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Neutral Citation Number:
Reported Number:	R(IS)3/07
File Number:	CIS 4022 2004
Appellant:	Tkachuk v Secretary of State for Work and Pensions [2007] EWCA Civ 515
Respondent:
Judge/Commissioner:	Mr R.J.C. Angus
Date Of Decision:	16/05/2007
Date Added:	11/07/2006
Main Category:	Income support and state pension credit
Main Subcategory:	other: income support
Secondary Category:	Claims and payments
Secondary Subcategory:	late claim: other benefits
Notes:	Refugee – backdated claim under regulation 21ZB of the Income Support (General) Regulations 1987 – whether notification to claimant’s solicitor is notification to claimant The claimant was granted refugee status on 12 October 2001 and notification of the decision was sent to her solicitors on 10 January 2002. The solicitors failed to forward the decision to her and asked the Home Office to issue a replacement, which they did on 17 July 2003. The claimant applied for income support on 13 August 2003, requesting backdating under regulation 21ZA(2) of the Income Support (General) Regulations 1987 to 9 December 1997, the date she claimed asylum. This was refused on the basis that she was outside the 28-day time limit for making such a claim, which ran from the date of notification of the grant of refugee status. The claimant appealed, arguing that notification to her personally was required and that she had claimed within 28 days of becoming aware of the notification. The decision was upheld by the tribunal following CIS/3797/2003 and CIS/3832/2003, which held that notification sent to an agent was effective as such if the agent received it within the scope of his actual or apparent authority, whether or not it was transmitted to the principal. The claimant appealed to the Commissioner on the ground that those decisions were wrongly decided because social security and immigration legislation both excluded the common law of agency. It was argued that income support legislation requires personal action, subject to express exception such as in regulation 33 of the Social Security (Claims and Payments) Regulations 1987, and should therefore require notice to the claimant in person. The Commissioner upheld the tribunal’s decision on the basis that the general law of agency applied and the claimant’s solicitor was her agent. The claimant appealed to the Court of Appeal, submitting that rather than considering general law doctrines such as agency, the relevant task was to construe the statute and the regulations. Her representative accepted that, to the extent that it had any immigration effect, the notification given to the claimant’s immigration solicitor and referred to in regulation 21ZA(1) was valid but he argued that, because regulation 21ZA(2) is concerned with income support and not with immigration, it could only be brought into operation by a notice to the refugee personally because it triggered a period during which a claim for income support could be made which could only be done by the claimant personally. Held, dismissing the appeal, that: 1. reading paragraphs (1) and (2) of regulation 21ZA together, that which is required for the purposes of paragraph (2) is identical to that which is required for paragraph (1) so that a notification which is effective for the purposes of paragraph (1) is, by that very fact, relevant and sufficient for paragraph (2) (paragraph 23); 2. although a solicitor could not claim income support on behalf of a refugee in the sense of signing the form, being able to advise the client about the consequences of the letter, including the possibility of making a claim for income support, was enough to show that the solicitor was able not only to receive the notice but also to deal with it (paragraph 23); 3. the appeal tribunal and the Commissioner were both right. Note: the decision was upheld by the Court of Appeal in Tkachuk v Secretary of State for Work and Pensions [2007] EWCA Civ 515, to be reported as R(IS) 3/07.
Decision(s) to Download:	R(IS)_3-07_bvam.doc