Transition at 18
Is the Benefits Agency correct to refuse to grant or to terminate Jobseeker’s Allowance or Income Support to a former unaccompanied asylum seeking child (UASC) who has reached 18 and whose discretionary leave (DL) was only granted until their 18th birthday?
Since the 1st April 2007, unaccompanied children refused asylum have been granted discretionary leave until age 17.5 rather than 18. These children, if either 'eligible' or 'relevant' under Children Act 1989 should continue to be directly funded by the local authority until age 18 [1] irrespective of whether they have applied for an extension of their discretionary leave or not [2].
If the former UASC has made a valid application [3] for an extension of their DL/ELR prior to the expiry of their former leave (whether this was granted until their 18th birthday or for some other period of time) they are entitled to Jobseekers Allowance/Income Support (as appropriate) and Housing Benefit [4]. The Benefits Agency would be wrong to stop or refuse to process an application for the appropriate benefit where a valid application has been made. [5] They will nevertheless require evidence that a valid application has been made.
If the application was made after the period of leave has expired, then the Benefits Agency is entitled to withdraw or withhold these benefits as the former UASC is now someone who would be 'subject to immigration control' and who 'requires leave to enter or remain in the United Kingdom but does not have it'. Such persons are not entitled to receive Jobseeker's Allowance, Income Support or other 'public funds'.
Current guidance to Department of Work and Pensions (DWP) decision makers is contained in the IS GAP (volume 5) and states that the customer should provide a 'Home Office Acknowledgement letter confirming that the application for an extension has been made 'in time' OR that the decision maker should contact the 'Immigration Status Enquiry Unit' at the Home Office on a standard enquiry form to check the customer's current immigration status before processing the claim. Since this guidance was last issued the Home Office have stopped sending out 'acknowledgement letters' and we understand that this part of the guidance has been withdrawn. [6] This means that currently the guidance to decision makers may only refer to contacting the status enquiry unit. DWP staff have told us that this method of confirming status routinely takes some months during which time they feel unable to process the claim.
However, it should be sufficient to present other evidence that an in-time application has been made [7]
A copy of the letter from a solicitor stating that an application was made is clearly evidence that it was. So is a copy of the cover letter accompanying the application[8].If there were to be proof of posting, that would make the evidence more weighty [9]. An acknowledgement letter from the Home Office or reply from the status enquiry bureau is also weighty evidence. [10]
What to do next:
If a former UASC has had their benefits stopped incorrectly or the DWP has refused to process a claim for a benefit to which they are entitled (other than for reasons of the applicant not having a National Insurance Number - see footnote [5]), you can adapt this model letter and send them along with it to the Benefits Agency with the documentation specified in the letter. Any refusal to reinstate or process a claim for benefits with immediate effect should be referred for specialist legal advice (for benefits matters, the local Citizen's Advice Bureau can usually assist). There is a fair likelihood that there may be a remedy by way of judicial review or appeal.
If it was the fault of the former UASC's immigration solicitor that an application for an extension of leave was not made in time, consideration should be given to suing them for:
(a) the lost benefit; and
(b) the immigration consequences for them (for example, becoming overstayers or the loss of appeal rights immediately on the negative decision).
Revised 15/02/08
Notes
[1] The Children (Leaving Care) Act 2000, Section 6, subsection 1, reads: "No person is entitled to income based job seekers allowance under the Jobseekers Act 1995, or to income support or housing benefit under the Social Security Contributions and Benefits Act 1992, while he is a person to whom this section applies". Subsection 2 reads: "Subject to subsection (3) this section applies to:- (a) an eligible child for the purposes of paragraph 19b of Schedule 2 to the Children Act 1989; (b) a relevant child for the purpose of Section 23A of that Act or (c) any person of a description prescribed in regulations under subsection (4)". The Children (Leaving Care) Social Security Benefits Regulations 2001, which describes the persons prescribed under subsection 2(c) above do not relate to the Immigration Status of the person.
[2] Those whose discretionary leave was still 'current', by virtue of Section 3C of the Immigration Act 1971 on their 18th birthday would be entitled to mainstream benefits.
[3] The Immigration Directorate Instructions at Chapter 1, section 6 , paragraph 1.1 state that the application must be made on an application form prescribed by the Home Secretary and must be accompanied by all the documentary evidence required by the form (or good reasons why any required documentation can not be provided). Paragraph 2 states that the application must be posted (not received) before the applicant's leave expires.
[4] For information on how long this entitlement continues click here to see the following Q&A 'When does eligibility for Income Support/Jobseekers Allowance (JSA) and housing benefit end for a former unaccompanied asylum seeking child (UASC) granted discretionary/exceptional leave to remain (DL/ELR) until age 18?'
[5] This is because current leave is automatically extended by the operation of section 3C of the Immigration Act 1971 in such circumstances. (See IDIs, Chapter 1, section 6). It would be appropriate for the Benefits Agency to temporarily withhold benefits where the former UASC did not have a National Insurance Number (NINO) - a requirement for being in receipt of benefits. All UASC should be issued with a NINO prior to transferring to mainstream benefits. For details on how to obtain a NINO see the following Q&A 'How should an asylum seeking child who has been granted Discretionary (or other kind of) Leave apply for a National Insurance Number?' click here
[6] Confirmed in a letter from James Plaskitt MP, Parliamentary Under Secretary of State in the Department of Work and Pensions to the Office of the Children's Commissioner, 19.09.06 “Although Income Support guidance did advise staff to ask for acknowledgement letters from the Home Office this was deleted when it became known that the letters were no longer issued."
[7] The question of whether a valid, 'in time' application has been made is a question of fact: the individual decision maker must ask him/herself the question "On the evidence I have in front of me do I think it is more likely than not that an application was made in time? " If the current guidance were, in effect, DWP policy directing decision makers that they can only accept the particular piece of evidence (currently acknowledgement from the status enquiry bureau) then such a policy would be unlawful
[8] We understand that the DWP has itself taken legal advice on this matter and has been told that a solicitor's letter, along with the original letter granting the Leave and 'proof of posting' (e.g. recorded delivery notice) should be accepted. The guidance to decision makers has not been changed in line with this advice to the best of our knowledge.
[9] We would now suggest that a copy the letter enclosing the extension application along with 'proof of posting' in the form of a recorded delivery receipt with tracking reference number is submitted as evidence. This should be accompanied by the original or copy of the original letter granting the DL.
[10] The lack of direct evidence from the Home Office does not negate or undermine the weight to be attached to the kinds of evidence mentioned above (unless the DWP can properly decide that an acknowledgement would normally have been received by now - which seems unlikely due to the acknowledged delays in obtaining clarification from the status enquiry bureau).
