1999 a special adjudicator allowed the claimant's appeal against the Secretary of State's refusal of the asylum application. On 1 July 1999 the Immigration and Nationality Directorate of the Home Office (IND) wrote to the Immigration Appellate Authority to say it would not be proceeding with any application to take the case to a Tribunal. On 1 February 2000 the IND wrote to the claimant to say that he had been granted indefinite leave to remain in the United Kingdom as a refugee.

4.	The appeal tribunal took the view that the claimant did not cease to be within the definition of "person from abroad" until 4 February 2000, since the letter from the IND was not issued until 1 February 2000. However, the appeal tribunal relied on the very recently decided case of Yildiz v Secretary of State for Social Security [2001] EWCA Civ 309 (28 February 2001), now reported as part of R(IS) 9/01, to reach the conclusion that the claimant did not come within the definition of "person from abroad" in the first place. That was based on a misunderstanding of Yildiz. The appeal tribunal thought wrongly that its effect was that a person who had claimed asylum before 5 February 1996 was not caught by the rules on persons from abroad which came into force on that date. In fact, Yildiz decided that an asylum-seeker who was entitled to income support on that basis immediately before 5 February 1996 was not caught by the new rules and remained free of the new rules even if there was a break in entitlement to income support after 5 February 1996. Since the claimant in the present case had no entitlement to income support before 5 February 1996, Yildiz could not be of any assistance to him.

5.	The Secretary of State was granted leave to appeal on that ground by a chairman. I agree that the appeal tribunal erred in law in its misunderstanding of Yildiz. That requires its decision to be set aside.

6.	The Secretary of State's further submission of 5 March 2002 made a further point in favour of the claimant, picking up on a question I had raised in directions. It was submitted that the claimant's application for asylum was finally determined when the special adjudicators's decision was promulgated, rather than when the IND's letter of 1 February 2000 was sent. I agree in essence. Certainly once it had been indicated that there would be no appeal against the special adjudicator's decision, the asylum claim was finally determined. The result is that as at 3 December 1999 the claimant was not a person from abroad. The only obstacle to entitlement to income-based JSA was removed. I accept the submission on behalf of the Secretary of State that I should substitute a decision allowing the claim for income-based JSA from 3 December 1999.

7.	My decision to that effect is set out in paragraph 1 above. It is now for the Secretary of State to calculate the amount payable, although there should be no difficulty in the light of the award made from 7 February 2000. If there is any disagreement about the calculation of the amount payable, the appeal may be returned to me or another Commissioner for further decision.

	(Signed)   J Mesher    
	Commissioner

	Date:    19 April 2002