KO’C-v-Department for Communities (JSA)  NICom 72
Decision No: C3/15-16(JSA)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 21 January 2015
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is a claimant’s appeal from the decision of a tribunal made on 15 April 2015.
2. For the reasons I give below, I allow the appeal. I set aside the decision of the appeal tribunal under Article 15(8)(a)(i) of the Social Security (NI) Order 1998. I give the decision which I consider the tribunal should have given, without making further findings of fact.
3. My decision is that the appellant was living in the United Kingdom in the three months prior to his claim for Jobseeker’s Allowance (JSA) on 22 September 2014.
4. The appellant claimed jobseekers allowance (JSA) from the Department for Social Development (the Department) on 22 September 2014. He indicated that he had returned to live in the United Kingdom (UK) on 16 September 2014. He stated that he was an Irish national and had come from the United States of America, having previously left the UK on 21 June 2014 to work as a voluntary soccer coach. He was living at home with his mother.
5. On 1 October 2014, the Department decided that the appellant had not been resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland for the 3 months prior to his claim and therefore was not entitled to JSA. This territory 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 his appeal.
6. At the appellant’s request the tribunal issued a statement of reasons for its decision on 5 May 2015. The appellant applied to the LQM for leave to appeal to the Social Security Commissioner and on 15 July 2015 the LQM granted leave to appeal, but without identifying the point of law on which she had granted leave to appeal. On 14 August 2015 the appeal was lodged with the Office of the Social Security Commissioner.
7. 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 decision which was in breach of EU law.
8. 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.
9. The appellant’s case was then stayed pending the determination of another case before the Commissioners involving the same legislative provision and similar issues of fact.
The tribunal’s decision
10. The tribunal has prepared a statement of reasons for its decision. From this I can see that it had documents before it consisting of the Department’s submission and a letter from the appellant’s representative. The appellant did not attend the tribunal hearing and his representative was also unable to attend, but the tribunal was requested to proceed in their absence.
11. The tribunal found that the appellant had claimed JSA from 22 September 2014. For the period from 21 June to 16 September 2014 it found that the appellant had been living in the USA undertaking voluntary work as a soccer coach. Taking into account the purpose of his absence and the duration of his absence, it declined to accept that he was living in Northern Ireland for the three months prior to his claim. It found that an argument based on European Union law and the case of Collins (C-138/02) did not assist the appellant. It disallowed the appeal.
12. The provision at the heart of the appeal results from an amendment to regulation 85A of the JSA Regulations made by the Jobseekers Allowance (Habitual Residence) (Amendment) Regulations (NI) 2013 (SR 2013, No.308) with effect from 1 January 2014. At the material date, the relevant part of regulation 85A 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).
13. I held an oral hearing of the appeal. Mr Hatton of Law Centre (NI) appeared for the appellant. Mr Donnan of DMS appeared for the Department. I am grateful to them for their submissions.
14. 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 appellant was living in the CTA throughout the three month period prior to his claim for JSA.
15. Mr Donnan further submitted that an implication of my decision in AEKM was that the case law relevant to the previous form of the habitual residence test continued to apply to the current form of the relevant regulation. He properly drew my attention to KS v Secretary of State for Work and Pensions  UKUT 156 - a decision of Upper Tribunal Judge Levenson which was favourable to the present appellant. That case concerned a claimant who was volunteering in India with Voluntary Service Overseas (VSO).
16. Mr Hatton for the appellant observed that the appellant was in a similar position to the claimant in KS v SSWP, namely that he was outside the CTA for a temporary period of volunteering. He pointed to various factors which had not been considered by the tribunal but which showed that the appellant had not ceased to live in the CTA during the period in issue. He submitted that the tribunal had erred in its application of the relevant statutory test.
17. 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.
18. I subsequently gave a decision in AEKM v Department for Communities  NI Com 80. 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 analysis 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.”
19. The tribunal in the present case has found that the appellant was not living in the CTA while he was a voluntary soccer coach in the USA. I consider that the tribunal has erred in law by equating absence from the CTA with not living in the CTA. For the reasons given in AEKM, that is not the right approach. In cases where a person who has been living in the CTA leaves for a period and then returns, the first question to ask should be whether that person has ever ceased to live in the CTA.
20. Mr Donnan had referred me to KS v Secretary of State for Work and Pensions  UKUT 156 - a decision of Upper Tribunal Judge Levenson. That case concerned a claimant who was volunteering with Voluntary Service Overseas (VSO) in India. The Judge in that case considered the issue of whether his habitual residence in the UK had been lost, and observed that when he embarked on VSO the claimant had no intention of taking up long term residence in India but intended to return to the UK. His absence from the UK lasted from November 2005 to June 2008 albeit that he visited the UK occasionally for a month at a time. Judge Levenson held that the particular purposes for which the claimant left the UK, and the fact that his actions showed an intention to return to the UK, compelled a contrary conclusion to that reached by the first tier tribunal. Similarly in this case, despite the absence in the USA, the present claimant had not intended to do anything other than return to the CTA and therefore had not ceased living in the CTA.
21. The parties were in agreement that the tribunal had erred in law on this basis. I too consider that the tribunal has erred in law. I allow the appeal.
22. 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.
23. I adopt the findings of the tribunal, namely that the appellant was born in Northern Ireland and completed primary and secondary education here. He completed third level education in June 2014. He left Northern Ireland on 21 June 2014 to take up a position as a voluntary soccer coach in the USA until 16 August 2014. He then travelled to New York to visit family and friends, returning to Northern Ireland on 16 September 2014. While in the USA the appellant did not rent accommodation, open a bank account or register with a doctor or dentist. Before he travelled to the USA he had been living in his parents’ home and he returned to reside there when came back from the USA.
24. In all the circumstances, taking into account the relevant factors identified in AEKM, I consider that the appellant had not ceased to live in the CTA when he was temporarily abroad in the USA. He was therefore still living in the CTA for the purposes of regulation 85A.
(signed): O Stockman
6 December 2017