Tkachuk v Secretary of State for Work & Pensions

This appeal raises a short point of statutory construction in relation to entitlement to income support. The appeal is from a decision dated 12 December 2005 of Mr Commissioner Angus, one of the Social Security Commissioners. He was determining an appeal from the Income Support Appeal Tribunal, which had confirmed a decision of the Secretary of State that the claimant for income support, the present appellant, was not entitled to retrospective payments of income support.

The facts are not in dispute. The claimant, a Ukrainian national, came to the United Kingdom on 4 July 1997. She claimed political asylum on 9 December 1997. Following an appeal to the Immigration Appeal Tribunal, she was granted asylum on 12 October 2001. She was represented at the IAT by counsel instructed by her solicitors (who, I should say, are not those who are now acting for her). Notification of the IAT’s decision was sent to her solicitors on 10 January 2002. Those solicitors were then still on the record as acting for her. The solicitors did not forward the decision to her. They considered, when asked about it much later, that it might have been lost by a caseworker in their firm. They asked the Home Office to send her a certified copy, or some other form of replacement, which the Home Office duly did by a letter of 17 July 2003. She claimed income support on 13 August 2003.

We have seen the letter dated 7 January 2002 from the Home Office, by which she was informed that she had been granted indefinite leave to remain as a refugee recognised under the Refugee Convention and that she was free to stay in the country permanently. That letter which was addressed to her but sent, as I said, to her solicitors went on to deal with a number of consequences of the granting of indefinite leave to remain as a refugee. There was a heading “Employment” which dealt with her ability to take a job without permission and then there was a heading “Health, Social Services and Education” which said, among other things, “you will be able to get Social Security Benefit, including income support, if you meet the conditions”. The next heading was “National Asylum Support Service”, which dealt with the possibility, although we are told it was not the fact, that she might have been receiving support under the National Asylum Support Service. If she had been, she would no longer be entitled to that support, after the expiry of 14 days following the day on which she was notified of the decision. The letter went on to say that if the decision was sent by post, she is deemed to have been notified of it two days after it was sent. That is the letter that, it is common ground, was sent to her solicitors and was not sent on by them to her. We were told, on instructions, that the Home Office had no record of having had a home address for her until after the date of that letter.

Turning from the facts to the point on the appeal, it is, in short, as follows. If someone who has claimed asylum is notified by the Home Office that he or she is recorded as a refugee and claims income support within 28 days of receiving that notification, then that person may be entitled to income support backdated to (in case relevant for present purposes) the date of the claim for asylum. The Secretary of State contends that the 28 days runs from notification, in the present case, to the claimant’s solicitors or strictly from two days after posting the letter to them. If that is correct, the appellant’s claim is not in time. The appellant, on the other hand, says that notification to her personally is required and that she did claim within 28 days of the date on which she herself was first made aware of the decision.

The Income Support Appeal Tribunal held that the Secretary of State’s reading was correct and the Social Security Commissioner upheld that ruling but gave permission to appeal to this court. If the decision is correct, the appellant has lost several years’ worth of income support payments which, we were told on instructions, amount in aggregate to something in the range of £7,000 to £10,000. If the cause of this loss was the incompetence of her solicitors in not informing her of the notification from the Home Office, she may have a remedy against them, although the time for such a claim would presumably run out next January, six years on. Even if she has such a remedy, one could not blame her for feeling that this is an unsatisfactory alternative to her statutory right that she would otherwise have had to Income Support payments retrospectively. Clearly, even if this appellant may have such a remedy, there could well be cases in which someone is in a similar position but not as a result of anything that could be said to be the fault of the agent who has received the notice.

The starting point for the issue of statutory construction is Regulation 21ZA of the Income Support General Regulations 1987, which was inserted by regulations coming into force on 15 October 1996 made under section 11(2) of the Asylum and Immigration Act 1996. I will read that section before I come to the regulation:

“11.

- (1) Notwithstanding any enactment or rule of law, regulations may exclude any person who has made a claim for asylum from entitlement to any of the following benefits, namely –

a)

income support, housing benefit and council tax benefit under the Social Security Contributions Act… 1982;

[I need not refer to b or c.]

(2)

Regulations may provide that, where such a person who is so excluded is subsequently recorded by the Secretary of State as a refugee within the meaning of the Convention –

a)

that person may, within a prescribed period, claim the whole or any prescribed proportion of any income support, housing benefit or council tax benefit to which he would have been entitled had he been recorded as a refugee immediately after he had made the claim for asylum…

[I need not refer to paragraph b) nor any other part of section 11].

Regulation 21ZA is as follows:

“(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 of Article 1 of the Convention relating to Status of Refugees done at Geneva on 28th July 1951… he shall cease to be a person from abroad for the purposes of regulation 21… and Schedule 7 … from the date he is so recorded.

(2)

Except in the case of a refugee to whom paragraph (3) refers [which I interpolate is irrelevant for present purposes], 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 … in respect of any such period.”

The vital words in paragraph (2) are “who claims income support within 28 days after receiving the notification referred to in [paragraph (1)]”. Is receipt by a relevant agent to the claimant sufficient or must the notification have reached and been received by the claimant himself or herself? Regulation 21ZA has been superseded, but Regulation 21ZB, in force from 3 April 2000, is to similar effect.

Mr Cox, for the appellant, submitted that the relevant task is to construe the statute and the regulations, rather than to consider general law doctrines such as agency. He argues that personal receipt by the claimant is what is shown to be relevant by the literal meaning of Regulation 21ZA(2) and that this is supported by the context because the notification is a trigger under paragraph (2) for the start of a period, during which the refugee him or herself may do something that has to be done by him or her personally, namely the submitting of an income support claim form.

He showed us provisions about making claims for income support, starting with the general provision in the Social Security and Administration Act 1992, section 1, which subjects entitlement to any benefit to the requirement that the person in question makes a claim for the benefit in the manner and within the time prescribed, in relation to the particular benefit, by regulations. The relevant regulations are the Social Security (Claims and Payments) Regulations 1987. Regulation 4(1A) deals with Income Support. It reads:

“In the case of a claim for income support or jobseeker’s allowance, the claim shall –

(a)

be made in writing on a form approved by the Secretary of State for the purpose of the benefit for which the claim is made;

(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 a number of circumstances in which the requirements of 1A (b) and (c) may not be applied, or not strictly, but they do not provide any exception from 1A(a). Regulation 19 of the same regulations deals with time limits and in general allows a certain degree of flexibility, but claims under Regulations 21ZA and later 21ZB were expressly excluded, so that there is no possibility of an extension to the 28-day time limit under Regulation 21ZA (2).

Mr Cox relied on the need for personal completion of the signature of the claim form which he submitted was the case in all circumstances except the narrow class of cases falling within Regulation 33, which is headed “Persons Unable to Act”. Under that regulation, where the person entitled to some benefit is unable to act for the time being, but does not have a receiver appointed by the Court of Protection or an equivalent under Scots law who can act on behalf of the claimant, then the Secretary of State may, upon application, appoint a person to exercise on behalf of the person so entitled any right to claim and to receive and deal with any sums due. In the context of income support, it can fairly be said that the appointment of a receiver by the Court of Protection may be unlikely since such an appointment would only be likely to be made if there were substantial assets of the person in question, but these provisions do not only apply to means-related benefits.

Regulation 33(3) is as follows:

“Anything required by these regulations to be done by or to any person who is for the time being unable to act may be done by or to the receiver, tutor, curator or other guardian, if any, or by or to the person appointed under this regulation or regulation 43… and the receipt of any person so appointed shall be a good discharge to the Secretary of State [or the Board] for any sum paid.”

Mr Cox is entitled to submit that this is an express provision under which notification to an agent is sufficient for the purposes of the regulations. Although it does not apply expressly to Regulation 21ZA, it is part of the legislative context. He can say that if there were a general principle that notice to an agent is notice to the principal for these purposes, this provision would hardly be necessary, although, of course, the agents dealt with here are in a special category due to the incapacity of the principal.

We were shown the current form approved for claims for income support. It includes a declaration at part 18, which I do not need to read, but which is plainly only consistent with personal signature of the form by the claimant. Mr Cox submitted that it was significant in revealing that the Secretary of State accepts that the claim form has to be personally signed except in a Regulation 33 case because, he says, that does not appear from the terms of section 1 of the 1992 Act. So be it, but it plainly does appear from the text of the approved form, and since the approved form must be used under section 1 of 1992 Act and Regulation 4 of the Claims and Payment Regulations, it seems to me that the requirement for personal signature is, in this instance, a statutory requirement.

The Commissioner decided the case against the appellant on the basis that the general law of agency applied. He held first that the meaning of “received notice” was to be decided by reference to the legislation as regards immigration control, rather than that dealing with income support because the notification involved under Regulation 21ZA(1) is as to immigration status. He did, however, go on to say that the result would be the same whichever code was relevant. He then said that general rules of agency did apply and he cited two cases where agency rules were held to apply to a Social Security provision in the context of immigration. To the submission that the Income Support legislation requires personal action, subject to express exception such as in regulation 33, and should therefore require notice to the claimant in person, he said that agency rules are supplemented or varied, but not displaced entirely by the legislation. He held finally that the claimant’s solicitors were her agents to receive notice.

Ms Dixon for the Secretary of State supports this decision. She pointed to express provision in the Immigration Appeals (Notices) Regulations 2000, admittedly not applying directly since they apply to decisions which are appealable and therefore would only apply if the decision had been to the contrary effect in the present case, since this claimant was accepted as having refugee status. Those regulations provide expressly for notice to a representative of the relevant person. Mr Cox counters that such an express provision only shows more clearly the significance of there being no such provision (except for Regulation 33) dealing with the present type of case and shows also that the legislature did not, in that instance, rely on the general application of principles of agency.

Ms Dixon submits that the Commissioner rightly proceeded on the basis that the general law applied unless it was excluded expressly or by implication from the terms of the legislation. She cited a decision of the Court of Appeal under an earlier immigration regime, the Commonwealth Immigrants Act 1962, the case being R v Chief Immigration Officer Manchester Airport, ex parte Insah Begum [1973] 1 WLR 141, CA. This was a very clear case on its facts. The relevant provision provided for an immigration officer to give notice in writing and said any such notice shall be given by being delivered by the immigration officer to the person to whom it relates. The applicant in that case had arrived from Pakistan at Manchester airport, speaking no English and producing a passport with an entry certificate which was suspected of being a forgery. She contacted a solicitor. On the day after her arrival in Manchester, she had a meeting with the immigration officer which was attended by the solicitor’s managing clerk. The immigration officer had a notice of refusal prepared and as Lord Denning says at Page 143(a):

“When the assistant [to the immigration officer] produced [this notice], the solicitor’s managing clerk leant across the table and took it from him saying, ‘I will take this: I am her legal representative.’”

As Mr Cox said, not very promising material for an argument that the notice should have been given to the woman herself. That was the argument and, at page 143(c), Lord Denning said:

“It is said that the notice ought to have been given to the woman herself and not to the solicitor’s clerk. I do not agree. I think the notice is sufficient to comply with the Act if it is given to the person herself or to her agent, in this sense, that he is authorised to receive it on her behalf or may, from his position, be presumed to have such authority.”

So, Lord Denning did not rely on the fact that she was present. He relied on the fact that the solicitor’s clerk was authorised and said that it would apply to a case in which the agent could be presumed to have such authority.

Mr Cox showed us a number of cases where agency has been considered in a number of different statutory contexts. He made the submission that the court always considered the nature of the legislation and the purpose of the requirement of notice, and that generally, where the court did allow notice to the agent to be regarded as sufficient for the statute, it was only if the agent in question was not only authorised to receive the notice, but also to deal with it. He submitted that there was no general application of agency principles regardless of the statutory context and he distinguished Begum on the basis that the solicitor’s representative clearly was able to receive and to deal with the notice.

Mr Commissioner Angus cited Shire v Secretary of State for Work and Pensions [2003] EWCA Civ 1465 in his decision. That was a case which certainly did apply agency principles in an immigration context. It was not concerned with the specific question of notice to agent or to principal, and accordingly seems to me to be less useful for present purposes than the decision of the Court of Appeal in the Begum case in 1973.

Reverting, for a moment, to the legislation, we were shown section 94 of the Immigration and Asylum Act 1999. This deals with the interpretation of Part VI of that Act, which is headed “Support for Asylum Seekers” and introduced the system that I mentioned earlier, the National Asylum Support System, a system operated by the Home Office as distinct from that operated under the aegis of the Department of Work and Pensions, which was applicable from 3 April 2000. For those purposes by section 94(1), “asylum seeker” is defined as a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined. Subsection (3) clarifies that:

“For the purposes of this Part, a claim for asylum is determined at the end of such period beginning –

a)

on the day on which the Secretary of State notifies the claimant of his decision on the claim…

[and I do not need to refer to ‘b’]

as may be prescribed.”

The period is 14 days and so where the decision for this is in favour of the claimant or is against the claimant but is not appealed, the claim for asylum is determined 14 days after such notification. That is further amplified by subsections (8) and (9). (8) is to this effect, “A notice under subsection 3 must be given in writing”, and (9) is as follows:

“If such a notice is sent by the Secretary of State by first class post, addressed -

a)

to the asylum-seeker’s representative, or

b)

to the asylum-seeker’s last known address,

it is to be taken to be received by the asylum-seeker on the second day after the day on which it was posted.”

Part VI deals with the position as regards someone such as the appellant and while the asylum claim is pending, that is to say, in the present case before January 2002. It shows for that, for the purposes of this Act, her status as asylum seeker came to an end after the end of the 14-day period after notification to her solicitors. Section 115 in the same part of this Act deals with exclusion from benefits of asylum seekers including exclusion from entitlement to income support and section 123 makes provision equivalent to section 11(2) of the 1996 Act for allowing for backdated benefit claims. Regulation 21ZB was made under that power.

It is thus clear that as regards to the position since 3 April 2000, in cases to which the 1999 Act applies and to which Regulation 21ZB applies, notification to the asylum seeker’s representative is sufficient. It is also clear that the appellant’s status as a person excluded from income support by section 115 after 3 April 2000 came to an end at the end of the relevant period after notice to her solicitors. However, the 1996 Act has no equivalent provision to section 94(8) and (9) of the 1999 Act, so the point is not covered explicitly by legislation, nor can the 1999 Act affect the interpretation of Regulation 21ZA. While it might be thought surprising to find that Regulation 21ZB has a different effect from Regulation 21ZA, that is undoubtedly theoretically possible because of the different statutory context and Mr Cox can submit that the inclusion of an express provision in the 1999 Act points up its omission from the 1996 regime.

Mr Cox accepts that, to the extent that the notification under paragraph 21ZA(1) had any immigration effect, it was valid and effective given to the immigration solicitor. On the facts of this case he says that it had no such effect because, in point of fact, the appellant was not in receipt of asylum support, so that the effect that such a notice would have had at bringing to an end any such entitlement did not, in fact, apply in her case. Moreover, there was nothing wrong with the notice in immigration terms, so there was no need to question or challenge it. Such a notification might, however, have such effects, as the letter itself recognised with regards to asylum support. However, Mr Cox submitted that because 21ZA(2) is concerned with income support and not with immigration, it has to read in a different statutory context and can only be brought into operation by a notice to the refugee personally because, as I say, it triggers a period during which something can be done to benefit the refugee which has to be done by him or her personally.

For my part, I do not see that that is a proper interpretation of the paragraph. Paragraph (2) refers to receiving the notification referred to in paragraph (1). It must therefore be the same document as is relevant for the purposes of paragraph (1). If for the purposes of paragraph (2) it must be to the refugee personally, then so it would have to be for the purposes of paragraph (1), otherwise one would have a situation under which there is one provision for the Secretary of State for the Home Department to give a notice, which is plainly for immigration purposes and in that context could, in principle, be given to the solicitor acting for immigration purposes, but which, in order to have effect for the purposes of paragraph (2) as well, would also have to be sent separately and personally to the refugee, always assuming the Home Office has an address for him or her.

Despite Mr Cox’s carefully argued submissions, I find that an impossible interpretation of the regulation. Paragraph (2) simply refers, for this purpose, to paragraph (1), so that a notification which is effective for the purposes of paragraph (1) is, by that very fact, relevant and sufficient for paragraph (2). Nor does it seem to me that this would be inconsistent with the statutory context of paragraph (2) with regards income support. It is true that the solicitor could not claim income support on behalf of the refugee in the sense of signing the form, but the solicitor, receiving the letter which tells the client a number of consequences of refugee status, including a possible entitlement to income support, can advise the client about these consequences and could, if instructed, assist with the completion of the income support claim form. That would be sufficient, if it were necessary, to find that the recipient was able not only to receive the notice but also to deal with it. However, I would rest my judgment principally on the question of statutory construction, that simply as a matter of reading paragraphs (1) and (2) together, that which is required for the purposes of paragraph (2) is identical to that which is required for the purposes of paragraph (1).

In my judgment, the appeal tribunal and the Commissioner were both right and I would dismiss this appeal.

I agree.

I also agree.