Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1992] NISSCSC C2/92(RP) (10 January 1994)

 


Decision No: C2/92(RP)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 RETIREMENT PENSION Appeal to the Social Security Commissioner on a question of law from the decision of the Belfast Social Security Appeal Tribunal dated 5 October 1992 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the Adjudication Officer appeals against the decision of Belfast Social Security Appeal Tribunal, whereby it was held that the claimant was not entitled to a Category D retirement pension until March 1993. The Tribunal's decision was expressed in negative terms and was said to be a disallowance of the claimant's appeal. It was, however, clearly also a decision to the effect that the claimant was entitled to a pension from March 1993, and by way of further explanation the Tribunal's decision included the following statement:-

"Appellant has failed to satisfy conditions of reg 10(a) Social

Security (Widows Benefit and Retirement Pensions) Regs (Northern

Ireland) 1979 as he was not resident in Northern Ireland for

10 years in the 20 years preceding his 80th birthday even taking

the periods of his leave into account, but that his entire periods

of leave, including those portions spent on holiday in Canada,

be aggregated and allowed as periods of residence."

It is against this latter aspect of the Tribunal's decision, which I have underlined above, that the Adjudication Officer now appeals.

2. The background facts are not in dispute. The claimant, who was born in Northern Ireland and attained the age of 80 on 17 March 1991, applied for an over 80s non-contributory retirement pension (a Category D retirement pension), in October 1991. He had lived in Africa, working as a missionary, from January 1938 until 6 August 1985. At intervals of some 3 to 5 years he had been entitled to periods of leave or furlough, each of approximately 12 months duration. The claimant's wife was Canadian and she and the claimant had accordingly spent roughly half of each of their extended periods of leave in Northern Ireland and in Canada; staying with relatives in both countries.
3. Having investigated the background to the claim the Adjudication Officer's decision of 7 November 1991 was:-

"The claimant is not entitled to Category D retirement pension from

and including 17 March 1991. This is because he was not resident in

Northern Ireland for a total of at least 10 years out of 20. The 20

years is a continuous period which includes the day before the

claimant's 80th birthday or any later day."

In reaching this decision the Adjudication Officer had regard in particular to the provisions of regulation 10(a) of the Social Security (Widows Benefit and Retirement Pensions) Regulations (Northern Ireland) 1979 which are as follows:-

"10. The conditions for entitlement to a Category D retirement

pension shall be that the person concerned -

(a) was resident in Northern Ireland for a period of at least

10 years in any continuous period of 20 years which

included the day before that on which he attained the age

of 80 or any day thereafter; and

(b) was ordinarily resident in Northern Ireland either -

(i) on the day he attained the age of 80; or

(ii) if he was not so ordinarily resident on that day and

the date of his claim for the pension was later than

that day, on the date of his claim; so however that

where a person satisfies this condition under this

head he shall be deemed to have satisfied it on the

date that he became so ordinarily resident."

4. At the hearing before the Appeal Tribunal it was submitted by the Reverend Dr Ian Paisley MP, on the claimant's behalf, that he had been resident in Northern Ireland during the whole of his periods of leave; including such time as had been spent in Canada. The Adjudication Officer argued that the claimant had not been resident in either Northern Ireland or Canada during any part of his extended leave because none of the individual periods spent in either country had been of sufficient duration. As stated in paragraph 1, the Tribunal disallowed the appeal, but held that the claimant would be entitled to a Category D pension in March 1993, which they had been told was the date on which he would have been resident in Northern Ireland for an aggregate period of 10 years in the 20 years prior to his 80th birthday, if all his periods of leave, whether spent in Northern Ireland or Canada, were taken into account as periods of residence here. It is accordingly clear that the Tribunal accepted Dr Paisley's submission that the claimant was resident in Northern Ireland even when he was physically present in Canada. It should, however, be noted that their only recorded "findings of fact material to their decision" were as follows:-

"Tribunal accepts evidence of Mr C... as to the periods during

which he was present in Northern Ireland and Canada, when on

leave, whilst being Resident abroad, in Liberia, during remainder

of 20 years period."

5. The Adjudication Officer's grounds of appeal were that the Tribunal Chairman had not complied with the provisions of regulation 25(2)(b) of the Social Security (Adjudication) Regulations (Northern Ireland) 1987, in that he had failed to record sufficient findings of fact or reasons for the Tribunal's decision. It was further alleged that no Tribunal, acting judicially and properly instructed as to the law, would have decided that Mr C..., when on leave, was resident in Northern Ireland during periods in both Northern Ireland and Canada.

These grounds were amplified in a letter from the Adjudication Officer dated 25 January 1993 in which the concepts of "dual residence" and "temporary absence" were discussed in detail. It was also pointed out that the Appeal Tribunal had been wrongly informed that the claimant's 10 year residence condition would be satisfied in March 1993 if he were to be entitled to include the periods spent in both Canada and Northern Ireland. In such event the correct date was 25 September 1992; whereas if only the periods spent in Northern Ireland were to be aggregated, entitlement to a pension would arise from 19 March 1994.

6. I held an oral hearing at which the claimant, who attended with his wife, was again represented by Dr Ian Paisley. The Adjudication Officer was represented by Mrs C Fearon, Solicitor.
7. At the outset I indicated that in my view the Tribunal's findings of fact were inadequate in that they did not include any finding as to the claimant's residence in Northern Ireland during the relevant 20 year period or to his place of ordinary residence on the day he attained the age of 80. Neither representative sought to argue that the recorded findings of fact were adequate in these respects and the discussion continued on whether the claimant could properly be regarded as having been resident in Northern Ireland during the periods spent by him in Northern Ireland and Canada when on extended leave prior to 6 August 1985. In Mrs Fearon's submission the caselaw to be found in GB Decisions R(F) 1/82; R(P) 2/67; R(M) 1/85; R(P) 1/72, and R(P) 1/90 indicated that three points were to be considered when deciding upon a person's place of residence, namely, intention, purpose and duration. In her submission the claimant had not been resident in Northern Ireland during any of the time spent here on leave. On each occasion he had come for a visit only and the time spent in Northern Ireland had been too short to qualify as residence. In relation to this point, Mrs Fearon submitted that the decision in R(P) 2/67 was authority for the proposition that a visit of only 6½ months duration was too short to constitute residence. As I indicated at the hearing, I do not consider that the Commissioner expressed any such opinion. On the contrary, it seems to me that he was at pains to leave open the question whether an individual visit of as short a period as 3 months might in certain circumstances constitute residence. As he stated, that question did not arise.

Mrs Fearon accepted that a person could have dual residence. She nevertheless submitted that, applying a commonsense approach and having regard to the intention of the claimant and the purpose and duration of his visits, the proper conclusion to be drawn was that the claimant was not resident in either Northern Ireland or Canada at any time between 1938 and 1985 when he was employed as a missionary in Africa. However, if the claimant were accepted as having been resident in Northern Ireland when he was staying here on leave, there was, she submitted, no possible justification for a finding that he was also resident in Northern Ireland while he was actually in Canada.

8. Dr Paisley stressed the many links between the claimant and Northern Ireland. His family home was and always had been here. The Missionary Society for whom he worked was a Northern Ireland Society funded from here and the claimant had had many duties to perform during his visits to Northern Ireland. These included attending meetings and reporting on his work in Africa. He had always held a British Passport and he regarded Northern Ireland as his home country. His visits to Canada were quite different in character and were more in the nature of holidays. He and his wife went there simply because she was Canadian and they wished to see her relatives. In Dr Paisley's submission the claimant had resided in Northern Ireland throughout his extended visits here and had properly been regarded as still so resident while he was in Canada. The Tribunal had, he said, been correct in taking such a view.
9. As I explained at the hearing, it is in my view beyond doubt that the Tribunal failed to record adequate findings on questions of fact material to their decision. At the very least the record of their decision should have included findings as to whether the claimant was ordinarily resident in Northern Ireland on the day he attained the age of 80 and of his periods of residence here in the 20 years prior to that day. Such omissions are in themselves errors in point of law and I accordingly allow this appeal and set aside the Appeal Tribunal's decision. In the exercise of my power under section 21(7) of the Social Security Administration (Northern Ireland) Act 1992, and considering it expedient to do so, I propose to make fresh or further findings of fact and give the decision which in my opinion is appropriate in the light of them. In doing so I have had regard to the arguments advanced on both sides at the oral hearing and have given careful consideration to the Tribunal's view that the claimant's "entire periods of leave, including those portions spent on holiday in Canada [should] be aggregated and allowed as periods of residence [in Northern Ireland]." As stated in R(P) 1/72 there is a distinction to be drawn between "resident" and "ordinarily resident", which is in my view clearly acknowledged in the wording of regulation 10 of the Social Security (Widows Benefits and Retirement Pensions) Regulations (Northern Ireland) 1979 set out in paragraph 3 above. The conclusion I have reached is that the claimant in this case was ordinarily resident in Africa from 1938 until 6 August 1985 and in Northern Ireland after that date. The fact that the claimant was ordinarily resident in Africa prior to 6 August 1985 did not, however, mean that he could not also be resident on a temporary basis in some other part of the world, and having reviewed the evidence the conclusion I have reached is that he was so resident in Northern Ireland during the periods spent here on extended leave. Those were periods of temporary residence at the same time as he remained ordinarily resident in Africa. I am, however, unable to accept that the claimant continued to be resident in Northern Ireland during such times as he was in Canada, and in my view the Appeal Tribunal were not justified in arriving at such a conclusion. It is one thing to be temporarily resident in country B while ordinarily resident in country A. It is quite another to be temporarily resident in country B while ordinarily resident in country A and physically present in country C. I would, moreover, point out that I have reached no conclusion as to whether the claimant was temporarily resident in Canada during his visits there. As in R(P) 2/67 that is a question which does not arise. I accordingly make the following findings of fact:-

(a) That the claimant has been ordinarily resident in Northern Ireland throughout the entire period since 6 August 1985 and was thus ordinarily resident here on the date he attained the age of 80.

(b) That the claimant was ordinarily resident in Liberia, West Africa from January 1938 until 5 August 1985.

(c) That for the following periods, during which he was ordinarily resident in Liberia, West Africa, the claimant was temporarily resident in Northern Ireland:-

(i) from 18 December 1973 to 14 May 1974;

(ii) from 4 July 1978 to 31 January 1979;

(iii) from 6 February 1981 to 30 June 1981.

In the light of these findings of fact my decision is that the claimant is not entitled to a Category D retirement pension from and including 17 March 1991. This is because he had not at that date satisfied the condition of being resident in Northern Ireland for a period of 10 years in any continuous period of 20 years which included the day before his 80th birthday or any day thereafter. I further decide that the claimant will have satisfied the said condition and be entitled to such a pension from and including 19 March 1994.

R. R. Chambers

CHIEF COMMISSIONER

10 January 1994