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[2000] UKSSCSC CIS_1115_1999 (15 March 2000)

SJP/SH/CW/3

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/1115/1999

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER S J PACEY


 


1. This is an appeal by the adjudication officer, brought by leave of the tribunal chairman, against the unanimous decision of the social security appeal tribunal held on 1 October 1998. That tribunal decided that the claimant was entitled to urgent case payments as an asylum seeker since he had the benefit of transitional protection after a break in his income support claim.
2. The claimant's entitlement to income support involved consideration of his asylum seeker status. Regulation 21(3) of the Income Support (General) Regulations 1987 ("the General Regulations") provides definitions of "persons from abroad" who, by virtue of paragraph 17 of Schedule 7 to the General Regulations have an income support applicable amount of nil. Paragraph 17 is, however, disapplied in the case of persons from abroad to whom regulation 70(3) of the General Regulations applies. Regulation 70 ("Urgent Cases") includes asylum seekers as defined in paragraph 3A. In its unamended form regulation 70(3A) provided for a person becoming an asylum seeker when that person's asylum claim (on arrival or otherwise) was submitted. A more restrictive definition of asylum seeker, however, was inserted into regulation 70(3A) by regulation 8(3)(c) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 ("the Miscellaneous Amendments Regulations") to the effect that a person was then only to be considered an asylum seeker when he submitted on arrival a claim to political asylum. The Miscellaneous Amendments Regulations came into force on 5 February 1996. Transitional protection was, however, provided by regulation 12 of the Miscellaneous Amendments Regulations. Regulation 12 provides as follows:-

"Saving

- (1) Where, before the coming into force of these Regulations, a person who becomes an asylum seeker under regulation 4A(5)(a)(i) of the Council Tax Benefit Regulations, regulation 7A(5)(a)(i) of the Housing Benefit Regulations or regulation 70(3A)(a) of the Income Support Regulations, as the case may be, is entitled to benefit under any of those Regulations, those provisions of those Regulations as then in force shall continue to have effect as if regulations 3(a) and (b), 7(a) and (b) or 8(2) and (3)(c), as the case may be, of these Regulations had not been made.

(2) Where, before the coming into force of these Regulations, a person, in respect of whom an undertaking was given by another person or persons to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled, or is receiving benefit, under the Council Tax Benefit Regulations, the Housing Benefit Regulations or the Income Support Regulations, as the case may be, those Regulations as then in force shall have effect as if regulations 3, 7 or 8, as the case may be, of these Regulations had not been made.

(3) Where, before the coming into force of these Regulations, a person is receiving attendance allowance, disability living allowance, disability working allowance, family credit, invalid care allowance or severe disablement allowance under, as the case may be, the Attendance Allowance Regulations, Disability Living Allowance Regulations, Disability Working Allowance Regulations, Family Credit Regulations, Invalid Care Allowance Regulations or Severe Disablement Allowance Regulations, those Regulations shall, until such time as his entitlement to that benefit is reviewed under section 25 or 30 of the Social Security Administration Act 1992, have effect as if regulation 2, 4, 5, 6, 9 or 11, as the case may be, of these Regulations had not been made."

This case concerns the application of regulation 12(1) of the Miscellaneous Amendments Regulations and the extent of transitional protection arising thereunder.

3. The facts are not in dispute. The claimant entered the United Kingdom on 6 October 1992 and was awarded income support, at the urgent case payment rate, having claimed political asylum on 8 October 1992. That income support ceased when the claimant started work, on 17 September 1997. That work lasted until 3 April 1998 and a fresh claim to income support was made on 6 April 1998. The adjudication officer decided that the claimant could not satisfy regulation 70(3A) of the General Regulations because he did not submit "on arrival" a claim to political asylum in the United Kingdom. The adjudication officer also decided that the claimant could derive no protection from regulation 12(1) of the Miscellaneous Amendments Regulations on the basis that the transitional protection did not extend to new or repeat claims made after the coming into force of the Regulations, on 5 February 1996.
4. From the decision of the adjudication officer the claimant appealed to the tribunal. His essential argument was that he had entitlement to transitional protection. The tribunal, in allowing the appeal, relied upon the decision of the High Court in R v. Adjudication Officer ex parte B. The adjudication officer's grounds of appeal from that decision are to the effect that the tribunal erred in law, given that the Court of Appeal on 9 December 1998 reversed the decision of the High Court in ex parte B.
5. At the request of the claimant, through his solicitors, an oral hearing of the appeal was held. At that hearing the claimant was represented by Mr D Seddon, of Counsel, instructed by Alida Guest, solicitor, whilst the adjudication officer was represented by Ms V Bergman, of the Solicitor's Office of the Department of Social Security. I am grateful to both for their assistance.
6. An academic commentator has recently observed that "transitional protection has the unenviable reputation of being one of the most technical and complex features of social security law." (Professor A Ogus (1999) 6 Journal of Social Security Law). This, and other cases concerning the interpretation and application of regulation 12 of the Miscellaneous Amendments Regulations, illustrate that view.
7. Ms Bergman referred to the decision of the Court of Appeal in Regina v. Secretary of State for Social Security ex parte Vijeikis, C.A. 5 March 1998. The tenor of that decision, she submitted, involved not any particular sub-paragraph of regulation 12 of the Miscellaneous Amendments Regulations but was concerned with that regulation as a whole. It was in the nature of transitional protection that it was of a temporary, saving, nature. Judge LJ said that "Regulation 12 is a saving regulation. It preserves existing rights" and he went on to endorse the observation of Dyson J that "It would be inapt to speak of someone who once was, but no longer, is entitled to benefit as a person as regards whom the provisions 'continue' to have effect. For something to continue it must exist. It cannot be something that once existed but no longer exists." Notwithstanding that the facts in Vijeikis were not identical to those in the present case, Ms Bergman submitted that it was illustrative of the general nature of transitional protection as being essentially of a limited and temporary nature. She went on to pray in aid what was said by Peter Gibson LJ in ex parte B, in that although he addressed the terms of regulation 12(3) he also, in effect, addressed the principle of transitional protection as embodied in regulation 12, viewed as a coherent whole. He gave the example of someone entitled to a fixed period award of benefit on 6 February 1996 but who later made a fresh claim in different circumstances - (that, I observe, does not appear materially dissimilar from the instant appeal) - and observed that transitional protection would not extend to such a new claim. That point of view was substantiated, Ms Bergman argued, when Peter Gibson LJ went on to accept that "It is characteristic of transitional relief that it preserves entitlements existing at the date when the measure comes into force. It would be uncharacteristic of transitional relief to extend such relief to new rights coming into existence after the coming into force of the measure." That view, to my mind of general application as to the nature of transitional protection, was endorsed by Schieman LJ.
8. Ms Bergman argued that a possible future claim to benefit could not be the same as an existing right. Entitlement was protected only insofar as it existed at the time of coming into force of the Regulations. The right acquired under the "old" legislation was the right protected by the savings provision and any such right attached to a claim, not to an individual. In order for the claimant to succeed there would need to be a fiction of entitlement, created by the Regulations, in order for that entitlement to be preserved on a fresh claim. That would, in consequence, create a special category of claimants who could forever, or at least indefinitely, benefit from open-ended protection. That would be incongruous in a social security context. Conditions of entitlement change regularly and there is no presumption that entitlement can forever be preserved on future claims. Ms Bergman supported her argument by reference to comments of Dyson J in Vijeikis that the words "those provisions of those Regulations as then in force shall continue to have effect" indicate that what is to be preserved is "the entitlement of persons who are entitled to benefit at the time when the relevant provisions came into force." That approach, Ms Bergman submitted, was consistent with that adopted in CIS/16992/96 et al and with the purposive approach of the Court of Appeal in ex parte B. Ms Bergman argued for a purposive construction of regulation 12, to the effect that any new claim, after the coming into force of the Miscellaneous Amendments Regulations, would be governed by the new rules.
9. Addressing that part of Mr Seddon's skeleton argument concerning the reference in regulation 12(1) to members of the claimant's family, Ms. Bergman noted that paragraph 5 of Schedule 1 to the Asylum and Immigration Act 1996 had inserted "both as regards him and as regards persons who are members of his family at the coming into force of these Regulations" after "those provisions of those Regulations as then in force shall continue to have effect" in regulation 12(1) of the Miscellaneous Amendments Regulations. The reference to "members of his family" was, Mr Seddon contended, to extend protection to persons who, after the coming into force of the Miscellaneous Amendments Regulations, ceased to be members of the family for benefit purposes and who would not have been continuously entitled. It had been contended that if the view of the adjudication officer and Ms Bergman were correct the amendment would be ineffective since necessarily a fresh and new claim would need to be made in respect of such persons. Ms Bergman's response to this was that the reference to family members was a concession but only to the effect that such family members would be treated as entitled under the original claim, such protection not extending to a new claim by a family member after a break in claim.
10. Addressing the question of retrospectivity, referred to in the skeleton argument of Mr Seddon, Ms Bergman argued that it was not retrospective to apply new regulations to new claims. The Miscellaneous Amendments Regulations did not remove past benefit, but went only to future entitlement. In Vijeikis Dyson J said "The 1996 Regulations have not removed any accrued rights of asylum seekers or imposed any burdens or obligations on them." That, it was submitted, was an apposite comment in relation to the Miscellaneous Amendments Regulations as a whole, not confined to any particular regulation or sub-paragraph. Additionally Mr Seddon's skeleton argument had referred to the adverse policy implications inherent from a purposive construction of the Regulations in that the claimant would be effectively penalised for working and removing himself from State dependency. Ms Bergman referred me again to the comments of Dyson J in Vijeikis who clearly acknowledged the effect of the Regulations when he said that "The saving provision was intended to avoid the unfairness that would have resulted if a person who was entitled to benefit lost that benefit overnight by reason of the amendments. The saving provision cannot be criticised for absurdity or unfairness so far as it goes. The argument is that it should have gone further. In the context of regulations which are, to use the words of Simon Brown LJ, 'so draconian', I do not find it particularly surprising that the saving provision went no further". Similarly Judge LJ in Vijeikis said that "The validity of the decisions depends on the proper construction of the relevant regulations and not on some notional sense of fairness. Although the impact of these regulations on these particular individuals will plainly be severe - indeed particularly in the case of Vijeikis very harsh, because the effect of the decision is to penalise him and his family for trying to find work and avoid, as is now the current phrase, 'dependency' - the proper interpretation of these regulations does not, in my judgment, permit a more generous construction of them than would otherwise be appropriate when their meaning is clear."
11. Mr Seddon's skeleton argument had contended that a statute should only be interpreted as providing an interference with rights of access to the courts (in this case the claimant's asylum application and rights of appeal) where such interference arises from the statute as a matter of "necessary implication". Ms Bergman drew my attention to what was said in paragraph 34 of CIS/16992/96 et al, where the Commissioner accepted, to my mind addressing the very nature of transitional protection and not just regulation 12(3), that such protection cannot and was not intended to apply to a repeat claim. It is axiomatic that transitional protection would be lost on a repeat claim, Ms Bergman contended. The Commissioner in the case referred to was following the reasoning of Dyson in Vijeikis which reasoning was itself endorsed by the Court of Appeal in that case. Additionally the Commissioner in CIS/4609/97, paragraph 31, made comments as to the general tenor of regulation 12, not just any particular sub-paragraph, those comments being supportive of the arguments of Ms Bergman. Similar comments were made by the same Commissioner in paragraph 15 of CIS/3955/97.
12. It was pointed out to me by Mr Seddon that there were no cases in which regulation 12(1) had been expressly considered. It was his submission that regulation 12 did not constitute one complete savings provision but that it contained different provisions in relation to different benefits. Thus, regulation 12(1) had to be given its ordinary meaning and could not be interpreted in the light of generalised comments as to the nature of a savings provision. Simon Brown LJ in ex parte B noted that regulations 12(1) and (2) dealt with narrower classes of claimant and with different benefits than regulation 12(3). Peter Gibson LJ, in the same case, observed that in 12(1) and (2) there was, in contrast to 12(3) no language corresponding to "until such time as his entitlement to that benefit is reviewed." In that case, also, Schieman LJ acknowledged the different language in each of the constituent parts of regulation 12. On that basis I was urged by Mr Seddon to consider the particular wording of regulation 12(1). On an ordinary construction, Mr Seddon contended, the claimant would continue to have transitional protection even on a new claim. He was entitled to benefit at the time the Miscellaneous Amendments Regulations came into force and there is no express time limit in those Regulations as to when transitional protection ceases and nothing to say that such protection has to be continuous. The effect of the transitional protection is to treat regulation 8(3)(c) of the Miscellaneous Amendments Regulations as though it had not been made in relation to the claimant. The subject matter of that which is to "continue to have effect" is not the particular award of benefit or entitlement thereto but the old regime relating to the definition of "asylum seeker". On that basis the claimant continued, for benefit purposes, to be an asylum seeker until, in his case, the Home Office made a decision on the political asylum application. Mr Seddon argued that, in contrast to other savings provisions, there was nothing in regulation 12(1) to limit transitional protection to entitlement under the claim in force at the time the Miscellaneous Amendments Regulations came into effect. For example, regulation 2(4) of the Income Support (General) Amendment Regulations 1993 specifically refers to entitlement to income support, as does regulation 28(1) of the Income related Benefits Schemes (Miscellaneous Amendments) Regulations 1995. Mr Seddon contended that the transitional protection conferred by the regulation in question was to entitle a person to have their income support claim assessed on the basis of whether they were asylum seekers under the "old" provisions.
13. Mr Seddon submitted that the Vijeikis case should, in effect, have very limited application to the circumstances of the case before me because the issue in Vijeikis was different from that in the instant appeal. Vijeikis held that the use of the present tense relating to "is entitled" required entitlement at the date the Regulations came into force. CIS/16992/96, following Dyson J in Vijeikis, held the same. Additionally, the Court of Appeal, in ex parte B, addressed not regulation 12(1) but 12(3), the latter being a more general provision. The court in that case had regard to the ending of the claim on review, that not being a feature of regulation 12(1). This, it was argued, is sufficient to distinguish ex parte B from the instant appeal and means that the comments relied upon by Ms Bergman in that case have no application to the instant appeal. The ratio in ex parte B was not based on a purposive, but on a literal, construction. Mr Seddon sought also to distinguish CIS/16992/96 et al on the basis that, as with ex parte B and Vijeikis, it was based on different facts and addressed the tenses and phraseology used in those parts of regulation 12 in issue in that case. Similarly Mr Seddon argued that CIS/4609/97 and CIS/3955/97 addressed only regulation 12(2) and could not, then, be authorities for the interpretation of regulation 12(1) and, in any event, he added for good measure, those cases were wrongly decided. Notwithstanding the clear comment of the Commissioner in paragraph 31 of CIS/4609/97, Mr Seddon argued that the ratio of that case could not extend to the whole of regulation 12. As to CIS/3955/97, Mr Seddon argued that paragraphs 14 and 15 acknowledged different wording in the constituent parts of regulation 12 but gave no reasoning behind the conclusion expressed by the Commissioner. In particular regulation 12(2) does not, unlike regulation 12(1), refer to regulations bestowing a status upon a person (an asylum seeker) but referred to a provision excluding sponsored immigrants from entitlement. That is different from the present state of affairs. Mr Seddon drew attention to the judicial review proceedings in the case of Secretary of State v. Markovic in which, in circumstances similar to those in the instant appeal, the Secretary of State appears to have accepted that on the facts of  that case there was an arguable case in relation to regulation 12(1). Mr Seddon argued that it was not likely that such a concession would have been made if CIS/4609/97 and CIS/3955/97 had been correctly decided.
14. Mr Seddon drew attention to the amendment, to which I have referred in paragraph  9 above, relating to family members. That, he submitted, referred to a family member of an asylum seeker entitled at the time of coming into force of the Regulations and who, on separation for example, would be entitled to benefit. That family member would have had no separate entitlement originally and the phrase "continue to have effect in relation to entitlement" could not work in relation to such a person. That person could not be required to be continuously entitled and, since the same phrase could not have different meanings within the same context, neither could the claimant.
15. Mr Seddon concluded by contending that no words need to be read into regulation 12(1), which only warranted a simple construction. The circumstances did not warrant a purposive construction (see the judgment of Simon Brown L J in ex parte B, IW.L.R. page 1701) and, in particular, the policy was not clear. The regulations worked well on the construction contended for by the claimant and it could not be stated with certainty what, if any, words should be read into the regulation. Mr Seddon argued that Dyson J in Vijeikis reached no conclusion as to the retrospective application of the regulations and the tenor of that decision still reflects the need for clear language. Statutes should not be interpreted retrospectively so as to impair an existing right unless such result is unavoidable on the language used.
16. Ms Bergman in conclusion asserted that transitional protection could only relate not to an individual but to a claim. This was apparent from what was said by Dyson J in Vijeikis - "Parliament chose to draft the saving provision in a far more restrictive way, and by reference to entitlement to benefit at that time" - and the Court of Appeal in that case referred to "protection of a right to be entitled to benefit." It is, thus, clear that there is a link between entitlement to benefit and transitional protection. Regulation 12 has to be viewed as a whole, as affecting the operation of different benefits but not resulting in preserved entitlement for all time, rather being designed to ensure there is no overnight change. On that basis I was invited to set aside the decision of the tribunal for error of law and substitute my own decision, as originally argued for by the adjudication officer first concerned.
17. Whilst I appreciate the spirit of Mr Seddon's arguments I have, after careful consideration, arrived at the clear view that those of Ms Bergman are to be preferred. It is inescapable that it is in the very nature of transitional protection that it lacks permanence, being in essence designed to cushion, but only on a temporary basis, against sudden adverse effects brought about by legislative changes. Although in the instant appeal there was not a great length of time between the ending of the original claim and the making of a fresh claim the argument of Mr Seddon would, if correct, mean that entitlement would subsist during a break in claim of many years. That to my mind cannot be what was intended in the enacting of any part of regulation 12. It is perhaps appropriate at this stage to record that at no time has it been contended that the claimant could succeed as an asylum seeker under the current regulations, there being no suggestion that his claim to political asylum, made two days after his arrival in the United Kingdom, was made "on arrival".
18. Mr Seddon, in part at least, sought to rely on an apparent concession by the Secretary of State in pending proceedings in Markovic. The corollary of such argument, however, would be that Mr Seddon's case would be weakened had any apparent concession not been made. I do not accept Mr Seddon's views, resting as they do upon a speculative interpretation of what may or may not have prompted the Secretary of State in another case, the facts of which are unknown to me, to accept that there may have been an argument under regulation 12(1).
19. Mr Seddon also relied upon what, in essence, was said to be a harsh and undesirable penalising effect of the construction argued for by the applicant. I remind myself, however, that "the validity of the decisions depends on a proper construction of the relevant regulations and not on some notional sense of fairness" and that "the proper interpretation of these regulations does not ... permit a more generous construction of them than would otherwise be apparent when their meaning is clear". (Judge LJ (in Vijeikis). Additionally a similar argument to that of Mr Seddon had been raised before Dyson J - and rejected. No human rights aspects have been argued before me in the instant appeal but were addressed by the Commissioner in CIS/4609/97, at paragraph 32. I agree with the views so expressed insofar as they are material to the circumstances of this case.
20. The construction argued for by the applicant, which I accept, does not carry with it any retrospective element. Quite the contrary, since entitlement existing at the coming into force of the Regulations would be preserved. The effect of the regulation on future entitlement under a new claim is manifestly not retrospective. Dyson J in Vijeikis clearly said as much, and in relation to the Miscellaneous Amendments Regulations in general, not any particular sub-paragraph thereof.
21. The amendment to regulation 12(1), relating to family members, in no way detracts from the construction argued for by Ms Bergman. Rather, to my mind, it is supportive of that construction. The amendment is obviously designed to correct an omission in that without the amendment transitional protection would not, for example, have extended to a non-claiming partner who had separated from his or her spouse or a previously dependant child or young person who had reached the age at which he or she would be eligible for benefit in his or her own right. The anomaly whereby an asylum seeker would gain transitional protection but not such a family member was put right by the amendment under which, in effect, such a family member would be treated as entitled under the claim subsisting as at 5 February 1996.
22. I do not find it persuasive in Mr Seddon's argument that different phraseology has been used in relation to transitional protection in other provisions. In contrast to the provisions cited by Mr Seddon regulation 12 is long and complex and is obviously designed to cater for a range of circumstances. That it should use different phraseology is, then, neither surprising nor significant.
23. Ms Bergman cited to me a number of remarks, made in several different cases, the general tenor of which, she argued, was supportive of the construction she urged upon me. I acknowledge that the other cases may have expressly dealt with other sub-paragraphs of regulation 12 but that does not mean that I am entitled to ignore that which in those cases was said as to matters of general principle, of equal application to regulation 12 as a whole. It is to my mind right to extract from the cases relied upon by Ms Bergman such matters of general principle and application which cannot, in the circumstances of this case, easily or reasonably be ignored. Notwithstanding that Vijeikis considered the question of entitlement at the time of coming into force of the Amending Regulations the comments of Dyson J clearly show that the savings provision addressed entitlement to benefit, in contrast to the preservation of a person's status as an asylum seeker. Entitlement, I accept, exists only in relation to a claim, not an individual's status. Dyson J said that "it would be inapt to speak of someone who once was, but no longer is entitled to benefit, as a person as regards whom the provisions 'continue' to have effect. For something to continue, it must exist; it cannot be something that once existed, but no longer exists." That statement, approved subsequently by the Court of Appeal, is eminently applicable to the circumstances of this case.
24. Ex parte B concerned in particular regulation 12(3) and it was held that the only entitlement which existed in that case was entitlement, subject to review, to receive disability living allowance until the period of that award came to an end by the passage of time. Transitional protection did not extend to any new claim or award thereunder. The central point, however, to my mind was that transitional protection only subsisted during the currency of that claim and not any new claim. It does not seem to me material whether an award ends simply by the effluxion of time or because, as in the instant appeal, the conditions of entitlement are no longer satisfied. In both cases a new claim may sooner or later be necessary. The rationale of the Court of Appeal's decision in ex parte B is to my mind applicable equally to regulation 12(1) as to 12(3). In ex parte B Peter Gibson LJ said, in substance, that it would be odd if transitional protection extended to a person in receipt of disability living allowance as at the coming into force of the Amendments Regulations but who a year later made a claim in fresh circumstances different from those which obtained when he obtained his original award. That scenario, it seems to me, is exactly the same as in the instant appeal. The learned Judge went on to observe that "It is characteristic of transitional relief that it preserves entitlements existing at the date when the measure comes into force. It would be uncharacteristic of transitional relief to extend such relief to new rights coming into existence after the coming into force of the measure." That, again, in my view applies to the circumstances of this appeal, the "new rights" being entitlement under the new claim to benefit.
25. I acknowledge that Simon Brown LJ in ex parte B made it clear that regulations 12(1) and (2) dealt with narrower classes of claimant than regulation 12(3) and with different benefits. It is, however, still possible to distil matters of general principle from what was said in that and the other cases referred to me by Ms Bergman. Those comments to my mind are entirely consistent with the nature of transitional protection and effectively set the backdrop against which regulation 12 as a whole has to be considered. Notwithstanding that the constituent parts of regulation 12 are not identical, in that there are different provisions in relation to different benefits, its general - and overriding - purpose is clear. Regulation 12(1) cannot in my view reasonably be considered in isolation. Indeed in Vijeikis, Judge LJ said unequivocally that the regulation should be construed as a whole. Plainly that regulation and, indeed, the 1996 Miscellaneous Amendments Regulations in general, were designed to curtail the rights to benefit of asylum seekers. That is beyond dispute and was acknowledged by Dyson J in Vijeikis. That a purposive approach was adopted in ex parte B and Vijeikis is to my mind self-evident. I see no reason justifying a different approach in the circumstances of this case, given that I consider the regulation must be construed as a whole and in the light of principles extracted from other, relevant, cases. It would be incongruous if a literal interpretation attached to one sub-paragraph alone and in any event that a literal reading of regulation 12(1) is fraught with difficulty is apparent from the comments of Judge LJ in Vijeikis, in that he said it was hard to describe the wording of regulation 12(1) as felicitous. He went on to refer to the obscurity in that sub-paragraph. The history of the Regulations is referred to in Vijeikis in both the High Court and the Court of Appeal. I need not repeat it. To ignore that history and the obvious design of the Regulations, and not to adopt a purposive construction, would to my mind be to deny reality.
26. I am fortified in the views I express above by what was said in CIS/16992/96 et al, CIS/4609/97 and CIS/3955/97. In the first of these cases the Commissioner (who also appears to have adopted a purposive approach) at paragraph 34 accepted that transitional protection should not apply on a repeat claim. A repeat claim is not materially different from a new claim after a break in entitlement since in both instances the conditions of entitlement need to be satisfied, irrespective of any earlier claim. More to the point, however, are the last two of the cases to which I have referred. I note that at least one of the arguments presented to the Commissioner in those cases was identical to that in the instant appeal, namely that what was said in ex parte B could only be applied in relation to regulation 12(3) and that each sub-paragraph in regulation 12 had to be interpreted distinctly from the interpretation of the whole regulation. Additionally the Commissioner had been referred to the inherent unfairness in the Regulations. On the latter point the Commissioner clearly had regard to what was said by the Court of Appeal in Vijeikis to the effect that any concept of fairness is, in essence, irrelevant. As to the interpretation point, although the case before the Commissioner concerned regulation 12(2) it is clear from his comments that he addressed his mind to regulation 12 in its entirety. The Commissioner said this:

"I agree with Mr Cooper that the nub of the Court of Appeal's judgment in ex parte B is that regulation 12 is a transitional provision designed to protect existing entitlement and not conferring any entitlement on those making claims or renewal claims after 5 February 1996. Although the ex parte B case concerned only paragraph (3) of regulation 12 the ratio of the court's judgment applies to the whole regulation. The result is that somebody who has had an established entitlement to income support up to and including 4 February 1996 will lose that entitlement if he or she leaves the United Kingdom for more than the four weeks or, in certain circumstances, the eight weeks for which benefit can be payable while the claimant is temporarily absent from the United Kingdom."

The Commissioner's reference, in the final sentence, to the absence of a claimant from the United Kingdom does not take his remarks outside the scope of the instant appeal since it is clear that what he was considering was the effect of a new claim. In CIS/3955/97 the Commissioner repeated his remarks in relation to the interpretation of regulation 12 and went on to say that "Although Lord Justice Gibson and Lord Justice Schieman did not specifically extend their interpretation of paragraph (3) to the other two paragraphs of regulation 12 I think that, as Mr Cooper argued, the principle of their judgments is applicable to all three paragraphs." I adopt and accept the reasoning of the Commissioner in those two cases.

27. In the light of the above it is my decision that the tribunal erred in law in their application of regulation 12(1) of the Miscellaneous Amendments Regulations. It is, as I have indicated, clear that they relied upon the decision of the High Court in ex parte B. They cannot be blamed for so doing since they were entitled to have regard to the law as it existed at the time of the appeal. The Court of Appeal in ex parte B were, of course, declaring what the law had been all along. I set aside the decision of the tribunal. The facts are, however, not in issue and in the circumstances of this case it is right that I give the decision which I consider the tribunal should have given. Regulation 12(1) of the Miscellaneous Amendments Regulations does not preserve entitlement to benefit, in cases where persons were so entitled as at 5 February 1996, in respect of claims made after the coming into force of those Regulations. That being so the claimant derived no transitional protection in respect of his new claim to benefit, made on 6 April 1998. He did not satisfy regulation 70(3A)(a) of the General Regulations because he had not made his claim to political asylum on arrival in the United Kingdom and, in consequence, was not entitled to payment of income support at the urgent case rate.

(Signed) S J Pacey

Commissioner

(Date) 15 March 2000