Reply To: New legislation for arrivals from Sudan

Peter Barker

The amending regs don’t have any transitional provisions, they come into force on 15 May and that’s that. If you are making a decision on or after 15 May on a new claim received before that date, the principle of taking into account circumstances “down to the date” of the decision ought to allow you to award HB without worrying about HRT2 from 15 May even if you are disallowing the claim for an earlier period. It shouldn’t be a case of “well, you weren’t habitually resident on the date of your claim, so that claim is refused – you’ll have to claim again now”. Instead, you award HB from whenever the claimant first satisfies the entitlement conditions during the period between the date of the claim and the decision on that claim (or the Monday after that date I should say). Otherwise, the claimant would be penalised for delay by the Council. Except …

In the particular case of habitual residence, the above sits awkwardly with HB Reg 83(10) / HB(SPC) Reg 64(11). These regs prevent you from treating a claim as an advance claim where the claimant would fail the HRT on the date of the claim but not from a later date within the next 13 weeks.

But I think you can distinguish an advance claim case from a delayed decision case. Reg 83(10)/64(11) contemplate that you are making your decision early on a date when the claimant is not yet entitled in “real time”. If the decision is not made until after the claimant starts to meet the entitlement conditions, I think you can rely on the principle of considering circumstances down to the date of the decision without involving Reg 83(10)/64(11).

See the analysis in CPAG to para 2 of Schedule 7 to the CSP&SS Act 2000