Dear all

Can anyone help with establishing the powers of housing benefit officers/local authorities to independently assess the eligibility of a person to housing benefit? we have a case where the BIA declared a person to be an overstayer who had in fact entered the Uk over 40 years ago as a child whose father was a British citizen with the right of abode and therefore he carried the status of citizen under the 1983 legislation. He has proof of residency and his fathers birth records.

The BIA have now issued him with LTR and we have advised him that it is in best interests to clarify his status but this is going to take sometime and in the meanwhile his original HB claim was refused on the grounds of his being a PTA.

We have an appeal with the HB to say that he is not a PTA but we cannot clarify if the HB have the power to judge this independently or must follow the BIA declaration that he was an "illegal" entrant. (terrible term that should be banned from the language in my opinion!)


All help urgently and gratefully accepted

peace and love
elane

Mon 13-Jul-09 12:24 PM by stainsby

The HB claim has to be decided on the evidence available and although some decisions that affect HB (eg incapacity, and determinations re extended payments) will be matters for the secretary of state, and so not appealable. There are limits.

The issue of national insurance numbers is a prime example. I have seen many HB claims refused because a NINO has been refused. It then turns out that the refusal cannot be justified, and so I rely on the passage in CIS/0345/2003 from Mr Commissioner Jacobbs as he then was

The tribunal will find helpful this passage from the Secretary of State’s written observations to the Commissioner. Those observations were written by an officer from the Adjudication and Constitutional Issues Branch in Leeds. The officer wrote:

‘It is to be hoped that the Secretary of State’s representatives in the claimant’s local social security office will in the meantime reconsider its refusal to provide to the tribunal the evidence on which its refusal of the claimant’s claim under section 1(1B) of the Social Security Act 1998 . If not, the new tribunal will, in my submission, be at liberty firstly to direct the Secretary of State to produce the evidence in question and secondly, in the event of a refusal to comply with that direction, to consider whether the Secretary of State is thereby seeking to shelter from scrutiny an indefensible decision.’

Findlay discusses the matter of whether or not a person is excluded from entitlement to benefit under S115 of The Immigration and Asylum Act 1999 at p1147-1148 of the 21st edition

It is for the decision making body (ie the LA for HB/CTB) to establish that a person is subject to immigration control (CIS/1697/2004) The Commissioer in that case confirmed that it is an inquisitorial process and cited the House of Lords in Kerr v Depatment for Social Development of Northern Ireland ( reported as R1/04(SF))

It is a matter of fact whether or not your client required leave to enter the UK and it appears that you have enough evidence to show that he did not, given his right to British citizenship

thanks so much

elane

CH/4085/2007 may be of interest - a number of earlier authorities are considered.