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[2005] UKSSCSC CIS_1697_2004 (01 July 2005)

 


CIS/1697/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The Commissioner's decision in summary

1. I allow this appeal, but this is of no comfort to the claimant as my final decision is to the same effect as that of the tribunal. I have concluded that the appeal tribunal's decision of 3 February 2004 is wrong in law. I must set it aside by virtue of Social Security Act 1998, section 14(8). I consider it expedient to make findings of fact myself and give the appropriate decision in accordance with section 14(8)(a)(ii), as set out in paragraph 44 below. The decision that the tribunal should have made is as follows:

"This appeal is dismissed. The claimant is not entitled to income support because she is a "person subject to immigration control", in that she was given indefinite leave to remain in the United Kingdom on the basis of a maintenance undertaking from her son."

2. The end result of my decision is the same as the decision of the Secretary of State of 21 July 2003, although phrased slightly differently.

The background to the appeal

3. The essential chronology of this case is not in dispute. The claimant, Mrs K, who was born in Bangladesh in 1958, arrived in the United Kingdom to join her husband on 8 September 2001, accompanied by her daughter (born in 1989, also in Bangladesh, and aged 12 at date of entry). Sadly, some six weeks or so later her husband passed away. A year or so later, on 18 October 2002, her son, Mr M, wrote to the Home Office in connection with an application for indefinite leave to remain in the United Kingdom by Mrs K and her daughter (doc 141). On 29 March 2003 the Home Office wrote to Mrs K and her daughter advising them that they had both been granted indefinite leave to remain (docs 57-60). (The notes in their passports (docs 53 and 56) indicate that such leave was granted on 20 March 2003, but nothing turns on the difference between these dates.) A few days later, the claimant completed an A1 claim form for income support on behalf of herself and her daughter (docs 6-50). As this was completed and returned promptly, the claim was effective as from 2 April 2003.
4. A decision maker acting on behalf of the Secretary of State apparently made a decision on 21 July 2003 that the claimant was not entitled to income support as she was to be treated as a "person from abroad", because she had been granted indefinite leave to remain on the basis of a maintenance undertaking given by her son. I use the term "apparently" as the case papers contain no copy of this decision, or indeed a copy of any letter communicating that decision. Be that as it may, there is no argument that this was indeed the decision taken on behalf of the Secretary of State, as may be gleaned from the local office's limited submission to the appeal tribunal on Form AT2 (docs 1A-5).
5. Mrs K lodged an appeal against this decision to disallow her claim for income support (doc 64), arguing that she had been sponsored by her son and her late husband and so she thought she had a right to income support. The matter was reconsidered by a decision maker but the original decision left unchanged, as it was felt there were no grounds for revision (docs 68-69). The matter then came before an appeal tribunal at Coventry on 3 February 2004. Mrs K and Mr M both attended, as did an interpreter. The Secretary of State was not represented. There is only a short note of evidence in the Record of Proceedings (doc 73). The tribunal's decision, as issued on the day, was to confirm the Secretary of State's decision and disallow the appeal (doc 71). At this point the local law centre seems to have become involved, and they applied for a Statement of Reasons. This was duly prepared by the tribunal chairman (doc 74A).

The appeal to the Commissioner

6. The law centre then applied for leave to appeal (docs 75-76) on the short point that the tribunal had erred in accepting doc 62 (part of Form SET(F) and headed "Sponsorship Undertaking") as a maintenance undertaking, given that doc 62 made no reference to Mrs K at all – instead, Mr M's name and personal details appear in both the boxes under the sub-headings "Sponsored Person's details" and "Sponsor's Undertaking". This appears to be the first point at which this mistake had been spotted (I should add that it has since helpfully been acknowledged, on behalf of the claimant and her son, that the form was unintentionally incorrectly completed: see doc 133; there is absolutely no question here of bad faith or sharp practice). Leave to appeal was initially refused by a tribunal chairman (doc 77).
7. The application for leave was then renewed before the Commissioner. Mr Commissioner Henty issued a direction (doc 79) requesting a submission from the Secretary of State as to the status of the defective undertaking on doc 62 which, as he noted, had also not been certified by the Secretary of State (at doc 63) at the Home Office. This prompted a submission from the representative of the Secretary of State (for Work and Pensions) to the effect that there was no valid sponsorship undertaking and so the tribunal had erred in law (doc 80). Mr Commissioner Henty granted leave to appeal (doc 81), but in a subsequent direction (doc 83) raised the possibility that the defective undertaking might be subject to rectification. At this point the representative of the Secretary of State (for Work and Pensions) had second thoughts and resiled from the earlier official submissions supporting the appeal (docs 80 and 82); instead it was argued that the defective undertaking could indeed be rectified. This submission cited as authorities in this regard Lovell and Christmas Limited v Wall [1911] 104 LT 85 and Shipley UDC v Bradford Corporation [1936] 1 Ch 375. The submission also cited the more recent Court of Appeal decision in Begum v Social Security Commissioner [2003] EWHC 3380.
8. Mrs K's representative at the law centre then put in detailed observations why, in his submission, rectification was not an appropriate way forward on the facts of this case (docs 133-137). Mr Commissioner Henty issued a further direction (doc 138), requesting the Secretary of State to make certain inquiries of the Home Office. This prompted the Home Office to send a copy of the letter sent to them by Mrs K's son, Mr M, dated 18 October 2002, in connection with her application for indefinite leave to remain (doc 141). I will call this document "the covering letter". It starts by referring to his mother's and sister's enclosed application for indefinite leave to remain as family members. In the second paragraph of that letter, Mr M wrote:

"Since the death of my father…. I have become the sole bread winner of my family and will continue to provide the same financial support to my family upon your grant of their indefinite leave to remain in the UK."

9. The son's letter concludes by itemising the various supporting documents enclosed, including Application Form SET(F), the parties' passports, his wage slips, etc. The copy of the covering letter produced following the Commissioner's direction was accompanied by an explanatory letter from the Home Office (doc 140). I pause to make the obvious point that neither doc 140 or 141 was before the appeal tribunal which heard this appeal at first instance.
10. Mr Commissioner Henty then considered the papers further and determined the appeal in the absence of an oral hearing. He subsequently set aside his decision in the exercise of his powers under regulation 31 of the Social Security Commissioners (Procedure) Regulations 1999 (SI 1999/1495), for reasons which need not concern me (docs 151-152). Mr Commissioner Jacobs later issued a further direction that the appeal be listed for an oral hearing in front of myself. That oral hearing was held on 2 June 2005. Mrs K was represented by Mr S. Woodman, from the law centre. Mr L. Scoon from the DWP Solicitor's Office appeared on behalf of the Secretary of State. I am grateful to both representatives for their helpful submissions. For the avoidance of doubt, I should also reaffirm, as mentioned at the oral hearing, that I have not seen the now set aside decision of Mr Commissioner Henty nor indeed discussed the matter with the learned Commissioner.

The arguments on appeal

11. The central question in this appeal is whether Mrs K was "caught" by the terms of section 115 of the Immigration and Asylum Act 1999 and so excluded from entitlement to income support. This apparently straightforward question actually raises a number of distinct subsidiary issues which I explore in more detail below. One of those subsidiary issues is whether or not she was the subject of a maintenance undertaking. The tribunal, affirming the Secretary of State's initial decision, clearly decided that she was the subject of such an undertaking.
12. At the oral hearing, both representatives contended that the appeal tribunal's decision was erroneous in point of law. Mr Woodman's principal argument was that the tribunal was wrong to rely on the "undertaking" at doc 62 as, on closer inspection, it was nothing of the sort – on the face of it, it appeared that Mr M had undertaken to support himself, as his details (name, address, date of birth etc) were inserted in both places. According to Mr Woodman, doc 62 was therefore wholly worthless and was not capable of rectification. Mr Scoon agreed to the extent that, in his submission, the tribunal had erred in law by not addressing the defect in the form at doc 62. I agree that the tribunal erred in law in this respect at least. I also take the view that the tribunal's Statement of Reasons discloses at least two further errors of law. First, it seems that the tribunal misunderstood the precise legal framework governing such cases, which was hardly surprising given the inadequacy of the Secretary of State's submission on From AT2 before the tribunal. Secondly, it appears to me that the tribunal also misunderstood the burden of proof in such cases. I elaborate on both these points below.

The Commissioner's conclusions

13. For all these various reasons I find the tribunal's decision erroneous in point of law. I must therefore set aside the decision of the Coventry appeal tribunal of 3 February 2004 which dismissed Mrs K's appeal (Social Security Act 1998, section 14(8)). The question then is whether I should refer the case back with directions to a new tribunal for rehearing or whether I should decide the matter myself (with or without further findings of fact, as required). I expressly invited submissions at the oral hearing on this point.
14. Mr Woodman submitted that there was probably sufficient evidence for me to determine the appeal, not least as there was evidence before me that was not before the tribunal. Given the time that had elapsed, he was not sure that it would be helpful to remit the matter for rehearing. He did, however, rightly point out that the tribunal might be able to initiate further enquiries and to that extent made an open submission. Mr Scoon submitted that there was no need for further fact finding at the level of an appeal tribunal and the matter could be properly determined by the Commissioner. In my view there is nothing to be gained by sending this matter back for rehearing. Having set aside the tribunal's decision, I find it expedient to make my own further findings of fact and then to give the appropriate decision in the light of those findings (see paragraph 44 below).

Section 115 of the Immigration and Asylum Act 1999

15. The starting point in this case must be section 115 of the Immigration and Asylum Act 1999, which is headed "Exclusion from benefits". Section 115(1) declares that any person to whom the section applies is "not entitled to" a range of benefits, including income support (section 115(1)(e)). Section 115(3) then declares that the 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". The concept of "a person subject to immigration control" is defined by section 115(9) in the following terms:

"a person who is not a national of an EEA State and who-

(a) requires leave to enter or remain in the United Kingdom but does not have it;

(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or

(d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4."

16. I interpose here that Mrs K, as a Bangladeshi national, is self-evidently not a national of an EEA State. The Secretary of State's case, moreover, is that she had been given leave to "remain in the United Kingdom given as a result of a maintenance undertaking" within section 115(9)(c). In this context it is important to note the definition provided by section 115(10):

"'Maintenance undertaking', in relation to any person, means a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person's maintenance and accommodation."

17. At this juncture it is relevant to note that section 115 does not use the expression "a person from abroad", a term of some vintage in the social security lexicon and which is deployed in regulation 21 of the Income Support (General) Regulations 1987 (SI 1987/1967). As the authors of Volume II of the annotated Social Security Legislation 2004 observe, at paragraph 2.148 of their commentary, the present framework of the law operates as follows. First, any "person subject to immigration control" is excluded form entitlement to a range of benefits (including income support). Secondly, there are certain exceptions to this general rule, set out in the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (SI 2000/636). Thirdly, and finally, a claimant who is not caught by the 1999 Act may still be regarded as a "person from abroad", with the effect that his or her applicable amount for income support purposes is nil (see Income Support (General) Regulations 1987 (SI 1987/1967), Schedule 7, paragraph 17).
18. It follows from this analysis that if a person is not entitled to income support by virtue of section 115 of the 1999 Act, the rule in the 1987 Regulations deeming "a person from abroad" to have a nil applicable amount is irrelevant. The submission by the local office to the tribunal failed to appreciate this distinction, and that confusion also appears in the tribunal's full statement. To that extent this is a technical error of law in the tribunal's decision. This misunderstanding of the statutory framework leads to a further problem with the tribunal's decision in terms of the burden of proof. It is well established that the social security jurisdiction is inquisitorial in nature, and so it may not be necessary to resort to deciding points according to the burden of proof (per Baroness Hale of Richmond in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372, at paragraph 63).
19. That said, as a general rule it is for a person alleging an affirmative to make good his allegation, and a person who seeks to take advantage of an exception to bring himself within the terms of that exception (per Lord Hope, also in Kerr, at paragraph 16). Translated into the realm of social security, the point was expressed well by Mr Scoon at the oral hearing in these terms: namely, subject to the inquisitorial nature of the proceedings, it is for the claimant to establish the conditions of entitlement but it is for the Secretary of State to show that the person falls within the scope of an exclusion from entitlement.
20. It appears from the Statement of Reasons that the tribunal assumed that it was for Mrs K to establish both that she was entitled to benefit and moreover that she did not fall within the exclusionary category of being "a person subject to immigration control". In my view it was for the Secretary of State to show that Mrs K was "a person subject to immigration control", not for her to demonstrate that she fell outside that category. This was a further error of law by the tribunal.
21. Thus I return to the fundamental question in this appeal, which is whether Mrs K is "a person subject to immigration control". If the Secretary of State can show that she is, and she cannot claim the advantage of any of the exceptions in the 2000 Regulations, she is excluded from income support. If she does not have that status, and is also not caught by the "person from abroad" provisions, then she is entitled to income support in the normal way.

Was there a valid maintenance undertaking?

22. This fundamental question can only be answered by asking a further question, namely is Mrs K, as the Secretary of State contends, a person who has been given leave to "remain in the United Kingdom … as a result of a maintenance undertaking" within section 115(9)(c) and (10). Mr Woodman's argument, in essence, is that the defective "undertaking" at doc 62 is of no effect and cannot be rescued in any way, either by rectification or by being read together with Mr M's letter at doc 142. The Secretary of State's principal argument that is that the defective "undertaking" at doc 62 can be rectified by the substitution of the name and relevant other details of Mrs K in place of the duplicated reference to Mr M in the appropriate box under "Sponsored Person's details".
23. Mr Woodman, on behalf of Mrs K, argued forcefully that rectification is inappropriate. In his helpful skeleton argument, he advanced two reasons for this submission. First, the appeal tribunal and Commissioners are creatures of statute and so have no power to grant equitable remedies. As he put it, the Commissioners "are permitted by statute to perform specific functions, not to act as a Court of Equity". Secondly, he argued, rectification is only appropriate where there is a preceding concluded contract between the parties.
24. Mr Scoon, on behalf of the Secretary of State, made the following points in response. As to the first matter, he submitted that the Commissioners may apply the principles of common law and equity when construing documents, and to hold otherwise would be to impose an unnecessary fetter on the Commissioners' role. He noted that in past cases Commissioners have had recourse to the principles governing constructive trusts to determine property rights. As to the second point, he drew attention to the case law cited in the earlier submission on behalf of the Secretary of State, and also to Joscelyne v Nissen [1970] 2 QB 86, in which the Court of Appeal held that it was not necessary to find a concluded contract antecedent to the agreement in respect of which rectification was sought. Rather, the court had jurisdiction to rectify an agreement if there was a common continuing intention in regard to a specific provision of the agreement.

The Commissioner's conclusions on the rectification argument

25. On this question of rectification I agree with Mr Woodman's first submission. In this context I note that, according to the Supreme Court Act 1981, and in so far as the distribution of business in the High Court is concerned, "all causes and matters relating to – …the rectification, setting aside or cancellation of deeds or other instruments in writing" are assigned to the Chancery Division (Schedule 1, paragraph 1(g)). I also observe that the county courts enjoy a jurisdiction to deal with proceedings for the rectification of agreements for sale, purchase or lease of certain property (County Courts Act 1984, section 23).
26. Mr Scoon could provide no statutory or case law authority for the proposition that the Commissioners enjoy the power to grant equitable remedies. True, there have been cases in which the Commissioners (and indeed tribunals at first instance) have to apply equitable doctrines (e.g. as regards the application of constructive trusts) in order to determine whether or not a claimant owns particular property (which may be relevant, in the context of means-tested benefits, to whether he or she has capital over the prescribed limit). But it does not follow, as Mr Scoon sought to argue, that equitable remedies could likewise be invoked by Commissioners in determining a person's entitlement (or not) to benefit.
27. By analogy, it is well established that the Commissioners have no powers to award costs, whether such a power be statutory, implied or inherent – see the detailed analysis by Mr Commissioner Goodman in his supplementary decision to R(FC) 2/90. There is no hint in the Social Security Commissioners (Procedure) Regulations 1999 that the Commissioners have the power to invoke equitable remedies such as rectification. The closest that we get is in regulation 5, which is headed "General powers of a Commissioner". After dealing with various procedural powers, this declares that "Nothing in these Regulations shall affect any power which is exercisable apart from these Regulations" (regulation 5(6)). This provision appears to be the successor to regulation 27(5) of the Social Security Commissioners Procedure Regulations 1987 (SI 1987/214), which was discussed by Mr Commissioner Goodman in his supplementary decision to R(FC) 2/90. Just as I am satisfied that the Commissioners have no statutory, implied or inherent power to award costs, so I am equally satisfied that they have no power to order the formal rectification of documents. Indeed, if the Commissioners have the jurisdiction to order rectification, it would surely follow that they have jurisdiction to grant other equitable remedies, such as orders for specific performance and injunctions. Despite Mr Scoon's best endeavours, I am not prepared to accept such a novel and startling proposition.
28. I do not therefore need to deal at any length with Mr Woodman's second submission on this point. It is clearly right, as Mr Scoon argued, that the courts have held that rectification does not presuppose an actual concluded contract antecedent to the agreement in respect of which rectification is sought. However, the case law demonstrates that there must be an agreement between the parties and a common continuing intention with regard to the specific provision in question. Putting to one side the precise nature of the "undertaking" which Mr M may or may not have made, I am not convinced that this was part of a type of document which might be subject to rectification. In this context I note that the typical range of documents which may be subject to rectification include commercial contracts, conveyances, deeds, voluntary (marriage) settlements and wills (J McGee QC (General Editor), Snell's Equity (31^st edition, 2005) pp.333-334). These documents are all a long way removed from an "undertaking" on the back of a Home Office application form, completion of which is, in any event, not a necessary and prescribed precondition for the grant of indefinite leave to remain.

Another route to finding a maintenance undertaking

29. If rectification is not available, is there another way in which the Secretary of State may demonstrate that Mrs K falls within section 115? As Mr Commissioner Jacobs indicated in his directions for the oral hearing, one further possible argument is that the defective sponsorship undertaking at doc 62 might be read together with the covering letter at doc 141. As an alternative to his principal argument based on rectification, Mr Scoon submitted that it was indeed permissible to read the two documents together. Mr Woodman, on the other hand, contended that this was not possible. In his submission, there was no undertaking contained within Mr M's covering letter – there was no mention of accommodation, as distinct from maintenance, and the language was too nebulous to constitute an enforceable undertaking. Furthermore, he argued, a statement as to a person's current financial position cannot amount to an undertaking.
30. At this point it is important to return to the statutory framework set out in section 115 of the 1999 Act and the definition of "maintenance undertaking" in section 115(10). In particular, did Mr M enter into "a written undertaking given … in pursuance of the immigration rules to be responsible for [Mrs K's] maintenance and accommodation"? It is not in dispute that the covering letter and the defective undertaking are both in writing. It is therefore helpful to analyse this question by posing three subsidiary questions: (1) was there an "undertaking"?; (2) if so, was that undertaking by Mr M to the effect that he agreed to "be responsible for [Mrs K's] maintenance and accommodation?"; (3) if so, was that undertaking given "in pursuance of the immigration rules"?
31. The concept of an "undertaking" in this context is the subject of a growing body of case law, from which the following four principles may be extracted. First, the fact that the appropriate official form in use at the time is not actually used is not necessarily fatal to a finding that there has been an undertaking (Begum, CIS/2474/1999 and CIS/2816/2002). Secondly, the statement in question must be "sufficiently formal and definite to constitute an undertaking" (Begum, paragraph 31). In Begum itself there was a formal declaration, drawn up by solicitors and witnessed, that included an express undertaking that the claimant would be maintained and accommodated without recourse to public funds. Thirdly, and as shown by the recent Court of Appeal decision in Ahmed v Secretary of State for Work and Pensions [2005] EWCA Civ 535, an undertaking entails "something in the nature of a promise or agreement, prima facie contractual in form, albeit this arises in a public law context, which obliges a sponsor to maintain and accommodate the dependent relative" (per Rix LJ, paragraph 28). Finally, ultimately it is a question of fact whether a document amounts to an undertaking for the purposes of the relevant legislation (Begum v Social Security Commissioner, paragraph 31, per Sir Christopher Bellamy, approving CIS/2474/1999, CIS/47/2002 and CIS/2816/2002 in this regard).
32. In Ahmed itself the alleged sponsor had made a statutory declaration in support of his uncle's application for settlement in the United Kingdom. In the course of this declaration, he declared "I am able and willing to maintain and accommodate the applicant without recourse to public funds and in suitable accommodation". The uncle's subsequent claim for income support was refused on the basis that he had gained entry on the basis of a maintenance undertaking given by his nephew. The tribunal allowed the claimant's appeal, holding that the nephew's statement did not constitute a maintenance undertaking within the meaning of section 115(10). This decision was upheld by Mr Commissioner Turnbull (CIS/426/2003), and the Secretary of State's appeal from that decision was in turn dismissed by the Court of Appeal.
33. According to Rix LJ in Ahmed, the nephew's declaration that he was "able and willing to maintain and accommodate" his uncle was "language which has reference, essentially, to current ability and intention and does not amount to a promise for the future. The essence of an undertaking is a promise as to the future, as typically found in the language 'I will'" (paragraph 47). Rix LJ went on to add that the use of words such as "undertake", "promise" or "agree" were not in themselves essential "if it is still clear that the substance of what is said is a promise for the future" (paragraph 48). May LJ agreed that the nephew's declaration was 'not clearly a promise for the future but a statement of present fact" (paragraph 61). Jacob LJ added that it was unclear whether the nephew was making the declaration in order to obtain entry for his uncle, or whether he was also making it so as to impose an enforceable obligation (paragraph 54).

The application of the law governing 'maintenance undertakings' to this case

34. I must apply these principles to the documentation in this case. I repeat Mr M's statement in his covering letter:

"Since the death of my father…. I have become the sole bread winner of my family and will continue to provide the same financial support to my family upon your grant of their indefinite leave to remain in the UK."

35. It is clear from the opening paragraph and the context of the covering letter that the reference to "my family" is a reference to the claimant and her daughter, namely Mr M's mother and sister. The statement that Mr M has "become the sole bread winner of my family" is clearly no more than a statement of current fact and cannot amount to an undertaking. However, in my view the statement by Mr M that follows, namely to the effect that he "will continue to provide the same financial support to my family upon your grant of their indefinite leave to remain in the UK" is rather different in nature. It is a statement as to future intent, not present fact, and embodies the contingent reciprocity which is characteristic of an agreement or promise. Mr M states that he "will continue to provide" that same support "upon your grant", i e as a quid pro quo for the Home Office granting his family indefinite leave to remain. An extravagant parent who says to his or her child "I will buy you a car upon your passing all your A level examinations" is, on any sensible construction of those words, clearly making a promise or giving an undertaking. Whether it is an enforceable promise or undertaking in contractual terms, given that there may be some uncertainty as to the parties' intention to create legal relations, is a separate issue.
36. Mr Woodman marshalled a number of arguments against this line of reasoning. First, he pointed out that there was no mention of accommodation in the covering letter, just nebulous references to Mr M being the "sole breadwinner" for his family and continuing the "same financial support". Secondly, the covering letter makes no reference to any sanctions for non-compliance. Thirdly, the promise, if that is what it is, is not limited in time in any respect.
37. If the only evidence of an alleged undertaking in this appeal was the covering letter at doc 141, then I would agree that the matter would be finely balanced, and there would be some force in the contention that the statement in the covering letter was possibly too imprecise to constitute an enforceable undertaking. However, I do not accept Mr Woodman's further argument that the defective undertaking at doc 62 is necessarily worthless because Mr M had inadvertently entered his own details in both boxes. In my view the covering letter must be read in context. The covering letter was accompanied by Form SET(F) along with various other documentation, itemised in the covering letter, to support the application for indefinite leave to remain. This documentation must be taken as a package, constituting the application for indefinite leave to remain and associated paperwork.
38. At this point it should be noted that docs 62-63, placed before the appeal tribunal, were pages 9 and 10 of the then 11-page SET(F) (version dated 11/2002). The other pages from Form SET(F) were not in the bundle of evidence. Mr Scoon produced a more recent version of Form SET(F) (dated 08/2003) which runs to a total of 17 pages. However, page 11 comprises a document checklist and pages 12-17 are detailed guidance notes for completing the form. I am satisfied on the balance of probabilities that in all likelihood the first 11 pages of Form SET(F) are essentially the same in both versions. The pages not before the tribunal require detailed information on the applicant's personal details (section 2) as well as those relating to the sponsor (section 5). The latter section requires detailed information about the sponsor's financial position. Furthermore, section 7 (documentary evidence) specifies the evidence required to support the application, including evidence that the applicant will be maintained and accommodated without recourse to public funds, and states that this supporting evidence should cover at least the last 3 months. Thus, at doc 141, Mr M's covering letter refers to the inclusion of 3 months' pay slips.
39. In my view the fallacy in Mr Woodman's argument has been his focus on doc 62 as the sole source of the alleged maintenance undertaking. The form is certainly headed "Sponsorship undertaking" and includes reference in the main body of the text to the possibility of civil or criminal proceedings being taken in the event of breach. But it is also important to note that it states in bold at the top of the page that "It is not compulsory to complete this undertaking. But if it is completed, it will help us with the application". In Ahmed Rix LJ (at paragraph 45) emphasised the need to consider the substance and not the form of the alleged undertaking – and the fact remains that here there was a covering letter, as described above, with a completed Form SET(F) (albeit with an obvious error on page 9 of that form (doc 62)), along with other supporting documentation.
40. The Court of Appeal's decision in Begum also confirms that the fact that the appropriate official form in use at the time is not used does not preclude a finding of a maintenance undertaking. It would therefore be strange if the fact that Form SET(F) was submitted, but was incorrectly completed, could of itself rule out any finding that there had been a maintenance undertaking. This again points to the importance of examining the substance rather than form of the transaction. Although the covering letter is clearly not as formal a document as a witnessed statutory declaration, it is in writing and, for the reasons given above, is sufficiently formal and definite to constitute a maintenance undertaking, when read together with Form SET(F). I conclude, therefore, that Mr M entered into a written maintenance undertaking to maintain and accommodate Mrs K without recourse to public funds.
41. It remains to be determined whether that undertaking was given "in pursuance of the immigration rules". Mr Woodman argued that there was no evidence that indefinite leave to remain was given in reliance on the covering letter and Form SET(F). I do not accept this argument. The requirements for the granting of indefinite leave to remain are set out in rule 317 of the Immigration Rules (see paragraph 2 of the judgment of Rix LJ in Ahmed). These include the requirement that the applicant will be maintained and accommodated without recourse to public funds (rule 317(iv) and (iva)). The Immigration Rules also specify that indefinite leave is to be refused if the Secretary of State is not satisfied that each of these requirements is met (rule 319). Rule 35 then states that a sponsor "may be asked" to provide an undertaking. As Rix LJ noted, "it is essentially a matter for the Secretary of State to decide how and by what evidence he is to be satisfied of those requirements" (Ahmed, paragraph 15).
42. So far as the granting of indefinite leave to remain is concerned, there are really only two possibilities. First, the official acting on behalf of the Secretary of State noted the inconsistency on doc 62 but formed the view that the documentation taken together amounted to a satisfactory maintenance undertaking for the purposes of granting leave. Secondly, and alternatively, the point was overlooked (just as it was later by the tribunal at first instance), and the view was taken that there was a proper maintenance undertaking. But the real question is not what was in the mind of the Home Office official. The question is whether the undertaking was given by Mr M "in pursuance of the immigration rules". This cannot mean "in pursuance of a requirement in the immigration rules", as rule 35 clearly vests the Secretary of State with a discretion as to whether or not to require a maintenance undertaking. I conclude that "in pursuance of the immigration rules" means more generally "under the immigration rules" or "further to the immigration rules". It is evident from Mr M's letter that he was making a promise in furtherance of his mother's application for indefinite leave to remain. That undertaking was made "in pursuance of the immigration rules".

Conclusion: the Commissioner's decision

43. There is no suggestion in this case that Mrs K can claim the advantage of any of the special exemptions set out in the 2000 Regulations. In particular, it is clear that her claim for income support was made within five years of the maintenance undertaking having been made.
44. My decision is thus as follows. The appeal tribunal's decision of 3 February 2004 is wrong in law. I must set it aside by virtue of Social Security Act 1998, section 14(8). I consider it expedient to make findings of fact myself and give the appropriate decision in accordance with section 14(8)(a)(ii). My finding of fact is that Mr M's covering letter (doc 141), taken together with Form SET(F), constituted a maintenance undertaking within the meaning of section 115 of the Immigration and Asylum Act 1999. My decision is to the same effect as that of the appeal tribunal and the Secretary of State at first instance, although expressed slightly differently in view of the legal framework discussed above. The decision that the tribunal should have made is as follows:

"This appeal is dismissed. The claimant is not entitled to income support because she is a "person subject to immigration control", in that she was given indefinite leave to remain in the United Kingdom on the basis of a maintenance undertaking from her son."

(signed on the original) N J Wikeley

Deputy Commissioner

1 July 2005