R(DLA) 1/01

Mr. J. Mesher	CDLA/483/1997
13.1.00
Residence and presence condition - pending application for extension of exceptional leave to remain granted outside the immigration rules - whether Immigration (Variation of Leave) Order 1976 applied - whether to be treated as if leave to remain subject to a limitation or condition
In March 1992, the claimant was granted leave to enter the United Kingdom for six months as a visitor subject to a condition prohibiting employment. She was later granted leave to remain exceptionally outside the immigration rules in order to care for her son, a British citizen settled in the United Kingdom, subject again to a prohibition on employment. In March 1993, the Secretary of State granted the claimant exceptional leave to remain until 25 August 1994. The claimant’s solicitors applied to the Secretary of State for another extension before her leave expired. No decision had been made by 21 April 1996, the date the disability appeal tribunal was due to hear the claimant’s appeal against the refusal of her claim for disability living allowance. The tribunal decided that she satisfied the medical conditions for entitlement to the mobility and care components from 19 January 1993 but awarded entitlement to 4 February 1996 only. It accepted the adjudication officer’s submission that any entitlement would be excluded from 5 February 1996 by the amendments to regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 (the DLA Regulations). Regulation 4 of the Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996 (the Amendment Regulations) amended regulation 2 so that it became a condition of entitlement to disability living allowance that the claimant’s right to reside or remain in Great Britain was not subject to any condition or limitation. However, under regulation 2(1A)(b) a person who had been granted exceptional leave to remain was to be treated as satisfying that condition. The chairman granted leave to appeal to the Commissioner. The adjudication officer submitted that the claimant came within regulation 2(1A)(b) of the DLA Regulations by virtue of the Immigration (Variation of Leave) Order 1976. Article 3(1) of the Order extended leave until 28 days after the decision on the application for variation of leave or its withdrawal, provided the application was made before the expiry of the current leave.
Held, allowing the appeal that:
1.	the Immigration (Variation of Leave) Order 1976 applied only to cases where limited leave was granted in accordance with the immigration rules under the Immigration Act 1971. However, a similar rule to the Order must apply in cases which were outside the immigration rules as the system for granting leave exceptionally appeared to be “an essential adjunct to the rules themselves and to underpin their operation”. Therefore, a person who had been granted exceptional leave to remain and had applied for a variation of the leave before it expired, must be treated as still having that limited leave, subject to whatever conditions applied, until 28 days after the application was decided or withdrawn (para. 8);
2.	on the evidence before the tribunal, whether or not the Order applied to the claimant, she was a person who fell within regulation 2(1A)(b) of the DLA Regulations. Therefore her entitlement to disability living allowance could not be excluded by regulation 2(1)(a)(ia) on the ground that her right to remain in Great Britain was subject to a limitation or a condition (para. 9).
The Commissioner set aside the decision and remitted the appeal to a new tribunal with directions to hear all the matters afresh and to apply the legal approach set out in the decision to the application of regulation 2 of the DLA Regulations.
[Note: This decision relates to regulations 2(1)(a)(ia) and 2(1A) of the Social Security (Disability Living Allowance) Regulations 1991 prior to their amendment with effect from 3 April 2000 by regulation 11 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, SI 2000 No. 636. See also regulation 2 of and the Schedule to those regulations and section 115 of the Immigration and Asylum Act 1999.]

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	The claimant’s appeal is allowed. The decision of the Sheffield disability appeal tribunal dated 21 August 1996 is erroneous in point of law, for the reason given below, and I set it aside. The appeal against the adjudication officer’s decision of March 1995 is referred to an appeal tribunal constituted under the Social Security Act 1998 for determination in accordance with the directions given in paragraphs 12 and 13 below (Social Security Act 1998, section 14(8)(b)).
2.	In the decision under appeal the chairman said that this was a complicated case not made any easier by the considerable period of time over which matters had been dealt with. Unfortunately, a great deal more time has elapsed. The appeal was unluckily caught up in a long queue in the Commissioners’ office at a time when the backlog was at its greatest. When it was referred to me I had to issue a direction for further submissions on recent legal developments. That did produce submissions which have enabled me to decide the appeal in a relatively straightforward way. There has been some further delay. It was thought that some other cases before the courts might provide further guidance, but that has turned out not to be so.
3.	The disability appeal tribunal (DAT) was dealing with the claim for disability living allowance (DLA) made on 19 January 1993, which was unsuccessful initially and on review. The DAT found that the claimant satisfied the medical conditions for entitlement to the higher rate of the mobility component from 19 January 1993 and to the lowest rate of the care component from 19 January 1993 to 1 November 1994, followed by the middle rate from 2 November 1994. However, it awarded entitlement only down to 4 February 1996 because of what it described as “the immigration matter”. Indeed, it said that the claimant’s condition might well have changed after 4 February 1996, through the development of asthma, but that period had not been considered.
4.	The immigration matter arose as the result of the coming into force on 5 February 1996 of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 (the Amendment Regulations), regulation 4 of which amended regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 (the DLA Regulations). The amendment made it a condition of entitlement to DLA that a claimant’s right to reside or remain in Great Britain is not subject to any condition or limitation (regulation 2(1)(a)(ia) of the DLA Regulations). However, a claimant’s right to reside or remain is not to be treated as if it were subject to a condition or limitation where she “has been granted exceptional leave outside the immigration rules within the meaning of the Immigration Act 1971 to remain in the United Kingdom by the Secretary of State” (regulation 2(1A)(b)). There was also a saving provision in regulation 12(3) of the Amendment Regulations, which I shall mention briefly later. The ground on which the chairman of the DAT granted leave to appeal to the Commissioner was that the saving provision had not been considered.
5.	The claimant had last arrived in the United Kingdom in March 1992 and was granted leave to enter for six months as a visitor subject to a condition prohibiting employment. An application was made by her solicitors, John Howell & Co. for leave for her to remain exceptionally outside the immigration rules for her to care for her son, who was a British citizen settled in the United Kingdom. The Secretary of State granted such leave until 8 March 1993, also subject to a condition prohibiting employment. In January 1993 the solicitors applied for indefinite leave to remain. The Secretary of State in August 1993 refused the application under the immigration rules, but granted leave to remain exceptionally outside the rules until 25 August 1994 subject to the same condition. Before the expiry of that leave the solicitors applied to the Secretary of State for an extension. No decision had been made on that application by 1 April 1996 (the date of a letter from the solicitors to the DLA Unit) or, it seems, the date of the hearing before the DAT.
6.	The adjudication officer’s submission to the DAT was that the claimant’s entitlement was excluded by the amendment from 5 February 1996, although she satisfied the other conditions in regulation 2 of the DLA Regulations about presence and ordinary residence. According to the chairman’s record of proceedings that was agreed by the claimant’s representative from her solicitors. There was no explanation, either in the written submissions or the DAT’s decision, of how the claimant’s circumstances fell within the new exclusion on 5 February 1996 or of the effect of regulation 2(1A)(b) of the DLA Regulations. That was despite the fact that the solicitors’ letter of 1 April 1996 had referred to the Immigration (Variation of Leave) Order 1976 (the Variation of Leave Order) and stated that under the Order an application for extension made before the expiry of an existing period of leave has the effect of extending the existing leave until the application is determined. In fact, Article 3(1) of the Order extends the leave for 28 days after the decision on the application or its withdrawal, subject to some other rules not relevant in the present case.
7.	In the further written submission dated 29 June 1999, the adjudication officer then concerned with the case resiled from the position taken earlier and submitted that, by virtue of the Variation of Leave Order, the claimant came within regulation 2(1A)(b) of the DLA Regulations. The DAT accordingly erred in law in not considering the other conditions of entitlement from 5 February 1996 onwards. The claimant’s solicitors have agreed with that submission, although still putting forward arguments about the interpretation of the saving provision.
8.	I am not at all sure about the direct application of the Variation of Leave Order to the present case. The reason is this. The Order was made under sections 3(3)(a) and 4(1) of the Immigration Act 1971. Section 4(1) allows the Secretary of State to exercise his powers to vary, under section 3(3)(a), any limited leave to enter or remain generally in relation to any class of persons by an order. It seems to me that the application of the Order must therefore be restricted to cases where the limited leave was granted in accordance with the immigration rules under the 1971 Act. It would not then apply to cases where the leave which is sought to be varied was granted exceptionally outside the immigration rules. However, I am quite satisfied that in such cases outside the immigration rules a similar rule to that in the Variation of Leave Order must be applied. The system of granting limited leave to remain exceptionally outside the immigration rules appears to be an essential adjunct to the rules themselves and to underpin their operation. Elementary considerations of fairness and equity demand that a person with limited leave granted exceptionally outside the immigration rules who applies for a variation of the leave before the period limited has expired must be treated as still having that limited leave, subject to whatever conditions were applied, until 28 days after the application is decided or withdrawn (subject also to any other rules in the Variation of Leave Order which may be relevant in other cases).
9.	Accordingly, as at 5 February 1996, and down to the date of the DAT hearing, the claimant was, on the basis of the evidence before the DAT and on either view of the scope of the Variation of Leave Order, a person who fell within regulation 2(1A)(b) of the DLA Regulations. Therefore, her entitlement to DLA could not be excluded by regulation 2(1)(a)(ia) on the ground that her right to remain in Great Britain was subject to a limitation or condition. The DAT erred in law in applying 2(1)(a)(ia), even though its application seems to have been agreed by both parties to the proceedings. It should not have terminated its consideration of the other conditions of entitlement as at 5 February 1999. Its decision must therefore be set aside.
10.	I add at this point that I am puzzled about what approach was being taken by the adjudication officer before the DAT. If the view was that the claimant’s exceptional leave had expired on 25 August 1994, and was not given any extension pending the determination of the application to vary, then she would from that date have been a person who had no right at all to remain in the United Kingdom. She would be an “overstayer”. In those circumstances the claimant would not seem to fall within the new regulation 2(1)(a)(ia) of the DLA Regulations. Instead, the claimant would seem not to have satisfied the condition in regulation 2(1)(a)(i) of being ordinarily resident in Great Britain. A person cannot be ordinarily resident if her presence is unlawful. However, the adjudication officer did not dispute that throughout the period down to 5 February 1996 the claimant was ordinarily resident in Great Britain. If so, that could only have been on the basis that the claimant still had leave to remain as a result of the application for variation. In that case, the claimant would seem necessarily to have fallen within regulation 2(1A)(b), so that the new exclusion could not apply to her.
11.	I also add that I have not needed to consider the interpretation of the saving provision in regulation 12(3) of the Amendment Regulations, and it is better that I do not say anything about that. If by chance the new appeal tribunal needs to consider regulation 12(3) it will have to take into account the relevant case law, including R v. Chief Adjudication Officer, ex parte B (9 December 1998) [reported at The Times, December 23, 1998].
12.	The claimant’s appeal against the adjudication officer’s decision on second tier review, issued on some date in March 1995, is referred to an appeal tribunal constituted under the Social Security Act 1998 and regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for determination in accordance with the directions below. No person who was a member of the DAT of 21 August 1996 is to be a member of the new appeal tribunal.
13.	There must be a complete rehearing of the claimant’s appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound in any way by any findings made or conclusions expressed by the DAT of 21 August 1996. That means that the question of the satisfaction or otherwise of the medical conditions from 19 January 1993 onwards must be decided afresh. I need give no directions of law on that question. The new appeal tribunal must apply the “down to the date of the rehearing” principle in determining the period in issue on the appeal (Commissioner’s decision CIB/213/1999). The Secretary of State must inform the new appeal tribunal in a written submission for the rehearing of any decisions on any subsequent DLA claims or reviews after 21 August 1996 which might affect the running of the claim for an indefinite period made on 19 January 1993. 
The new appeal tribunal must apply the legal approach set out above to the question of the application of regulation 2 of the DLA Regulations at any relevant date.

Date: 13 January 2000	(signed) Mr. J. Mesher
	Commissioner