I've got an HRT appeal where the date the decision was made is over a month prior to the date the decision was actually issued - anyone know of any case law which states whether the Tribunal are restricted to considering entitlement down to the date the decision was ISSUED (as opposed to the date it was made)?

Check first what evidence the Department have that the decision was made on the date they say it was- is it simply asserted in the submission, or do they have a dated and signed copy of the decision? if there is no evidence then argue that it was not made until notified: that gets you out of having to argue as you suggest.

If it is vital to your case (and they have proper evidence of the date of decision) then it is an argument you could attempt (ie if it is likely that the tribunal will not find an appreciable period has been served by the date on which decision "made" but will find one by the date it is notified).


However, I think you may find it difficult. The analysis to Reg 28(1)of the D&A Regs (which sets out the form of notification required Sec 12(6) of the SSA 1998)suggests that in general a failure to issue the notification simply has the effect that the time for appealing does not start to run- see Volume 3 Social Security Legislation at page 567.

The analysis refers to CP4479/00 as holding this is what happens (analysis does also seem to suggest that the argument you propose might be possible in certain cases).

I suppose an argument in your favour could include the following:

• The delay in notification would mean that your client had no means of knowing they needed to reclaim to have the one month gap between decision and notification.
  
  
• Given that Reg 19(5)(d) backdating in cases of misleading info from the Department requires positive information misleading the claimant to have been given, your claimant could not have had the remedy of applying for a backdated period on notification of the decision.
  
  
• Natural justice in your case would therefore require the solution that you propose (ie that a decision not "made" until notified. Otherwise there is no remedy available to the claimant who becomes habitually resident in the period between decision and notification.
  

See the enclosed case,Anufrijeva v SoS for the Home Department & Anor:2003 where the HoL decided that the effective date of the decision was the date that the decision was notified to the claimant and not the date that the decision was recorded on an internal departmental document. Hope this helps.


Immigration — Limited Leave to Enter — Application for Asylum — Application Given Limited Leave to Enter and Received Income Support Benefits — Asylum Claim Recorded As Determined by Refusal Without Applicant Being Notified — Benefits Terminated and Applicant Later Notified — Whether Entitlement to Benefit Determined — Whether Claim to Asylum Determined in Absence of Notification to Applicant — Income Support (General) Regulations 1987 (SI 1987/1967), Reg 70(3a)(B)(I) (As Inserted by Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 (SI 1996/30), Reg 8R (Anufrijeva) V Secretary of State for the Home Department and AnotherHL: Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Millett and Lord Scott of Foscote: 26 June 2003 A person ceased to be entitled to income support, for the purposes of reg 70(3A)(b)(i) of the Income Support (General) Regulations 1987 only when his asylum claim was recorded by the Home Secretary as determined and he was notified of that decision.The House of Lords, Lord Bingham of Cornhill dissenting, so held when allowing an appeal by Nadezda Anufrijeva from the decision of Court of Appeal (Schiemann, Hale and Sedley LJJ) whereby, on March 200 they dismissed her appeal from Sir Christopher Bellamy QC, sitting as a deputy High Court judge, who on October 25, 2001 had dismissed her claim for judicial review of the decisions of (1) the Secretary of State for the Home Department to treat her asylum application as refused on 20 November 1999, being the date on which an internal departmental file note purported to record her claim as having been determined; and (2) the Secretary of State for Social Security to withdraw her income support benefit on 9 December 1999, without prior notification to her of the determination of her asylum application, or the reasons for it, or the service on her of any notice of refusal of leave to enter the United Kingdom. The appellant, having claimed asylum in 1998 on arrival in the United Kingdom, was awarded income support as an asylum seeker. By reg 70(3A)(b)(i) (SI 1987/1967), as inserted, a person ceased to be an asylum seeker in the case of a claim which "is recorded by the Secretary of State as having been determined (other than on appeal) ...on the date on which it is so recorded." On 20 November 20, 1999 an official in the Home Office Integrated Casework Directorate noted on an internal file: "the reasons given in the letter aside ....refusal is appropriate. Case hereby recorded as determined..." Although benefit was stopped she was not notified of the asylum decision until on 25 April 2000, she was notified of refusal of her application for leave to enter and was sent "the letter aside" giving the reasons for refusal of her asylum claim.LORD STEYN said constitutional principle required an administrative decision which was adverse to an individual to be communicated to him before it could have the character of a determination with legal effect, thereby enabling him to challenge it in the courts if he so wished; and that as Lord Hoffmann had explained in R v Secretary of State for the Home Department, Ex p Simms <2000> 2 AC 115, 131, in the absence of express language or necessary implication to the contrary, general statutory words could not override fundamental rights and would be presumed by the court as intended to be subject to them. Here Parliament had not legislated to such contrary effect; the decision in question, determining the appellant's status, involved a fundamental right, and in the contextual setting of the Statement of Changes in Immigration Rules (HC 395) which clearly envisaged notification of an adverse asylum decision, reg 70(3A)(b)(i) required that, before the Secretary of State's decision took effect, it should be communicated to the person affected by it; accordingly, the appellant was entitled to recover income support until proper notification of the determination on 25 April 2000.LORD HOFFMANN agreed, LORD MILLETT and LORD SCOTT delivered concurring opinions and LORD BINGHAM delivered a dissenting opinion.
Appearances: Richard Drabble QC and Nicola Braganza ( instructed by Ole Hanson & Partners) for the appellant; John Howell QC and Dinah Rose (instructed by Treasury Solicitor) for the respondents.
Reported by: Diana Procter, barrister.

Nice one Nevip....

So you can forget about my ramble....

House of Lords judgment available at:

http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030626/anuf-1.htm

Sorry for the further post.... forgot to say:

If nevip is right that the House of Lords decision is also authority for saying a Social Security decision is not "made" until it is notified then this seems to have fairly massive implications for social security law-

Any supersession(which generally takes effect from the date on which it is made)that is not notified to the claimant on the same day on which it was made is not properly made on that date and therefore its effective date will be wrong....

Does anyone know if the HofL decision has been applied to decisions of the Sec of State for Work and Pensions by any Commissioner yet?

summary also available from the june 2003 rightsnet news story

@ http://www.rightsnet.org.uk/cgi-bin/forwardsql/search.cgi?template2=user_details2.htm&output_number=1&news.ID=1417-5103-11427

Many thanks - knew I'd read about this decision recently but couldn't find it. I think the principle which the Lords set out is the only one which they could reasonably reach - otherwise claimants would be prevented from gaining due entitlement for periods between the decision and date of notification of decision. It would also fit in with rules regarding dates on which claims are made and treated as made.

Thanks again,

Andy King