CH 4248 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1. This appeal by the local authority succeeds. In accordance with the provisions of section 8(5) of schedule 7 to the Child Support Pensions and Social Security Act 2000 I set aside the decision made by the Portsmouth Tribunal on 11th October 2006 (reference 201/06/00079). I substitute my own decision. This is to the effect that the claimant is entitled to neither housing benefit nor council tax benefit in respect of his claim(s) made on or about 21st March 2006.

Background and Procedure

2. The claimant was born in Mexico on 29th June 2006. He was and is a citizen of Mexico (and not of the United Kingdom or any other EU or EEA member state). He was not and is not refugee or an asylum seeker. He had been admitted to the United Kingdom and given limited leave to remain on the condition that he have no recourse to public funds. For some time he received funds from Mexico but in August 2005 the receipt of funds was disrupted because of the effects of a hurricane in his home area in Mexico. The disruption lasted for less than 6 weeks. (The local authority seems not to accept that funds had in fact been received from Mexico, but for the purposes of my decision I can assume that they had been received).

3. On 31st March 2006 (several months after the resumption of the receipt of funds) the claimant applied to the local authority for housing benefit and council tax benefit with effect from 8th March 2006. On 12th April 2006 the local authority refused to award either of these benefits (on the basis of the claimant’s immigration status) and on 1st June 2006 the claimant appealed to the tribunal against the decision of the local authority. 
 
4. The tribunal considered the matter on 11th October 2006 and allowed the appeal, finding that the case came within an exception to the rule on which the local authority had relied. On 21st November 2006 the District Chairman of the tribunal granted the local authority leave to appeal to the Commissioner against the decision of the tribunal. On 20th December 2006 the Secretary of State requested to become a party to the appeal, which request was granted by the Legal Officer on 4th May 2007. I regret the delay at that stage of the proceedings and am not sure why it happened. The Secretary of State supports the appeal of the local authority; the claimant supports the decision of the tribunal.

The Law

5. In so far as is relevant, section 115 of the Immigration and Asylum Act 1999 provides that:

	115(1) No person is entitled to …. or to 
		…
		(j) housing benefit, or
		(k) council tax benefit

under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions as may be prescribed.

6. The claimant is clearly a person subject to immigration control and it seems to be agreed that it is not necessary to consider any category, description or condition except that to be found in the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 as follows: 

2(1) For the purposes of entitlement to … housing benefit and council tax benefit under the Social Security Contributions and Benefits Act 1992 … a person falling within a category or description of persons specified in Part I of the Schedule is a person to whom section 115 of the Act does not apply.

7. Paragraph 1 of Part I of the Schedule applies to 

	1 A person who

(a)	has limited leave … to enter or remain in the United Kingdom which was given in accordance with the immigration rules … relating to-

(i)	there being, or to there needing to be, no recourse to public funds, or
(ii)	there being no charge on public funds

during that limited leave; and

(b)	having during any one period of limited leave (including any such period as extended) supported himself without recourse to public funds, other than such recourse by reason of the previous application of this sub-paragraph, is temporarily without funds during that period of leave because remittances to him from abroad have been disrupted, provided that there is a reasonable expectation that his supply of funds will be resumed.

8. Regulation 10(4) of the Housing Benefit Regulations 2006 provides that:

10(4) Paragraph 1 of Part I of the Schedule to, and regulation 2 as it applies to that paragraph of, the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 shall not apply to a person who has been temporarily without funds for any period, or the aggregate of any periods exceeding 42 days during any period of limited leave (including any such period as extended).

9. There is an identically worded provision in regulation 7(5) of the Council Tax Benefit regulations 2006.

The Error

10. In paragraph 6 of the statement of reasons the chairman of the tribunal explained:

“No link between the provisions of paragraph 1 [of part 1 of the schedule to the 2000 regulations] and a claim to benefit was propounded by the [Secretary of State] and I was unable to trace one. All that required to be established was the agreed fact that [the claimant’s] funds from abroad had been disrupted for less that 42 days, and so his appeal was allowed ”.

11. I understand this to mean that the tribunal took the view that if there was a disruption of funds at any time during the period of leave, then there could be entitlement to benefit provide that the disruption(s) did not last longer than 42 days. 

12. I would require a great deal of persuasion that this is what the provision means. If the tribunal is correct, the disruption of funds could have taken place several years before the claim to benefit was made, and there would still be entitlement to benefit several years later. In fact, I understand the phrase “is temporarily without funds” (my underlining) to refer to the state of affairs at the date of the claim or the date of the award, otherwise the provision would have stated “has been temporarily without funds”.

12. Once it has been established that there is a relevant disruption, then if it has already exceeded 42 days before the claim is made, there can be no entitlement. If it has not exceeded 42 days, then there can be entitlement to benefit while the disruption continues, but only until the disruption has continued for 42 days, or entitlement has lasted for 42 days, whichever comes first.

13. It is possible that, if the claimant had applied for benefit at the time of the disruption of funds, there could have been entitlement. However, he made no such claim, nor did he ask for any award to be backdated to such time and, in fact, he was at the time of the disruption living at a different address from that that in respect of which he did make his claim.

Conclusion

14. For the above reasons this appeal by the local authority succeeds.

H. Levenson
Commissioner
19th November 2007