[2005] UKSSCSC CH_1231_2004 (07 February 2005)

CH/1231/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, brought by leave of the tribunal chairman (who sat alone) against the decision of the appeal tribunal held on 23 September 2003.  I set aside the decision of the tribunal for error of law and, because matters of evidence and fact are in issue, remit the case for rehearing before a differently constituted tribunal  My having done so is not an indication of the claimant’s eventual prospects of success.

2.	The appellant in this appeal is the person who was in receipt of housing and council tax benefit paid by the local authority, the respondents.  By a decision dated 7 August 2002 the respondents decided that housing and council tax benefit were not payable under the claim dated 24 December 2001 because the requirements of section 1 of the Social Security Administration Act 1992, as amended by section 19 of the Social Security Administration (Fraud) Act 1997, were not met.  Section 19 of the 1997 Act Amended Section 1 of the 1992 Act, with effect from 6 September 1999, as follows:

		“(1A) No person whose entitlement to any benefit depends on his making a claim shall be entitled to the benefit unless subsection 1(B) below is satisfied in relation both to the person making the claim and to any other person in respect of whom he is claiming benefit.

		(1B)  	This subsection is satisfied in relation to a person if –

		(a)	the claim is accompanied by –
		(i)  a statement of the person’s national insurance number and information or evidence establishing that the number has been allocated to the person; or

		 (ii) information or evidence enabling the national insurance number that has been allocated to the person to be ascertained; or 

		(b)	the person makes an application for a national insurance number to be allocated to him which is accompanied by information or evidence enabling such a number to be allocated.

It is not disputed that the claimant married on 25 November 2000.  Her husband (a citizen of Jamaica) had entered the UK on 7 January 2000 and was granted leave to enter for six months, as a visitor.  In April 2001 he made a request for variation of his leave to enter, wishing to remain as the spouse of a British citizen, the claimant.  Although the claimant had provided details of her own national insurance number to the respondents, she was unable to provide those details in respect of her husband because he did not have a national insurance number.  The explanation for this was, in essence, that the husband’s immigration status had not been determined and the husband was, it was said, unable to comply with sub-section (1B)(b) because relevant documentation was with the Home Office.  The respondents determined that an overpayment of housing benefit in the sum £1939.24 had been made but no issue arose before the tribunal as to its recoverability.  The only issue before the tribunal was the entitlement of the appellant to housing and council tax benefit and in particular whether she satisfied the relevant legislative provisions.  The respondents said she did not.

3.	The tribunal’s statement of material facts and reasons is, if I may say so, in commendable detail and no issue arises as to the findings of fact save that it was not recorded that the claimant had two children.  Nothing, however, turns upon that.  The tribunal addressed the argument advanced on behalf of the appellant that section 1(1A) of the 1992 Act had to be read in a way that was compatible with Convention rights under the 1950 European Convention.  It was argued that the only construction of section 1(1A) that did not interfere with the appellant’s protected rights under Article 8 (either taken on its own or in conjunction with Article 14) was to read section 1(1A) as not applying to the appellant’s husband because she was not claiming benefit in respect of him.  It was also argued that the husband had satisfied the national insurance number requirements because he had attempted to obtain an interview for that purpose but had been unable to secure one and that relevant documentation was with the Home Office.

4.	The tribunal accepted, if only for the sake of argument, that housing benefit fell within the ambit of Article 8 and the tribunal went on, insofar as it was necessary to do so, to accept that a prima facie case could be made for a breach of Article 14.  It was, however, in the event not necessary for the tribunal to address in greater detail issues arising under the Convention because of the tribunal’s essential conclusion that the legislative provision in question was enshrined in primary legislation in respect of which the tribunal had no power to make a declaration of incompatibility.  The tribunal went on to reason that section 1(1A) of the 1992 Act was clear and unambiguous and the tribunal provided clear and persuasive reasons why there was no scope for the appellant’s husband to be disregarded in relation to her claims for housing and council tax benefit.  The tribunal, thus, found that the appellant’s husband could not be excluded from her claim to the benefits.  The upshot of all this was that since the appellant’s husband did not comply with the “clear and unambiguous” legislation requiring the provision of a national insurance number the decision of the local authority was correct.  On that essential basis the tribunal dismissed the appeal.

5.	The grounds of appeal advanced on behalf of the claimant, although in some detail, are encapsulated in the contention that: “The full written decision states that the appeal fell because the wording of section 1 and 2 of the SSA 1992 is clear and unambiguous.  We submit that section 1(1A) can be interpreted and can be read in such a way as to be compatible with the Human Rights Act Article 8 and Article 14”.  The Secretary of State accepted my invitation to become a party to the proceedings.  The submission provided by the Secretary of State’s representative argues, on the authority of Carson and Reynolds v. Secretary of State for Work and Pensions [2003] EWCA Civ 797, that Article 8 creates no positive obligation to pay benefits and that even if it did in the circumstances of this appeal that would make no difference given that the primary legislation could not reasonably be read in the manner suggested on behalf of the appellant since the national insurance requirements have to be “satisfied in relation both to the person making the claim and to any other person in respect of whom he is claiming benefit” (my emphasis).  The short written submission provided on behalf of the respondents supported the decision made by the tribunal.

6.	At the request of the claimant’s representative I directed an oral hearing of the appeal.  The appellant did not attend but was represented by Mr P Heron.  Mr A O’Sullivan and Ms T Killeen attended on behalf of the respondents whilst the Secretary of State was represented by Mr S Cooper.  I am most grateful to all for their assistance.

7.	In the event the case for the appellant took on a different nature before me.  That is because Mr Heron frankly, and reasonably in my view, conceded that the human rights arguments previously advanced could not succeed since, in essence, even if it were otherwise possible to establish a breach of any protected rights (under whatever Article or Articles of the 1950 Convention) an insurmountable difficulty remained, that the legislative provision in question was to be found in primary legislation which could not be read in a manner compatible with the convention.  Mr Cooper did not dissent from that proposition.  Mr Heron, referring to section 1(1B)(b) of the 1992 Act, argued that “information or evidence…” had been provided by the appellant’s husband and Mr Cooper acknowledged that, in principle, it was open to a local authority decision-maker (irrespective of whether a Department for Work and Pensions decision-maker had actually issued a national insurance number) to decide that the criteria of section 1(1B)(b) were satisfied.  In response to my question Mr O’Sullivan said that in the instant appeal no decision had been made on section 1(1B)(b) and Mr Heron and Mr Cooper were of the view that in the absence of any such decision there could be no appeal.   

8.	In my judgment the decision in Carson v Reynolds leads to the inevitable conclusion that Article 1 of Protocol 1 cannot be engaged.  I note that in granting leave the District Chairman indicated that Poirrez v France (Appn. No. 40812/98) held that a non-contributory benefit could constitute a property right for the purposes of Article 1, Protocol 1.  I note, however, that in Campbell and others v South Northamptonshire District Council and Secretary of State for Department for Work and Pensions [2004] EWCA Civ 409 Jacob LJ did not read Poirrez as “laying down a general rule that all  social security benefits are ‘possessions’,”  and he observed that Poirrez was decided on its own “very special facts”.  Moreover, I note that in Van den Bouwhuijsen (44658/98) the European Court of Human Rights considered the nub of Poirrez to be that there was discrimination on the grounds of nationality.  In summary, then, the tribunal in my judgment was right to hold that Article 1, protocol 1, was not engaged.

9.	As to Article 8 I remind myself that in CH/4573/2003 and CH/1205/2003 Article 8 was held to be engaged in relation to housing benefit so as to trigger consideration of Article 14.  As I have indicated above the tribunal proceeded on the basis that Article 8 was engaged, thus providing the opportunity to consider Article 14.  In connection with the latter the tribunal considered it arguable that the requirement for a partner of the claimant to have a national insurance number as a condition of benefit entitlement was likely to have a disparate impact on claimants whose partners are from abroad, thus providing an argument in relation to indirect discrimination on the grounds of national origin or race.  

10.	The human rights arguments were, however, rendered somewhat academic because the tribunal held that in any event they would get the claimant nowhere, quite simply because the legislative provision in question was contained in primary legislation which could not be read in a manner compatible with the 1950 convention.  That conclusion to my mind is unassailable and was, in the event, not disputed by Mr Heron.  The tribunal correctly held that it had no power to make a declaration of incompatibility and that it was obliged to give effect to primary legislation.  The tribunal provided clear and sustainable reasons why it did not accept the argument advanced on behalf of the claimant that her husband could be disregarded for the purpose of her claim to benefit.  The tribunal, after referring to various provisions in the housing and council tax benefit schemes and means tested benefit schemes, concluded that “the whole tenor of the housing and council tax benefit schemes (and other means – tested benefit schemes) is that if a man and a woman come within the definition of a married or unmarried couple they are treated as one unit for the purposes of claims for such benefits.”   The tribunal also, correctly in my view, did not accept the argument advanced on behalf of the claimant that she should not be regarded as claiming for her husband because she was not entitled to benefit for him.  The basis of the reasoning of the tribunal was that there was no provision under the housing and council tax benefit schemes (in contrast to those in relation to income support and income-based jobseeker’s allowance) for a person to be paid benefit as a single person, rather than at the couple rate, if that person has a partner who is “a person subject to immigration control”.  No argument to the contrary was presented by Mr Heron.

11.	The tribunal found that the interviews attended by the claimant’s husband were not sufficient to satisfy section 1(1B)(b) but I questioned if it could be argued that if a person had applied for a national insurance number, and provided information that his passport (and other documents providing a means of identification) were with the Home Office indefinitely, that could be sufficient to allow the DWP to liaise with the Home Office so as to verify the identity of the claimant (the essential point of the legislation in issue) and issue a national insurance number.  I questioned whether, then, irrespective of whether a national insurance number had actually been issued it would be possible for the housing/council tax benefit decision maker to decide, pursuant to section 1(1B)(b), that the claimant’s husband had made an application accompanied by the necessary information or evidence, even if the DWP decision maker had decided not to act upon it.  The tribunal noted that a decision refusing to allocate a national insurance number was directly appealable under section 12(1) of the Social Security Act but drew a distinction between that scenario and the one in the instant appeal in which no decision at all had been made on the question of allocating the claimant’s husband a national insurance number.   The tribunal held that in the absence of such a decision it had no jurisdiction.  As I have indicated above Mr Heron did not argue to the contrary although Mr Cooper was apparently of the view that in principle a local authority decision maker could make a decision under section 1(1B)(b) but that in his view circumstances of this case would not have permitted a decision in favour of the claimant.

12.	Section 1(1B)(a)(i) and (ii) address factual situations in which a national insurance number already exists.  Section 1(1B)(b) addresses a different situation, in which a person has made an application “accompanied by information or evidence enabling”  a national insurance number to be allocated.   This necessarily requires a subjective assessment in the circumstances of each case.  In the instant appeal the question of entitlement was at large before the tribunal, given that the essential argument advanced on behalf of the respondents was that no entitlement existed because the amended version of section 1 of the 1992 Act was not satisfied.  The fact that the local authority decision maker had not addressed his or her mind to section 1(1B)(b) did not, in my judgment, prevent the tribunal from considering that provision and although the instant tribunal referred in general terms to (1B)  it does not appear that it considered the criteria of (1B)(b) nor whether the “information or evidence” in question would have enabled a national insurance number to be allocated.  The fact that no decision, either by the DWP or the local authority, had been made which specifically referred to section 1(1B)(b) did not, in my judgment, deprive the tribunal of jurisdiction in relation to that provision given that the whole basis of the respondent’s case was that there was no entitlement and that necessarily required consideration by the tribunal of all routes to entitlement under the legislative provision relied upon by the respondents.  I note that in CIS/3692/2001 the Commissioner apparently took a similar view, as did the Commissioner in CIS/345/2003.  Neither of those decisions is predicated on the assumption that there must be a specific decision referring to each and every component part of the amended section 1 of the 1992 Act in order to found jurisdiction on the part of the tribunal.  Moreover, CFC/4082/98 (paragraphs 7-11) appears to suggest that consideration of section 1(1B)(b) necessarily involves an assessment of whether a national insurance number. would be granted.  Since the tribunal in the instant appeal was of the view that it had no power to address section 1(1B)(b) it erred in law, with the result that I must set aside the decision of the tribunal.  

13.	Mr Cooper’s view was that the “information or evidence” provided by the claimant’s husband could not reasonably, in the circumstances of this case, allow a decision in his favour under section 1(1B)(b).  That is a matter that will require investigation by the next tribunal.  It is not appropriate for me to substitute my own decision, to whatever effect, since I have not had the advantage of seeing or hearing the claimant or her husband and clear evidence will need to be taken as to the “information or evidence” in question

	(Signed)	S J Pacey
		Commissioner
		
	(Date)	7 February 2005