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	UK Social Security and Child Support Commissioners' Decisions
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[2008] UKSSCSC CIS_352_2008 (24 June 2008)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(a)(i) of the Social Security Act 1998:

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.

REASONS
2. The issue in this case is whether the claimant can take advantage of the transitional and savings provisions in the Social Security (Habitual Residence) Amendment Regulations 2004. If she cannot, she is not entitled to income support. If she can, she is potentially entitled to benefit.

History and background

3. I take my statement of the facts from the tribunal's findings.
4. The claimant is Swedish, although of Iranian origin. She came to the United Kingdom in March 2004 together with her Swedish husband, their son and his son by a previous relationship. In April 2004, her husband claimed and was awarded income support. His wife and children were included in the claim. He remained in receipt of income support for himself and his family until 24 October 2006, when the claimant separated from him. The claimant then claimed income support in her own right. After an abortive attempt on 24 October 2006, she succeeded in making a claim on 11 or 16 November 2006, but it was refused on the ground that she was a person from abroad whose applicable amount was nil.
5. In order to understand that decision, it is necessary to set out the relevant legislation.

Income support legislation

6. Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992.
7. Section 124(1) of the 1992 Act provides:

'(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.'

8. Section 135 provides:

'(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.'

9. The Income Support (General) Regulations 1987 are made, in part, under that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that the applicable amount for a 'person from abroad' is nil.
10. 'Person from abroad' is defined by regulation 21AA. The claimant does not come within that definition. However, this does not matter if she can claim the benefit of the transitional and savings provisions that formed part of the introduction of the right to reside test into benefit entitlement by the Social Security (Habitual Residence) Amendment Regulations 2004, with effect from 1 May 2004.

The appeal tribunal's decision

11. The appeal tribunal decided that the claimant was entitled to the benefit of regulation 6:

'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.

12. Specifically, the tribunal decided that the claimant came within regulation 6(1)(c). The chairman explained this decision in this passage:

'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.'

13. That further submission was directed at an earlier hearing by a different chairman. This submission was that:

'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

14. I do not interpret the Secretary of State's submission as supporting the tribunal's reasoning. It makes perfect sense on the basis that the decision-maker, having identified a gap in the chain of entitlement, drew that to the tribunal's attention on the basis that no issue on the interpretation of regulation 6 arose. Anyway, whatever the reason for the decision-maker's submission, the issue for me is how regulation 6 should be interpreted, not how the decision-maker interpreted it. I come now to that issue.
15. The Secretary of State's grounds of appeal, on which the chairman granted leave to appeal to the Commissioner, read:

'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.'

16. The observations submitted by, or on behalf of, the claimant do not address the issue of interpretation. They are made under a misapprehension that the Commissioner has expressed an opinion that the claimant was entitled to the benefit of regulation 6(1)(c). That is not correct, as no Commissioner has made any observations on this case. The directions have been given by a legal officer and he did not express any view.
17. I considered regulation 6 in CIS/1096/2007, which was decided on 18 February 2008 and so not before the tribunal in August 2007. The facts of that case were:

'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?

18. I set out my analysis of the legislation:

'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.'

19. I remain of that view. Regulation 6(1)(c) refers to entitlement. A person is not entitled without a claim. (There are some limited exceptions, which do not apply here.) In the social security legislation, entitlement refers to the position of the claimant. The claimant is, or is not, entitled to the benefit claimed. Others may be included in the claim, but the benefit is awarded to the claimant and on the basis of the claimant's entitlement.
20. Some or all of the other persons included in a claim might, if they were to make claims, be entitled to benefit in their own right. However, that is irrelevant. If the claimant is not entitled, the claim is refused. Benefit cannot be awarded to the claimant solely on the basis that someone else who is included in the claim is entitled. Nor can it be awarded to someone else who was included in the claim until that person makes a claim.
21. That is the normal meaning of the language used in regulation 6. It is, of course, possible for language to be used in a different sense. However, the language has to be read in its context and the context in this case is a set of Regulations amending the conditions of entitlement to income support and other benefits. In that context, I would expect the word to be used in the sense that I have set out unless there is something to indicate that a different meaning is appropriate. I notice that the experienced district chairman who decided the appeal merely recorded his interpretation without giving supporting reasons, other than his reference to the Secretary of State's further submission. He did not identify a reason for giving the language a different meaning in its context, the claimant has not suggested one and I have been unable to identify one. Accordingly, it is appropriate to give the word 'entitlement' its normal meaning in a social security context.

Disposal

22. As the tribunal misdirected itself on the meaning of regulation 6, I must set its decision aside. On the evidence, the claimant was a person from abroad whose applicable amount was nil. She was not, therefore, entitled to income support. I have substituted a decision to that effect.

Signed on original on 24 June 2008

Edward Jacobs Commissioner