My client had been granted political asylum on 5/11/03. The letter was received by solicitors on 6/11/03 and client was notified on 21st November 2003. Client applied for Income Support on 10th December 2003 which was within 28 days from when client was notified. This was our arguement. Case went to appeal, have lost appeal and tribunal have referred to Commissioners' decision CIS/3797/2003, which basically states that as solicitors are client's agents that the date notified is the date the client's solicitors are notified and not when client is notified. I want to take this case to commissioners. Has anybody got any caselaw, that states date notified is the date the client is notified and not the solicitor or has anybody used any other arguements when appealing to commissioners.

My appeal needs to be in for 26 November.

Any help would be greatly appreciated.

Thanks

don't think you have any case here. the law is quite clear on this point.

possible remedy against solicitors if failed to advise as to 28 day time limit.

CIS/3797/2003 is the current state of play and a Tribunal has to follow it. Arguably it is wrongly decided.

Lasa currently has a case on which we are awaiting leave to appeal against a decision of a Tribunal that followed CIS/3797/2003 (Commissioner Turnbull).

We are seeking to argue that CIS/3797/2003 is wrongly decided (basically that the principle of agency on which the Commissioner bases his decision should not be held to apply to Reg 21ZA or Reg 21ZB as in Social Security law it is always made explicit where an agent can act).

There was no oral hearing in that case, neither was there any representations made on behalf of the claimant.

We are keeping our fingers crossed that leave to appeal will be granted so that (at minimum) arguments for refugee claimant's can be put.

I suppose the best thing for you to do is to seek a statement (if you haven't got one yet) and apply for leave to appeal.

I would be happy to forward you details of our grounds (email me).

Our case is referenced as: CIS/4022/2004.

I will post to this thread if we do get leave to appeal.

well best of luck.

don't see how you can win though. the solicitor is acting as agent in respect of the immigration matter, and quite clearly is acting in that capacity according to law.

it is not a benefits matter that the solicitor is dealing with the refugee status as, and therefore no express authority is required from the dwp on this point.

hope i'm wrong, as i know many immigration practitioners have no idea on this point.

still won't matter soon, thanks to nice mr blunkett

Commissioner Angus has granted permission to appeal in our case.

I suppose that this means if you see a claimant whose immigration solicitor has failed to notify them of the home office notification in time and is appealing a refusal to backdate IS or HB/CTB under the refugee provisions on the basis that CIS/3797/2003 decides the question then you should ask for the proceedings to be held pending the outcome of CIS/4022/2004.

Commissioner Angus has dismissed the appeal in CIS/4022/2004 (quite comprehensively).

I suppose was worth a try.

Anyway, here is a link if you fancy a read (I would really rather no one looked at it but what can you do).....

http://www.rightsnet.org.uk/pdfs/CIS_4022_2004.doc

Martin

Sorry to hijack this, but :
What is the position if a claimant claims too early (won refugee status at appeal, home office asked him to send in photo's etc for his status document, and client applied within 28 days of that letter) ?
He was turned down because he applied too late which is obviously nonsense and the DWP are reviewing the case. However I am worried that if they do refuse they will be technically correct and an appeal would go nowhere. I am contemplating a formal complaint and request for an ex-gratia payment because they failed to advise him that he had applied at the wrong time...
Does anyone have any suggestions ? Appeal, complaint or no hope whatsoever.

Thanks.
Victoria J
(The above cases do seem harsh on the claimant, particularly those who aren't informed by their solicitor at all in the 28 days - but I always hope that if enough claimants sue their solicitors for negligence word will get round. I am not very sympathetic to solicitors who sit on their clients letters, and miss important deadlines, to say the least...)

I think you're right that if he claims before the HO notify him of status he will be refused. As I understand it, even though an immigration tribunal has said he is a refugee, he actually doesn't have status until the HO make a decision themselves. therefore the claim must be made within 28 days after the HO notify him that he has been granted asylum.

Your ex-gratia payment may have a good chance. I had a case recently where my client went to DWP within the 28 days, but was told he couldn't claim until he had his NASS35. By the time he found out this was wrong and made a claim, he was outside the 28 days. He had no evidence to back up his claim to have been misadvised, but got an ex-gratia payment for the full amount of IS he could have claimed. It took a while, but that was due to administrative errors not because they were unwilling to pay compo.

Your case would seem to be much stronger in that he will be able to prove he was allowed to make a claim that could not possibly succeed, and was not advised of the correct procedure.

hi Keith. that sounds like a success! We've just had a case where the appeal failed - client had gone to the DWP to request backdated paymnet and was told she had to wait for Nass 35 (her papers were then 'lost' in the post' and her eventual claim was well out of time. Tribunal decided that she had not actually gone to 'apply' for the benefit but simply to seek information about how to apply (!) and so refused to treat it as a valid claim and wouldn't comment on the wrong advice by DWP officer part....

anyway, to be honest hadn't through about ex gratia payment, do you have any more info about your arguments how you went about this that I could have a look at?

The arguments would involve, in my view, loss of statutory entitlement. This is specifically catered for in the Maladministration Guide, available on the DWP website. It is available as a PDF document. If you want I can E-Mail it to you. However, below is the relevant extract.

Regards
Paul

Overview

43 A special payment must not be made where a statutory solution is available. Where incorrect or inadequate advice leads to a failure (for example to make a claim within the time limits) and all other conditions for benefit are satisfied, a special payment, equivalent to the benefit that would otherwise have been paid, should be made. The deduction of any overpaid benefit and the payment of interest for loss of use of the sum should be considered. A special payment may also be appropriate in respect of any linked benefit.

Definition

44 Loss of statutory entitlement refers to cases where official error has led to a customer losing entitlement to a benefit that would have been received had the error not occurred or had the case been actioned timeously.

Example of loss of statutory entitlement

A claim for benefit is made three years late, as a result of the customer being advised not to make a claim by an officer of the Department. There may be clear evidence that misleading advice was given and clear evidence that the conditions of entitlement, other than the failure to make the claim, had been satisfied throughout the three-year period. In these circumstances, a payment can be made for the maximum three-month statutory period of backdating and a special payment considered for the remaining period of two years nine months. A payment for loss of use of the funds should also be considered – see paragraph 49.

That is VERY useful - I notice it does include incorrect or inadequate advice, and where a case has not been actioned timeously (is that really a word ?)...which seems to fit with my argument that had they advised him (or made a correct negative decision in time) that his original application was not valid then he would have made an application at the later, correct, time.

But is that much less likely to suceed than a case where they have actually given incorrect advice ?

Victoria J

(Though I may not even be dealing with the case anymore, thanks to this website the client has been caught out asking multiple agencies to act on his behalf again)

I have just heard today that they are paying my client - no complaint etc. needed.

I can only think that this is because they recognised that the original decision was wrong, and that they knew that if they had dealt with the first claim correctly he would have been able to apply at the right time...and that we would have pursued a payment that way. It is probably not a technically correct decision , but is morally correct.

So nice to have a slightly strange interpretation of the rules that works in one of clients favours for a start.

Victoria J

I didn't have any clever arguments, I just told the story as the client gave it to me and hoped for sympathy! My client did have very clear recollection of what happened. I basically wrote a letter saying that Mr X got his rfugee status from the HO on the 14th, went to the Jobcentre on the 21st but was told he could not claim without a NASS35, he then found out from a friend that this was probably wrong and went back to JC on 28th of the following month, he had clearly been misadvised and could we please have an ex gratia payment. It probably helped that he had put a brief version of his story on the A1 he completed at his second visit to JC and his story was consistent all the way through.

Update:


The claimant in CIS/4022/2004 has been granted permission to appeal to the Court of Appeal for them to consider the meaning of "receipt of" the status letter in Reg 21ZB and whether receipt by a solicitor starts the time running.

The case is now lodged with the Court of Appeal and will be decided as:

Tkachuk v Secretary of State for Work and Pensions


Martin

The Court of Appeal unanimously dismissed this appeal yesterday.

Lloyd LJ gave the only speech with which the other LJs agreed.

Note: the appeal concerned Reg 21ZA not 21ZB but decision will apply to both provisions.

Transcript to follow when available.

Martin.

Does anyone have the case reference to a decision (can't remember whether of a commissioner or court) where it was ruled that it shouldn't be up to the claimant to chase the home office down. The DWP with its vast resources, with the relevant information supplied by the claimant, should do this. I'm not concerned with the facts of the case, just the principle. It would help a colleague with a case he has.

Thu 17-May-07 11:48 AM by Martin_Williams

Are you talking about Kerr? Not specifically about HO but it does make it clear that where a particular piece of evidence is within the competence of one side to get more than the other then they should get it as part of the collaborative process of making a claim etc.

Thats the one. I've got that decision on computer but forgot that it was the one. Why I thought the case I was thinking of was an immigration case God only knows.

Thanks Martin.