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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIS_352_2008 (24 June 2008) URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIS_352_2008.html Cite as: [2008] UKSSCSC CIS_352_2008 |
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[2008] UKSSCSC CIS_352_2008 (24 June 2008)
I SET ASIDE the decision of the Bexleyheath appeal tribunal, held on 28 August 2007 under reference 168/07/00819, because it is erroneous in point of law.
I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.
My DECISION is the claimant is not entitled to income support on her claim that was made on 11 or 16 November 2006 and refused on 1 February 2007.
History and background
Income support legislation
'(1) A person in Great Britain is entitled to income support if-
…
(b) he has no income or his income does not exceed the applicable amount.'
'(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.
(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.'
The appeal tribunal's decision
'Transitional arrangements and savings
6.-(1) Paragraph (2) shall apply where a person-
(a) is entitled to a specified benefit in respect of a period which includes 30th April 2004;
(b) claims a specified benefit on or after 1st May 2004 and it is subsequently determined that he is entitled to that benefit in respect of a period which includes 30th April 2004;
(c) claims a specified benefit on or after 1st May 2004 and it is subsequently determined that he is entitled to such a benefit in respect of a period which is continuous with a period of entitlement to the same or another specified benefit which includes 30th April 2004;
(d) claims jobseeker's allowance on or after 1st May 2004 and it is subsequently determined that he is entitled to jobseeker's allowance in respect of a period of entitlement to that benefit which is linked to a previous period of entitlement which includes 30th April 2004 by virtue of regulations made under paragraph 3 of Schedule 1 to the Jobseekers Act 1995.'
Income support is a specified benefit.
'I interpret the reference to "entitled to such a benefit in respect of a period which is continuous with a period of entitlement to the same or another specified benefit" in regulation 6(1)(c) as including continuity with a period in which another member of the claimant's family was entitled to a specified benefit in respect of her. In other words, the "period of entitlement" referred to does not have to be a period during which the claimant was entitled to the specified benefit. It is sufficient that it is a period during which someone was entitled to a specified benefit for the claimant. This does not appear to be disputed by the Secretary of State: paragraph 2 of the Secretary of State's further submission dated 13 July 2007 only makes sense on that basis.'
'The DM [decision-maker] can confirm that the award for [the claimant] on her partner's Income Support claim ended on 24/10/2006. [The claimant] did not make a claim in her own right until 16/11/2006. As there is a gap from when she was on her partner's claim until when she made a claim in her own right transitional provisions do not apply.'
Analysis
'I submit that there is nothing in the wording of the regulation which justifies such an interpretation. In context the "entitlement" referred to must be that of the person who is entitled following a claim made on or after 1 May 2004. If the draftsperson had intended the entitlement of any other person to be encompassed this would have been specified in the wording of the regulation. The tribunal has effectively read in such words without providing any clear justification for doing so.'
'3. The claimant is Dutch. I do not know when he first came to the United Kingdom or when he first claimed income support. However, I do know that for some years he received income support for himself and his family, on the basis that he was incapable of work, until 16 September 2004, when he left the United Kingdom to attend his father's funeral in Djibouti. He expected to return after a month, but he was delayed by a heart attack and only came back to the United Kingdom in December 2004 of January 2005. In his absence, his wife claimed and received housing benefit. Whatever the precise date, he claimed income support on 4 January 2005, but this was refused on the ground that he did not have a right to reside. The tribunal confirmed that decision. The claimant has also taken over from his wife as the claimant for housing benefit.'
Although the facts were different, the same issue arose: must the person claiming benefit now be the same person as the claimant who was entitled on or after 30 April 2004 or is it sufficient if that person was included in that claim?
'28. Regulation 6 is a standard form of provision for transitional protection in social security cases. It preserves continuity of entitlement for those entitled to a specified benefit immediately before the date when the right to reside test was introduced, whether the award was made before or after that date. By preserving the position at a particular point of time, it inevitably preserves all aspects of the case, including the identity of the claimant. If I were to extend the protection to include spouses as future claimants, which is what the claimant's representative has suggested, I would change the nature of regulation 6 from a standard form of transitional protection to a provision creating a new right on a different claim for a different claimant. I have power under section 3(1) of the Human Rights Act 1998 to interpret legislation in a way that avoids a violation of a claimant's Convention right. However, that does not give me freedom to rewrite the legislation. I must respect the overall scheme of the legislation. Transforming a transitional protection into the creation of a new right would not do so. Accordingly, even if there has been a violation of the claimant's Convention rights, there is no remedy that I can give him by interpretation of regulation 6.'
Disposal
Signed on original on 24 June 2008 |
Edward Jacobs Commissioner |