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[1999] UKSSCSC CIS_15484_1996 (20 July 1999)

R(IS) 3/00

Mr. J. Mesher CIS/15484/1996

Person from abroad - habitual residence - whether length of residence is a relevant factor in the concept of residence

The claimant, an Italian national, claimed income support on 18 December 1995. She had arrived in England from Spain with her baby on 7 December 1995 after her marriage had broken down, intending to find her own accommodation and employment. She stayed with friends and could only find very short term work. The claimant had previously resided in England between 1973 and 1986. Between 1986 and 1990, there were two periods when the claimant lived and worked in England. In October 1990, she returned to Spain to live with her husband. The adjudication officer decided that she was not habitually resident in the United Kingdom and was therefore a person whose applicable amount was nil.

On appeal, the tribunal held that the claimant was habitually resident from 8 March 1996, (applying the "appreciable period" principle set out in R(IS)2/00). They expressed no view on an argument based on Article 10a(2) of Council Regulation (EEC) No. 1408/71, that the claimant's residence in Spain immediately before leaving counted as part of the appreciable period.

The claimant appealed to the Commissioner. The adjudication officer submitted that the effect of the European Court of Justice's judgment in Swaddling (Case C-90/97) (reported as R(IS) 6/99) was to enable a person previously habitually resident in the United Kingdom to resume habitual residence immediately on return if there were sufficient links with the previous life in the United Kingdom to be regarded as picking up the pieces of the former habitual residence. It was not necessary for the person to have worked in another Member State.

Held, allowing the appeal, that:

the adjudication officer's submission was wrong (paragraphs 12 and 13); the particular answer given by the European Court of Justice could only be relied on directly in cases which were substantially on all fours with Swaddling. Otherwise the principles set out in the judgment would have to be applied by reference to all the relevant factors (paragraphs 14 and 15);

there was no inconsistency between paragraphs 29 and 30 of the European Court of Justice's judgment in Swaddling, as the reference in paragraph 30 to the length of residence not being an intrinsic factor in the concept of residence meant that it remained a relevant factor, but it was not essential (paragraphs 16 and 17);

on the facts of the present case, the claimant was resident for the purposes of Article 10a of Council Regulation (EEC) 1408/71 in the United Kingdom on the date of claim (paragraphs 19 and 20) and could not be denied income support on the ground that she was not habitually resident here

(paragraph 21).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The claimant's appeal is allowed. The decision of the Sutton C social security appeal tribunal dated 30 April 1996 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute a decision on the claimant's appeal against the adjudication officer's decision issued on 9 January 1996 on the basis of the appeal tribunal's findings of fact (Social Security Administration Act 1992, section 23(7)(a)(i)). My decision, which is limited to one question for the reasons explained in paragraph 7 below, is that from and including 18 December 1995 her entitlement to income support is not precluded by the rule that a person who is not habitually resident in the United Kingdom has an applicable amount of nil.

This is a case in which a final decision was, following an oral hearing, deferred pending the judgment of the European Court of Justice in Swaddling v Adjudication Officer (Case C-90/97). That judgment was given on 25 February 1999. Because of the unsatisfactory nature of the written submission of the adjudication officer now concerned with the case on the effect of Swaddling, I directed a further oral hearing. At that hearing the claimant was represented, as before, by Mr. Dabezies of the Legal Service of Kensington Citizens Advice Bureau. The adjudication officer was represented by Ms. Bergmann of the Office of the Solicitor to the Department of Social Security. I am grateful to both representatives for their assistance.

The appeal tribunal's findings of fact, which were implicitly based on an acceptance of the claimant's evidence, were as follows (I have corrected some typing errors):

"1. The claimant ... is an Italian national born on 12 February 1956 and now aged 40. She has not lived in Italy since she was aged 17. Her mother and brother live in Italy. When she was 17 she came to England on the advice of her parents to earn a better living than she could in Italy. She was resident in England from 13 September 1973 to 9 August 1986 staying with friends during which time she worked for Barclays Brothers in catering and for Argos and Ind Coope. She left England in 1985 to marry her husband a Spaniard in Spain. Shortly after the marriage in Spain she and her husband came to England where they had employment with Barclays Brothers. They both left England to return to Spain in August 1986, when their jobs with Barclays Brothers ended. Following a miscarriage in Spain and a failing marriage the claimant returned on her own to England on 12 November 1989. She obtained employment straightaway, at Tescos in Victoria. She lived with the same friends she had lived with previously. She remained in England until October 1990 supporting herself by employment. In October 1990 she returned to Spain to live with her husband. She had a baby in Spain on 3 December 1993. Her marriage deteriorated after the birth of her baby. She lived with her mother-in-law in Spain for a while and then on 7 December 1995 she returned to England with her baby, with the intention of settling here with her baby in her own accommodation and in employment, her marriage having on balance of probability finally broken down completely.

When she arrived in England she had no accommodation and relied on friends to accommodate her and her baby. She was not able immediately to find other than very short term work of a few days only and on 18 December 1995 she applied for income support. On 8 January 1996 she was interviewed by the Benefits Agency and on 9 January 1996 the adjudication officer decided she was [not] habitually resident in the United Kingdom and therefore was a person whose income support applicable amount was nil. On 31 January 1996 the claimant appealed.

She was still looking for employment at the end of January 1996. Subsequently she obtained a part-time job at a bar, the Lighthouse Bar W1, which has become full-time employment. She is looking for accommodation. In the meantime, her mother in Italy has been looking after the baby for about the last 2 weeks to enable the claimant to find suitable accommodation for herself and the baby. She hopes she will be able to have her baby back with her in England by May 1996."

The appeal tribunal decided that the claimant was habitually resident in the United Kingdom on and from 8 March 1996. It considered that, applying the principles set out in Commissioner's decision CIS/1067/1995 [R(IS) 2/00], the requirement of an appreciable period of residence was met on the expiry of three months from the date of arrival. Mr. Dabezies had put forward an argument at the hearing on 30 April 1996 based on Article 10a(2) of Council Regulation (EEC) No. 1408/71, that the claimant's residence in Spain immediately before leaving should be counted as part of the appreciable period. The appeal tribunal said that it expressed no view on that argument, as the adjudication officer had not had the opportunity to address it and there was no presenting officer at the hearing. It felt able to decide the appeal on the basis of actual habitual residence in the United Kingdom.

The claimant now appeals from the appeal tribunal's decision with the leave of its chairman.

It is agreed by the adjudication officer now concerned that the appeal tribunal erred in law. It did not deal properly with Mr. Dabezies' argument on Article 10a(2), which, if accepted, would have led to the claimant's being found to have been habitually resident in the United Kingdom from 7 December 1995. It was an error of law to decide the appeal against the claimant on the period from 18 December 1995 to 7 March 1996 without having come to a conclusion on the Article 10a(2) argument, which might have required an adjournment. Second, the appeal tribunal erred in law in failing to consider whether the claimant's part-time work at the Lighthouse bar was a genuine and effective economic activity, and not merely marginal and ancillary, so that she would by virtue of that activity be a worker for the purposes of Council Regulation (EEC) No. 1612/68. If she was such a worker, then, under the additional definition of "person from abroad" in regulation 21(3) of the Income Support (General) Regulations 1987, she could not be treated as not habitually resident in the United Kingdom. I do not need to go into any more detail here on the meaning of "worker". The appeal tribunal's decision must be set aside.

The issue then is what should be decided on the appeal against the adjudication officer's decision. There cannot be an immediate decision on the claimant's entitlement to income support for the whole period from 18 December 1995 down to 30 April 1996. The evidence accepted by the appeal tribunal was that the claimant was working full time, but no precise date was given. Nor was there evidence of the hours of part-time work. She could not be entitled to income support while working full time (defined as 16 or more hours a week). Ms. Bergmann was not able to tell me what award of income support, if any, was made following the appeal tribunal's decision. Both representatives were in favour of my substituting a decision solely on the question of habitual residence, rather than remitting the case to a new appeal tribunal. I take that course, which will leave the adjudication officer to make a decision on the claimant's entitlement to income support for the period in issue in the light of my decision.

For the purpose of my decision it is necessary to determine what the ECJ's judgment in Swaddling stands for. Although Ms. Bergmann accepted that the claimant would be a worker for the purposes of Regulation 1612/68, certainly from the date of starting full-time work at The Lighthouse and very probably from the date of starting part-time work there, there would still be a period in which on the current domestic English law she was not habitually resident. And I do not find Mr. Dabezies' argument on Article 10a(2) persuasive, although I express no concluded opinion on it.

In Swaddling, the claimant was a British national, who was born and brought up here. From 1980, when he was about 23, to 1988 he worked mainly in France. He was made redundant, returned to the United Kingdom and worked here for six months. From then on he worked and lived continuously in France until late 1994 when his employer's business collapsed. On 8 January 1995 he returned to the United Kingdom and stayed in his brother's household. On 9 January 1995 he claimed income support. The claim was disallowed on the ground that he was not habitually resident in the United Kingdom. On appeal, the appeal tribunal accepted that from the date of claim he had the settled purpose of making this country his regular abode for a significant period of the future and decided that he was habitually resident from the date of claim. On further appeal, I set that decision aside on the ground that it had not taken into account the need for there to have been an appreciable period of residence and decided that the claimant did not become habitually resident until 4 March 1995, eight weeks after his arrival. In relation to the period from 8 January 1995 to 3 March 1995, I referred a question to the ECJ asking if the application of the habitual residence test to someone in the claimant's circumstances was precluded by Article 48 of the Treaty of Rome on the basis that the claimant would otherwise have been made worse off by having exercised his right of freedom of movement as a worker.

The ECJ took the view that that question did not need to be answered and that the case could be determined on the proper interpretation of Article 10a of Regulation 1408/71. The listing of income support as a special non-contributory benefit in Annex IIa was conclusive on its being within the scope of Article 10a. Article 10a(1) requires that:

"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 the benefits are listed in Annex IIa."

Residence is defined in Article 1(h) as, in the English text, habitual residence. The ECJ decided that if Mr. Swaddling was resident in the United Kingdom, in the Community meaning of that term, he was entitled to payment of income support.

Paragraphs 29 and 30 of the judgment are as follows, in the English text:

"29. The phrase "the Member State in which they reside" in Article 10a of Regulation No. 1408/71 refers to the State in which the persons concerned habitually reside and where the habitual centre of their interests is to be found. In that context, account should be taken in particular of the employed person's family situation; the reasons which have led him to move; the length and continuity of his residence; the fact (where this is the case) that he is in stable employment; and his intention as it appears from all the circumstances (see, mutatis mutandis, concerning Article 71(1)(b)(ii) of Regulation No. 1408/71, Case 76/76 Di Paolo [1977] ECR 315, paragraphs 17 to 20, and Case C-102/91 Knoch [1992] ECR I-4341, paragraphs 21 and 23).

For the purposes of that assessment, however, the length of residence in the Member State in which payment of the benefit at issue is sought cannot be regarded as an intrinsic element of the concept of residence within the meaning of Article 10a of Regulation No. 1408/71. 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."

The ECJ's ruling in the operative part was that Article 10a read together with Article 1(h):

"precludes the Member State of origin - in the case of a person who has exercised his right to freedom of movement in order to establish himself in another Member State, in which he has worked and set up his habitual residence, and who has returned to his Member State of origin, where his family lives, in order to seek work - from making entitlement to one of the benefits referred to in Article 10a of Regulation No. 1408/71 conditional upon habitual residence in that State, which presupposes not only an intention to reside there, but also completion of an appreciable period of residence there."

The adjudication officer now concerned, in the written submission dated 14 April 1999, submitted that the effect of the judgment in Swaddling is that:

"a person who was previously habitually resident in the United Kingdom, left the United Kingdom and went to live and become habitually resident in another country, and then returns to live in the United Kingdom, will be immediately habitually resident in the United Kingdom on return if there are sufficient links with the previous life in the United Kingdom to be regarded as "picking up the pieces" of the former habitual residence."

It was submitted that the claimant in the present case fell into that category, as it was not necessary that the person should have worked in another Member State.

Plainly, the judgment in Swaddling does not have anything like the effect suggested in that submission. The ruling in the operative part is certainly awkwardly worded, possibly as a result of incorporating some of the description of Mr. Swaddling's circumstances from the question which was referred, which does not seem immediately relevant to the different basis of the ECJ's ruling. However, no one part of the ruling is to be taken out of context, and the ruling as a whole must be read in the light of the statements of principle in paragraphs 29 and 30 of the judgment. For instance, if read absolutely literally, the ruling appears to suggest that a person who returns to his State of origin, where his family is, to seek work after working elsewhere in the Community is resident in the State of origin for the purposes of Article 10a immediately on return, regardless of the person's intentions about future residence. But the final words of the ruling show that intention is relevant, as is made absolutely clear in paragraph 30 of the judgment. There, Mr. Swaddling's intentions were considered important in outweighing the factor of length of residence in the United Kingdom. However, that context does not give the ruling the meaning that is apparently given to it in the adjudication officer's submission of 14 April 1999.

In my judgment, the particular answer given in the ECJ's ruling in Swaddling is to be regarded as limited to the circumstances of that case. It can only be relied on directly in cases which are substantially on all fours with Mr. Swaddling's. In other cases, what has to be applied is the approach of principle set out in paragraphs 29 and 30 of the judgment, which requires an analysis of all the relevant factors. The present case is one which is quite a distance away from being on all fours with Swaddling. Apart from the fact that the claimant here did not go to Spain to work, her nationality was Italian and she was not established in the United Kingdom from birth, but from the age of 17 and she did not return to any family established here. Therefore, the interpretation of paragraphs 29 and 30 must be addressed.

It may be that the adjudication officer's written submission of 14 April 1999 intended to suggest a rule emerging from those paragraphs. If so, I do not agree with the suggestion. And in any case it is quite insufficient in cases like the present for the adjudication officer's submission simply to state that the case falls within a rule without discussing the weight to be given to all the relevant factors. At the oral hearing Ms. Bergmann, although I think that she did not expressly resile from the written submission of 14 April 1999, relied on a proper analysis of the relevant factors in supporting Mr. Dabezies' submission that the claimant was resident in the United Kingdom for the purposes of Article 10a from the date of claim.

A preliminary issue is to work out what the ECJ meant in paragraph 30 of the judgment in Swaddling in saying in the English text that the length of residence cannot be regarded as an intrinsic element of the concept of residence. If that meant that the length of residence is not a relevant factor at all, there would be an inconsistency with the list in paragraph 29 of factors to be particularly taken into account. I have no hesitation in accepting the concurring submissions of the representatives that what is meant in paragraph 30 is that it is not an essential condition of the concept of residence for the purposes of Article 10a that the residence should have lasted for any length of time, although the length of residence remains a relevant factor to be considered. Thus in some circumstances the weight of other relevant factors may lead to the conclusion that the person concerned was resident on arrival in the State concerned. On that basis, there is no inconsistency between paragraphs 29 and 30.

Supporting reasons for that conclusion are briefly as follows. The word "intrinsic" is an awkward one in its context in the English text, but one general meaning of the word is "essential". Reference to the texts in the other Community languages is of limited help. The French text uses the word "constitutif" and the Spanish, Portuguese and Italian texts use the word "constitutivo". That suggests a meaning such as "constituent", which can carry the meaning suggested above. That is strongly supported by what the Advocate General said in paragraph 19 of his Opinion delivered on 29 September 1998:

"Accordingly, although the length of the person's stay in the territory of a State may be used to gauge his intention to make that State the principal and permanent centre of his interests, it cannot be treated as a constituent element - that is to say, a conditio sine qua non - of residence."

Of the other language texts available, the German and the Dutch, in my very limited understanding of them, seem to say more that the length of the person's stay in the State concerned is not a part of the concept of residence, but I think that that must yield to the language of the case and the working language of the ECJ. The Danish and the Swedish are beyond me, and were not mentioned by either representative. Finally, the statements of the ECJ in the two cases relied on in paragraph 29 of Swaddling are relevant, although the overall context is different. In Knoch v Bundersanstalt für Arbeit a question was whether Miss Knoch, who was resident in Germany, continued to be resident there for the purposes of Article 71(1)(b)(ii) of Regulation 1408/71 while employed for two academic years as a university assistant in Britain under an exchange programme. The ECJ said in paragraph 26 of the judgment:

"26. As regards the fact that she held a post for 21 months in another Member State, it should be borne in mind, as the Court has already indicated in its judgment in Di Paolo, cited above, that there is no precise definition of the criterion of length of absence and that it is not an exclusive criterion."

Mr. Dabezies submitted that the Community concept of residence was essentially relative, in the sense that the State of residence is that with which the person concerned has the strongest and most stable links. He relied on paragraph 18 the Advocate General's Opinion:

"18. Those examples may come from different areas of law, but they show that the references to residence in the various Community rules cited above share the same conceptual basis, namely the idea that the country of residence is that to which the person concerned has formed a "social attachment" which is stronger and more stable than any links he may have with other Member States."

He also relied on the effect of Article 13(2) of Regulation 1408/71 in defining the legislation to which a person is subject, which he said operated, especially after the insertion of Article 13(2)(f), on the assumption that a person in the Community would be resident somewhere. Mr. Dabezies of course then submitted that in the present case the claimant had unequivocally cut herself off from residence in Spain, so that her strongest links were clearly with the United Kingdom. That is an interesting argument, to put it no higher, although I am not sure that things are quite as easy as suggested (otherwise, why did the ECJ in Swaddling not express matters in that way?). Ms. Bergmann asked for the opportunity to put in a written submission if I were minded to rely on this particular argument. I can decide the present case without relying on it. Therefore, I express no opinion on this argument, but record that it may possibly need to be addressed in some future case.

How should the approach adopted in my paragraph 16 above be applied in the present case? Mr. Dabezies pointed to the appeal tribunal's finding that the claimant arrived in the United Kingdom on 7 December 1995 with the intention of settling here with her child and to the adjudication officer's acceptance, in the decision under appeal, that her intention was to stay here permanently. Such findings, made when a claimant was thought to be excluded from benefit because of the appreciable period rule, must be treated with some caution. However, using the terms in paragraph 30 of the judgment in Swaddling, the claimant had made clear at the time of claiming income support her intention to remain in the United Kingdom. Although the United Kingdom is not her State of origin in the sense of the State of her nationality or birth

or upbringing, it is the State in which she chose to make her adult home and to pursue employment for a substantial number of years. That past attachment is relevant. The claimant did on arrival seek work within the limits imposed by the need to care for her child. The reasons that led her to move from Spain to the United Kingdom were established by the appeal tribunal, which accepted that her marriage had broken down completely. In her habitual residence questionnaire she said that she had travelled on a one-way ticket and had brought her personal belongings and clothes, together with a small amount of savings with her. The claimant did not have any members of her family living here, but she did have friends who were able to help her.

Taking into account in particular the abandonment of her residence in Spain, her intention (at it appears from all the circumstances) to remain in the United Kingdom, her desire (and need) to support her child through employment in the only State in she had worked in the past and her past attachments here, I am satisfied that she was resident in the United Kingdom within the meaning of Article 10a of Regulation 1408/71 from the date of claim, despite the limited length of her presence here. I cannot see how the fact that she did not work in Spain can point against that conclusion. The United Kingdom was from no later than 18 December 1995 the place where the claimant habitually resided and had the habitual centre of her interests, in the Community meaning of those concepts. However, I stress that this was not a case to be regarded as nowhere near the borderline.

Accordingly, as there is no dispute that the claimant falls within the personal scope of Regulation 1408/71, she is entitled from the date of claim to the protection of Article 10a(1) and she cannot be denied entitlement to income support under the British habitual residence rule on the ground that the requirement for an appreciable period of residence in the United Kingdom was not met. My decision giving effect to that conclusion is set out in paragraph 1 above. It is now for the adjudication officer, after any necessary investigation, to give a decision on the claimant's entitlement to income support from 18 December 1995. The claimant will have a right of appeal against whatever decision is given for whatever period.

Date: 20 July 1999 (signed) Mr. J. Mesher

Commissioner