[2005] UKSSCSC CIS_3438_2004 (20 January 2005)

PLH                                                                          Commissioner's File:  CIS 3438/04

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  	Income Support
Appeal Tribunal: 	Enfield 
Tribunal Case Ref:  	
Tribunal date:	19 May 2004
Reasons issued:	12 July 2004

     1.     	The decision of the Enfield appeal tribunal consisting of a chairman sitting alone on 19 May 2004 is conceded to have been erroneous in law for the reason explained in the written submission of Mrs C Kappes on behalf of the Secretary of State dated 24 October 2004 at pages 98-100, namely that the tribunal did not have before it, or inquire into, a highly material document referred to in the Secretary of State's submission on the appeal, a letter apparently sent to the claimant on receipt of her claim setting out the Secretary of State's requirements for further evidence to be produced in support of it.  
     2.     	In those circumstances I agree with the submission that it was an error in law for the tribunal simply to confirm refusal of the claim made on 6 August 2003 on the ground that the evidence requirements to complete it had not been complied with, and I set the decision aside.  It is further conceded that the required evidence was in fact provided, albeit after an interval, and that the appropriate course is for me now to substitute my own decision on the basis of the information presently before me, so as to confirm that an effective claim for income support was in fact made by the claimant on that date.  
     3.     	This claimant is a young lady now aged 28, a Turkish national living as a refugee in this country.  According to the information before the tribunal she first arrived here on 4 June 2000 and at some point made an application for asylum here which was eventually granted by the immigration authorities.  A copy of the Home Office letter dated 16 July 2003 acknowledging her status as a refugee in accordance with the Geneva Convention and confirming her indefinite leave to remain in this country is at pages 47-8 though one of the unsatisfactory aspects of the case is that neither that nor any other Home Office document gives any clear indication of the relevant application date.  While her asylum application had been pending the claimant had been receiving emergency support from the immigration authorities for herself and her two young children: once her status was confirmed she sought, as she was entitled to, to have full income support granted to her retrospectively in compliance with the United Kingdom's obligation to treat genuine refugees on an equal footing with its own nationals lawfully resident here. 
     4.     	The relevant regulations governing the substantive entitlement of a person in this position are in regulation 21 of the Income Support (General) Regulations 1987 SI No 1967 by which a person who is a refugee under the Convention is not subject to the “habitual residence” test or the special provisions reducing income support for persons from abroad to nil.  Instead by regulation 21ZB any such person who has submitted a claim for asylum on or after 3 April 2000 and is notified that he is recorded by the Secretary of State as a refugee may submit a retrospective claim for normal income support within 28 days after the notification, and is entitled to have that claim determined as if he had been recorded as a refugee on the date he claimed asylum, with any emergency support already given being deducted from the income support award. The general rule that for income support there can be no entitlement for any period before the date of the claim is dealt with by special provisions in regulations 4(3C) and 6 (4D) Social Security (Claims and Payments) Regulations 1987 SI No 1968 that in relation to a claim by a refugee for income support for a period within regulation 21ZB:  
“... the claim shall be treated as made on the date on which his claim for asylum was recorded by the Secretary of State as having been made”.
     5.     	It is acknowledged that the claimant in this case did submit a properly completed claim form for an award of income support under regulation 21ZB to the relevant office on 6 August 2003, well within the time limit of 28 days to qualify for the special retrospective treatment of her claim.  With it she submitted the proof of her refugee status in the form of the Home Office letter she had been sent dated 16 July 2003.  The form also instructed her to send 
“details of any support provided by the Home Office. For example, a letter from the Home Office which explains these things.”
The claimant did not send such a letter with the form for the simple reason that she did not have one; it did not then exist, because the Home Office had not sent her one.  At some point after that she understood that she needed to obtain details of the emergency support she had received so that her additional income support could be worked out, but she experienced difficulty in getting these from the Home Office; eventually she obtained them, in the form of an undated document “NASS 35” (pages 61-62), which she submitted to the income support office on 15 October 2003.   It cited a “Subsistence Support end date 26 Oct 2003”.  The submission on behalf of the Secretary of State helpfully explains that these documents ought to be generated and sent out automatically by the Home Office computer system once an asylum decision is given but this is not infallible and there can be errors and delays.  As already noted the Secretary of State's submission to the tribunal referred to a letter that was apparently written to the claimant the day after her income support claim, asking her to supply a “NASS 35” document as proof of the support received, but there was no evidence before the tribunal to show the terms of that letter or even that it was sent; the submission to me says it is not now possible to obtain a copy or any further evidence as all the papers have been lost. 
     6.     	The claim admitted to have been in fact made on 6 August 2003 was rejected on the ground that it had not been effectively made within the 28 days required by regulation 21ZB, and that rejection was confirmed by the tribunal.  The reason given was that it failed to comply with certain requirements of regulation 4(1A) of the Claims and Payments regulations, as follows:
“Making a claim for benefit
4. - ... (1A)  In the case of a claim for income support ... the claim shall -
(a) be made in writing on a form approved by the Secretary of State ... 
(b) unless any of the reasons specified in paragraph (1B) applies, be made in accordance with the instructions on the form; and
(c) unless any of the reasons specified in paragraph (1B) applies, include such information and evidence as the form may require in connection with the claim.”
Paragraph (1B) sets out various circumstances making it difficult or impossible to comply with what the form stipulates, such as that the information or evidence required does not exist or can only be obtained at serious risk of physical or mental harm, etc.  None of these was considered to apply and the claim was rejected by a decision of the Secretary of State given on 4 November 2003 on the ground that it was “defective” because although the NASS 35 document had in fact been supplied by the claimant once she received it, this had not been within a month of the original claim: pages 50-51.  The regulations cited were 4(1A) above, and 6(1A) by which 
“(1A) In the case of a claim for income support - 
(a) subject to the following sub-paragraphs, the date on which a claim is made shall be the date on which a properly completed claim form is received in an appropriate office ...
(b) where a properly completed claim is received in an appropriate office within one month of first notification of an intention to make that claim, the date of claim shall be the date on which that notification is deemed to be made ...
(c) a notification of intention to make a claim will be deemed to be made on the date when an appropriate office receives -
(i)  a notification [by a person without a claim form that he wants to claim]; or
(ii)  a defective claim.”
     7.     	In my judgment the tribunal chairman was clearly wrong to confirm the rejection of the claim on those grounds and in those circumstances.  Even if (which I doubt) the express separate provisions of regulation 6(4D) for when a claim by a refugee for the special retrospective entitlement under income support regulation 21ZB is to be treated as having been made are capable of being overridden by those of regulation 6(1A) in a case where there is no doubt that a properly completed claim form has been submitted in due time, but some further piece of evidence to support the claim is still awaited, there was no proper basis in the evidence before the tribunal for a finding that the claimant was in breach of regulation 4(1A) by not submitting the NASS 35 document at the same time as the claim form.  All the evidence pointed to its not even being in existence at that point, and not having come into existence until many weeks later when the claimant finally managed to obtain it from the Home Office.  Claimants are not penalised for not being able to send in non-existent documents with their claim forms: regulation 4(1B)(b).  It was of course quite proper to ask the claimant to obtain such a document, or in some other way to supply satisfactory evidence of the figures needed to calculate her entitlement, before the claim was determined; what was not in my judgment permissible was to treat the claim she had made as a nullity without it. 
     8.     	I accordingly exercise the power in section 14(8)(a) Social Security Act 1998 to give instead the decision I am satisfied the tribunal ought to have given, namely that the claim for income support submitted by the claimant on 6 August 2003 is to be treated under regulation 6(4D) of the Claims and Payments regulations as made on the date on which her claim for asylum was recorded by the Secretary of State as having been made.  There is as I say no clear evidence of when this was, and I find the dates given in the NASS 35 document altogether confusing, so the actual date will have to be ascertained from the Home Office (or the claimant if she still has an acknowledgement of her asylum application).   By the same token I have no clear information to enable me to give any final decision on entitlement on the income support claim and the case must therefore be referred back to the Secretary of State for the claimant's circumstances to be gone into properly: for example the claim form at page 6 says she was living with her husband until they separated on 6 August 2002.
     9.     	The appeal is therefore allowed, my decision in the above terms substituted, and the case remitted to the Secretary of State for all relevant questions of entitlement to income support on the claim to be considered and determined.  I decline the claimant's request for an oral hearing of this appeal which is not needed in view of the conclusions I have already reached in her favour on the written submissions. 

(Signed)

P L Howell
Commissioner
20 January 2005