Tkachuk v Secretary of State for Work & Pensions

Where a statutory time limit for retrospective benefit claims runs from receipt of a notification, and the later provision refers to the notification required by an earlier provision, both references identify the same notice. If that notice is effective when given to an authorised representative, it can trigger the later period without separate personal receipt. A personal-signature requirement for the benefit claim does not imply a separate personal-notification requirement. The statutory scheme remains decisive, and express deemed-receipt rules in a different regime do not control the construction of differently worded provisions.

The claimant, who had been granted asylum, sought income support retrospectively. Her solicitors received notification of her refugee status but did not pass it to her. She later claimed income support after the 28-day period calculated from the solicitors’ receipt, but within 28 days of learning of the decision herself.

The Income Support Appeal Tribunal upheld the Secretary of State’s refusal of retrospective payments. Commissioner Angus upheld that decision and granted permission to appeal. The central issue was whether notification to the claimant’s immigration solicitors satisfied Regulation 21ZA(1) and triggered the period in Regulation 21ZA(2).

Appeal dismissed unanimously.

1. Regulation 21ZA(2) of the Income Support General Regulations 1987 refers to the notification specified in paragraph (1). The notification relevant to both paragraphs is therefore the same document.
2. A notification effective for the purposes of paragraph (1) is, by that fact, sufficient for paragraph (2). The regulation does not require a second notification to the refugee personally. The appeal tribunal and Commissioner were therefore correct to treat notification to the claimant’s solicitors as sufficient. The principal basis was statutory construction, rather than a free-standing application of general agency law.
3. The requirement that an income support claim be personally signed, arising under section 1 of the Social Security and Administration Act 1992 and Regulation 4 of the Social Security (Claims and Payments) Regulations 1987, did not alter that construction. Regulation 33, dealing with persons unable to act, was part of the context but did not create a general requirement of personal receipt.
4. R v Chief Immigration Officer Manchester Airport, ex parte Insah Begum [1973] 1 WLR 141 was treated as useful authority because notice could be given to an authorised agent or one presumed from his position to have authority. Shire v Secretary of State for Work and Pensions [2003] EWCA Civ 1465 was less useful because it did not decide the specific question of notice to agent or principal.
5. The later regime under section 94 of the Immigration and Asylum Act 1999 and Regulation 21ZB expressly treated notification to a representative as sufficient. That different statutory context could not determine the meaning of Regulation 21ZA.

The order was: appeal dismissed.

• Court of Appeal (Civil Division): [2007] EWCA Civ 515 dismissed the appeal.
• Social Security Commissioner: Commissioner R J C Angus, on 12 December 2005, upheld the Income Support Appeal Tribunal’s decision and granted permission to appeal.
• Income Support Appeal Tribunal: confirmed the Secretary of State’s decision refusing retrospective income support.