[2007] UKSSCSC CH_2060_2006 (28 June 2007)

PLH                                                                            Commissioner's File: CH 2060/06

	SOCIAL SECURITY ACTS 1992-2000
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Tribunal Case Ref:  	U/04/035/2005/01161
Tribunal date:	3 February 2006
Reasons issued:	6 April 2006
	
     1.     	This appeal by the claimant must be allowed.  In my judgment the Harrow appeal tribunal, consisting of the chairman Mr C J Jones sitting alone on 3 February 2006, made a clear error of law in confirming with modifications the decision of the local authority dated 19 April 2005 to remove retrospectively the claimant’s entitlement to housing and council tax benefits when at that date he still met the prescribed conditions for entitlement under the subsisting awards previously made to him.  I set that decision aside and in accordance with paragraph 8(5)(a) Schedule 7 Child Support Pensions and Social Security Act 2000 give the decision I am satisfied is the only one the tribunal could properly have given on the appeal before it, given that the circumstances it was permitted to take into account were restricted by paragraph 6(9)(b) of the same schedule to those obtaining on 19 April 2005 when the decision appealed against was made.  
     2.     	My substituted decision on that basis is that since the evidence and undisputed material before the tribunal showed the claimant had at all material times down to and including 19 April 2005 been a person with a subsisting award of income-based jobseekers allowance and in actual receipt of that benefit, he was by virtue of regulation 7A(5)(e) Housing Benefit (General) Regulations 1987 SI No. 1971 and regulation 4A Council Tax Benefit (General) Regulations 1992 SI No. 1814 not to be treated as a “person from abroad” under those regulations as in force at the material time, with the results that (a) his otherwise undisputed liability for rent on his dwelling qualified for housing benefit purposes in the normal way, and (b) he was not in the category of persons excluded from council tax benefit under section 131(3)(b) Social Security Contributions and Benefits Act 1992.  The consequence of that is that he remained entitled to both housing and council tax benefit at all material times during the periods in issue on the appeal: 28 June 2004 to 27 March 2005 inclusive for housing benefit, and 28 June 2004 to 24 April 2005 for council tax benefit.  Accordingly the decision of 19 April 2005 was not effective to take any of that entitlement away from him, nor was any of the benefit actually paid to him for those periods overpaid in excess of entitlement so as to be recoverable.  
     3.     	This claimant’s case has an unhappy history both factually and procedurally.  He is a man now aged 57, a Sikh from Afghanistan who has been living in this country with his family for a number of years now.   He used to have a business and property in Afghanistan, but was dispossessed of it by the Taliban.  An attempt at recovering it via a Muslim intermediary went bad, and after threats had been made against him he was forced to flee the country.  He arrived in the United Kingdom and claimed asylum in October 2002, being eventually found entitled to this protection under the Refugee Convention by the decision of the immigration judge on a second appeal on 15 May 2006 (pages 189 to 200).  
     4.     	The effect of that decision, in which was accepted that the claimant’s predicament was directly connected to the persecution of Sikhs in Afghanistan, and that he was likely to face serious ill-treatment or persecution without effective protection if he were to be returned to that State, is that he is entitled to be considered as having been a refugee within the protection of the Convention at all material times since his arrival in this country. However for benefit purposes the situation is unfortunately more complicated, as that decision was given only on a second asylum application, made only after his intial one had been rejected and the rejection confirmed on appeal in 2003-2004, for reasons which in accordance with the latest decision confirming his entitlement to asylum have now been superseded.  Yet a further complication is introduced by the fact that in 2003 the claimant was expressly informed, by a (still not satisfactorily explained) mistake on the part of the Home Office, that his asylum application had succeeded and he had been granted indefinite leave to remain in this country.
     5.     	The broad rule about benefits is that an asylum seeker present in this country while his claim has not yet been determined is entitled only to very limited emergency support for his accommodation and subsistence.  If his application is successful, and his refugee status is recognised with the grant of leave to remain, then he also qualifies for the normal social security benefits applicable to other residents of this country; in some cases with a retrospective top-up back to the date the successful application was made.  If his application is rejected, his right even to emergency assistance will normally cease once any appeal rights against the rejection are exhausted.  
     6.     	This claimant, whose application for asylum had been made the day after his arrival in the country in 2002, had been receiving emergency assistance from then until the letters from the Home Office falsely informing him that he had been granted indefinite leave to remain were issued in the summer of 2003 (see pages 122 to 124). Thereupon in accordance with the terms of those letters his emergency support ceased, and he was free to apply for normal social security benefits.  That he duly did, and was awarded income-based jobseeker’s allowance from 29 July 2003.  That award was confirmed by the benefits agency to the council on 16 October 2003 in response to a standard enquiry in connection with the claims for housing benefit and council tax benefit he had by then also made for the rented accommodation he was then occupying.  Based on the official confirmation that he was then currently in receipt of income support or income-based jobseeker’s allowance, the claimant was duly awarded housing benefit and council tax benefit for continuous periods from 20 October 2003, as evidenced by the two award letters dated 1 and 12 November 2003 before the tribunal at pages 9 to 13.  
     7.     	The reason those awards were duly made was that (there being no other dispute that he met the qualifying conditions for entitlement in respect of his accommodation) the fact of his being in receipt of a current award of income-based jobseeker’s allowance operated to save the claimant from the effects of regulations 7A and 4A cited above, which would otherwise have excluded him from housing and council tax benefits as a “person from abroad”.  Instead he was within the excepted category in each regulation as “a person to whom paragraph (5) applies”, that paragraph prescribing simply that: 
“(5) This paragraph applies to a person who ...
(e) is a person on an income-based jobseeker’s allowance ...”
The award and current payment of income-based jobseekers’ allowance to the claimant thus removed the only obstacle to his getting the two benefits in issue before the tribunal.   
     8.     	According to the evidence before the tribunal the claimant’s award of jobseeker’s allowance continued in place and that benefit continued to be paid to him at all material times down to 18 May 2005, on which date (and not before) that entitlement was ended by a determination on “review”.   His entitlement to housing benefit and council tax benefit (and the payment or allowance of those benefits to him) also continued at all material times down to 19 April 2005, when they were terminated by the decision of the local authority under appeal (pages 1H to 3), purportedly with effect from 27 June 2004, on the stated ground that “I have been advised that your request for asylum has been refused and your appeal rights against this refusal have been exhausted”; the authority not having been aware of these facts until 18 April 2005 and so having continued to pay housing benefit and council tax benefit in the meantime.  The decision letter further stated that the amounts of £11,640.72 for housing benefit and £1,005.66 for council tax benefit had in consequence been overpaid and were now legally recoverable from the claimant as neither payment had been caused by “official error”.  
     9.     	Again as shown by the evidence before the tribunal, what had happened in the meantime was that at some point the Home Office had woken up to its mistake, and the claimant’s original asylum claim had proceeded to determination and been rejected by a special adjudicator on 17 December 2003.  That decision had been upheld on appeal by the Immigration Appeal Tribunal on 10 March 2004, and a final attempt at applying to the High Court had been unsuccessful on 23 June 2004, so his appeal rights in respect of that first claim had at that time become exhausted.  However this information was not provided to the authority by the Home Office until (at the earliest) 13 April 2005, some nine and a half months later.  In the meantime however the claimant’s own solicitors had advised the authority, by a letter dated 29 March 2004, that some mistakes had been made about the claimant’s immigration status.  Then on 29 June 2004 the claimant had signed a review form for housing benefit saying (truthfully) that he was still receiving his income- based jobseeker’s allowance.  That information had been checked and confirmed as true in a direct telephone enquiry by the council to the benefits agency, which had responded on 1 September 2004 with the (entirely accurate) information that the claimant was indeed still in receipt of his income-based jobseeker’s allowance at that date.  Quite reasonably, the council then took no further steps to question whether the claimant still met the qualifying conditions for benefit until March and April the following year, when the information was received that his asylum application had been refused.
     10.     	To complete the history, following the termination of housing and council tax benefits on 19 April and jobseeker’s allowance a month later on 18 May 2005, the claimant’s solicitors wrote to the Home Office on 15 June 2005 protesting at the treatment the claimant had received and asking for his case to be looked at afresh.  This was acknowledged and accepted by the Home Office as a fresh asylum application, which as already indicated was successful.  His status as a refugee under the Convention was recognised by the reasoned decision of the immigration judge made on 15 May 2006 and promulgated on 24 May 2006.  If it had been made on his original application this would have entitled the claimant retrospectively to all relevant social security benefits from the day after his arrival in this country.  However because of the procedure adopted the asylum decision in his favour could only be effective for benefit purposes back to the date of the second application in June 2005.  
     11.     	In those circumstances, what ought to have been the decision of the appeal tribunal dealing with the claimant’s housing benefit and council tax benefit entitlement as at 19 April 2005, the date of the decision under appeal?  Limited as it was by the express prohibition in paragraph 6(9)(b) of Schedule 7 to the 2000 Act against taking account of any circumstances not obtaining at the time of that decision, it seems to me inevitable that the tribunal went wrong in taking account of the withdrawal of the claimant’s income- based jobseeker’s allowance.  That did not take place until the following month, well  after the date of that decision, on 18 May 2005: and even then according to the evidence the effect of the action then taken on the jobseeker’s allowance had been only to terminate entitlement from that date on, not to remove it retrospectively for any of the benefit periods with which the tribunal was concerned.  
     12.     	As regards the whole of those periods, it was and remained the case at the date of the decision under appeal to the tribunal that the claimant met the relevant qualifying condition to avoid exclusion from housing and council tax benefit, by being a person in receipt of income-based jobseeker’s allowance under a subsisting entitlement award and so within the express terms of regulations 7A(5) and 4A(5).  There is no question in this case of any fraud on his part such as might arguably entitle or require the council to go behind the fact of that award and payment.  Indeed it appears to be common ground that the claimant has throughout acted honestly and truthfully, and there is no question of him being personally to blame for the prolonged muddle that seems to have occurred.  In those circumstances the continuing existence and payment of his jobseeker’s allowance award throughout the relevant time is for practical purposes conclusive to validate his entitlement to housing benefit and council tax benefit as well.  
     13.     	In my judgment the tribunal chairman misdirected himself in holding that the benefit payments in question, entirely proper and correct as they were at the time they were actually made, had in some way been rendered incorrect by the discovery of what had happened about the first asylum application even though the actual qualifying condition (namely the award and payment of jobseeker’s allowance) was and remained satisfied at the date of the decision under appeal.  To focus, as the tribunal chairman did, on whether the assumed overpayments of housing and council tax benefit had been caused by “official error” so as to relieve the claimant from having to repay them was therefore incorrect and unnecessary: they were not overpayments at all.  So far as  “official error” in these regulations is concerned I would comment only that the council and the chairman were in my view clearly right in thinking that for this purpose the expression (regrettably) does not include blunders on the part of the Home Office such as the one that actually caused the whole difficulty here.  In view of my conclusion on the question of entitlement it is not necessary to express a view on whether it was right for the chairman to exclude recovery of the benefit from June to September 2004 (between the solicitor’s letter and the telephone confirmation from the benefits agency that jobseeker’s allowance was still in payment) on the ground of the council not pursuing enquiries during that time with more alacrity, though perhaps a natural sympathy for the claimant may have influenced his view of this as an “official error”.
     14.     	I therefore allow the claimant’s appeal, set aside the decision of the tribunal and substitute the decision I am satisfied it ought to have given in the terms set out above.  
     15.     	In doing so I desire to add, in deference to the conspicuously fair and objective submissions made to me on behalf of the council by its benefits officer, Mr S C Cullimore, that I do not think any real criticism can be made of the way the council has behaved in this matter.  Just as much as the claimant himself, it appears to have been the victim of a muddle unfortunately caused by someone in the Home Office for which neither party before the tribunal was responsible. The council has of course been concerned to comply with its legal obligations over the benefits it administers, so I hope it will assist if I say that the fair and just outcome will be for this matter now to rest on the basis of my decision, without needing to explore whether any further attempt at use of supersession or recovery powers as regards benefit periods now some time in the past would be justifiable or economic.  This is (I hope) a highly unusual situation which should never have arisen apart from the Home Office mistake, and the reality is that the claimant’s refugee status would have afforded him entitlement to benefits at all material times had matters originally proceeded as it now appears they should.
(Signed)
P L Howell
Commissioner
28 June 2007