[2005] UKSSCSC CIS_4022_2004 (12 December 2005)
CIS/4022/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the Income Support Appeal Tribunal dated 25 August 2004 on Case No. U/42/144/2004/01265 is not erroneous in law
                 
2.	The claimant appeals, with my leave, against the tribunal’s confirmation of the Secretary of State’s decision of 7 January 2004 confirming his decision of 11 September 2003 that the claimant was not entitled to retrospective payments of Income Support because she had claimed more than 28 days after the date on which she had received notification from the Home Office of her refugee status.  

3.	The factual background to this appeal is apparent from the statement of the tribunal’s reasons for its decision which is as follows:-

“…… .

There is no dispute as to the facts which, relevantly, are as follows:-

1.	[The claimant] a Ukranian National, came to the United Kingdom on4 July 1997.  

2.	She claimed political asylum on 9 December 1997.  

3.	Following an appeal to the Immigration Appeal Tribunal (“the IAT”) she was granted asylum on 12 October 2001.  

4.	She was represented at the IAT by Counsel instructed by [her solicitors] (document C1).  Notification of the IAT’s decision was sent to her solicitors on 10 January 2002 (document B) who were still on the record as acting for her (see [the claimant’s] submission  paragraph 16).  

5.	[The claimant’s solicitors] did not forward the decision to her and considered that it might have been lost by a caseworker in their firm (document 4 in the tribunal bundle).  They asked the Home Office to send [the claimant] a certified copy or some other form of replacement.  The Home Office duly did so by a letter dated 17 July 2003 (document 6).  

6.	[The claimant] claimed Income Support on 13 August 2003.  

	As the claim for asylum in this appeal was made on 9 December 1997 entitlement to Income Support is governed by Regulation 21ZA of the Income Support (General) Regulations 1987.  This provides in essence that where a claim for asylum has been submitted and accepted the claimant would be entitled to Income Support from the date of claim for asylum provided the claim for Income Support is made within 28 days of receiving notification of the refugee status granted.  The full text of paragraphs 1 and 2 of Regulation 21ZA is set out in paragraph 18 of [the claimant’s] submission at document A4.  

	The issue of the date of receipt of such notification was considered by Commissioner Turnbull in CIS/3797/2003 and CIS/3832/2003, albeit in relation to Regulation 21 ZB, which replaced  21ZA from 3 April 2000 but with the same relevant wording.  

	His decision was that a notification granted to an agent is effective as such if the agent receives it within the scope of his actual or apparent authority whether or not it is transmitted to the principal.  He concluded that the solicitors had authority to receive the notification, that notification was received on the date when the solicitors received it.

	The facts in this appeal as recorded in paragraph numbered 4 above showed [the claimant’s solicitors] had such authority and that notification of the decision granting refugee status was received on or shortly after 10 January 2002.  Accordingly the claim for Income Support made on 13 August 2003 was well outside the 28 day period permitted for doing so and the appeal fails.”.

4.	The claimant’s grounds for appealing the tribunal’s decision to a Commissioner are, in short, that the Commissioner’s decisions on which the tribunal based its decision, CIS/3797/2003 and CIS/3832/2003, were themselves wrongly decided.  

5.	I heard the appeal on 2 August 2005.  The claimant was represented by Mr M Williams of the London Advice Services Alliance and the Secretary of State was represented by Ms G Harris of Counsel instructed by the Solicitor to the Secretary of State for Work and Pensions.  I am grateful to them both for their submissions.  

6.	Regulation 21ZA was inserted in the Income Support (General) Regulations 1987 by regulation 3 of the Income Support and Social Security (Claims and Payments) (Miscellaneous Amendments) Regulations 1996 (S.I. 1996 No. 2431) with effect from 15 October 1996.  It provides: -

“(1)	Where a person has submitted a claim for asylum and is notified that he has been recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31 January 1967 he shall cease to be a person from abroad for the purposes of regulation 21 (special cases) and Schedule 7 (applicable amounts in special cases) from the date he is so recorded.

(2)	Except in the case of a refugee to whom paragraph (3) refers, a refugee to whom paragraph (1) applies, who claims income support within 28 days of receiving the notification referred to in that paragraph, shall have his claim for Income Support for whichever of the periods referred to in paragraph (4) applies in his case determined as if he had been an asylum seeker for the purposes of regulation 70 (urgent cases) in respect of any such period.

(3)	A refugee to whom paragraph (1) applies, who was notified that he had been recorded as a refugee in the period from 24 July 1996 to 15 October 1996 and who claims his Income Support within 28 days of the later date, shall have his claim for income support for whichever of the periods referred to in paragraph (4) applies in his case determined as if he had been an asylum seeker for the purposes of regulation 70 in respect of any such period.  

(4)	The periods to which this paragraph refers are – 

(a)	In the case of a claimant who made a claim for asylum upon arrival in the United Kingdom, the period from the date in which his claim for asylum was first refused by the Secretary of State or 5 February 1996 if that is later, to the date he is recorded by the Secretary of State as a refugee; 

(b)	In the case of a claimant whose claim for asylum was made other than on arrival in the United Kingdom, the period from the date of that claim, or 5 February 1996 if that is later, to the date he is recorded by the Secretary of State as a refugee.  

(5)	Any Income Support, which has otherwise been paid to the claimant or any partner of his in respect of any part of the period of an award to which paragraph (2) or (3) applies, shall be offset against any award due to the claimant by virtue of that paragraph except to the extent that the benefit paid to that partner was due in respect of a period during which he was not a partner of the claimant.”.

7.	Regulation 21ZB was substituted for regulation 21ZA by regulation 3(5) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (S.I. 2000 No. 636) with effect from 3 April 2000. Regulation 21ZB is as follows:-

“(1)	This paragraph applies to a person who has submitted a claim for asylum on or after 3 April 2000 and who is notified that he has been recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as extended by Articles 1(2) of the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 

(2)	Subject to paragraph (3), a person to whom paragraph 1 applies, who claims income support within 28 days of receiving the notification referred to in paragraph (1), shall have his claim for income support determined as if he had been recorded as a refugee on a date when he submitted his claim for asylum.  

(3)	The amount of support provided under section 95 or 98 of the Immigration and Asylum Act, including support provided by virtue of regulations made under Schedule 92 of that Act, by the Secretary of State in respect of essential living needs of the claimant and his dependants (if any) as specified in regulations made under paragraph 3 of Schedule 8 to the Immigration and Asylum Act shall be deducted from any award of Income Support due to the claimant by virtue of paragraph (2).”.

The case for the claimant

8.	Mr. Williams said that his submissions applied equally to regulation 21ZA and to regulation 21ZB.  “Claimant” in both provisions means the actual claimant.  It would only be where the actual claimant could not act for himself that the term “Claimant” as used in the regulations could refer to somebody else.  CIS/3797/2003 and CIS/3832/2003 were decided without the benefit of representation for the claimant or argument in opposition to the case for the Secretary of State.  Mr Williams referred to paragraph 19 of CIS/3797/2003 in which the Commissioner considered a possible argument for the claimant in such cases.  The Commissioner said: -

“Statutory provisions for the giving of notice frequently make time run from the date when the notice is sent, or alternatively contain provision that a notice has deemed to have been received (say) 2 days after the sending of the notice).  Here the requirement is actual receipt, and it is therefore clear that the claimant is not to be prejudiced by postal delays.  It might be argued that this requirement of receipt therefore shows that actual receipt by the claimant (and not  merely by his representative) is intended, otherwise the claimant would be prejudiced by postal delays in the sending on of the notice by the representative to the refugee.  It might further be argued that the ability to claim backdated benefit is potentially a very valuable one (because the immigration process may have taken a considerable time to resolve) and in the light of that the provision should be construed in the refugee’s favour in order to give him the benefit of the full 28 days, whereas the Secretary of State’s construction in effect cuts it down by the time taken (a) by the representative to get round to sending it to the claimant and (b) by the additional time taken for the postal delivery as between the representative and the claimant).”.

9.	Further, said Mr Williams, in paragraph 20 of the same decision the Commissioner decided that the result of the tribunal’s decision in that case would be that the claimant would get the benefit of all delays including those due to the inefficiency of the representative:  but why not?  There were many instances in the social security legislation where the claimant would not suffer because of another’s delay, for example, under regulation 19 of the Social Security (Claims and Payments) Regulations 1987.  More broadly, when one looked at both the scheme of the immigration legislation and that of the social security legislation it will be seen that ideas of agency are in principal applied by regulation.  Clearly Parliament intended to introduce agency when needed.  An example was section 5(1)(g) of the Social Security Administration Act 1992 which enacts that regulations may provide for one person to act for another in relation to a claim for benefit.  It was also clear that the draftsman of the immigration regulations did not assume agency.  Regulation 4 of the Immigration and Asylum Appeals (Notices) Regulations 2000 (S.I. 2000 No. 2246) provides for the service of notice of appealable decisions.  The provision that the service of the notice of appealable decisions on the representative is effective notice to the claimant was significant.  It would be unjust if the time for making a claim for benefit started to run with service of a notice on a representative who could not make the claim.  The fact that the claimant had the right to sue the representative for a failure to act properly should not be relevant to the establishment of the claimant’s rights under the Social Security legislation.  

10.	Mr Williams’ oral submissions were made with reference to the skeleton arguments which he submitted prior to the hearing (documents 112 to 120 of the bundle of papers) which in turn refer to a supplementary submission for the claimant drafted by Mr Simon Cox  of Counsel (documents 49 to 53 of the bundle).  The substance of the arguments in those two documents is that no where in the immigration control legislation are there any provisions enacting any concept of agency or implying that the common law of agency applies in immigration proceedings and, apart from those dealing with notices of appealable decisions, there are no provisions governing the service of notices of decisions.  The author of CIS/3832/2003 had relied on the general principal governing the effectiveness of notice given to an agent stated in article 96 of Bowstead & Reynolds on  Agency which is :-

“A notification given to an agent is effective as such if the agent receives it within the scope of his actual or apparent authority, whether or not it is transmitted to the principal, unless the person seeking to charge the principal with notice knew that the agent intended to conceal his knowledge from the principal.”.

If that principal applied in immigration proceedings there would have been no need for the enactment of regulation 4(2) of the 2000 regulations or regulation 4(3) of the 2003 regulations. 

11.	 In paragraph 17 of CIS/3832/2003 the Commissioner had said that examination of the Immigration Rules and the 2000 and 2003 regulations was of no assistance in determining the question before him.  However, on the contrary, the need to enact specifically in the 2003 regulations that  notice given to a representative is notice to the claimant would not have arisen if the common law principal relied on by the Commissioner applied in immigration proceedings.  CG/2973/2004, CIS/4901/2002 and R(SB)8/89 were all cases in which either the Secretary of State had conceded that there was an agency arrangement between the Department for Work and Pensions and the Post Office or a Commissioner had decided that there was a relationship of agency or bailment between those two establishments.  However, those decisions were based on the fact of there being a specific arrangement.  In the claimant’s case there was no specific arrangement between her and her representative or between the Home Office and the representative.  In CIS/3832/2003 the Commissioner said that he saw no reason why in principal claims for benefit or applications for reviews of benefit should not be made on behalf of claimants for whom, although they are not mentally “unable to act”, it is reasonable for someone else to act but that the explicit consent of the claimant would be needed to ratify any such [claim or] request.  That,  it was argued,  did not appear to be the same thing as the pure concept of agency, which would not need ratification,                   posited in CIS/3832/2003.  

12.	In R(G)2/79 (R v National Insurance Commissioner, ex parte Connor) (1981) 1AER 769) referred to in the submission for the Secretary of State the Court of Appeal said that although the legislation under consideration in that case contained no specific provision that on the commission of a certain offence the claimant would be disentitled to benefit, that was merely an indication that the draftsman of the legislation had realised that he was drafting against a background of the law as it stood at the time.  Nevertheless, it was not in every regulation that every aspect of common law was operative.  There were several indications that the draftsman of the immigration regulations provisions on the receipt of documents did not think that the common law principals of agency applied.  The solicitor acting for the claimant in her appeal against refusal of asylum would have found it very difficult to launch a social security benefit claim on her behalf.  Even if she could act as envisaged in CIS/3832/2003 there would be immense difficulty with the need for detailed instructions as to how to answer the questions on the claim form.  He would only be able to make a claim without the ratification envisaged in CIS/3832/2003 if he had been appointed to act under regulation 33(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968).  

The case for the Secretary of State

13.	Miss Harris had also submitted skeleton arguments to which she referred in her oral submissions.  She said that the Secretary of State’s position was simple.  Connor’s case was the authority for the application of the common law of agency in both immigration and social security proceedings.  Legislation was drafted with the common law background in mind and there was no need to specify the common law rules which would apply in the absence of specific statutory provision.  Section 5(1)(g) of the Social Security Administration Act 1992 did not apply to all situations.  It did not strictly speaking apply to agency.  It provided for the cases where the claimant had not appointed somebody to act for him.  It went wider than the common law scope of agency.  She submitted that it did not restrict the operation of the common law in social security.  The fact that the 2000 and 2003 Immigration (Notices) Regulations made express rules as to the effect of receipt by an agent of a notice affecting his client did not rule out the operation of those aspects of agency not specified in the legislation.  She referred to the House of Lords decision in the case of Regina v. Secretary of State for the Home Department and another (respondent) ex parte Anufrijeva (FC) (Appellant) [2003] UK HL 36.  In that case, by a majority of 4 to 1 the House of Lords held that a decision by the Secretary of State, made for the purposes of regulation 70(3A) of the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967, refusing refugee status to an asylum seeker was not effective as a determination until notice had been given to the applicant.  Regulation 70(3A) provides:-

“For the purposes of this paragraph, a person – 

…….. ;   and

(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 in which it is so recorded, or 

…….”.

14.	Miss Harris referred to paragraph 33 of the Judgements in the Rnufrijeva case in which Lord Steyn, in giving the leading majority opinion, said:-

“Counsel for the Home Secretary relied strongly on some niceties of statutory language.  He pointed out that regulation 21(ZA)of the Regulations, as well as in section 6 of the Asylum and Immigration Appeals Act 1993, the draftsman provided expressly for notification.  In contrast regulation 70(3)(A)(b)(i) makes no reference to notification.  The fact, however, that other provisions made the requirement of notification explicit does not rule out the possibility that notification was all along implicit in the concept of “the determination”.  For my part a stronger indication of Parliamentary intent is provided by the Statement of Changes in Immigration Rules (HC 395), which were laid before Parliament on 23 May 1994 under section 3(2) of the Immigration Act 1971.  The concept of a “refusal” of asylum to be found in the rules 331, 333 and 348 plainly contemplates notification of an adverse decision.  These rules are part of the contextual scene of regulation 70(3)(A)(b)(i).  They support the argument that notification of a decision is necessary for it to become a determination.  But the major point is that the          arguments of Counsel for the Home Secretary cannot displace the constitutional principals outlined above.”.

15.	Miss Harris said that the Rnufrijeva case dealt with the need for the requirement for notice to be read into a statutory provision rather than the point in this case which is that in the absence of an express enactment of the existence of agency the common law rules apply.  She submitted that not only was there no need for express enactment but also that express enactment in some other part of a legislative code did not indicate the need for express enactment in other parts of the code.  It was not possible to impute anything to the social security rules by reference to what was in the immigration rules.

16.	On the matter of prejudice to the claimant Miss Harris argued that there should be no allowance made for the failures of representatives to pass on information to their clients.  The normal time for claiming income support is the first day of entitlement.  The 28 day limit for claiming enacted in regulation 21(ZB) was generous and enough to allow the representative to pass to the client the information which was needed to found a claim.  The Secretary of State did not rely on the possibility of a remedy against the solicitor as an aid to the interpretation of legislative rules but was mentioned to demonstrate that there was no prejudice to the claimant.  In any case, the solicitors were obliged by their own governing rules to keep their clients informed of  relevant information.

Closing arguments

17.	Mr Williams said that Connors was an extreme case.  A jury had found Connor guilty of killing.  The Court of Appeal decided that she could not be allowed to benefit from that.  The Lord Chief Justice said that the fact of there being no specific disentitlement to benefit which had become payable as a result of a crime by the claimant implied that the draftsman depended on the common law to give effect to that principal.  The immigration rules, however, had specific provisions for a representative to receive certain documents concerning his client.  The draftsman clearly did not have full agency in mind.  Equally there were cases where statute has ousted the common law, for example, there was no action for tort for wrongful refusal of benefit. Social Security and Immigration control were very elaborate schemes.  Mr Williams said that on the matter of agency generally it was not clear how far the Secretary of State thought that agency operated.   What about undisclosed principals?  He did not think that the Secretary of State could argue that a claimant’s immigration solicitor could make a claim for benefit.  The Anufrijeva case did not give any guidance for the interpretation of regulation 21ZA and ZB but did imply that they should be construed with the immigration rules in mind.  The author of CIS/3832/2003 had not directed himself to that.  

18.	Mr Williams said that in a case such as this the claimant would have poor English and would be changing from one form of financial support to another.  The solicitor might have trouble contacting her.  He did not see that “the claimant or agent” is the literal meaning of  “claimant”.  There were similar provisions in child benefit and in housing benefit legislation.  Regulation 19 of the Social Security (Claims and Payments) Regulations specifically excluded backdating in 21ZB claims.  Regulation 21ZB was intended to fulfil international obligations to put the claimant back to where she would have been if she had been permitted to remain in the country when she applied for asylum.  There was no other case where the time within which the claimant must act was so short.  The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/1991) allowed for the extension of the time for applying for revision or supersession for up to 52 weeks.  Many non-contributory benefits could be claimed after 3 months.  That paragraph 19(8) of the Claims and Payments Regulations excluded regulation 21ZB claims from the benefits of regulation 19 indicated the harshness of the 28 day rule for asylum seekers.  

19.	Miss Harris said that the 28 day time-limit was not particularly harsh compared to others in the social security rules.  The supersession and revision rules had time-limits of one month for applications.  The indulgence for those given mistaken advice by Citizens Advice Bureau, solicitors etc. expressly did not apply in this situation.

CONSIDERATION

20.	The first question I have to decide is by reference to which of the two statutory codes, immigration control or income support, is the meaning of “receive notice” in regulation 21ZA or (now) 21ZB to be deduced.  My conclusion is that it is by reference to the immigration control code.  I say that because the claimant’s entitlement to income support depends on her standing in terms of immigration control.  Until she obtained refugee status she was a person from abroad for the purposes of regulation 21 of the Income Support (General) Regulations and her applicable amount for the purposes of calculating her entitlement to benefit was nil in terms of that regulation as read with paragraph 17 of schedule 7 to those regulations.  When she was accorded refugee status she ceased to be a person from abroad because exception (b) to the definition of  “persons from abroad” in paragraph (3) of regulation 21 of the Income Support (General) Regulations applied and the schedule 7 restriction on her applicable amount ceased.  It seems to me, therefore, that “notice” in regulation 21ZB is notice in terms of the immigration control code.  I think that there is authority for that view in paragraph 58 of the opinion of Lord Scott of Foscote in the Anufrijeva.  In that paragraph Lord Scott said:-

“There are, therefore, two reasons why, in my opinion, this appeal must succeed and the Salem case be overruled.  First, I would construe the reference in regulation 70(3)(A)(b)(i) to an asylum claim being “determined” in a manner consistent with the Immigration Rules and hold that it cannot be “determined” until it has been refused and that that requires notification.”.

Regulation 70(3)(A), when it was in force, provided that:-

“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,  ….. .”

It seems to me that the same approach to the interpretation of regulation 21ZB(2) is the correct one.  However, it makes no difference to the outcome of this appeal if I am wrong in that because the answer to the second relevant question would be, for the reasons which I give below,  the same.  

21.	The second question is whether or not the receipt by the claimant’s solicitor of the notice of the grant of refugee status to the claimant constituted notice to the claimant.  I think that it did.

22.	Miss Harris argued, correctly, in my opinion, that legislation is drafted and enacted in the knowledge of the common law and unless an enactment explicitly or implicitly disapplies the common law there is a presumption that common law principals continue to apply.  Therefore the rule that notice to an agent is notice to the principal applies when the Home Office informs the agent for an applicant for refugee status that the application has been granted.  Miss Harris’ argument invokes a well known canon of statutory construction and she is correct when she says that the decision in the Connor case is authority for her argument.  However, Connor applies a general presumption as to the preservation of the common law.  There are more specific presumptions as to the continuation of particular parts of the common law.  Relevant to this case is the presumption that unless specifically or impliedly abrogated by the legislation in question the common law of contract continues.  (Notcutt v. Universal Equipment Co. London Ltd. [1986] 1WLR 641).   Hodgson v. Armstrong and Another [1967] 2QB 299, R(SB) 8/89 and CIS/4901/2002 are cases in which the Courts and the Commissioners have decided that the common law rules of agency and bailment apply in the application of the Rules of Court and in social security legislation and, contrary to what Mr Williams argues, are not examples of legislation having replaced the common law rules.

23.	Mr Williams argued that the general and special presumptions do not hold in the case of immigration control legislation and that, in any event, there was no contract of agency in this case because the claimant had given her solicitors no mandate to receive notices for her.  Also, as noted above, Mr Williams cited aspects of the immigration control code and the social security code which are implied abrogations of the common law of agency.  

24.	There are at least two cases in which the Court of Appeal has applied the law of agency to the interpretation of a social security enactment as to the effect of a claimant’s actings under the immigration code.  The first one is Shire v. The Secretary of State for Work and Pensions [2003] EWCA Civ 1465.  It concerned the interpretation of regulation 70 of the Income Support (General) Regulations which, when it was in force, provided that:-

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

(a)	Is an asylum seeker when he submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom’s obligations under the Convention for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made; or 

…..” .

In Shire the appellant had arrived in this country at Heathrow Airport from the Yemen on a weekend day.  She was escorted to this country and through immigration control by a paid courier who had made it clear to her that she was not to apply for asylum at immigration control in case that alerted the immigration officer to the fact that the courier was assisting her to enter the country illegally.  She did not reveal her need for asylum at immigration control.  The courier put her into a taxi which took her to her sister’s house and on the first business day after her arrival in London, which was Tuesday, she went to the Home Office and claimed asylum.  In the Court of Appeal she argued that she had applied for asylum “on her arrival” in this country within the meaning of regulation 70(3)(A) because she had done so at the earliest practicable opportunity, given the inhibition placed on her by the courier.  In giving the judgment of the Court the Lord Chief Justice said that there was no evidence that the claimant had been under any duress at immigration control.  There was, therefore, nothing to stop her from applying for asylum at that point despite the courier’s instructions.  She had put herself in the hands of an agent and, therefore, had to take responsibility for the agent’s actings in taking her through immigration control without making the necessary application at that point.  To my mind that case is clear authority for the proposition that neither the statutory code for immigration control nor that for social security has abrogated the common law rules of agency.  The ratio in Shire was adopted by the Court in the later case of Kola and Mirtzajani v. the Secretary of State for Work and Pensions [2004] EWCA Civ. 638. 

25.	Mr Williams referred to regulation 4(2) of the Immigration and Asylum Appeals (Notices) Regulations 2000 (SI 2000 No. 2246), to the requirements of the Claims and Payments Regulations that in general claims for social security benefit must be made by the claimant herself and not by an agent and to the specific provision in regulation 33 of the same regulations for the appointment by the Secretary of State of persons to act for claimants who, by reason of their being ill or under age, cannot claim for themselves.  The enactment of those provisions, he argued, indicated that the immigration control and the social security legislation had both replaced the common law of agency with their own specific limited provisions for the operation of a form of agency.  

26.	I do not draw the same inference from the fact of the enactment of those provisions.  Where people act through agents there is room for genuine misunderstandings in some cases and a lack of good faith in others.  It is for that reason that the common law has rules such as the rule that notice to an agent constitutes notice to the principal.  That particular rule is a common law protection for people who have to transact with the agents of others.  They are protected from the consequences of any deliberate or inadvertent lack of communication between principal and agent.  Similarly, those devising statutory codes avoid confusion and argument by, in some cases, ruling out agency.  In other cases they supplement the common law by enacting as part of a statutory code an existing common law rule as it is or in some more specific form.  The requirements of section 1 of the Social Security Administration Act 1992 and the Claims and Payments Regulations that claims for benefits are to be made on a form prescribed by the Secretary of State, the main requirement being the claimant’s signature on the form, rule out the signing of claims by agents except in cases to which regulation 33 applies.  Regulation 4(2) of the 2000 Immigration etc. Notices Regulations, regulation 4 of the Immigration (Notices) Regulations 2003 and regulation 33 of the Claims and Payments Regulations are examples of statutory provisions which either supplement or modify the common rules of agency to take account of the circumstances in which the legislation will be operated.  Regulation 4 of the 2000 regulations as read with the rest of those regulations makes it clear that time for appealing an appealable Secretary of State’s decision starts running when the agent receives notice of the decision.  Regulation 4 of the 2003 regulations provides that notice of Immigration Appeal Tribunal decisions will be sent to both agent and principal.  That guards against any attempt to deny that the appellant had knowledge of the decision.  Regulation 33 of the Claims and Payments Regulations enables an agent to be appointed quickly for an incapacited claimant for social security benefit without the delays which would be involved in an application to the Court of Protection or the drawing up of a Power of Attorney (when the claimant still has the capacity to grant such a power).  I am satisfied that the concept of agency underlies both the immigration control and the social security statutory codes even although some of the common law rules have either been modified or supplemented.  

27.	The last question is whether or not the claimant in this case had an agent who was authorised to receive notice of the Secretary of State’s decision according her refugee status.  Mr Williams argued that the claimant had given her solicitor no such authority.  I cannot accept that.  The claimant had applied for asylum and when eventually she found out that following her successful appeal against refusal of asylum the Secretary of State had granted her leave to remain in this country she applied, under regulation 21ZB, for Income Support.  The onus of establishing entitlement to Income Support is upon her.  If Mr Williams’ argument is  to succeed the claimant must establish that she did not have an agent to whom the Home Office was entitled to send and who was entitled to receive the notice of her refugee status.  It is common ground in this appeal that the claimant had instructed a firm of solicitors to conduct her appeal to the Immigration Appeal Tribunal and the tribunal’s fourth finding in fact is to that effect.  It has not at any time prior to now been suggested that instead of following the normal course of having her solicitors lodge and receive papers for her she specifically withheld from them instructions to receive notice of her refugee status and took steps to ensure that the Home Office knew that her solicitors did not have the ostensible authority to receive such notice which they otherwise would have had.  Had that truly been the claimant’s position she would have argued it at the tribunal hearing rather than take a narrow point on the law of agency.  It is regrettable that the claimant’s only remedy, if any, is against her solicitors but the tribunal’s decision was, given the evidence before it, the correct one. 

28.	For the foregoing reasons the appeal fails and my decision is in paragraph 1 above.

(Signed)	R J C Angus
	Commissioner

(Date)	12 December 2005