Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the Leicester appeal tribunal under reference 038/08/01945, held on 3 October 2008, did not involve the making of an error on a point of law.

Reasons for Decision

A.          The issues

1.           The main issue in this case is: was the claimant entitled to the severe disability premium while her son was living with her? More specifically: did the fact that her son was not lawfully resident in the United Kingdom mean that he could not be ‘normally residing’ with her for the purposes of the Income Support (General) Regulations 1987 (SI No 1967)? My answer to both questions is: no. I tried to encapsulate the competing interpretations of ‘normally residing’ in a direction before the hearing:

‘It seems to me that the relevance of this case will depend on the sense in which ‘normally’ is used in the conditions of entitlement to the severe disability premium. Is it purely a factual question of what the claimant’s son does – in which case the meaning is something like ‘routinely’ or ‘as a rule’? Or is it not just a factual question of behaviour, but a value judgment on the nature of the son’s residence with his mother - in which case the meaning is something like ‘in normal circumstances’?’

2.           If the claimant’s son was normally living with her, there is a sub-issue of the date from which that began.

B.          The oral hearing

3.           I held an oral hearing of the appeal on 7 December 2009 to consider these issues. The claimant did not attend, but was represented by Mr Khan of the Welfare Rights Service of Leicester City Council. The Secretary of State was represented by Mr Brown of the office of the solicitor to the Department for Work and Pensions. I am grateful to both advocates for their arguments at the hearing. It may be some consolation to the claimant to know that Mr Khan said everything that could fairly have been said on her behalf.

C.          The claimant’s personal circumstances

4.           The claimant had a stroke on 21 January 2003. Her son came from India to look after her. He arrived on 29 January 2003, on a visa for six months. This was later extended to the end of November 2003. He applied for indefinite leave to remain, but this was refused on 26 April 2006. He took his case to the High Court, but this failed on 5 July 2006. He also took his case to the European Court of Human Rights, but this course had also failed by the date of the hearing before me and he had returned to India. The case has been argued on the basis that he was not lawfully resident once his visa expired at the end of November 2003 and I have decided the case on that basis.

D.          Benefit entitlement

5.           The claimant was awarded income support with effect from 11 February 2003 and a disability living allowance, consisting of the mobility component and the care component. Her award of income support took account of the disability premium and the enhanced disability premium. On 19 May 2008, she applied for the severe disability premium to be taken into account in her award of income support. This was refused on 28 May 2008. Her appeal to the appeal tribunal was dismissed, but she was given permission to appeal to the Upper Tribunal by Upper Tribunal Judge Howell.

E.          The legislation

6.           The issue arises under paragraph 13 of Schedule 2 to the 1987 Regulations. Paragraph 13(2)(a)(ii) is the key provision:

‘13    Severe disability premium

(1)     The condition is that the claimant is a severely disabled person.

(2)     For the purposes of sub-paragraph (1), a claimant shall be treated as being a severely disabled person if, and only if-

(a)     in the case of a single claimant, a lone parent or a claimant who is treated as having no partner in consequence of sub-paragraph (2A)-

(i)     he is in receipt of attendance allowance, or the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 37ZB(3) of the Social Security Act and

(ii)    subject to sub-paragraph (3), he has no non-dependants aged 18 or over normally residing with him or with whom he is normally residing, and

(iii)   no person is entitled to, and in receipt of, a carer's allowance under section 70 of the Contributions and Benefits Act in respect of caring for him;

…

(3)     For the purposes of sub-paragraph (2)(a)(ii) and (2)(b)(ii) no account shall be taken of-

…

(c)     subject to sub-paragraph (4), a person who joins the claimant’s household for the first time in order to care for the claimant or his partner and immediately before so joining the claimant or his partner was treated as a severely disabled person; …

…

(4)     Sub-paragraph (3)(c) shall apply only for the first 12 weeks following the date on which the person to whom that provision applies first joins the claimant’s household.’

7.           The expression ‘normally residing’ is not unique to paragraph 13. It is part of the definition of ‘non-dependant’ in regulation 3:

‘3      Definition of non-dependant

(1)     In these Regulations, “non-dependant” means any person, except someone to whom paragraph (2), (2A) or (2B) applies , who normally resides with a claimant or with whom a claimant normally resides.’

Any interpretation must take account of this wider context.

F.           The authorities

Commissioners’ decisions

8.           Before the appeal tribunal, the Secretary of State relied on the decision of Mr Commissioner Walker in CSIS/0076/1991. This was one of the Bate cases from the late 1980s and 1990s. The Commissioner said:

‘11.   … I need perhaps hardly add that persons transiently or temporarily residing with the claimant will not be regarded as “normally residing”: the question is an intensely practical one for the tribunal to answer in the light of their own common sense.’

9.           In reply, Mr Khan’s colleague relied on CH/4004/2004. The housing benefit claimant had allowed a cousin to live with her for just over two months. He had been deported from the United States and was homeless and penniless. She allowed him to sleep on her sofa. Mr Commissioner Levenson decided:

‘13.   It is clear that for a limited period the claimant’s cousin was residing with her (which is further explained in regulation 3(4) of the 1987 regulations), but was he “normally” residing with her. The extra word must mean something but the tribunal does not appear from the record of proceedings to have considered this point (although in the absence of a full statement it is not possible to know whether it was actually considered). It is a matter of fact and degree, but it seems to me that in the particular circumstances of this case – the deportation, destitution, the highly temporary nature of the arrangement, the fact that the cousin had to sleep on the sofa, the fact that he appears to have left as soon as he could arrange things with various official bodies – no reasonable tribunal could have found that the cousin was “normally” residing with the claimant.’

10.        In written submissions to the Upper Tribunal, the Secretary of State relied on CIS/3072/2004. The claimant’s father had come to the United Kingdom to look after his daughter, who was mentally ill and, at the time, pregnant. At first, he lived with a friend, but moved in with his daughter on 19 July 2002. She was awarded income support from 22 July 2002 and a disability living allowance from 4 October 2002. The Secretary of State removed the severe disability premium from the claimant’s income support calculation with effect from 22 July 2003. The claimant’s appeal to the appeal tribunal was dismissed. Mr Commissioner Henty dismissed the further appeal to the Commissioner. He decided that ‘whether a person is normally residing with a claimant is one to be determined in the light of all the surrounding circumstances.’ He held that the tribunal had been entitled to decide that the claimant’s father was normally residing with her. He took account of these features: (i) the father had come to the United Kingdom to look after the claimant; (ii) his presence had been essential in maintaining the household; (iii) he had no alternative accommodation; (iv) the whole point of the arrangement was that he would live with the claimant; and (v) he had lived with the claimant for almost a year before the decision under appeal.

11.        At the oral hearing, Mr Khan cited R(U) 1/85. The claimant had leave to enter the United Kingdom, but subject to the condition that he did not work. Mr Commissioner Hallett decided that in those circumstances he could not be available for work. Mr Khan was not specific on the proposition for which he cited this case. I assume he wished to use it to show that the claimant’s son cannot do something that was incompatible with his immigration status. That argument assumes that lawfulness is relevant to, or prevents, normal residence in the income support legislation.

Court decisions

12.        Before the hearing, Mr Khan cited R(YA) v Secretary of State for Health [2009] EWCA Civ 225. The issue was whether the claimant, who was a failed asylum seeker, was entitled to free treatment on the NHS. This depended on whether he was ordinarily resident and residing lawfully. Ward LJ gave the only judgment. As to ordinary residence, he concluded that an asylum seeker was resident here, but not ordinarily so:

‘61.   The words are to be given their ordinary meaning. Asylum seekers are clearly resident here but is the manner in which they have acquired and enjoy that residence ordinary or extraordinary? Normal or abnormal? Were they detained, then no-one would suggest they were ordinarily resident in the place of their detention. While they are here under sufferance pending investigation of their claim they are not, in my judgment, ordinarily resident here. Residence by grace and favour is not ordinary. The words must take some flavour from the purpose of the statute under consideration and, as I have set out above, the purpose of the National Health Act is to provide a service for the people of England and that does not include those who ought not to be here. Failed asylum seekers ought not to be here. They should never have come here in the first place and after their claims have finally been dismissed they are only here until arrangements can be made to secure their return, even if, in some cases, like the unfortunate YA, that return may be a long way off.’

And for lawfully residing, he concluded that lawfulness assumed a right to reside:

‘65.   … the concepts of lawful presence and lawful residence should not be elided … One resides here lawfully when one has the right to do so. An indulgence is granted to a claimant for asylum, not a right, and in this context the word "lawful" means more than merely not unlawful but should be understood to connote the requirement of a positive legal underpinning. Being here by grace and favour does not create that necessary foundation. The underlying purpose of the Act as I have already analysed it reinforces that conclusion. "Lawful" in this context means having leave to enter. It follows that I do not regard Szoma and Shah to be in conflict: they deal with quite different concepts.’

13.        At the hearing, Mr Brown cited Mohamed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547. The issue was whether Hammersmith and Fulham was the local authority in which the claimant was ‘normally resident’ for the purposes of the homelessness legislation. The claimant’s wife had come first to the United Kingdom in 1994. She lived mainly in Ealing until January 1998, when she moved to Hammersmith and Fulham. Her husband joined her in April 1998 and they were given temporary accommodation by that local authority. In May 1998, they applied as being homeless. Hammersmith and Fulham decided that the couple’s local connection was with Ealing. The House of Lords decided that the temporary accommodation could be taken into account in deciding the authority with which the couple had a local connection. Lord Slynn said:

‘18.   It is clear that words like ordinary residence and normal residence may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is "shelter" but it is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority's argument, prevent it from being such.’

G.         Mr Khan’s arguments for the claimant

14.        Mr Khan began by emphasising how precarious was the son’s presence in the United Kingdom. He came only with clothes. He retained his home in India and would have had difficulty getting a visa if he had not done so. He was given a visa, but only for a short and defined period. Thereafter, he had to apply for leave. He did so, showing his desire to remain, but that was a long way short of showing a settled intention. He was not allowed to work or to have recourse to public funds. His position did not allow him to plan for the future. In the end, he was here for about six years, but the precise time was not decisive and was always outside his control as it depended on the progress of official action or legal proceedings.

15.        Second, Mr Khan argued that Government Departments should act consistently. The Home Office had treated his presence as unlawful and it would be inconsistent for the Department for Work and Pensions to treat his residence as normal.

16.        Third, Mr Khan drew attention to the anomalies that would arise if the son were normally residing with his mother. Persons in his position would normally be entitled to carer’s allowance. (He cited a passage from Hansard to show that this was the intention of Parliament.) However, he was barred from claiming. And the result of his presence in his mother’s home was to reduce her income support below the amount that she was otherwise qualified to receive. And this was despite having no income to contribute to her expenses or his won upkeep.

17.        Fourth, Mr Khan pointed out that the legislation could easily have made clear that even unlawful residence would be taken into account.

H.         Mr Brown’s arguments for the Secretary of State

18.        Mr Brown argued that the language of paragraph 13 precluded any possibility of reading in a disregard for someone who was not lawfully resident in the United Kingdom. Paragraph 13(2) provided for a closed class of cases in which a claimant would be treated as a severely disabled person, as shown by the words ‘if and only if’. Carers were excluded in the limited circumstances envisaged by paragraph 13(3)(c), but only for the 12 weeks allowed by paragraph 13(4). Other cases could easily have been added, including one to disregard persons on account of their immigration status.

19.        Turning to the practicalities of decision-making, Mr Brown argued that it would be impossible for decision-makers if they had to make judgments on the quality of a person’s residence with a claimant, including matters such as permanence and depth.

I.            My analysis of the main issue

20.        I have to interpret the expression ‘normally residing’ in the context of the income support legislation. My conclusion is that whether the claimant’s son was ‘normally residing’ with the claimant is a purely factual question of their living arrangements. It involves no element of judgment on the quality of his residence.

21.        As a matter of language, that is what ‘normally residing’ suggests. The reversed expression – ‘residing normally’ – would be more suggestive an inquiry into the quality of the residence. I say only ‘suggest’. I accept that ‘normally residing’ could be read as referring to quality of residence. However, my reading is more consistent with the context. In both the narrow context of paragraph 13 and the wider context of the Regulations as a whole, the emphasis is on the factual arrangements of the living arrangements.

22.        In the narrow context of paragraph 13, the emphasis is on a person who is living with the claimant and who is, therefore, able to provide some care for the claimant. The exclusion in paragraph 13(2)(a)(ii) is integral to the scope of the premium. It is reserved for claimants who (i) are disabled and (ii) have nobody available to provide care for them. (i) is shown by an appropriate award of a disability living allowance or an attendance allowance. (ii) is shown by the absence of an award of carer’s allowance and of anyone resident with the claimant to help. Paragraph 13(3)(c) and (4) provides what Mr Brown conveniently called a bedding-in period. This allows a carer to move in with the claimant for a period of 12 weeks in order to see if the relationship works before the premium is removed.

23.        In the wider context of the Regulations as a whole, the emphasis is not on care, but on the claimant’s expenses of daily living. The presence of a non-dependent person in the claimant’s household indicates that those expenses should not be borne exclusively by the claimant. I take Mr Khan’s point that the claimant’s son had no money with which to pay his share of the household expenses. However, the legislation is not specifically targeted at cases where the non-dependant can reasonably be expected to make a financial contribution. The policy is wider; it ensures that the public purse does not fund others than the claimant and her dependants as part of her entitlement. If non-dependants are to receive public support, it must be on the basis of their own individual entitlement.  

24.        Applying that interpretation to the facts of this case, there is no doubt that the son was residing with the claimant. The issue is whether he was doing so normally. On the evidence, he clearly was. He lived with her from his arrival. He had nowhere else to live in this country, as Mr Brown pointed out. And, so far as the evidence shows, there was no one he could stay with and no funds to pay for accommodation elsewhere. Indeed, living elsewhere would have undermined his ability to provide care for the claimant, which was the whole purpose of his visit.

25.        This is not to say that the quality of a person’s residence may not be relevant to the factual question of whether that person is normally residing with a claimant. To take an extreme example, a person who moved in with a claimant when on the point of being deported would probably not be normally residing with the claimant. What I have decided is that the quality of the person’s residence is neither directly in issue nor decisive.

Representatives’ arguments

26.        I accept Mr Khan’s argument that the son’s presence in this country was precarious in the way he described. However, on my interpretation and on the evidence in this case, those facts do not displace the clear fact that the son was normally residing with the claimant. I also accept Mr Khan’s argument, that the claimant’s son is being treated differently by different Departments. However, that is a result of the different legislation that is applied by those Departments and the different policy that the legislation embodies. And I accept that my interpretation may give rise to some anomalies such as Mr Khan identified. However, those anomalies are not sufficient to displace the natural reading of the language in its context. Legislation represents a compromise between (a) certainty of meaning and convenience of operation and (b) precisely targeting benefit to the persons and circumstances covered by the underlying policy. Some anomalies are the price that are paid for the compromise.

27.        I have not followed either Mr Khan or Mr Brown in speculating on what provision could have been made and the significance of not doing so. It is often possible to argue for this from both sides, as their arguments show. Faced with a case that is not expressly covered by the wording, it is possible to argue that the case could have been expressly included or excluded. It is safer, as I have done, to focus on what provision is actually made and its context.

28.        I was not persuaded by Mr Brown’s argument on the practicalities of decision-making. It may be convenient for decision-makers not to have to investigate detailed issues of fact. However, there are many areas in which they do have to do this. Habitual residence cases require just the kind of enquiry that Mr Brown wished to avoid. Even as a purely factual inquiry, deciding whether a person is normally residing with a claimant may require the decision-maker to investigate the facts to see if residence is, for example, purely transitory or transient, as in CH/4004/2004.

Authorities

29.        I was not referred to any authority that decides the issue that arises before me under the income support legislation. The authorities cited are all consistent with my analysis.

30.        As to the Commissioners’ decisions, I do not doubt or dissent from what they decided. CSIS/0076/1991 is consistent with my interpretation in emphasising the practical nature of the question. That is not consistent with an inquiry into the quality of the residence. CH/4004/2004 was concerned with the application of the law to the facts of that case. The Commissioner did not have to decide whether the quality of the residence was relevant, as it was surely precarious and temporary throughout. CIS/3072/2004 is very similar on the facts to this case. The Commissioner’s discussion is more consistent with my interpretation than with an inquiry into the quality of the residence. There is nothing in the factors that he took into account to suggest that quality of the residence was relevant. Finally, the quality of the claimant’s residence was relevant in R(U) 1/85. However, that was because the condition on the claimant’s residence prevented him as a matter of fact from complying with one of the conditions of entitlement to unemployment benefit.

31.        As to YA and Mohamed, both were concerned with establishing a connection with a jurisdiction. In the former case, the jurisdiction was national; in the latter case, it was local. Either way, establishing a jurisdictional connection is very different from a claimant’s living arrangements with which income support is concerned.  

J.           My analysis of the sub-issue

32.        That leaves the sub-issue. From what date did the son begin normally residing with the claimant? Mr Khan argued that this could not be from his arrival, as it would take time to establish normal residence. I accept that there may be cases in which a person may reside with a claimant without normally residing there. That may only happen later. There may be an initial trial period or a later change of circumstances. Take the facts of CH/4004/2004 as an example. The residence there was precarious from the start. However, circumstances might have changed later such that the cousin then, and only then, began normally residing with the claimant. That is not what happened here. The son came to live with his mother and did so. His residence may have been subject to immigration conditions. But his desire, to use Mr Khan’s word, was surely to stay for as long as his mother needed his help and he was able to remain in the country without being removed. The circumstances showed that his residence was normal from the outset. The factual issue involved here is different from the superficially similar issue of habitual residence. As I have said, establishing a jurisdiction connection is different and distinguishable from simple issues of residence.

33.        My approach is consistent with the normal use of language. A person living in Scotland may obtain employment in Wales and move there. That person could quite properly say from the first day that ‘I normally live here.’ There may, of course, be circumstances that render the residence temporary, at least initially. But that is a matter of fact in particular circumstances.

34.        Paragraph 13(3)(c) and (4) provides some support for this approach. Those provisions are drafted in different terms from paragraph 13(2)(a)(ii). They refer to joining the claimant’s household rather than normally residing with the claimant. However, they are an exception to the basic conditions of the premium and must be interpreted consistently with those conditions. There may be an issue of when a person joins a household, but it is possible for someone to join immediately and not after a period of residence in the claimant’s premises.  

K.          Disposal

35.        The tribunal did not make any error of law in making its decision. I dismiss the appeal.