Terms & Conditions

[emmadring]

we lost an appeal on wednesday and I would love to know what people think of the decision.

The claimant is Mexican. He has leave to remain with no recourse to public funds. We turned down his claim on the basis that he is a person from abroad (correct wording would have been ‘excluded from benefit under s.115 of the Immigration and Asylum Act 1999′).
He appealed on the grounds that there is an exception which applies in his case, the exception being that persons with no recourse to public funds can be entitled where their funds from abroad have been temporarily disrupted (para 1 schedule to Immigration and Asylum etc regs 2000). Reg.10(4) states that this section can only apply for 42 days (but see below…..).

I came to the conclusion that claimant could not be entitled as the period of disruption occurred last Sept (when he was living in a different LA area) and his claim was for April 06 onwards. I assumed that the period of disruption and the claim period should overlap.
The chairman felt that this was not the case. He (rightly I think) decided that there was no provision explicitly stating that the period of disruption and the claim period needed to be linked and that thereofre the claimant can be entitled now. I’m sure this is not the intention of the legislation – our claimant’s funds are now restored.

Another issue is the wording of the provision containing the ’42 day rule’ – reg.10(4). It could be read to mean either a) that is is the funds which must be disrupted for not more than 42 days or b) that the exception (and therefore the entitlement) applies for only 42 days.
Our chairman interpreted the reg as saying that the funds had to be disrupted for less than 42 days. He gave no view as to how long the claimant would be entitled. Again, I’m sure that this can’t be the intention behind the legislation.

We are applying for a statement of reasons with a view to appealing, but wondered what others made of this. No case law seems to exist on this issue. Has anyone else come accross it, and if so what was your interpretation and decision?

Sorry – another LOOOOONG post! 🙄

[Anonymous]

Following the trail right back to its starting point:

s115(1) – no person entitled to a range of benefits, including HB and CTB, if s115 applies to him/her
s115(3) – s115 applies to a person subject to immigration control, as defined in s115(9) and including those with no recourse to public funds, unless they belong to a prescribed exempt group

2000 Regs: Reg 2(1) – for means-tested benefit purposes, s115 does not apply to people listed in Part I of the Schedule
Part I of Schedule: para 1 – a person with no recourse who is temporarily without funds and has a reasonable expectation of funds resuming

The Schedule seems to me to be written very much in the present tense: s115 does not apply at the time when those conditions are met – after those conditions cease to apply, s115 applies once more.

Finally, HB Reg 10 says that para 1 of the Schedule can only apply for a maximum of 42 days for HB purposes. The way I read it this restricts the HB exemption to a cumulative period of 42 days during which funds are currently interrupted.

In summary: Para 1 of the Schedule to the 2000 Regs disapplies s115 during any period of interruption, but not at any other time; and HB Reg 10 caps the period for which that para can apply at 42 days.

I see no ambiguity and I think the Tribunal has got it wrong. I believe you have a strong case for going to the Commissioners.

[Author]

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