Facts as follows:

1. Client arrives UK 15/12/03.
2. Client claims IS on 20/12/03.
3. Decision refusing IS on grounds not habitually resident on 7/1/04.

Client has appealed.

Therefore time in UK prior to decision is about 3 weeks which is unlikely to be accepted by Tribunal as a sufficient "appreciable period". There are no returning resident or European angles available.

However, it is fairly clear on the facts that perhaps 1 or 2 months WOULD amount to an appreciable period.

My question is as follows:

1. Can I argue that the Sec of State should have treated the IS claim as a claim in advance under Reg 13(1) Claims and Payments Regs?

2. That the decision shows he has not done so (and therefore has implicitly refused to treat this as an advance claim in his decision)?

3. That the Tribunal can decide that the claim should have been treated as an advance claim and award IS commencing some date after the date of the original decision?

Such an argument raises the issue of whether decisions on whether to treat something as an advance claim under Reg 13(1) an appealable one?
Secondly, can we take it that the Sec of State has implicitly decided not to so treat the claim.

Great argument. Only one issue. Given that the word "may" is used, it makes it a discretionary (CIS/4591/1994) regulation under which the DM could award an advance claim.Given Cmmissioner Jacobes decision of 1 to 3 month suffices for HRT purposes, then he should, you will argue. What if he decides not to use the discretion?

My view is that a failure to treat a claim as advance claim under Reg 13(1) is appealable (despite it using the word "may" prior to the 1998 Act the Reg said "adjudicating authority"- meaning it used to be an AO decision and so is appealable, also D&A regs do not list as not appealablein the Schedule).

Their are decisions which indicate a Tribunal can take the decision when it arises before them.

"Their are decisions" - woops, "THERE are decisions..."