CH/2321/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the local authority’s appeal.  I set aside the decision of the Enfield appeal tribunal dated 24 January 2007 and I substitute the decision the tribunal should have given: the claimant is not entitled to housing benefit under the claim she made on 11 April 2006.

REASONS

2.	I held an oral hearing of this appeal, at the same time as the appeal in CIS/1773/2007.  The local authority was represented by Mr Martin Scott, its Policy and Appeals Officer.  The claimant was represented by Mr Adrian Berry of counsel, instructed by Fisher Meredith LLP.  The Secretary of State was represented by Ms Emma Dixon of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.  

3.	The facts of this case may be stated very shortly.  The claimant is a Turkish national.  She came to the United Kingdom at some time in the late 1990s and claimed asylum.  She was granted temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971.  She moved to her current address in 2004.  At that time she was living with her partner.  He left her on 2 February 2006 and she claimed housing benefit on 11 April 2006.  She was in receipt of support under Part VI of the Immigration and Asylum Act 1999.  Her claim for housing benefit was rejected on the ground that she had no right to reside in the United Kingdom and therefore was a person from abroad who was to be treated as not liable to make payments in respect of her home by virtue of regulation 10 of the Housing Benefit Regulations 2006 (S.I. 2006/213).  She appealed and her appeal was allowed.  At paragraph 47 of her carefully written statement of reasons, the tribunal chairman said:

“Overall I was not convinced that the appellant, in addition to the hurdle put in her way by the fact of her being subject to immigration control, and having overcome that hurdle due to her national State having ratified ECSMA, was additionally subject to the right to reside legislation imposed by regulation 10.”

4.	The local authority now appeals with the leave of the tribunal chairman.  The Secretary of State intervenes with my leave and supports the appeal.  On 14 February 2008, the claimant was given exceptional leave to remain in the United Kingdom and a new claim for housing benefit, made on 21 May 2008, has been successful with effect from 21 February 2008.   The present appeal is therefore concerned with entitlement for a period from April 2006 to February 2008.  

5.	Section 130 of the Social Security Contributions and Benefits Act 1992 provides that a person is entitled to housing benefit if, inter alia, “he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home”.  Section 137(2)(i) enables the Secretary of State to make regulations making provision “for treating any person who is liable to make payments in respect of a dwelling as if he were not so liable”.  Regulation 10(1) of the 2006 Regulations, as in force at the time of the claimant’s claim for housing benefit, provided –

“(1)	A person from abroad who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable but this paragraph shall not have effect in respect of a person to whom and for a period to which regulation 10A (entitlement of a refugee to housing benefit) and Schedule A1 (treatment of claims for housing benefit by refugees) apply.

(2)	In paragraph (1) "person from abroad" also means any person other than a person to whom paragraph (3) applies who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose no person shall be treated as not habitually resident in the United Kingdom who is—
    (a)	a worker for the purposes of Council Regulation (EEC) No 1612/68 or (EEC) No 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No 68/360/EEC or No 73/148/EEC or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of "qualified person" in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004; or
    (b) 	a refugee; or
    (c)	a person who has been granted exceptional leave to enter the United Kingdom by an immigration officer within the meaning of the Immigration Act 1971, or to remain in the United Kingdom by the Secretary of State; or
    (d)	a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom.

(3)	This paragraph applies to a person who—
    (a)	is in receipt of income support;
    (b)	is a person on an income-based jobseeker's allowance; or
    (c)	is in Great Britain and who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.

(4)	Paragraph 1 of Part 1 of the Schedule to, and regulation 2 as it applies to that paragraph of, the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 shall not apply to a person who has been temporarily without funds for any period, or the aggregate of any periods, exceeding 42 days during any one period of limited leave (including any such period as extended).

(5)	In this regulation, for the purposes of the definition of a person from abroad no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(6)	In this regulation—
‘a European Economic Area State’ means a Member State or Norway, Sweden, Iceland, Austria or Finland;
‘refugee’ means a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees.”

This regulation was amended with effect from 30 April 2006 but the amendments make no difference to the points arising in this case.

6.	Section 115 of the Immigration and Asylum Act 1999 provides, so far as is material –

“(1)	No person is entitled … to –
    …
    (j)	housing benefit, or
    …,
under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

…

(3)	This section applies to a person subject to immigration control unless he falls within such category r description, or satisfies such conditions, as may be prescribed.

…

(9)	‘A person subject to immigration control’ means a person who is not a national of an EEA State and who –
    (a)	requires leave to enter or remain in the United Kingdom but does not have it;
    (b)	has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;
    (c)	has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or
    (d)	has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.

….”

The primary purpose of this provision was to exclude from entitlement to benefits those without permission to be in the United Kingdom, with other provisions in Part VI of the Act making alternative provision for asylum-seekers.  The opportunity was also taken in paragraphs (b) and (c) of subsection (9) to exclude from entitlement to benefits those expected to have alternative resources.  Paragraph (d) dealt with people with leave to enter or remain while exercising a now-abolished right of appeal.

7.	Regulation 2(1) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (S.I. 2000/636) is made under section 115(3) of the 1999 Act and provides –

“For the purposes of entitlement to … housing benefit … under the Contributions and Benefits Act …, a person falling within a category or description of persons specified in Part I of the Schedule is a person to whom section 115 of the Act does not apply.”

8.	Paragraphs 1 to 3 of Part I of the Schedule refer to certain people within the scope of section 115(9)(b) and (c).  Of more direct relevance to this appeal is paragraph 4, referring to –

“A person who is a national of a state which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953) or a state which has ratified the Council of Europe Social Charter (signed in Turin on 18th October 1961) and who is lawfully present in the United Kingdom.”

9.	As Turkey has ratified both the Convention and the Charter, and as an asylum seeker given temporary admission is lawfully present in the United Kingdom (Szoma v. Secretary of State for Work and Pensions [2005] UKHL 64; [2006] 1 A.C. 564 (also reported as R(IS) 2/06)) and as such a person may become habitually resident for the purposes of what is now regulation 10(2) of the 2006 Regulations (Regina (A) v. West Middlesex University Hospital NHS Trust [2008] EWHC 855 (Admin)), a person in the claimant’s position would, until 2004, not have been excluded from entitlement to housing benefit (subject to the outcome of an appeal currently pending against the West Middlesex decision).  However, in 2004, the forerunner of regulation 10(5) was introduced, having the effect that only a person with a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland was entitled to housing benefit.

10.	In the passage I have set out in paragraph 3 above, the tribunal took the view that regulation 10 of the 2006 Regulations was irrelevant because the claimant was not excluded from entitlement to benefit by section 115 of the 1999 Act by virtue of the 2000 Regulations.  This approach is challenged by the local authority and the Secretary of State but Mr Berry submitted that it was correct because section 115 and the regulations made under it formed a self-contained code for persons within the scope of section 115(9) and that regulation 10 could not have been intended to make further provision in respect of such persons.  This is illogical.  It is, of course, true that regulation 10 has no application to those who are excluded from entitlement to housing benefit by section 115, but people falling within the scope of regulation 2(1) of the 2000 Regulations are not in that position.  There is no reason whatsoever why those who are not excluded from entitlement to housing benefit by the 1999 Act and the regulations made under it should not be subject to all regulations made in respect of housing benefit under the 1992 Act and other statutes.  Otherwise, nationals of states that had ratified ECSMA would be in a better position than nationals of the United Kingdom because, for instance, they would not have to demonstrate habitual residence under regulation 10(2).  That would be astonishing and all the more so because ECSMA does not apply to legislation conferring entitlement to housing benefit (see Article 2(b) and Annex I).

11.	I am prepared to accept for the purposes of this case that an apparently broad regulation-making power in one statute may implicitly be qualified by another statute so that regulations made under the first statute may not make provision inconsistent with the second statute.  However, there is nothing in section 115 itself to suggest that those who are within the scope of subsection (9) but who are also within the scope of regulations made under subsection (3) cannot be excluded form entitlement to benefit by virtue of regulations made under the 1992 Act and I cannot accept that subordinate legislation made under the 1999 Act can qualify regulation-making powers in the 1992 Act.

12.	Regulations under the 1999 Act may have implications for the interpretation of regulations under the 1992 Act, but I do not accept Mr Berry’s submission that they do here.  Of course, it would have been odd to introduce in 2000 regulations under the 1992 Act excluding from entitlement all those deliberately not excluded from entitlement at the very same time by virtue of regulations made under the 1999 Act.  However, there is nothing odd about excluding at a later date those not excluded in 2000.  Parliament is entitled to adopt a new policy.  It is true that the consequence of introducing in 2004 the forerunner of regulation 10(5) of the 2006 Regulations was to leave paragraph 4 of Part I to the Schedule to the 2000 Regulations as a redundant provision in respect of housing benefit, but that is a much less surprising result than that contended for by Mr Berry, which would have left Turkish nationals in a more favourable position than EEA nationals.  Moreover, as Ms Dixon submitted, regulation 10 of the 2006 Regulations is drafted in general terms and it would have been very easy to exclude from its scope those within the scope of paragraph 4 of Part I of the Schedule to the 2000 Regulations had that been intended.

13.	Mr Berry argued that the memorandum explaining the policy reasons behind the introduction of the forerunner of regulation 10(5), published with a report of the Social Security Advisory Committee in Cm 6181, showed that the Government was concerned with “benefit tourism” from EEA states and for that reason the legislation should be construed as applying only to British citizens, Commonwealth citizens with a right of abode and EEA state nationals.  However, that is a misreading of the memorandum.  Paragraphs 13 and 14 show that the Government accepted that “benefit tourism” was adequately addressed by the “habitual residence” test introduced long before 2004 by the forerunner of regulation 10(2) and that the “right to reside” test was aimed at restricting “longer-term access to the income-related benefits payable out of general taxation”.  Although much of the memorandum is understandably concerned with the position of EU citizens, because the new legislation had to be compatible with EC law, much of the memorandum, in particular paragraphs 4 and 14, is in general terms.  It would be very surprising if the Government had wished to enact legislation designed to make EU citizens worse off than nationals of states outside the EU.

14.	For all these reasons, I am satisfied that there are no grounds for construing regulation 10 of the 2006 Regulations, or any paragraph of that regulation, as not applying to those within the scope of paragraph 4 of Part I of the Schedule to the 2000 Regulations.  I reach this conclusion without considering whether Abdirahaman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657; [2008] 1 W.L.R. 254 (also reported as R(IS) 8/07) in any event conclusively determines this issue against the claimant.

15.	Mr Berry also submitted that, even if I was against him on his first point, an asylum-seeker in the position of the present claimant does have a right to reside in the United Kingdom.  He accepted that not all those lawfully present in the United Kingdom would have such a right and he gave as one instance an overstayer given temporary admission pending deportation who, he accepted, would not have a right of residence.  The present claimant he distinguished on the basis that (i) he had a right to remain until his refugee status was determined, that (ii) he had been granted temporary admission (unlike most EEA nationals not exercising rights of residence, that (iii) he was lawfully present as a person who had been temporarily admitted and that (iv) express provision was made in the 2000 Regulations in respect of nationals of states that had ratified ECSMA.  Ms Dixon, on the other hand, relied upon Abdirahman.  In that case, the Court of Appeal clearly drew a distinction between rights of residence and rights of admission.  The latter clearly imply rights to be present (see Szoma) and I do not accept that any relevant distinction is to be drawn between asylum-seekers granted temporary admission and EEA nationals exercising rights of admission under EC law and the EEA Agreement.  If the former receive more formal decisions from immigration officers, that is only because in the absence of such decisions they do not have any rights of presence without being detained and so they need the decisions as evidence of their rights to be at liberty in the United Kingdom.  The rights to be admitted possessed by EEA nationals arise form their possession of an appropriate identity card or passport and so no further evidence or decision is required.  The 2000 Regulations are irrelevant because they are concerned with rights to benefit rather than the immigration status of those affected by them.  Nothing Mr Berry has submitted has persuaded me to resile from what I said in CIS/1794/2007 (to be reported as R(IS) 3/08).  I am quite satisfied that the claimant had no right of residence in the United Kingdom before she was granted leave to remain in the United Kingdom.

16.	Accordingly, I allow the local authority’s appeal.

	(signed on the original)	MARK ROWLAND
		Commissioner
		23 June 2008