Decision made under s115 of Immigration & Asylum Act out of Tribunal’s jursidiction?

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  • #38920
    sarah elliott
    Participant

    Hi,

    Could anyone point me in the right direction on this one?

    Decision: customer is not entitled to HB/CTB under 9(b) of s115 of the Immigration & Asylum Act 1999 as he is a Nigerian national with limited leave to remain with no recourse to public funds.

    Grounds of appeal: the decision is not fair, customer is on a low wage and has to support himeself +wife +baby. Does not dispute that he has limited leave to remain etc.

    Is the decision outside of the jurisdiction of the Tribunal? (on the grounds that it has been made on legislation other than HB/CTB regs?).

    Or, should it be submitted as ‘no resonable prospect of success’? (on the grounds that customer is appeal against point of law and really needs judicial review?).

    If anyone can point me in the right direction, I’d be really grateful ๐Ÿ™‚

    #110212
    Kevin D
    Participant

    It depends on what the HB/CTB decision maker really meant. If the decision is truly meaning that HB/CTB is refused under the Immigration & Asylum Act, that is plainly wrong and it should be revised (although possibly still to the effect of there being no entitlement). On the other hand, if the HB/CTB decision is, in all reality, saying the clmt is a PFA BECAUSE of the IAA, the decision stands – it’s just the wording that’s muddled rather than the decision itself.

    A decision on HB/CTB cannot be made on the basis of legislation outside the HB/CTB scheme. I doubt whether the LA has done so; it’s surely been made, in reality, based on the PFA provisions which are most certainly under the HB/CTB scheme and, in turn, definitely within the jurisdiction of the Social Entitlement Chamber of the FtT.

    In the event of the decision not being revised, or revised but with no change to bottom line entitlement, the appeal must be sent to TTS. Only if the decision is positively revised (i.e. benefit awarded) in favour of the clmt does the appeal lapse.

    #110213
    sarah elliott
    Participant

    Thank you, Kevin ๐Ÿ™‚

    We’ve prepared the case for submission on the basis of s115 and PFA regs for HB/CTB. We were just a little confused by analysis to HBR 10 in CPAG, which said ONLY look at reg 10 if customer is not excluded by virtue of s115 IAA.

    Must have got the wrong end of the stick!

    Thanks again

    #110216
    Kevin D
    Participant

    Ah, there maybe something in that. Unfortunately, PFAs are not an area that I have ever got to grips with so perhaps a bit of caution is prudent. Probably best to double check. That said, I can’t for the life of me see how a HB/CTB “decision” can be made outside the HB/CTB regs.

    #110221
    Anonymous
    Inactive

    There is some caselaw which deals with similar themes which might be of interest:

    https://hbinfo.org/wp-content/uploads/caselaw/ch_2321_2007.doc

    http://www.britishcaselaw.co.uk/yesiloz-v-london-borough-of-camden-and-anor-2009-ewca-civ-415-20-may-2009

    Both HB/CTB decisions relied on s115 but the essence was that they were a PFA under HB reg 10(3) as they didn’t fall under any of the exemptions in 10(3B) as they were subject to s115 IAA and didn’t satisfy 10(3B)(i).

    I think i may have got lost somewhere there, does that make sense?..

    #110222
    sarah elliott
    Participant

    Yep, I am also confused by that! However, s115 seems to say “not entitled to HB/CTB under SSCBA whilst he is a person to whom this section applies”. I’ve always been told that SSCBA is the ‘primary legislation’ and HB/CTB legislation is ‘secondary’. Maybe s115 IAA & 130 of SSCBA is sufficient?

    #110224
    sarah elliott
    Participant

    Thanks Jerry, yes you did make perfect sense! ๐Ÿ™‚
    I’ll go and have a look at the caselaw….

    #110230
    sarah elliott
    Participant

    Thanks again Kevin and Terry.

    Untangling this one has had me going for hours! Should some poor submission writer come across similar situation, here’s what I think and I’ll post message once Tribunal have responded.

    1) Primary legislation which governs entitlement to HB= section 130 of SSCBA 1992

    2) s115 of Immigration and Asylum Act 1999 gives list of people who are exluded from entitlement to HB, under section 130 of the Social Security Contributions and Benefits Act 1992.

    2) the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 introduced a list of circumstances in which section 115 would not apply and in which case entitlement would be determined by regulation 10 of HB (general) regs 2006.

    If the claimant falls into one of the four categories listed in Consequential Amendments Regulations 2000, they are not excluded by s115 of IAA 1999/ s130 of SSCBA 1992…..and you would need to consider whether regulation 10 of the HB 2006 regulations applied.

    If s115 of IAA 1999 applies; and claimant doesn’t fall in any of the 4 categories in Consequential Amendments Regulations 2000 then whether or not they are entitled is determined by HBR 10 (2006).

    Paragraph 10 of CH_2321_2007 Commissioner (as he was then!) Rowland says:-

    โ€œIt 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 positionโ€.

    Yesiloz v London B of Camden says entitlement was determined by reg 10 HB because:-
    a) claimant Turkish national
    b) Turkey ratified ECSMA (circusmtance no. 4 in list of when s115 will not apply)
    = not excluded by s115, or s130 of SSCBA 1992 = whether or not entitled determined by HBR 10.

    #110231
    sarah elliott
    Participant

    It’s been a long day! I meant to say

    “does s115 apply?” If yes, now ask yourself “is claimant in list of exceptions in consequential amendments 2000?” If no, excluded from HB by virtue of s115 IAA & s130 SSCBA. NO need to consider Reg 10 of HB regs.

    #110271
    Anonymous
    Guest

    Yes exactly right. The point of Yesiloz is that non-EEA nationals have to satisfy both s115 of the 1999 Act and HB Reg 10: a non-EEA national might be a PSIC or a PFA – either one will suffice to knock him/her out of HB. While in practice it is usually the case that Reg 10 affects EEA nationals, any non-EEA national who is fortunate enough to escape s115 has still got Reg 10 to satisfy as well. The particular issue in Yesiloz was that as a Turkish national she was not excluded by s115 as a PSIC because she was “lawfully present” in the UK as a temporarily admitted asylum seeker, but that status fell short of having a right to reside for the purposes of Reg 10 so she was a PFA instead.

    A person with limited leave and no recourse to public funds certainly has a right to reside for Reg 10 purposes while that leave lasts, and is therefore unlikely to be a PFA, so the argument in your case really is all about s115. That is where the decision is made – it sits outside the HB scheme entirely. You would expect some sort of tie-in or cross-reference … maybe a preamble in s130 of the Conts and Bens Act saying “subject to s115 of the I&A Act 1999”. But there isn’t.

    #110272
    sarah elliott
    Participant

    Thank you, Peter..you’ve explained that beautifully ๐Ÿ™‚

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