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Cite as: [1991] UKSSCSC CS_207_1990

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[1991] UKSSCSC CS_207_1990 (24 April 1991)

R(S) 1/93

Mr. M. H. Johnson CS/207/1990

26.4.91

Presence condition - claimant suffering from progressive disease living in Malta where he had no right of permanent residence - whether "temporarily absent from Great Britain"

The claimant suffered from multiple sclerosis and angina and was awarded sickness benefit followed by invalidity benefit. Because of the relief to his symptoms he started to spend time in Malta and by the middle of 1982 was spending most of his time there, occasional return visits being made to Great Britain where the claimant maintained a home. The claimant maintained that his status in Malta was that of a temporary or tourist resident whose stay was subject to extensions by the Maltese authorities. It was confirmed with these authorities that the claimant had no right to permanent residence in Malta.

On 2 November 1989 the adjudication officer disqualified the claimant for receiving benefit because he was absent from Great Britain (Social Security Act 1975 section 82(5)(a)). He further decided that the claimant could not benefit from the reciprocal agreement with Malta because the claimant was not "temporarily" in Malta. On appeal the social security appeal tribunal confirmed the disqualification under section 82(5)(a) but found that the claimant was temporarily in the territory of Malta and therefore entitled to benefit by virtue of Article 9A of the National Insurance and Industrial Injuries (Malta) Order 1958.

Held that:

the claimant's expressed wish to return to Great Britain when his health improved was a remote hope rather than a realistic intention. He was not therefore "temporarily absent from Great Britain" within the meaning of regulation 2(1) of the Social Security Benefit (Persons Abroad) Regulations 1975 (para. 5);

whether a person is resident as opposed to being temporarily in a country is essentially a question of fact and degree. On this basis the Commissioner distinguished decision CS/2/1976 (paras. 11 and 12);

it was reasonable to conclude that by the time his benefit was disallowed in November 1989 the claimant had become permanently resident in Malta. The fact that he had not acquired a legal right to permanent residence in that country was not conclusive (para. 14).

The adjudication officer's appeal was allowed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that:

(a) the unanimous decision of the Newcastle social security appeal tribunal given on 11 July 1990 is erroneous in point of law and is accordingly set aside;

(b) the claimant is:

(i) disqualified for receiving benefit from and including 2 November 1989 pursuant to section 82(5)(a) of the Social Security Act 1975 because he is and since that date has been absent from Great Britain; and

(ii) not temporarily in the territory of Malta within the meaning of Article 9A of the National Insurance and Industrial Injuries (Malta) Order 1958, SI 1958 No. 772.

This is an appeal by the adjudication officer against the decision of the tribunal which confirmed the decision of the adjudication officer, issued on 9 November 1989, that the claimant was disqualified for receiving sickness benefit from and including 2 November 1989 pursuant to section 82(5)(a) of the Social Security Act 1985, but varied that decision by further holding that for the purposes of Article 9A of the National Insurance and Industrial Injuries (Malta) Order 1958 the claimant was "temporarily in the territory of Malta". The effect of the tribunal's decision was that the claimant was entitled to continue to receive invalidity benefit under the provisions of the reciprocal agreement embodied in the 1958 Order.

The claimant, who is now aged 57, suffers from multiple sclerosis (first diagnosed in 1964) and latterly, it would seem, angina. He became incapable of work on 21 June 1982 and claimed and was awarded sickness benefit, followed by invalidity benefit. In about 1981 he had begun to spend time in Malta, where he found relief from his symptoms, and since about the middle of 1982 he has spent most of his time there. On 12 November 1982 the Department wrote to the claimant advising him that he could "receive the benefit subject to the satisfaction of the normal conditions" and his residence in Malta remaining temporary. On various occasions from January 1983 he was asked about his intentions regarding his return to the United Kingdom and the Department also made periodic enquiries of the Maltese authorities about the status of the claimant's residence, which elicited the response, in summary, that he had no right of permanent residence. The claimant's position has throughout been that his return to this country depended upon his health, that he owned a house in Coventry, which was subject to a mortgage and which contained certain possessions, and that he was a temporary or "tourist" resident in Malta, subject to extensions from time to time by the authorities. On occasions the claimant returned for visits, usually brief, to England. On 9 November 1989 the adjudication officer decided that benefit was no longer payable to the claimant while he remained in Malta because he was absent from Great Britain and not temporarily in Malta.

The relevant law is contained in:

(a) Section 82(5) of the Social Security Act 1975, which provides that:

"(5) Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit, and an increase of benefit shall not be payable in respect of any person as the beneficiary's wife or husband, for any period during which the person-

(a) is absent from Great Britain; or

(b) is undergoing imprisonment or detention in legal custody."

(b) the Social Security Benefit (Persons Abroad) Regulations 1975, SI 1975 No. 563, regulation 2(1) of which deals with "Modification of the Act to sickness benefit, invalidity benefit, severe disablement allowance, unemployability supplement and maternity allowance" and, as amended, provides that:

"2.-(1) A person shall not be disqualified for receiving sickness benefit, invalidity benefit, severe disablement allowance, and unemployability supplement or a maternity allowance by reason of being temporarily absent from Great Britain for any day if-

(a) the Secretary of State has certified that it is consistent with the proper administration of the Act that, subject to the satisfaction of one of the conditions in sub-paragraphs (b), (bb), (c) and (d) below, the disqualification under section 82(5)(a) of the Act should not apply, and

(b) the absence is for the specific purpose of being treated for incapacity which commenced before he left Great Britain, or

(bb) in the case of sickness benefit and invalidity benefit, the incapacity for work is the result of a personal injury of a kind mentioned in section 50(1) of the Act, and the absence is for the specific purpose of receiving treatment which is appropriate to that injury, or

(c) on the day on which the absence began he was, and had for the past 6 months continuously been, incapable of work and on the day for which benefit is claimed he has remained continuously so incapable since the absence began, or

(d) in the case of severe disablement allowance, he is absent only by reason of the fact that he is living with a serving member of the forces and is the spouse, son, daughter, father, father-in-law, mother or mother-in-law of that member."

It is plain from the facts set out in paragraph 3 above that for most of the time since 1982 the claimant has, in the words of section 82(5)(a) of the 1975 Act, been absent from Great Britain. It is also plain that the claimant's expressed wish to return to this country if and when his health should improve sufficiently is, in all the circumstances, a remote hope rather than a realistic intention. It follows that, on the evidence before them, both the adjudication officer and the tribunal were entitled to conclude that the claimant was not "temporarily absent from Great Britain" within the meaning of regulation 2(1) of the Persons Abroad Regulations. It was not therefore necessary to consider whether the claimant satisfied any of the conditions of sub-paragraphs (b) to (d) which, in any event, are subject to the overriding requirement of the Secretary of State's certificate under sub-paragraph (a). In my judgment the tribunal were justified in concluding that the claimant was disqualified for receiving benefit under section 82(5)(a) of the 1975 Act.

This matter accordingly turns upon whether or not the claimant can bring himself within the terms of the National Insurance and Industrial Injuries (Malta) Order 1958, SI 1958 No. 772, the Schedule to which added to the "Principal Agreement", namely the Order of 1956, SI 1956 No. 1897, Article 9A as follows:

"Where a person is temporarily in one territory and is not entitled to receive sickness benefit or injury benefit under the legislation of that territory but would be entitled to receive such benefit under the legislation of the other territory if he were in the latter territory, he shall, subject to the approval of the competent authority of the latter territory, be entitled to receive that benefit for such period as that authority may determine."

The tribunal found on questions of fact material to their decision that:

"1. On 21 June 1982 the appellant, who had previously been engaged in self-employed work as a butcher, became incapable of work by reason of multiple sclerosis.

He received sickness benefit followed by invalidity benefit.

In a letter dated 15 July 1982 the appellant's doctor stated that the appellant had been travelling between the UK and Malta for the past 18 months and had decided to settle in Malta.

Because the appellant continued to state that it was his intention to return to live in the UK when his health permitted invalidity benefit continued in payment.

Since 1982 the appellant has visited Great Britain approximately for one month each year.

The appellant's residential status in Malta is that of a temporary resident, and his resident's permit requires renewal every six months, or three months (it is not clear which).

The appellant only intends to return to Great Britain if forced to do so by the withdrawal of his invalidity benefit, otherwise it is his intention to remain in Malta indefinitely because of the benefits to his health.

The appellant continues to maintain a home in Great Britain which is looked after by his brother."

The tribunal considered the matter under two heads. Firstly, they dealt with the question of "Absence from Great Britain", which they determined as set out above, and secondly, with the claimant's "Presence in Malta". That was clearly the correct way for them to proceed and, in relation to the latter, in their reasons for their decision they set out Article 9A of the 1958 Order and then went on to hold, and I give their reasons in full, that:

"In CS/2/1976 at paragraph 11 the Commissioner said "First it is not in dispute that the Article is concerned with invalidity pension as much as with sickness benefit". It follows that in order to be in a position to take advantage of the above Article the appellant must be held to have been temporarily in Malta during the period concerned. The Secretary of State for Social Security is the "competent authority" of the United Kingdom for the purposes of the Article. It appears to be clear that the appellant for want of satisfying contribution conditions is not entitled to benefit under Maltese National Insurance Legislation. Finally, had the appellant been in the UK during the relevant period he would have been entitled to invalidity benefit.

So the question is whether the appellant was, on the 2 November 1989, a person who was temporarily in Malta. Left to ourselves we would have been inclined to take the view, on all the facts, that the appellant was not temporarily in Malta, on the basis that he had been there for more than seven years and that there was no foreseeable prospect of his presence coming to an end. However, we have had regard to CS/2/1976 and in particular to paragraph 13 as that decision, although unreported, is undoubtedly binding on this tribunal. At paragraph 13 the Commissioner had this to say:

"The fact that the claimant is described by the Maltese Immigration Authority as a temporary visitor is not, of course, conclusive that he is temporarily in Malta in terms of Article 9A, but it is for comment that he is there on sufferance without a right of permanent residence, and I think it fair, without indulging unduly in speculation, to assume that he would be required to leave Malta if there were a prospect of his becoming a charge on the island's exchequer or on its welfare services. Should he be required to leave I would expect him, having regard to his health and medical advice he had received, not to return to Great Britain but to move to some other warm climate. Thus what it comes to is that the duration of his absence from Great Britain is entirely at his own volition, being largely dictated by the state of his health and by medical advice, whereas the duration of his presence in Malta is not solely a matter of his volition and its continuance is conditional on the willingness of the Maltese Government to relax its immigration rules in his favour."

The Commissioner went on to conclude that the appellant's absence from Great Britain was not temporary in terms of regulation 2(1) but that he was temporarily in Malta in terms of Article 9A. We find the position of the appellant in the instant case to be virtually indistinguishable from that of the claimant in CS/2/1976. There are some slight differences; for example, in CS/2/1976 the claimant's house was empty and up for sale, that is not the case with the appellant. On the other hand in CS/2/1976 the appellant had only been in Malta for less than two years, unlike the appellant in this case. However, in the former case there was no foreseeable prospect of the claimant leaving Malta unless compelled to do so by the Maltese Authorities; that is precisely the position the appellant in this case finds himself in.

Mr. Close argued that if the appellant in this case succeeds under Article 9A then any person who is present in Malta on a temporary residence permit will continue to be able to take advantage of the Article indefinitely. This, he submitted, puts such a person at an unfair advantage when compared with another person who leaves this country to take up permanent residence in Malta and takes out Maltese citizenship. That may well be so; on the other hand it could be argued that the provision is intended to have precisely that effect and to preserve the entitlement of a person in the appellant's position who has not cut all ties with this country. It is not, however, for us to speculate on the intendment of the Agreement. Suffice it to say that we feel constrained by the decision in CS/2/1976 and in particular by the remarks of the Commissioner at paragraph 13 to hold that the appellant was temporarily in Malta on the 2 November 1989 and his presence in Malta has continued to be temporary from that date.

For the sake of completeness we would add that although the adjudication officer's submission states that the appellant has to apply for a renewal of his residence permit every six months the appellant states that applications are to be made every three months. Whatever is the position it makes no difference to our decision."

Paragraph 13 of CS/2/1976, referred to in the tribunal's reasons, is as follows:

"13. The fact that the claimant is described by the Maltese Immigration Authority as a temporary visitor is not of course conclusive that he is temporarily in Malta in terms of Article 9A. But it is for comment that he is there on sufferance without a right of permanent residence. And I think it fair, without indulging unduly in speculation, to assume that he would be required to leave Malta if there were a prospect of his becoming a charge on the Island's Exchequer or on its welfare services. Should he be required to leave I would expect him, having regard to his health and the medical advice he has received, not to return to Great Britain but to move to some other warm climate. Thus what it comes to is that the duration of his absence from Great Britain is entirely at his own volition, being largely dictated by the state of his health and by medical advice, whereas the duration of his presence in Malta is not solely a matter of his volition, and its continuance is conditional on the willingness of the Maltese Government to relax its immigration rules in his favour.

Considering all the facts, and the respective contexts of the statutory provisions, I conclude that the claimant's absence from Great Britain is not temporary in terms of regulation 2(1), but that he is temporarily in Malta in terms of Article 9A."

I have two submissions by adjudication officers now concerned with the case, dated respectively 26 September 1990 and 6 March 1991. The second, in response to the Commissioner's direction dated 25 January 1991, submits that:

"the tribunal's real conclusion of fact was that the claimant was not temporarily in Malta by the relevant time i.e. 2 November 1989"

and in support of that contention cites the two sentences beginning, "So the question is ..." and ending "... binding on this tribunal". It is submitted therefore that the tribunal were wrong to hold themselves bound by CS/2/1976. Alternatively, it is argued that the tribunal were wrong to regard the construction of the words "temporarily in Malta" in the reciprocal agreement as a question of law when in fact it was a mixed question of law and fact and, finally, that in the light of the judgement of the Divisional Court in Flores v. Scott [1984] 1 WLR 690 "the tribunal came to a conclusion which no tribunal properly instructed as to the relevant law would have come to" .

Flores v. Scott was concerned with a road traffic offence committed by a Mexican national who was pursuing a course of study in this country. Article 2(1) of the Motor Vehicles (International Circulation) Order 1975 provided that:

" ... it shall be lawful for a person resident outside the United Kingdom who is temporarily in Great Britain and holds ... [a specified appropriate driving permit] ... during a period of 12 months from the date of his last entry ... to drive ..."

And regulation 23 of the Motor Vehicle (Driving Licences) Regulations 1981 provided that:

"A person who becomes resident in Great Britain shall during the period of one year after he becomes so resident ...",

be authorised to drive, subject to certain conditions, as the holder of a licence or permit from the country from which he came.

The adjudication officer now concerned with the case relies upon the words of Ackner LJ, giving the judgment of the Court in the Flores case, at pages 695 and 696, where he says:

"Thus, in the phrase 'temporarily in Great Britain', 'temporarily' is an element other than simply a time element. It involves a presence for casual purposes as contrasted with regular habits of life."

I have dealt with the Flores case in a little detail but, at the end of the day, I doubt if it takes the matter much further for, as Ackner LJ emphasises at page 695E, whether a person is resident as opposed to being temporarily in a country "must be a question of fact and degree".

In my view the question decided by the Commissioner in CS/2/1976 was essentially one of fact and degree, and the only legal principle established by that decision was that not being temporarily absent from Great Britain and being temporarily in another territory are two entirely separate states which may, of course, co-exist. That is, I think, unexceptional and does not call for further comment or explanation. The tribunal, however, plainly felt themselves bound by CS/2/1976 as a matter of law and that, with respect, cannot be correct. As I have said, CS/2/1976 was a decision based on its own particular facts.

Clearly, where the same law is applicable and the facts are truly identical, then the tribunal will be constrained to reach the same conclusion, but in the instant case the facts are plainly distinguishable from those in CS/2/1976. In that case the claimant had been resident in Malta for less than two years when his benefit was disallowed, whereas in the present case the claimant had been in Malta for something over seven years. In my view that is an important and significant difference and it must be wrong to say, as the tribunal did, that the two cases are "virtually indistinguishable".

It is perfectly possible and, indeed, not uncommon, for a British subject to live abroad for many years without ever acquiring a legal right of permanent residence in another country, and be liable to summary expulsion from it. However, a time must come when any reasonable observer would consider that person to be habitually or, on the face of it, permanently resident in that country, and the person himself, if asked where he lived, would undoubtedly say that other country rather than the United Kingdom. In my judgment that time came in the claimant's case on a date certainly prior to 2 November 1989 when his benefit was disallowed.

It is implicit in the preceding paragraph that I do not find compelling the argument that the claimant might be required to leave Malta if his financial circumstances changed for the worse. That may be so, but anyone in the claimant's position, or in the position of the person in the preceding paragraph, may be required to leave the country in which they are living for any number of reasons, or for no reason at all. That is merely an incident of not having the right of permanent residence in a foreign country but, unless and until it occurs, the person will continue to live in that country and will not be regarded, or regard himself, as there temporarily in the ordinary sense of that word.

For the reasons set out above I hold that the decision of the tribunal is erroneous in point of law and I set it aside. I have no doubt that this is a case in which I can and should give the decision which the tribunal should have given and accordingly I exercise my power so to do pursuant to section 101(5)(a)(i) of the 1975 Act. It seems to me that the tribunal's first instincts were right when they said:

"Left to ourselves we would have been inclined to take the view, on all the facts, that the appellant was not temporarily in Malta, on the basis that he had been there for more than seven years and that there was no foreseeable prospect of his presence coming to an end."

It is unfortunate that they then fell into error by holding that they were "constrained" by CS/2/1976. I endorse and adopt the tribunal's view set out above and accordingly I hold that the claimant is not a person who is temporarily in Malta within the meaning of Article 9A of the National Insurance and Industrial Injuries (Malta) Order 1958. So far as I am aware the decision regarding section 82(5)(a) of the 1975 Act is not in issue; it was plainly a correct decision and I confirm the tribunal's determination in that respect.

In these circumstances the adjudication officer's appeal is allowed and my decision is set out in paragraph 1 above.

Date: 26 April 1991 (signed) Mr. M. H. Johnson

Commissioner