Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C1/04-05(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 14 January 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by me, by the claimant against a decision dated 14 January 2003 of an Appeal Tribunal sitting at Londonderry. That Tribunal had disallowed the claimant's appeal against the decision of the Department dated 22 October 2002 in relation to income support (IS). The Department had decided that the claimant was not habitually resident in the United Kingdom and consequently, as a person from abroad, she had an IS applicable amount of nil.
2. The claimant's grounds of appeal to me were contained in an OSSC1 form received in the Commissioners' Office on 19 November 2003. The claimant is represented by Mr Breslin of the Law Centre (NI) and the Department by Mr McNamara of the Decision Making and Appeals Unit. I am grateful to both representatives for their considerable assistance in this matter.
3. Mr McNamara made observations on the appeal by letter dated 19 February 2004 and further comment was made by Mr Breslin by letter dated 22 March 2004. I held a hearing which both representatives attended but which the claimant did not attend. Skeleton arguments were submitted.
4. The relevant legislation is contained in regulation 21 of the Income Support (General) Regulations (Northern Ireland) 1987. Paragraph 1 thereof provides that certain persons shall have applied to them applicable amounts as indicated in Schedule 7 to the Regulations. Paragraph 3 thereof sets out definitions of certain persons listed in Schedule 7. For the purpose of this case the only relevant definition is "person from abroad". For the purposes of Schedule 7 a person from abroad is defined as: -

"… a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, 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. 1251/70 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;".

There are other exceptions but none is relevant.

5. Mr Breslin proceeded with four grounds of appeal. He had conceded that certain other grounds mentioned in the correspondence were not being proceeded with and I consider that he was correct in so doing. The continuing grounds were: -

(1) That the Tribunal had erred in that it misinterpreted the relevant legislation and specifically EEC Regulation 1408/71 on the meaning of the term "worker".

(2) That the Tribunal had failed to have proper regard to the relevant case law and in particular how the circumstances of this case were distinguishable from those in C9/97 Swaddling. This is a decision of the European Court.

(3) That the Tribunal had erred in finding the claimant to not be actually habitually resident in the United Kingdom. In this connection decisions CIS/1304/97 and CJSA/5394/98 were cited and it was contended that the Tribunal's evidential assessment was inadequate in its consideration of the relevant factors when addressing the question of whether the claimant was actually habitually resident in Northern Ireland.

(4) In arriving at the decision to disallow benefit on the grounds that the claimant failed to satisfy the habitual residence test, the Tribunal made assumptions based on no evidence. In particular in this connection Mr Breslin mentioned the final paragraph of the Tribunal's reasons for decision.

6. Mr McNamara opposed the appeal. With relation to the first ground he conceded that the claimant was a worker for purposes of EEC Regulation 1408/71. However, he submitted that she was not a worker for purposes of EEC Regulation 1612/68 and therefore the protection given by that Regulation could not assist her. Neither party contended that the claimant could be assisted by EEC Regulation No. 1251/70.
7. With regard to the second ground Mr McNamara submitted that as regards the case of Swaddling the Tribunal had reasoned that Swaddling was confined to its own facts and had cited as authority for that GB Commissioner's Decision C15/15484/1996 (now reported as R(IS)3/00). He submitted that in stating that the present case was not on all fours with that of Swaddling the Tribunal had provided adequate reasons for its decision.
8. As regards whether the claimant was actually habitually resident Mr McNamara submitted that the Tribunal had considered this matter and had adequate evidence for its conclusions. In relation to decisions CIS/1304/1997 and CJSA/5394/1998 Mr McNamara submitted that it was obvious that the evidence adduced and considered was adequate to satisfy the enquiries mentioned by Commissioner Jacobs in those decisions. He cited decision C4/01-02(IS) as authority for the proposition that the making of the enquiry in a set manner was not of itself a matter of law. He therefore submitted that the evidential assessment was not inadequate and that the Tribunal had not erred in this respect.
9. As regards the making of assumptions Mr McNamara submitted that the Tribunal stated that there were a number of considerations as to what could possibly influence the claimant's decision as to whether she would remain in the UK. These considerations could not be construed as the Tribunal making assumptions and he submitted that the Tribunal had not erred in that respect.
10. In his further comments Mr Breslin submitted that the Tribunal in this case was denying the claimant IS on the basis that an appreciable period of residence was not met. He submitted that the Tribunal had made assumptions in reaching its conclusions on habitual residence and that the assumptions were not relevant to the claim. The Tribunal should have looked at the claimant's intention and at the facts. The Tribunal had to look at what in fact had happened. The claimant had remained in Northern Ireland. The assumptions which the Tribunal made were not part of the test and the decision did not make sense.
11. In passing I note that Mr McNamara raised a point as to whether IS was covered by EEC Regulation 1408/71. I will comment on that relatively briefly as I think it is of dubious relevance in this case. IS is specifically listed in Annex II(a) to that Regulation. The relevance of this is that Article 10a of the Regulation provides:-

"1. Notwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4 (2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State provided that such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence."

12. Article 4(2a) provides that the Regulation shall apply to certain special non-contributory benefits. The benefits to which the Regulation applies are those which:-

"… are provided under legislation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended:

(a) either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1 (a) to (h);

or

(b) solely as specific protection for the disabled."

13. As the United Kingdom has seen fit to have IS listed as a special non-contributory cash benefit pursuant to Article 10a of the said Regulation I am very dubious that there is any merit in that part of Mr McNamara's argument. However, for the purposes of this case the matter is not of relevance. Whether IS is covered or not it is to be granted under Regulation 1408/71 exclusively in the territory of the country of residence. The determination of the country of residence is, therefore, as the Tribunal obviously appreciated, the crucial matter.
14. The Tribunal reasons were as follows: -

"The Appellant was born in Londonderry on 28/12/1971. Her parents and sisters continue to live in the City. She grew up here and after leaving school worked there until 1993. She then claimed sickness benefit and Disablement Benefit. That same year she decided to travel and went to Majorca, Spain and sought work.

The appellant formed a relationship with an Algerian man and on 10/11/1996 their daughter [named] was born. The appellant stopped working from April 1996 to 1998 and claimed Social Security benefit in Spain. Throughout her time in Spain she would alternate between full time and part time work or unemployment and claimed Social Security benefit there. She paid taxes on her earnings and paid the equivalent of national insurance contributions. The relationship with the father of her child came to an end and she returned with her child to Londonderry on 11/9/2002. Two weeks later she claimed Job Seeker's Allowance. The Decision Maker on 22/10/2002 decided the appellant was not habitually resident in the UK and consequently the applicable amount was nil. She was invited to make a subsequent claim which she did and has been accepted.

The Appellant has appealed the decision of 22/10/2002. In considering her appeal I must look at circumstances as they were at that time.

Mr Breslin on her behalf has argued she should be treated as being habitually resident in the UK on the basis she is a worker. Alternatively, he argues she never abandoned her original habitual residence in N.I. Finally he argued she is actually habitually resident (though he subsequently said he was not pursuing this argument).

I do not consider the appellant to be a 'worker' within the meaning of EEC Regulations 1612/68 and 1251/70. The Appellant has not returned to NI to work. She may hope to gain work and I note she does some voluntary work and is studying for GCSEs to enhance her prospects. However, she did not come to NI to take up a job (see C10/95(IS)). I have also considered 1408/71 designed to co-ordinate EC Social Security Schemes. As I mention subsequently, the decision in Swaddling has been confined to it own fact by GB Commissioner Mesher (CIS 15484/96) and paragraph 29/30 of Swaddling C90/97.

I have considered the question of actual habitual residence. The appellant said she returned to NI in 1997 and stayed 3-4 weeks. She registered her child with a local General Practitioner. She said she had considered returning to Northern Ireland at that time. Her parent visited her in February 2002 and brought some of her possessions back. She has maintained contact with her family in NI. She maintained a bank account here. I accept, after the break up of her relationship she has given up her flat in Spain and has no possessions of any significance there.

In CIS/1304/1997 and CJSA/5394/1994 the Commissioner considered the decisions of the Court of Appeal and House of Lords in Nessa v OAO to which I have been referred. It was decided a person who had previously been habitually resident in the UK will not automatically become habitually resident again on return. I believe this applies here. The appellant had lived in Spain for 9 years.

She had been in a relationship there which she described as stormy. She returned to NI with no immediate prospects. She is a young person and is mobile. Her daughter had not been established here. It is reasonable to expect a settling period whilst she decides where he (sic) future lies. She had clearly lost her original habitual residence given her life in Spain. She had a relationship there, a job, a child and an apartment. 9 years elapsed. It is natural she maintain contact with her relations but that would not sustain a habitual residence. In reality, until she returned, she clearly was not resident in the UK. The appellant's representative has referred me to Swaddling but I note in C15/1548411996 the GB Commissioner held it was limited to its own facts. In the present case, I do not believe the Appellant was simply 'picking' up the pieces of a former habitual residence.

The acquiring of a habitual residence turn on the facts. There is no fixed formulae. I am looking at the situation as at the date of decision, 22/10/2002. At that stage the Appellant had been in NI around 6 weeks. Whilst an appreciable period had elapsed I believe the situation was still uncertain. There may have been the possibility of a reconciliation between herself and her child's father. She might decide her prospect would in fact be better back in Spain or elsewhere. I believe she was starting to approach the point where it could be said her residence had become habitual. This in fact was subsequently accepted by the Department from 29/10/2002. However, I believe, at the date of decision it would be premature to make such a finding."

15. I do not consider that the Tribunal erred in its interpretation of the relevant legislation. The claimant does appear to be a worker within the terms of EC Regulation 1408/71 but that does not assist her in relation to regulation 21(3)(a) as that provision relates to workers for the purposes of Council Regulation (EEC) No. 1612/68. She was found not to be a worker for purposes of the latter regulation. This conclusion I consider to be correct and indeed Mr Breslin did not contend otherwise.
16. As regards the ground relating to the Swaddling case Mr Breslin submitted that the facts of this case were substantially on all fours with the facts in Swaddling and that the principles set out in paragraphs 29 to 30 of the European Court's judgment in that case applied. The Court in Swaddling unfortunately did not answer the question posed by the Social Security Commissioner who referred the matter for a preliminary ruling. It decided that the phrase in Article 10a of Regulation 1408/71 "the Member State in which they reside" referred to the State in which the persons concerned habitually resided and where that person's habitual centre of interest was to be found and in that context account was to be taken, in particular, of the employed person's family situation; the reasons which had led him to move, the length and continuity of his residence; the fact (where this was the case) that he was in stable employment; and his intention as it appeared from all the circumstances. It decided further, however, that the length of residence in the Member State in which payment of the benefit was at issue could not be regarded as an intrinsic element of the concept of residence within the meaning of Article 10(a) of Regulation 1408/71. The Court stated as follows: -

"In particular, when, as in the present case, an employed person, on returning to his State of origin after exercising his right to freedom of movement, has made it clear at the time of applying for income support that he intends to remain in his State of origin, where his close relatives live – whilst expressing his readiness, should the need arise in the context of some future employment, to travel from time to time to other Member States – he cannot be deemed not to satisfy the condition concerning residence within the meaning of Article 10a merely because the period of residence completed in his State of origin is too short."

17. The court stated that the answer to the question referred to must be that Article 10a of Regulation 1408/71, read together with Article 1h thereof precluded the Member State of origin – in the case of a person who had exercised his right to freedom of movement in order to establish himself in another Member State in which he had worked and set up his habitual residence and who had returned to his Member State of origin where his family lived in order to seek work – from making entitlement to one of the benefits referred to in Article 10a of Regulation 1408/71 conditional upon habitual residence in that State, which presupposed not only an intention to reside there but also completion of an appreciable period of residence there.
18. National legislation did not, both parties in this case were agreed, provide for any particular period of residence to be satisfied in order for habitual residence to be shown. The claimant was an employed person for purposes of Article 10a of Regulation 1408/71. The Court did not decide in Swaddling whether or not Mr Swaddling was entitled to the relevant benefit. It decided simply that in a case such as that of Mr Swaddling the State was not permitted to make entitlement to IS conditional upon habitual residence where that presupposed not only an intention to reside but also completion of an appreciable period of residence in the relevant state. Did the Tribunal here impose such a requirement and was it permitted so to do? It has not, as Mr Breslin states, specifically spelt out how this case is distinct from that of Swaddling but it is relatively obvious from the Tribunal's other reasoning where it regarded the claimant as different from Mr Swaddling. For a start she was a young person and mobile. Secondly her daughter had not been established in Northern Ireland. Thirdly she had not continued to pay social security contributions here nor found employment in Spain through British companies. The Tribunal also referred to the case of Nessa v the Chief Adjudication Officer (21 October 1999) where it was decided that a person who had previously been habitually resident in the United Kingdom would not automatically become habitually resident again on return. In Nessa Lord Slynn, delivering the lead judgment, stated: -

"If Parliament had intended that a person seeking to enter the United Kingdom or such a person declaring his intention to settle here is to have Income Support on arrival, it could have said so. It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing "I intend to settle in the United Kingdom" and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say I am going to live at X or with Y. He must show residence in fact for a period which shows that the residence has become "habitual" and, as I see it, will or is likely to continue to be habitual.

… There may indeed be special cases where the person concerned is not coming here for the first time, but is resuming an habitual residence previously had (Lewis v Lewis [1956] 1W.L.R.200: Swaddling v Adjudication Officer, (Case C-90/97) E.C.J Judgment 25 February 1999(unreported)). On such facts the Adjudication Officer may or of course may not be satisfied that the previous habitual residence has been resumed. This position is quite different from that of someone coming to the United Kingdom for the first time."

19. It is quite obvious from the Nessa decision that the adjudicating body is to take into consideration the fact that someone has previously been habitually resident in the United Kingdom but that this of itself either may or may not be sufficient to immediately re-establish habitual residence. It is a matter to be decided looking at all the facts of the case. As Lord Slynn states: -

"… the facts must be investigated to see whether there was a residence which could be accepted as "habitual.""

20. It does not appear to me that the Tribunal took the view that for residence to be habitual it was always essential that there be an appreciable period of residence.
21. The Tribunal obviously considered, as it had to do, when the claimant had become habitually resident in Northern Ireland. The factors which it mentions in relation to the period of residence relate to whether or not that residence had become habitual not to any presumption that an appreciable period was implicit in the Regulations. The child's father was not resident in the United Kingdom and the child herself was not established here. I consider that the Tribunal's contention that the claimant had not become habitually resident as at 22 October 2002 was one which the Tribunal was entitled to reach. I do not think it ignored the evidence in relation to visits to Northern Ireland to see family. This is noted as part of the evidence considered and it is also referred to in that the Tribunal refers to her maintaining contact with relations. The Tribunal does not have to specifically mention every piece of evidence in its reasoning. The reasoning in this case is clear and it does not appear to me that any relevant evidential factors have been ignored. I can ascertain no error in relation to this matter.
22. As regards the "assumptions" mentioned by Mr Breslin I do not think that these are assumptions as such. The Tribunal is simply explaining how factors other than intent are relevant in considering objectively whether the claimant was habitually resident. The Tribunal has quite clearly found that habitual residence was not sustained during the period in Spain. The situation was still uncertain. As an illustration of that it mentions the possibility of a reconciliation and the possibility that the claimant might decide that her prospects would be better in Spain or elsewhere, she having no immediate prospects in Northern Ireland. These are not, in my view, assumptions. They are simply illustrations of means whereby intentions can change. The Tribunal does not appear to have found that the claimant's intentions actually did change or were influenced by these matters simply that the possibility of the intentions changing and of residence being changed had to be allowed for until it could be objectively found that a settled intention existed. I do not think the Tribunal's conclusions in relation to this matter are unreasonable. The question of whether or not a person is habitually resident is essentially a matter of fact. It is therefore necessary for me to consider whether the Tribunal's conclusion on the facts is a reasonable one. It is not necessary for me to say that I would have reached the same conclusion myself, it is only necessary that the conclusion be reasonable. In this case I consider that it was and I consider there was no error in the Tribunal illustrating certain matters which could contribute to an objective finding as to whether or not there was a settled intention.
23. As regards the enquiry issue mentioned in relation to Commissioner Jacobs' decisions I have already stated in an earlier decision that I do not consider that this is a matter of law. I note also that in paragraph 32.2 of his decisions Mr Commissioner Jacobs states: -

"It is relevant to consider whether the claimant is in a position to make an informed decision about residence in the United Kingdom. A claimant who has been abroad for a long time may find the changes greater than expected and the difficulties of adjusting too great. This may show that residence for an appreciable period is appropriate to test the claimant's resolve. This is unlikely to be the case for a claimant who has only been absent for a short period, but the changes in the way of life in a country can alter significantly over a short time."

This indicates that there is a need for an objective approach as well as a subjective one. I can ascertain no error of law by the Tribunal in relation to these decisions and it has, in my view, taken into consideration all the relevant factors.

24. As Mr Commissioner Jacobs stated there is no hard and fast rule in relation to these matters. Intention, while important, is not decisive. The length of period of residence, while not an essential pre-condition may also be relevant as may be immediate work prospects, the position regarding children and other relatives, etc. This list is neither prescriptive nor exhaustive. It is simply an illustration of the fact that whether or not someone has become habitually resident is a question of fact.
25. I can ascertain no error of law in the Tribunal's decision and I therefore dismiss the appeal.

(signed): M F Brown

Commissioner

11 August 2004