UK Social Security and Child Support Commissioners' Decisions

 


[2001] UKSSCSC CIS_4389_1999 (22 February 2001)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/4389/1999

SOCIAL SECURITY ACTS 1992- 1998

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER R J C ANGUS

Claimant :

Tribunal : Manchester

Tribunal Case No :

1. The decision of the Social Security Appeal Tribunal dated 1 February 1999 is erroneous in law. I set that decision aside and, as empowered by section 14(8)(a)(i) of the Social Security Act 1998, I give the decision which I consider the tribunal should have given which is:-

The claimant was not habitually resident in the United Kingdom on 10 November 1998.

2. The claimant appeals, with the leave of the chairman against the tribunal's decision confirming an adjudication officer's determination of 10 November 1998 that the claimant is not habitually resident in the United Kingdom.
3. The claimant is a British Citizen who returned to the United Kingdom with her two children on 20 October 1998. She claimed Income Support. I do not know the date of that claim because the claim papers were lost in the Department of Social Security. However, the decision refusing Income Support on the grounds that she was not habitually resident in the United Kingdom was issued on 10 November 1998. The claimant appealed that decision to the Social Security Appeal Tribunal.
4. The most convenient way of explaining the detailed factual background to the claimant's case is to set out here the statement of the tribunal's findings in fact and its reasons for its decision to dismiss the claimant's appeal. That is as follows:-

"[The claimant] appeals against the decision of the Adjudication Officer (AO) (10.11.1998) that she is not habitually resident in the UK. An interpreter was expected at the appeal hearing but did not attend owing to an administrative error. [The claimant] did not object to the appeal proceeding with the help of [ ] Law Centre. [The claimant] was born on 3.4.1967 in Belfast and is a British national with a UK passport. She left the UK in about 1977 with her parents to live in Khartoum in the Sudan where her parents rented a house. She went to school and university in Khartoum and obtained a qualification in accountancy. At the age of 22 she married a Sudanese doctor. Her evidence that Sudan does not allow dual nationality of citizenship is accepted. They had two children. She visited the UK with them for two months for a holiday in 1993. In 1995 or 1996, after her return to Khartoum, her husband was conscripted into the Sudanese "Popular Defence Force". She has not heard from him since then. She does not even know if he is still alive. There is a civil war in Sudan. [The claimant] stayed with her parents and two sons in Khartoum after her husband was conscripted.

In September 1998 her parents and one unmarried sister moved to Egypt to reside there. The Egyptian government would not allow her [the claimant] to enter Egypt to reside there because she was not single. The Tribunal finds that she would have gone to Egypt to reside with her parents there had she been allowed to do so. She has a brother in Rumania (a student) and a brother in Manchester (a student). [The claimant] was alone in Khartoum with her children aged 4 and 3. It was very difficult for her to find a job there. Although she was not opposed to the Government there she did not support it and so was unable to find employment. On 20.10.1998 she came by air to the UK with her children. She applied for Income Support on 3.11.1998. She brought no money with her. She stayed for a while with a Sudanese family (2 weeks – charity). She received about £100 help from her brother in Manchester. She now resides in homeless family accommodation and has applied for and expects to be given a council tenancy. She cannot obtain work with two very young children to look after. No part-time jobs are offered her at the Job Centre.

She started looking for school, (pre-school?) places for the children on 1.11.1998 but there was no room for them until January 1999. She will never return to the Sudan. She is studying at Rusholme Community Centre to improve her English.

The Tribunal accepts [the claimant's] evidence and has made the above findings of fact from them. Only actual "habitual residence" is possibly in point. The relevant law is correctly cited in Part 6 of the case. The Tribunal is in no doubt that a settled intention to reside in the UK has been formed (and is proved) on her arrival on 20.10.1998 and hence on 3.11.1998 (date of application for Income Support) (and on 10.11.1998). The Tribunal adopts and accepts the arguments in 6.31, 6.32 and 6.33 of the submission about the period at issue before it.

In the representative's submission, reference is made to the declared purpose of the "habitual residence" legislation as it concerns Income Support. A reference to Hansard (Parliamentary debates etc.,) can, however, only be made if the legislation is ambiguous, (see Pepper v. Hart [1992] 3 WLR 1032). As far as the SSAT is aware, Pepper v. Hart has not been cited even though the legislation, as now interpreted by Commissioners, is not without ambiguity. [The claimant] was resident on 3.11.1998 and on 10.11.1998 when the AO's decision was made. An "appreciable period of time" however, had not elapsed since 20.10.1998. For that reason, (only) the appeal does not succeed.

The tribunal felt unable to connect her residence in the UK prior to 1977 and her holiday here in 1993 with the period from 20.10.1998. In CIS/5927/96 (64/97), it is submitted, supports the Tribunal's judgment, as does Nessa v. CAO (5.2.1998).

Burden of proof satisfied by AO, not rebutted by [the claimant] so far as relevant to "habitual residence" cases. But for Act of 1998, Tribunal would have decided an appreciable period of time had elapsed by 1.1.1999.".

5. The grounds for appealing the tribunal's decision to a Commissioner stated for the claimant are:-

"The tribunal made it clear that the appeal of the [claimant] failed on one aspect alone. This was the concept of "appreciable period of time" as interpreted by Commissioners' decisions.

Since the date of hearing the European Court of Justice has decided the case of Swaddling. The present appellant shares the same British citizenship as Mr Swaddling although it is conceded she has not availed herself of the right to work in any other Member State. The Court found, however that "for the purpose of that assessment (on the question of residence), 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 - - -".

It is arguable that this should apply to all those who are British citizens and/or have the right to reside in the UK and leave to appeal is sought on this ground.

In addition and in the alternative a second ground exists.

The tribunal accepted [the claimant's evidence] that she was forced to leave Sudan and had no intention to return. They accepted that "there is civil war in Sudan". Indeed in the original letter of appeal it is mentioned that the was is internationally condemned. The tribunal considered that they could not go into Parliamentary intention at the introduction of the habitual residence test and cites Pepper v. Hart. It is conceded that the reference to "Benefit Tourism" is too broad a point. Parliament did, however, deliberately exclude refugees from the habitual residence test. [The claimant] is a refugee in all but status as the events which compelled her to leave Sudan are those which create exile. She did not need to claim asylum as she is already British. When Parliament's intention is so clear within the very rule itself it is contended that the appropriate weight was not given to this fact.".

6. In the matter of entitlement to Income Support the significance of the question of a claimant's habitual residence in the United Kingdom, or lack of such habitual residence, is that regulation 21 of the Income Support (General) Regulations 1987 as read with paragraph 17 of Schedule 7 to those regulations provides that the applicable amount for the purposes of the calculation of entitlement to Income Support of a person from abroad is nil. The effect of that is that the person from abroad cannot qualify for entitlement to Income Support except under regulation 70 which does not apply in this case. Paragraph (3) of Regulation 21 includes in the definition of "person from abroad":-

" - - - A claimant who is not habitually resident in the United Kingdom, the Channel Islands, Isle of Man or the Republic of Ireland - - -".

7. The tribunal has obviously taken care with this difficult case but the fifth paragraph of the statement of its findings in fact and reasons for decision contains an error in law. The tribunal seems to have accepted that the legislation – by which I take it the tribunal means the part of the definition of "person from abroad" in regulation 21(3) of the General Regulations which I quote above – is ambiguous. The tribunal has an inquisitorial role. Although the decision in Pepper v. Hart was not cited, if the tribunal thought that there were Parliamentary papers which might have thrown light on the meaning of "habitually resident" as used in the legislation or supported, even if not conclusively, the argument for the claimant it should have considered those papers and dealt with the arguments based upon them. The tribunal's failure to do so is an error in law on account of which I have to set its decision aside.
8. The adjudication officer, and following the transfer of the adjudication officer's functions to the Secretary of State by section 1 of the Social Security Act 1998, the Secretary of State's representative do not support the claimant's appeal. In his written submission of 2 November 1999 the adjudication officer, quoting from Lord Slynn's judgment in Nessa v. Chief Adjudication Officer and Another [1999] 4 All ER (HL) 677, argues that if the claimant's habitual residence as a child in the United Kingdom is to be disregarded then there has to have been an appreciable period since her return to the United Kingdom before she could cease to be regarded as a person from abroad for the purposes of the General Regulations. In the adjudication officer's submission the period of 22 days between the claimant's arrival in the United Kingdom and the date of the adjudication officer's decision that she was a person from abroad is too short to be regarded as an appreciable period.
9. In a direction of 25 May 2000 a Deputy Commissioner directed the Secretary of State's representative to supply a copy of the definition of "refugee" in Article 1 of the Geneva Convention and to consider whether the Commissioner's joint decision on files CIS/564/1994 and CIS/7250/1995 are relevant to this appeal. In a submission of 21 June 2000 the Secretary of State's representative quotes the definition of "refugee" in Article 1 of the Protocol relating to the status of refugees of 1967 in the Geneva Convention as applying the protocol to any person who:-

"Owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.".

The representative then submits that the claimant is in fact neither without a nationality nor "outside the country of her nationality" and as a UK national her right to abode in this country will not be challenged. She is not, therefore, a refugee and the refugee's exception from the restriction on entitlement to Income Support imposed on persons from abroad does not apply to her. I agree with that submission.

10. I have also to reject the argument put forward by the claimant's representative that although she does not come within the definition of a refugee the claimant's circumstances are so similar to those of a refugee, in particular the state of civil war in Sudan, that she should be treated for the purposes of the regulations as a refugee. Regulation 21 is obviously designed to exclude new arrivals in this country from entitlement to Income Support except in certain specific cases. Refugees within the meaning of the Geneva Convention are specified exceptions. If there had been a legislative intention to include those whose circumstances are analogous to those of refugees the regulations could have so provided.
11. In the same submission the Secretary of State's representative says, correctly, that CIS/564/1994 and CIS/7250/1995 are not relevant to this case because, in this case, the claimant has not applied for asylum. However, he submits that Commissioners' decisions made since the date of the adjudication officer's submission are relevant. He refers to CJSA/3177/1997 in which the Commissioner says that the decision of the European Court of Justice in the case of Swaddling does not affect the general meaning of habitual residence in British social security law except in cases where a person has some Community rights and the community meaning of residence, in terms of habitual residence, is relevant. I agree with that Commissioner's decision and with the submission for the Secretary of State that in the light of it the Swaddling decision is not relevant to this case.
12. It is also submitted for the Secretary of State, correctly, that the House of Lords decision in Nessa is the relevant authority on the meaning of "habitual residence" as used in regulation 21 of the General Regulations where there are no European Community Law considerations. In Nessa Lord Slynn made the point that there can be cases where, because the claimant on returning to this country is taking up again a former habitual residence, a very short period of residence will probably constitute the appreciable period of residence required to establish that there is habitual residence. That does not assist the claimant in this case. Her previous residence in this country was as a child under the care and control of her parents. Her parents would dictate the choice of country of residence. The claimant's residence had, therefore, none of the characteristics of voluntariliness and settled intention which, according to Lord Slynn's judgment, is a pre-requisite of habitual residence within the meaning of regulation 21 of the General Regulations. I do not think, therefore, that the claimant can be regarded as resuming habitual residence. For her to escape the restrictions on entitlement applying to persons from abroad it must, therefore, be established that as at the date of the adjudication officer's determination of her claim for Income Support there had been an appreciable period of residence since her arrival here.
13. In Lord Slynn's opinion in the Nessa case it is accepted that the appreciable period necessary to establish habitual residence can be short. He refers to a child abduction case, reported in 1994, where a month was accepted as an appreciable time. The question in this case is whether a period of 22 days can be accepted as an appreciable time. I accept that in considering whether the period of a claimant's residence in this country is an appreciable period the adjudication authority should, as the claimant's representative argues, take note of the purpose of the exclusion of persons from abroad, as defined in regulation 21, from entitlement to benefit immediately on arrival in this country. The claimant's representative has stated in his grounds of appeal and argumentation that the purpose of the exclusion is to curtail "benefit tourism". I agree that broadly the purpose of the exclusion is to prevent people who have no immediate past residence in this country, including those with British citizenship, from claiming benefit as soon as they arrive in this country and whether or not they have any intention of making a home in this country.
14. My view is that, given the purpose of the benefit restrictions on new arrivals, the less the claimant's ability to leave this country to take up residence elsewhere the shorter is the period of residence here which can be regarded as habitual residence. However, it must be a period which is more than momentary in the claimant's life history and I think that cannot be less than a month. Anything less would largely defeat the purpose of regulation 21.
15. For the foregoing reasons the claimant's appeal fails and my decision is in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date) 22 February 2001