Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIS/486/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I substitute my own decision setting aside the decision of the decision maker dated 13 December 2011 which revised the original decisions awarding winter fuel payment for the winters of 2007/8 to 2010/11 inclusive and found that there had been an overpayment of benefit totalling £875 pounds which was recoverable from the claimant. I find that the claimant was ordinarily resident in Great Britain during the  relevant qualifying weeks beginning on the third Monday in September 2007, 2008, 2009, 2010 and 2011 and was thus entitled to the winter fuel payments that he received and that the decisions awarding them were correct.   He was also entitled to a winter fuel payment for 2011/12 and despite no longer residing in Great Britain, he retains his entitlement by virtue of EC Regulation 1408/71.

REASONS FOR DECISION

1.     This is an appeal with the permission of a district tribunal judge.  The claimant was born on 19 June 1947 and thus reached the qualifying age for winter fuel payments on 19 June 2007.  He claimed payment on 28 September 1947, giving an address in Nottingham.  Payment of the benefit was made to him for that winter and for subsequent winters up to 2010/11.  In September 2011 the claimant advised that he had been dividing his time between England France.  He had his own home in France and rented accommodation in England.

2.     As a result of further enquiries, he explained that he and his family had moved to France in 1995 and he had then applied for permanent resident status there.  He had purchased a home there in 2006 but remained registered in England with a doctor and dentist.  He travelled between England and France several times a year.  He had a company in England and he worked in England for a little more than 6 months a year, always staying in the same rented property.  He had paid taxes in the UK.  He was stopping work at the end of 2011 and had wanted to know if he would still qualify for winter fuel payments once he was living full time in France.

3.     A decision maker concluded that he had not been ordinarily resident in Great Britain during any relevant qualifying week and that the award of winter fuel allowance had been made in ignorance of that material fact.  The decision awarding benefit was therefore revised to remove entitlement and it was also determined that there had as a result been overpayments totalling £875 which would not have been made but for the claimant’s failure to disclose his French residence.

4.     The claimant appealed.  His uncontested evidence was that he was in England each year from 2006 until 2011 between the end of August and early April, and then from the end of August 2011 until his retirement in February 2012.

5.     The matter was dealt with at a paper hearing and the tribunal decided that the claimant was not entitled to winter fuel payments because he ceased to be ordinarily resident in the UK in March 1995 before he acquired entitlement to a winter fuel payment.  The statement of reasons states that from March 1995 his permanent home was in France but that he spent about 6 months a year working and paying tax in the UK where he lived as a tenant paying rent.  I note that the references to the UK should have been to Great Britain, but nothing turns on this.

6.     The tribunal found that the claimant was not ordinarily resident in the UK in June 2007 or in any of the subsequent qualifying weeks (the weeks beginning on the third Monday in September in each year – see regulations 1(2) and 2(1) of the Social Fund Winter Fuel Payment Regulations 2000).  The reason given was that he had his permanent home in France where he had sought and been granted permanent status.  All his personal possessions were in France and he had purchased a home there.  He intended to live there indefinitely.  His travel to the UK was for work purposes.  He had failed to disclose that he had ceased to be ordinarily resident in the UK.

7.     In coming to this conclusion, the tribunal appears to have overlooked that a person can be ordinarily resident in more than one country (CIS/1691/2004).  In Levene v IRC, [1928] AC 217, the House of Lords considered the meaning of ordinary residence in the case of a British subject who had lived in London until 1919 when he had left England under medical advice with the intention of living abroad.  He had returned to the UK for about 5 months each year to obtain medical advice, visit relatives, take part in religious observances and arrange his tax affairs.  Both in England and France he lived in hotels.  The Special Commissioners of Income Tax had concluded that his intention was to live abroad for the greater part of the year but to return to the UK each year and remain for considerable periods.  He was therefore held to be resident and ordinarily resident in the UK.  The House of Lords concluded that there was evidence to support this conclusion which was one that the Commissioners were entitled to come to.

8.     Viscount Cave, with whom Lord Atkinson agreed, referred at p.222 to the dictionary definition of reside as meaning “to dwell permanently or for a considerable time, to have one’s usual or settled abode, to live in or at a particular place.”  He accepted this as an accurate indication of the meaning of the word reside subject to any modification which may result from the Act in which it appeared.  He continued at p.223 “But a man may reside in more than one place… he may have a home abroad and a home in the United Kingdom”.  He went on at p.225 to consider whether Mr. Levene ordinarily resided in the UK for the purposes of the relevant income tax provisions.  He rejected the suggestion that the answer was to be found by counting the days when he was in the UK and the days when he was elsewhere and concluded that “it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.”  In that he concluded that Mr. Levene’s presence for five months living in hotels was sufficient to justify a finding that he was ordinarily resident, it would seem plain that on this basis the claimant’s presence annually for around six months in one rented property should be capable of justifying such a finding unless there is something in the Social Fund Winter Fuel Payment Regulations 2000 or the statutory provisions pursuant to which they were made which altered the natural meaning of the words.

9.     Lord Warrington, at p.232, expressed the view that “resident” and “ordinarily resident” had no technical or special meaning for the purposes of the Income Tax Act.  He pointed out that a member of the House of Lords may well be said to be ordinarily resident in London during the Parliamentary session and during the country during the recess.  If it had any definite meaning, it meant “according to the way in which a man’s life is usually ordered.”

10. On the same day that the House of Lords gave judgment in Levene v IRC, it also gave judgment in IRC v Lysaght, [1928] AC 234.  In that case, the respondent was born in England of Irish parents and until 1919 he had been resident in England.  In 1919 he had partially retired from his business and he went to live permanently with his family in the Irish Free State.  He had no definite place of abode in England but would come to England for directors’ meetings every month and remain for about a week for business consultations.  He usually stayed at a hotel, he only came for business purposes, and his wife never accompanied him.  Once again the Special Commissioners had held that he was resident and ordinarily resident in the UK and once again the House of Lords held that there was evidence on which they could properly arrive at that conclusion.

11. Viscount Sumner, at pp.243-4, pointed out that the Act “does not say “usually” or “most of the time” or “exclusively” or “principally” nor does it say on the other hand “occasionally” or “exceptionally” or “now and then”… I think that the converse to “ordinarily” is “extraordinarily” and that part of the regular order of a man’s life, adopted voluntarily and for settled purposes, is not “extraordinary”.  Having regard to the times and duration, the objects and the obligations of Mr. Lysaght’s visits to England, there was in my opinion evidence to support, and no rule of law to prevent, a finding, that he was ordinarily resident, if he was resident in the United Kingdom at all.”  He went on to consider whether he was resident at all and concluded that he was, pointing out that whether he resided in his own or a hired house in Ireland “cannot have much to do with it”, that one could be resident in the UK without any settled abode, and that he could see “no such fundamental antithesis between “residence” and “temporary visits” as would prevent Mr. Lysaght’s visits, periodic and short as they are, from constituting residence in the United Kingdom, which is “ordinary” under the circumstances.

12. Lord Buckmaster, with whom Lord Atkinson agreed, held, at p.247, that while “resident” may have a special meaning in other Acts, in the Income Tax Acts it was used in its common sense.  At p.248 he stated that “though a man may make his home elsewhere and stay in this country only because business compels him, yet none the less, if the periods for which and the conditions under which he stays are such that they may be regarded as constituting residence, as in my opinion they were in this case, it is open to the Commissioners to find that in fact he does so reside, and if residence be once established ordinarily resident means in my opinion no more than that the residence is not casual and uncertain but that the person held to reside does so in the ordinary course of his life.

13. Lord Warrington concluded at p.249, as he had in Levene, that the question of residence or ordinary residence was one of degree and there was no technical or special meaning attached to either expression for the purposes of the Income Tax Act.

14. It is not suggested that there is anything in the context of the winter fuel payment provisions to give any special statutory meaning to “ordinarily resident”.  It is also plain from the two House of Lords decisions to which I have referred that the fact that a person is ordinarily resident in one country does not stop them from also being ordinarily resident also in another country.  Nor does the fact that a person is only in that other country for business purposes mean that he cannot be ordinarily resident there.  The tribunal in the present case erred in law in its reasons, summarised in paragraph 6 above, for concluding that the claimant was not ordinarily resident in the UK.  The tribunal clearly proceeded on the basis that there could only be one place where a person could be ordinarily resident, and it erred in law in so doing.

15. I therefore set aside the decision of the tribunal.  The issues do not turn on any oral evidence.  It is clear that the tribunal accepted the factual evidence of the claimant, and indeed there is nothing to contradict or cast in doubt that evidence.  It appears to me therefore that I should substitute my own decision for that of the tribunal.  The claimant, in my judgment, plainly resided in the UK for about half of each year between 2006 and 2011.  Whether he did so in earlier years after 1995 is not relevant.  The period during which he was actually present living here included the whole of each September.  I am also satisfied that his regular need to live here during that period meant that he was ordinarily resident here.  I have no doubt that that would have been held to be the case for income tax purposes had the issue arisen in that context and I see no reason to come to any different conclusion for winter fuel payment purposes.  I do not need to consider whether he would have been ordinarily resident during the qualifying week if that week fell outside the six months that he was regularly here, although I have difficulty at present in seeing why he should not have been ordinarily resident during the whole of the relevant period whether actually present or not at any particular time and indeed in R(P) 1/01, para.16, it was held that the claimants were ordinarily resident both in the UK and in New Zealand at the same time.

16. The result is that the claimant was entitled to the winter fuel payments for the years in dispute and the original awards were correct.  The decision to revise those awards and the resulting overpayment decision were incorrect and must be set aside.  It would also appear to follow, as the tribunal pointed out, that as the claimant was entitled to the winter fuel payment he remains entitled to it by virtue of EC Regulation 1408/71 even though he is no longer ordinarily resident in Great Britain.

(signed on the original) Michael Mark

Judge of the Upper Tribunal

19 August 2013