OM-v-Department for Communities (JSA)  NICom 70
Decision No: C4/17-18(JSA)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 15 April 2015
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is a claimant’s application for leave to appeal from the decision of a tribunal sitting at Ballymena on 15 April 2015.
2. For the reasons I give below, I grant leave to appeal. I allow the appeal and I set aside the decision of the appeal tribunal. I consider that it is expedient that I should give the decision that the tribunal should have given. I make findings of fact and I decide that the applicant was living in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland in the three months prior to her claim for Jobseekers Allowance (JSA) on 21 July 2014.
3. The appellant claimed JSA from the Department for Social Development (the Department) on 21 July 2014. She indicated that she had returned to live in the United Kingdom (UK) from a working holiday in Australia. She stated that she was an Irish national and had come from Australia on 18 July 2014, having previously left the UK on 13 January 2014. She was living at home with her parents.
4. On 4 August 2014, the Department decided that the appellant had not been resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland for the 3 months prior to her claim and therefore was not entitled to JSA. The territory described in the decision coincides with the Common Travel Area given legislative form by section 1(3) of the Immigration Act 1971 and I shall henceforth refer to it as ‘the CTA’. The appellant appealed to a tribunal consisting of a legally qualified member (LQM) sitting alone. The tribunal disallowed her appeal.
5. At the appellant’s request the tribunal issued a statement of reasons for its decision on 9 June 2015. The appellant applied to the LQM for leave to appeal to the Social Security Commissioner but on 7 August 2015 the LQM refused leave to appeal. On 1 September 2015 the applicant requested a Social Security Commissioner to grant leave to appeal.
6. The appellant submits that the tribunal has erred in law on the basis that:
(i) it made a material error of law by deciding that the appellant was not “living in” the CTA for the three months prior to her claim to JSA;
(ii) it made a material error in its approach to the meaning of temporary absence;
(iii) it gave inadequate reasons for its decision.
7. The Department was invited to make observations on the grounds of appeal. Mr Donnan of Decision Making Services (DMS) responded on behalf of the Department. He submitted that the tribunal’s decision was not an unreasonable one on the facts and indicated that the Department opposed the appeal. He further requested a stay in the proceedings pending a decision on the test case on the same issue.
The tribunal’s decision
8. The tribunal has given a statement of reasons for its decision. From this I can see that it had documentary material before it consisting of the Department’s submission, and a representative’s submission enclosing documents concerning the applicant’s residence in Northern Ireland including a letter from the applicant’s mother. The applicant attended the hearing and gave oral evidence, and was represented at hearing by Ms Rogers.
9. The tribunal found that the applicant was aged 24 and had been on a working holiday in Australia from January 2014 to July 2014, working for two days a week, and returning to the UK on 18 July 2014. The legal question was whether the applicant had been “living in” Northern Ireland in the three months prior to her JSA claim on 21 July 2014. The tribunal found that the test of “living in” was not defined. It found that the 6 months absence from Northern Ireland was not a short temporary absence and that in the circumstances the applicant was not living in the UK during the period in question. It disallowed the appeal.
10. Regulation 85A of the Jobseekers Allowance Regulations (NI) 1996 (the JSA Regulations) at the material date read:
85A. —(1) “Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless—
(a) the claimant has been living in any of those places for the past three months; and
(b) the claimant has a right to reside in any of those places, other than a right to reside which falls within paragraph (3).
11. I held an oral hearing of the appeal. Mr Hatton of Law Centre (NI) appeared for the applicant. Mr Donnan of DMS appeared for the Department. I am grateful to them for their submissions.
At the outset of the hearing, Mr Donnan indicated that the Department now accepted that the tribunal had erred in law. This concession was made on the basis of the decision I had given in the case of AEKM v Department for Communities  NI Com 80. The Department accepted that the tribunal had erred in law when addressing the factors relevant to the question of whether the applicant was living in the CTA throughout the material period.
12. I do not make any criticism of the tribunal. At the time of determining this appeal there was no relevant case law available to the tribunal on the interpretation to be given to the “living in” requirement in regulation 85A of the JSA Regulations.
13. I subsequently gave a decision in AEKM v Department for Communities. That decision was followed and applied by the Upper Tribunal Judge in TC v Secretary of State for Work and Pensions  UKUT 222. In TC v SSWP, at paragraph 24, Judge White observes that the Secretary of State for Work and Pensions had accepted the proposition I had advanced in AEKM. Mr Donnan similarly indicated that the Department in Northern Ireland has accepted my analysis of the relevant law. This is not entirely surprising as much of what I said in AEKM emanates in turn from the Department’s own guidance in such cases. At paragraph 46 I said:
46. Mr Donnan opened to me the internal criteria applied by the Department, and I consider that many of these are relevant to the question in hand. It seems to me that the factors relevant to the question of whether someone is living in the CTA are those which tend to establish whether that is where he or she has a home. Duration of past residence, previous enrolment in education, a history of work, family connections, established ownership or tenure of a dwelling and the compatibility of the purpose of any temporary absence with continued “living in” the CTA all appear to me to be relevant factors. These factors are not exhaustive. Where the person has more than one home, I consider that it is connected to the question of which of these has been the person’s primary home for the relevant period.
Therefore I grant leave to appeal.
14. The tribunal in the present case focused on the duration and the purpose of the applicant’s absence from the UK. It did not address the question of whether, despite her temporary absence from the CTA, she was nevertheless still living in the CTA. I consider that it has made a decision on the basis of insufficient evidence or of misdirecting itself as to the relevant statutory test and has thereby erred in law. Therefore I allow the appeal and I set aside the decision of the appeal tribunal.
15. I asked for submissions on how to dispose of the case. The parties asked me to determine the appeal myself, rather than remit it to a newly constituted tribunal. In light of the availability of relevant evidence, which is not contested, I consider that it is appropriate to determine the appeal myself.
16. The tribunal found that the applicant was 24 years old. She had lived in Northern Ireland for her entire life and had been educated in Northern Ireland. She visited Australia from February to July 2014 along with a friend, meeting up with her sister there. The applicant had shown that she had a working holidaymaker visa for 12 months but provided evidence that she always intended to return for a family wedding in July 2014. She had travelled between Sydney and Cairns in Australia, staying mostly in backpacker hostels and undertaking casual employment. She had showed that she retained links to the CTA, such as renewing her car insurance and continuing to pay her mobile telephone contract. She had been living in her family home in Randalstown both before and after her return from Australia.
17. It appears to me that the evidence demonstrates that the applicant was still living in the CTA during her period of temporary absence in Australia.
(signed): O Stockman
6 December 2017