THE SOCIAL SECURITY COMMISSIONERS

				Commissioner’s Case No:	CIS/1542/2001

SOCIAL SECURITY ACTS 1992- 1998

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER J M HENTY

1.	The appeal is dismissed.  

2.	This is an appeal with the leave of the chairman from the decision of an appeal tribunal dated 27.11.2000.  

3.	(i)	The claimant, a national of Sri Lanka entered the UK on 20.1.98 via Heathrow Airport and applied there and then for asylum in the UK.

	(ii)	She received Urgent Cases Payment (“UCP”) from 5.2.98 on the basis of being a Person From Abroad with an outstanding application for asylum.  For present purposes, the relevant provision is regulation 70(3A)(b) of the Income Support General Regulations 1987 in force at the relevant time for the purposes of this decision.  That provided:-

		“(3A)	For the purposes of this paragraph, a person –

				(a)	…

				(b)	ceases to be an asylum seeker –

					(i)	in the case of a claim for asylum which on or after 5 February 1996 is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned on the date on which it is so recorded …”

	(iii)	On 9.6.98, the Secretary of State decided to refuse the claimant’s application for asylum, and she has not been granted exceptional leave to remain.

	(iv)	The AO was informed of that decision on the DLIS/726 at p15 on 22.9.98.  As a result, on 20.10.98, he reviewed and revised the claimant’s entitlement to UCP and decided that the claimant was not entitled as from 4.6.98.  UCP was, in fact, last paid up to 15.10.98.

	(v)	On 3.11.98, the claimant was informed of the decision at an interview and, on 7.11.98, she was issued with the form IS96 to be found at p18.  It is that form which triggers off the right to appeal on the immigration issue.

4.	The claimant appealed from the AO’s decision and her appeal was heard and dismissed by the appeal tribunal on 27.11.2000 and the reason for the decision, effectively, was that the tribunal was bound by the decision of the Court of Appeal in R v. The Home Secretary Ex parte Salem 1999 QB 805 (“Salem”) per Brooke LJ and Sir John Balcombe, Hobhouse LJ dissenting.  Accordingly, the decision of the Secretary of State on 9.6.98 was an effective determination for the purposes of regulation 70(3A)(b)(i).  

5.	At the request of the claimant, I ordered an oral hearing of her appeal which was held on 15.11.2001.  The claimant was represented by Mr Ranjiv Khubber of Counsel, and the Secretary of State by Mr Kevin Nelson, also of Counsel.  They both provided me with extremely helpful skeleton arguments, a rare and unaccustomed luxury for Commissioners.  I am most grateful to them both for their assistance and the clear submissions which they made.  

6.	Basically, Mr Khubber submitted that the relevant determination of the Secretary of State was either at the interview on 3.11.98 or was the issue of the form IS96 on 7.11.98.  It was not 9.6.98, when the Secretary of State made the decision referred to in para 3(iii) above.  At issue for practical purposes, therefore, is benefit payable for the period 15.10.98 to 3.11.98, or 7.11.98.  I clarified this point with Mr Khubber at the beginning of the hearing.  At this stage, in common with others, I express my own view there would not appear to be any grounds on which the overpayment 4.6.98 to 15.10.98 could, in law, be recoverable.  That would be under section 71 of the Administration Act 1992, if at all.  There would appear to have been no available misrepresentation, and there is certainly no failure to disclose a material fact since the claimant did not know the Secretary of State’s decision of 9.6.98 until, at the earliest, the AO’s decision reviewing and revising the award.  Now, at this stage, I should note that Richard Drabble QC argued, when seeking leave to appeal in R v. Home Secretary Ex parte Bawa (“Bawa”) on 12.6.98 C.A., that the legislation had to be construed consistently with the Immigration Rules, particularly 328-336, and 348.  That was an argument which had not been put forward in Salem.  I will return to Bawa later in this decision, but it might be useful to note that rule 334 sets out the qualifying conditions for the grant of asylum and rule 336 provides that “an application which does not meet the criteria set out in paragraph 334 will be refused”.

7.	Mr Khubber submits that Salem was either wrong or distinguishable.  If it is just wrong, then that is a matter for a different forum from me.  There is, of course, the per incuriam rule, but I do not see how it can apply in the circumstances of this case.  The classic statement of that rule can be found in Duke v. Reliance Systems Ltd., 1998 QB 108 per Donaldson M.R. at p113 C-D:-

	“I have always understood that the doctrine of per incuriam only applies when another Division of this Court has reached a decision in the absence of knowledge of a decision binding upon it or a statute, and that in either case it has to be shown that, had the court had this material, it must have reached a contrary decision.  That is per incuriam.  I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion.  That appears to me to be the position at which we have arrived today.”

8.	I now turn to a short consideration of the relevant authority.

		(i)	Salem

			In that case, in very much the same way as here, the Secretary of State refused asylum on 7.5.97 and noted on the file that the claim had been determined.  The applicant was not notified and solicitors acting on his behalf subsequently wrote to the Home Department that they would be sending in representations.  In response to a notice calling the claimant to an interview in August, they sent full submissions, and these were duly considered.  In September or October of that year, the applicant became aware that his income support and housing benefit had been stopped.  On 5.11.97, he was told by the local Benefits Office that his claim had indeed been stopped as from 5.9.97.  

Brooke LJ and Sir John Balcombe both held that the decision taken and recorded on 7.5.97 had constituted a determination of the applicant’s claim for the purposes of regulation 70(3A)(b)(i), and therefore entitlement to benefit then stopped.  Brooke LJ clearly had some reservations since at PA29 E-G he criticised the system in which the delays were experienced and also said:-

	“It also seems to be very unsatisfactory that a vulnerable person’s statutory right to benefit should be stopped without any reason being given for the stoppage, save that the Benefit Authorities had been told by the Home Department that his/her asylum claim had been refused for some unexplained reason, although this appears to be the clear effect of the Act and the regulations we have had to construe.”

Hobhouse LJ gave a dissenting judgment but it is not necessary for me to consider that for the purposes of this decision.

		(ii)	Bawa

			This was an application for leave to appeal from the judgment of Potts J.  It was heard on 12.6.98 and Salem had been determined in the previous February.  Unfortunately we do not have a transcript of Potts J’s judgment, but we do have a transcript of what was said when leave to appeal was granted (see pps56-58).  Otton LJ agreed.  Ward LJ said:-

				‘Mr Drabble QC seeks to appeal the judgment of the judge that the material record of determination was that earlier date of 9 April.  In the shortest possible form, Mr Drabble’s submission is that one cannot make a record of a determination before the determination has in fact been made.  On the facts of this case, he submits that, to ascertain when the determination was made, one must consider rule 336 of the Immigration Rules.  Those rules compel the conclusion that the determination was made at the earliest when the July letter was drafted, but more probably, he submits, when it was actually conveyed to the asylum seeker.  That seems to me to be an arguable point which should go forward.’

				“There is a decision of this court in the case of Salem v. Secretary of State for the Home Department handed down on 6 March 1998, when this court considered these regulations.  It seems to me that the present case can arguably be distinguished on its facts.  In any event it puts a different complexion on the same issue.  Because Salem is currently before the House of Lords, where it may be that their Lordships will grant leave to appeal, I would also direct, in giving leave to appeal here, that the appeal should be expedited so that their Lordships may have an opportunity to see the different light that this case may throw upon the whole process of linking refusals for asylum with the cessation of income support.  I would grant leave accordingly.”

A search on the relevant site indicated that the appeal had not yet been heard and may have died a natural death.

I would say two things:-

	(i)	Their Lordships did not of course seek to determine the issue:  they merely thought it was an arguable point which required airing in the Court of Appeal.

	(ii)	In his submissions to me – which I accept – Mr Nelson submitted that a judgment on an interim application, as was the application in Bawa, does not have any general authority and is not binding on others, besides the parties to the application – see Clark v. The University of Lincolnshire and Humberside  (2000) 3AER 752 at p762).  Reliance on the decision of the application for leave to appeal in Bawa cannot, therefore, to be made.  

9.	I return to Salem.  An application for leave to appeal to the House of Lords was granted on 29.6.98 by the Judicial Committee.  By the time the appeal came on for hearing, on January 18th 1999, the applicant had been granted refugee status.  Their Lordships dismissed the appeal and the report can be found in 1999 1 AC 450.  They dismissed the appeal on the grounds, basically, that it had become academic and, while they had undoubted jurisdiction to hear the appeal since it concerned an issue of public law, it was not a case which, in their discretion, their Lordships thought fit to hear.  It was not a test case.  Moreover, Counsel told them that it was only in a few cases that the question had arisen.

10.	Finally there is the judgment of Sir Christopher Belamy QC sitting as a Deputy High Court judge in the Queen’s Bench Division, Administration Court, in R on the application of Nadezda Anufrijeva v. Secretary of State for the Home Department and Another given in October of this year.  The transcript, as yet available, is only an uncorrected version, but it should not be criticised on that ground.  The learned Judge gave a long and closely reasoned judgment dealing with the whole question but in particular with three presumptions viz (i) a presumption that Parliament would not, in the absence of clear words, have intended to withdraw income support from a beneficiary acting in good faith with effect from a date earlier than the communication of the decision;  (ii) a presumption that, where reasons are required to be given, the reasons are normally to be communicated as close as possible to the time the decision takes effect; and (iii) a presumption that the exercise of any right of appeal should not be unduly delayed.

He opined that the those three presumptions tended to support the alternative construction to the claimant. At para 108 he said,“On the ordinary meaning of words ‘asylum seeker’ would seem to connote someone who had not yet received a decision on their claim to asylum”.  I do not need to go into a detailed consideration of that judgment, but I would share the criticisms of Salem, which is implicit in much of what he said but he, like me, came to the inescapable conclusion that he was bound by Salem.  At para 113 he said:-

	“It is, however, self‑evident from the judgment in Salem that the construction of that regulation was the principal issue in that case and that the legislative scheme was considered.  It is true that in Salem the choice between the two alternative constructions was perhaps less obvious, because in Salem the final determination implicit in the refusal of leave to enter had not occurred.  Nonetheless, in all the circumstances it seems to me that I am bound by the decision in Salem.  Despite the reservations expressed by Hobhouse LJ and the unsatisfactory state of affairs to which Brooke LJ referred to at p829G, I hold that the alternative construction suggested by the claimant is not one that it is open to me to adopt in this court, unless there is some compelling reason to the contrary.”

For reasons, I have already indicated, I do not think that it is open for me to indicate that the per incuriam rule was applicable, since as stated by Donaldson MR (Supra), it clearly is not.  Further, I see no valid grounds for otherwise distinguishing the case.  

11.	In Salem a human rights point was considered.  It was dismissed and for similar reasons it is dismissed here.

12.	At the hearing, I was asked to give leave to appeal.  I grant leave to the claimant to appeal to the Court of Appeal.  I understand that Anutrijeva is going on appeal to the Court of Appeal, for which leave has been given.  Thought should be given as to whether the appeal in this case should be heard at the same time or held up pending the decision in that case.  That, however, is a matter for others to consider.

13.	My decision is therefore as set out in para 1 above.  

					(Signed)	J M Henty
							Commissioner

					(Date)		12 December 2001