BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> R. v Secretary of State for Social Security, ex p. Sarwar [1995] EWHC 7 (Admin) (11 April 1995)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1995/7.html
Cite as: [1996] COD 87, [1995] EWHC 7 (Admin), (1995) 7 Admin LR 781

[New search] [Context] [Printable version] [Help]


BAILII Citation Number: [1995] EWHC 7 (Admin)
CO/2951/94, CO/3791/94, CO/504/95

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice
Strand
London, WC2
11 April 1995

B e f o r e :

Lord Justice Balcombe
Mr. Justice French

____________________

Ex parte Sarwar, Ex parte Getachew, Ex parte Urbanek Appellant
-v-
The Secretary of State for the Home Department Respondents

____________________

(Computer Aided Transcription by John Larking,
Chancery House, Chancery Lane, London WC2.
Telephone No. 071 404 7464.
Official Shorthand Writers to the Court.)

____________________

M Supperstone QC (instructed by Stockwell and Clapham Law Centre)
D O'Dempsey for the First and Third Applicants (instructed by Joint Council for the Welfare of Immigrants)
R Drabble for the Second Applicant (instructed by Bradford Law centre)
R Plender QC, N Paines for the Respondent (Treasury Solicitor)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE BALCOMBE: These three applications, which we heard together, all raise questions as to the validity of the Regulations which prescribe habitua1 residence as a condition of eligibility for certain income-related welfare benefits.

    The Facts.

    1. Sawar. Mr. Sarwar was born in Pakistan on 15 June 1932 and is now aged 62. He resided in the United Kingdom between 1963 and 1976, when he returned to Pakistan. He acquired British nationality in 1975. He came back to the U.K. on 26 August 1994 to seek medical treatment to restore his eyesight. He applied for income support in September 1994 but this was refused by the decision of an Adjudication Officer dated 29 September 1994 on the grounds that he was not habitually resident in the U.K. He applies for judicial review of that decision on the grounds that so much of the Regulations as introduce the test of habitual residence into the income support, housing benefit and council tax benefit schemes is ultra vires. Leave was granted by Schiemann, J. on 20 December 1994.

    2. Getachew. Mr. Getachew was born in Ethiopia on 10 May 1974 and is now aged 20. He was adopted by French citizens who took him to live in France when he was 4 years old. He was subsequently naturalised as a French citizen and was raised and educated in France. After completing his education in France in 1994 he spent 3 months looking for work in France but was unsuccessful. So on 11 September 1994 he came to England to seek work, but was equally unsuccessful here. So he too applied for income support and his application was also refused by an Adjudication Officer on 24 November 1994 on the grounds that he was not habitually resident in the U.K. That is the first decision of which he seeks judicial review. He then applied for an urgent cases payment, but that was refused by the decision of an Adjudication Officer dated 10 January 1995. That is the second decision of which he seeks judicial review. By the same letter he was also refused an interim payment of income support: that is the third decision of which he seeks judicial review. His grounds are in part the same as those put forward by Mr. Sarwar, but in addition he relies on certain provisions of the Treaty establishing the European Community ("the Treaty"). Leave was granted by Dyson, J. on 24 February 1995.

    3. Urbanek. The applicants are two German nationals, Jan Urbanek aged 35, and his mother Inga Urbanek aged 64. The son had lived, and for some time worked, in England between 1990 and 1992: he then returned to Germany. On 12 September 1994 both applicants arrived in the United Kingdom, the son with a view to finding work. On 14 September 1994 both applied for income support. On 19 September 1994 the application was refused by an Adjudication Officer on the grounds that they were not habitually resident in the U.K. That is the decision of which they seek judicial review. Their grounds are the same as those put forward by Mr. Getachew for the review of the first decision in his case. Leave was granted by Ognall, J. on 14 October 1994.

    The Respondent to the Applications.

    In every case the Secretary of State for Social Services has been made a respondent to the applications. He is the sole respondent in the cases of Sarwar and Getachew; he is a respondent in the case of Urbanek. Mr. Richard Plender, Q.C., for the Secretary of State, makes the point that the Social Security Administration Act 1992 distinguishes between decisions to be taken by Adjudication Officers and decisions to be taken by the Secretary of State. The distinction is important since it affects (inter alia) rights of appeal to the Social Security Appeal Tribunal. Where the decision of an Adjudication Officer is subject to judicial challenge the proper respondent is the Chief Adjudication Officer- see Chief Adjudication Officer v. Foster [1993] A.C. 754. However, having made the point, he accepted that we could properly determine the points at issue between the parties in the proceedings as at present constituted. In so far as necessary we gave leave to the applicants to make the necessary amendments.

    The Legislative Background.

    Part VII of the Social Security Contributions and Benefits Act 1992 ("the Principal Act") is concerned with income-related benefits, which include income support, housing benefit and council tax benefit and which are to be provided by prescribed schemes - see section 123. The Social Security Administration Act 1992 ("the Administration Act") is, as its name indicates, primarily concerned with the administration of the social security system.

    Schemes for the three benefits mentioned above were made by the Income Support (General) Regulations 1987 ("the Income Support Regulations"), the Housing Benefit (General) Regulations 1987 ("the Housing Benefit Regulations") and the Council Tax Benefit (General) Regulations 1992 ("the C.T. Benefit Regulations"). All three sets of Regulations were amended by the Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1994 ("the Amending Regulations") which in effect introduced the concept of habitual residence in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man as a condition (subject to exceptions) of eligibility for the three benefits. It is the validity of these amendments which is attacked by these applications.

    The Ultra Vires attack.

    A. Income Support.

    S.124(1) of the Principal Act provides that "a person in Great Britain (my emphasis) "is entitled to income support if" he fulfils certain conditions as to age, income and other matters.

    Sections 134-137 of the Principal Act contain general provisions relating to all income-related benefits. Sub-sections (1) and (2) of Section 135 provide:-

    "(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.

    (2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount."

    Section 137(2)(a) of the Principal Act provides:

    "(2) Regulations may make provision for the purposes of this Part of this Act-

    (a) as to circumstances in which a person is to be treated as being or not being in Great Britain."

    Section 175(3) of the Principal Act provides (so far as material):

    "(3) any power under this Act to make regulations or an order may be exercised - .....

    (b) so as to rnake, as respects the cases in relation to which it is exercised -

    (i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise).

    (ii) The same pronsion for all cases in relation to which the power is exercised, or different provision for different classes of case or different provision as respects the same case or class of case for different purposes of this Act."

    The Income Support Regulations deal with claimants for income support who come from abroad by including them in the category of "special cases" under Regulation 21 and Schedule 7. Regulation 21(3) contains a definition of "person from abroad" for the purposes of Schedule 7, and Schedule 7 prescribes in column 2 the applicable amount of income support payable to a claimant of the type specified in column 1. Paragraph 17 of Schedule 7 deals with claimants who are persons from abroad and in most cases column 2 defines the applicable amount as "nil". Thus against column (1) "a person from abroad who is a single claimant" column (2) says "nil". So the definition of "person from abroad" in Regulation 21(3) is all-important. Before the Amending Regulations came into force Regulation 21(3) defined "person from abroad" in eight subparagraphs lettered (a) - (h), mainly by reference to the immigration status of that person under the Immigration Act 1971. Regulation 4 of the Amending Regulations introduced the concept of habitual residence as a condition of eligibility for income support by adding to the definition of "person from abroad" in Regulation 21(3) of the Income Support Regulations the following additional category:-

    "'person from abroad' also means a claimant who is not habitually resident in the United Kingdom, the Republic of Ireland the Channel Islands or the Isle of Man, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is

    (a) a worker for the purposes of Council Regulation (EEC) No.1612/68 or (EEC) No. 125/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or

    (b) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967; or

    (c) a person who has been granted exceptiona] leave to remain in the United Kingdom by the Secretary of State."

    Mr. Drabble for Mr. Sarwar, supported by Mr. Supperstone, Q.C. for Mr. Getachew and the Urbaneks, submits that that amendment is ultra vires. Their main submission is that because s.124(1) of the Principal Act refers to "a person in Great Britain" as being entitled to income support, it is not within the powers of the Secretary of State, in making regulations pursuant to the provisions of the Principal Act, to qualify the entitlement of a person physically present in Great Britain to income support by introducing the further requirement of habitua1 residence.

    In my judgment this submission is untenable. In construing the policy and objects of the Principal Act it is necessary to look at the Act as a whole, and not just one section of it, to discover the primary intention of the legislature - see Bennion on Statutory Interpretation (2nd ed.) p. 167. When one reads section 137(2)(a) it seems to me quite impossible to say that Parliament intended every person physically present in Great Britain to be eligible for income support; if that was the intention section 137(2)(a) would be otiose. What Parliament intended was that physical presence in Great Britain should be a necessary, but not a sufficient, condition for eligibility. Once that be accepted, I can see no reason why a test of habitual residence should be outside the rule-making power of the Secretary of State. Further, if the condition could have been introduced directly by regulation under section 137(2)(a) I can see no reason why it can not be done indirectly by providing for a nil "applicable amount" for a non-resident by regulation under sub-sections (1) and (2) of section 135. The point is not susceptible to great elaboration and as I entertain no doubt about it I need not consider it further.

    B. Housing Benefit.

    Section 130(1) of the Principal Act provides (so far as relevant):-

    "130. - (1) A person is entitled to housing benefit if -

    (a) be is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home;"

    Section 137(2)(i) of the Principal Act provides:-

    "(2) Regulations may make provision for the purposes of the Part of this Act - .....

    (i) for treating any person who is liable to make payments in respect of a dwelling as if he were not so liable;"

    Regulation 7A(1) of the Housing Benefit Regulations provides:-

    "A person from abroad who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable."

    In the succeeding sub-paragraphs of Regulation 7A there are contained definitions of a "person from abroad", to which Regulation 3 of the Amending Regulations added the further definition of a person who is not habitually resident in the U.K., the Republic of Ireland. the Channel Islands or the Isle of Man, with similar (but further) exceptions as in the case of the amendment to the Income Support Regulations.

    The only purpose of section 137(2)(i) was to enable the Secretary of State to prescribe that a person who would otherwise be entitled to housing benefit under section 130(1)(a) should not be so entitled. By Regulation 3 of the Amending Regulations the Secretary of State has used the power for the purpose for which it was clearly provided. The Regulation is intra vires.

    C. Council Tax Benefit.

    Section 131 of the Principal Act provides (so far as material):-

    "131. - (1) A person is entitled to council tax benefit in respect of a particular day falling after 31st March 1993 if the following are fulfilled, namely, the condition set out in subsection (3) below and......

    (3) The main condition for the purposes of subsection (1) above is that the person concerned-

    (a) is for the day liable to pay council tax in respect of a dwelling of which he is a resident; and

    (b) is not a prescribed person or a person of a prescribed class."

    Section 137(1) of the Principal Act defines "prescribed" as meaning "specified in or determined in accordance with regulations".

    Regulation 4A(1) of the C.T Benefit Regulations provides that a person from abroad is a person of a prescribed class for the purposes of section 131(3)(b) of the Principal Act. The regulation then contains a definition of "a person from abroad". To that definition Regulation 2 of the Amending Regulations added the same further definition of a person who is not habitually resident in the U.K., etc., as in the case of the amendment to the Housing Benefit Regulations. This Regulation, too, is clearly intra vires.

    Mr. Sarwar's application fails accordingly.

    The European Attack.

    1. Discrimation against a work seeker (Articles 6 and 48 of the Treaty).

    Article 6 of the Treaty provides (so far as relevant):-

    "Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

    Article 48 of the Treaty provides:-

    "1. Freedom of movement for workers shall be secured within the (Community by the end of the transitional period at the latest.

    2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Members States as regards employment, remuneration and other conditions of work and employment.

    3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

    (a) to accept offers of employment actually made;

    (b) to move freely within the territory of Member States for this purpose

    (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

    (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in irnplementing regulations to be drawn up by the Commission....."

    For present purposes I accept that to give rights to habitual residents of the U.K. and the Republic of Ireland, and not to persons habitually resident in other countries of the community, can amount to discrimination on grounds of nationality since it is probable that the majority of person habitually resident in the U.K. and the Republic of Ireland will be nationals of those countries.

    The question is whether a person who is not a worker, but at best a work-seeker, is by virtue of Article 48 entitled to non-contributory welfare benefits in a Community country of which he is not a national That question was effectively answered in the negative by the European Court of Justice (E.C.J.) in Centre public d'aide sociale de Courcelles v. Lebon [1988] E.C.R 2811. Admittedly this case was decided upon the basis of a claim by Mrs. Lebon (a French national) to Belgian subsistence benefits under Council Regulation No. 1612/68. However that is irrelevant for present purposes, since Mrs. Lebon's rights under that Regulation could not have been less than her rights under the Treaty: a council Regulation cannot detract from the Treaty although it might add to it.

    That this was the effect of Lebon was clearly recognised by Mr Advocate-General Darman in the case of Antonissen [1991] E.C.R. 745, 771.

    Mr. Supperstone, recognising the difficulties put in his way by Lebon (supra), based his argument on the fact that the Amending Regulations confer advantages in the U.K. on habitual residents of the Republic of Ireland which are not conferred upon habitual residents of other countries of the community (other than the U.K. itself). In my judgment this supposed distinction from Lebon does not help him. As a matter of principle, if Mr. Getachew and Mr. Urbanek have, as work-seekers, no rights under Article 48 to non-contributory welfare benefits in this country, then it is irrelevant whether the alleged discrimination against them is in favour of U.K. nationals only, or in favour of U.K. and Irish nationals. As a matter of authority the point is covered by the decision of the E.C.J. in Belgian State v. Humbel [1988] E.C,R. 5365. There Belgian law exempted its own nationals and Luxembourg nationals from the necessity to pay an enrolment fee as a condition for admission to schooling within its territory. This fact did not help a French national living and working in Luxembourg who complained of discrimination in relation to this enrolment fee, as this was not within the ambit of the relevant Regulation.

    There is nothing unusual in the concept that rights of movement and rights of residence within the Community do not necessarily carry with them rights to maintenance. Thus in Brown v. Secretary of State for Scotland [1988) E.C.R. 3205 the E.C.J. held that a student exercising his rights under the Treaty to attend a university in a country of which he was not a national was not entitled to a subsistence grant. In Raulin [1992] E.C.R. 1027 the E.C.J. held that a right of residence, to pursue vocational training in a Member State, did not entitle a non-national of that State to a maintenance grant for which nationals of that State were eligible.

    2. Restriction on Freedom of Movement (Articles 6 and 8A of the Treaty).

    Article 8A of the Treaty provides (so far as relevant):-

    "Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect."

    The questions whether Article 8A creates some new rights (or is merely declaratory) and whether it has direct effect have already been referred to the E.C.J. by this court in R v. Secretary of State, ex p. Adams [1995] All E R. (E.C.) 177. For present purposes I am prepared to assume that Article 8A may create a new right of residence and that that right is directly enforceable.

    Nevertheless that right is qualified by the latter part of the provision set out above. In my judgment the decisions of E.C.J. in Lebon and Humbel (supra) are just as relevant to a claimed right of residence under Article 8A as they are to the similar right under Article 48. I note that this view is shared by the learned editors of Wyatt and Dashwood's European Community Law (3rd ed. 1993) at p. 659.

    Accordingly the Urbaneks' application fails as does Mr. Getachew's application in relation to the first decision in his case.

    Getachew - the second and third decisions.

    1. The second decision - urgent cases payment.

    Regulation 70(3) of the Income Support Regulations (which is the only relevant rule as Mr. Supperstone concedes) provides:

    "(3) This paragraph applies to a person from abroad within the meaning of regulation 21(3) (special cases) who - .

    (g) is a person who has no or no further right of appeal under the 1971 Act but has been allowed to remain in the United Kingdom while an application so to remain is, or representations on his behalf are, being considered by the Secretary of State....."

    In order to be entitled to an urgent cases payment under this sub-rule:

    (1) The applicant (from abroad) must be a person who requires leave to remain; otherwise he cannot be allowed to remain pending consideration of an

    application or representations. Mr Getachew did not require leave to remain: he entered the U.K. as of right. See Regina v. Pieck [l980] E.C.R. 2171, 2188.

    (2) The applicant must, as a matter of fact, have been allowed to remain in the U.K. There was no such allowance - because none was necessary in the case of Mr. Getachew.

    (3) The applicant must have made an application to remain in the U.K. or relevant representations must have been made on his behalf. There is no evidence that either has happened in the case of Mr. Getachew.

    (4) The applicant must have no, or no further, right of appeal under the Immigration Act 1971 There may be a right of appeal for an E.C. national who is refused a residence permit under the Immigration (European Economic Area) Order 1994 - see article 18 of that Order. However such a permit is not the source of an E.C. national's entitlement to remain in this country, it is only evidence of that entitlement.

    As Mr. Getachew clearly does not meet the first three conditions listed above, there was no error in the second decision refusing him an urgent cases payment.

    2. The third decision - interim payment.

    Regulation 2 of The Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 provides:-

    2. - (1) The Secretary of State may, in his discretion, make an interim payment, that is to say a payment on account of any benefit to which it appears to him that a person is or may be entitled, in the following circumstances -

    (a) a claim for that benefit has not been made in accordance with the Claims and Payments Regulations and it is impracticable for such a claim to be made immediately or (b) a claim for that benefit has been so made, but it is impracticable for it or a reference, review, application or appeal which relates to it to be determined immediately ....."

    Mr. Getachew's application for an interim payment was rejected by the Adjudication Officer by letter dated 10 January 1995 on the following ground:

    "Mr. Getachew does not qualify for interim payments as it is not clear to the Secretary of State that he will qualify for Income Support (Social Security Payments On Account Regulation 2)."

    This was' as Mr. Plender concedes, the wrong test. The correct test is not whether it is "clear" that the applicant will qualify for income support, but whether it appears to the Secretary of State that he "is or may be entitled" to that benefit. Mr. Plender accepts that the Secretary of State must, and will, reconsider his decision. but in the light of this judgment it seems to me inevitable that the Secretary of State will decide that Mr. Getachew neither is, nor may be, entitled to income support. In the circumstances I would not, as a matter of this court's discretion, grant any relief in relation to the third decision.

    I add, for the sake of completeness, that Mr. Getachew's Form 86A also asserts that Regulation 2 of the 1988 Regulations is ultra vires section 5(1)(r) of the Administration Act as it gives the Secretary of State a discretion, whereas there is no power to do this conferred by section 5. However section 189(6) of the Administration Act expressly confers such a power. There is nothing in this point.

    I would dismiss all three applications in their entirety.

    MR JUSTICE FRENCH : I agree.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1995/7.html