The habitual residence test following the Bhakta case

September 2006

Introduction

Law Centre (NI) is a voluntary organisation providing legal and other support services including training, publications and information to 80 full time members and over 400 associate members.  Full time members consist of local Citizens Advice Bureaux and independent advice agencies and other voluntary organisations who provide advice as part of their overall function.  Associate members include solicitors, trade unions, political parties, probation and social services offices and community based organisations including tenants associations.  The Law Centre provides an advice line and casework service on referral to its members in the areas of social security; social services, immigration, mental health and employment law.

The Law Centre trains advisers to represent at appeal tribunals and before the social security commissioner and court of appeal.  We hear at first hand from advisers and people about social security issues by convening quarterly social security practitioner fora  in Belfast and Derry.  Due to the complexity of habitual residence test issues and its interface with European law we have particular knowledge and experience of this area of law.

Our response

The decision of the Court of Appeal in the Secretary of State for Work and Pensions v Bhakta 2006 was warmly welcomed by those representing claimants in Northern Ireland.  We endorse the comments of Longmore LJ at para 42 of the decision that the Secretary of State’s argument in the case would emasculate Regulation 13 of much of its usefulness.  We submit that the proposed amendment to the legislation will likewise reduce the usefulness of the regulation.

Regulation 13 is a provision which is generally useful to the Department and to claimants.  As highlighted by the Commissioner in the Bhakta case, in some habitual residence cases, the length of actual residence may be the only outstanding issue and it is eminently sensible that a decision maker should have a discretion to make an advance award in such cases.

The effect of an advance award is likely to reduce the need for further claims. Our advice to such claimants whose initial claim is refused is to appeal and make fresh claims after each negative decision on habitual residence so that there is no break in the period for which claims are made and which may be considered by appeal tribunals.

A number of local social security offices still, in our experience, erroneously refuse to accept such claims and advise claimants it is not possible to claim pending appeal.  Following intervention from the Law Centre, other offices when faced with an appeal and fresh claims indicate when a claim will be allowed.  In these cases, the local office appears to be negotiating an administratively convenient solution rather than knowingly applying regulation 13 of the Claims and Payments regulations.

The habitual residence test is particularly complex.  Returning UK nationals or those who have worked elsewhere in the European Union returning to the UK may be entitled to certain means-tested benefits immediately on return or have to serve an appreciable period before establishing habitual residence.  In contrast, a person from abroad who is coming to the UK for the first time must always serve an appreciable period.  Distilling the impact of commissioner’s decisions indicates that an appreciable period will normally be between one and three months, however, each claim must be judged on its own circumstances and there is no set or standard period that must be served to satisfy habitual residence.

The circumstances vary markedly in claims where the habitual residence is in question.  In practice, however, there are a number of circumstances where the claimant’s future circumstances are predictable (for example, a claimant returning permanently to the UK due to personal or family circumstances or because of the political circumstance abroad).  In these situations, placing the onus on the claimant means having a claim refused, appealed, a further claim made and turned down and a continuation of this process until the threshold of an appreciable period is reached.  This is unduly onerous.  This is reinforced by the fact that many claimants subject to the rules on habitual residence will have no contemporary contact with the social security system and may not have English as a first language.  It is difficult to objectively understand why the onus should always be placed on a claimant to ascertain his or her rights in this situation as opposed to for example, circumstances where a claimant due to reach pensionable age inadvertently claims benefit too early.

The impact of closing off regulation 13 to habitual residence issues is that a claimant who makes an unsuccessful claim immediately on return and appeals could wait several months for an appeal to be heard.  If no further claim is made the claimant could have the appeal turned down on the basis of not having met the habitual residence test at the date of the decision.  Nonetheless, the tribunal (and often the decision maker) may well accept that the entitlement should have commenced a few weeks later with both the tribunal and decision maker left powerless to remedy the situation.  A fresh claim will not normally lead to backdating of benefit in these circumstances.  Moreover, the Department issues no information on habitual residence claims to outline the impact of failing to lodge a fresh claim in these circumstances.

We would stress that the provision is a discretionary one and that if the circumstances are fluid then, a decision-maker is not obliged to make an advance award.  Moreover, there are appropriate powers to remedy an advance award should circumstances change prior to actual date of implementation.

The discretion to make advance awards with attendant safeguards appears to work perfectly well in other areas of decision-making.  To remove this discretion will only create further obstacles to sensible, flexible and open decision-making.  As a result, we would urge SSAC to advise the Department not to implement the proposed amendment.