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[1995] UKSSCSC CIS_1067_1995 (16 October 1995)

 


R(IS) 6/96


Mr. P. L. Howell QC CIS/1067/1995

16.10.95

Person from abroad - British national temporarily absent in Burma - whether ceasing to be habitually resident in the United Kingdom

The claimant was a British national who had been born in Burma and lived there all her life until she separated from her husband and came to the United Kingdom in June 1992. Her husband and children remained in Burma. She obtained employment in July 1992 but was made redundant in May 1994. She then claimed and was paid income support. In July 1994 she returned to Burma as her husband was thought to be terminally ill. She came back to the United Kingdom on 20 August 1994 and claimed income support on 31 August 1994. Her claim was refused on the ground that she was not habitually resident in the United Kingdom. A tribunal rejected her appeal and she appealed to a Commissioner.

Held that:

1. it was for the adjudicating authorities to be satisfied that a claimant was not habitually resident before the special provisions for "persons from abroad" were applied. However, a tribunal should try to decide the issue by enquiring further into the facts, rather than treating it as a matter of where the "burden of proof" lay (para. 15);
2. a person who has not established residence in the United Kingdom cannot become habitually resident. To be resident a person must be making a home here (para. 19);
3. whether a person is habitually resident is a factual and objective question, to be decided by reference to all the circumstances (Re J (a minor) [1990] 2 AC 562 at 578G applied) (paras. 18 and 20);
4. in order for a person to become habitually resident, an appreciable period of time of actual residence and not merely a settled intention to reside was necessary (para. 21). What counted as an appreciable period of time depended on the facts of each case. It should be a period which showed "a settled and viable pattern of living here as a resident" (para. 28). The practicality of a person's arrangements for their residence was a necessary part of determining whether it could be described as settled and habitual. In deciding whether a person's plans for living here were viable, the possibility of claiming income support had to be left out of account (para. 29);
5. habitual residence was not necessarily lost during periods of temporary or occasional absence (R v. Barnet LBC ex p. Shah [1983] 2 AC 309 at 342 and Case 76/76 Di Paolo [1977] ECR 315, para. 21 considered) (paras. 26 and 32);
6. on the facts of this case the claimant has clearly become habitually resident in the UK before she left on 20 July 1994 and she did not cease to be habitually resident here while temporarily absent in Burma. The tribunal had erred in law in failing to give sufficient weight to the period and nature of her previous residence in the United Kingdom (paras. 31 and 32).

The claimant's appeal was allowed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

7. For reasons given below the decision of the social security appeal tribunal given on 22 November 1994, holding that the claimant was not entitled to income support from 25 August 1994 because she was not habitually resident in the United Kingdom, was in my judgment erroneous in point of law and must be set aside. There being no dispute as to the facts, and only real issue in the case being the correct meaning to be given to the words "habitually resident", I exercise the power in s. 23(7)(a) Social Security Administration Act 1992 to give instead the decision which I consider the tribunal should have given.
8. My decision is that the claimant was habitually resident in the United Kingdom for the period from 20 August 1994 down to and including the date of the tribunal hearing on 22 November 1994, and thereafter until her residential arrangements changed, and was thus entitled to income support under s. 124, Social Security Contributions and Benefits Act 1992, so long as she continued to satisfy the other conditions for that benefit.
9. This case is one of a number of appeals raising similar questions on the meaning of the "habitual residence" test for income support introduced from 1 August 1994 by amendment to regulation 21 and Schedule 7, Income Support (General) Regulations 1987, SI 1987 No. 1967. I held an oral hearing of this appeal at which the claimant was present and represented by Ms. P. Fitzpatrick of the National Association of Citizens Advice Bureaux and the adjudication officer appeared by Mr. D. Jones of Counsel, instructed by Mr. S. Cooper, solicitor to the Department of Social Security. I am grateful to the representatives on both sides for their help on the difficult issues which arose.
10. The claimant in this appeal is a lady now aged 55 who at present lives in South London. She is now of British nationality and citizenship but was born in Rangoon and lived throughout her life until 1992 in Burma (now Myanmar) where she married and has had a number of children, four of whom are still young. She has a British passport and the right of abode in the United Kingdom, having opted in 1962 for British rather than Burmese nationality. Her husband and children however have only Myanmar nationality and have never visited this country.
11. The claimant worked in Myanmar as a teacher, but has been excluded from this employment since 1965 as an alien by reason of having opted for British nationality. Since then she has managed to obtain a limited amount of private teaching work in Myanmar, but no permanent employment, and in 1992 she and her husband separated and she came to the United Kingdom to look for work. She entered this country for the first time in June 1992, initially went to stay with a friend, registered with a doctor, and in July 1992 obtained employment. This was as a catering assistant, as she does not possess the qualifications required to work as a teacher in this country. The catering job was however a long-term and not casual one, and she remained in it continuously for just under two years until 27 May 1994 when the firm she was working for made her redundant, on the ground that they had lost a contract. By then she was living in her own small flat which she was renting on a six month tenancy.
12. She claimed and was paid income support for some weeks, until 20 July 1994 when she had to return to Myanmar suddenly because her husband was thought to be terminally ill. Although they are separated, she is of the Roman Catholic faith and it was necessary for her to return, as she remains his wife and was expected to arrange the last rites for him. In fact he was not as ill as had been feared and when he was seen to be recovering, she returned to this country and entered it again on 20 August 1994.
13. Not managing to get another job on her return, she claimed income support again on 31 August 1994. This time she was refused it on the ground that the test of habitual residence, which had been introduced in the period she had spent visiting her husband back in Myanmar, was not satisfied in her case. Her appeal to the tribunal was rejected on the ground that she was not habitually resident in United Kingdom, for four reasons:

(a) she had lived all her life in Myanmar until June 1992 and had lived only two years in the United Kingdom;

(b) her husband and children all lived in Myanmar and have never visited the United Kingdom;

(c) there was conflicting evidence about whether she and her husband owned property in Myanmar; and

(d) her prospects of employment in this country were not good as her qualifications were not recognised and she was unlikely to be able to afford ever to bring her husband and children to this country even if they were permitted entry.

14. The tribunal held that the claimant was therefore a "person from abroad" with the result that her entitlement to income support under the new regulations was nil. The claimant appeals against that decision with the leave of the Chief Commissioner granted on 26 March 1995, on grounds set out in her written notice of appeal at pages 125 to 131 of the case papers and developed by Ms. Fitzpatrick on her behalf at the hearing. First it was said that the new legislation was ultra vires as the relevant powers of the Secretary of State to make provision for "special cases" for income support did not extend to making a nil provision so as to exclude people from benefit altogether. In view of the decision of the Divisional Court rejecting a similar contention in ex parte Sarwar and others (unrep. DC 11 April 1995), Ms. Fitzpatrick did not pursue the point before me beyond reserving her right to argue it if this case should go further.
15. On the question of whether the claimant was rightly excluded from benefit under the new provisions she says in summary that the tribunal erred in law by not giving an ordinary everyday meaning to the term "habitual residence" which should be treated as synonymous with "ordinary residence" and interpreted in accordance with observations of the House of Lords in R v. Barnet LBC ex p. Shah [1983] 2 AC 309 at 340 to 349. In particular, she contends that the test for habitual residence should be taken as satisfied in view of the evidence that the claimant has adopted a regular mode of life here voluntarily and for a settled purpose for the time being. She says it does not matter whether this is of short or long duration: see per Lord Scarman at p. 343 G-H.
16. On behalf of the adjudication officer it was contended in written submissions dated 31 May 1995 and by Mr. Jones at the hearing that habitual residence is not necessarily the same thing as ordinary residence, and should be construed in accordance with the decision of the European Court of Justice in Case 76/76 Di Paolo [1977] ECR 315. This was a case on the meaning of "residence" in Council Regulation (EEC) No. 1408/71 where the court drew attention (in the context of employment benefits for a person moving between member States) to four factors in particular as relevant to determining habitual residence, namely (1) the length and continuity of residence in a particular State; (2) the length and purpose of absence from it; (3) the nature of the occupation (i.e. employment) found in the other State to which the person moved for a time; and (4) the intention of the person concerned as it appears from all the circumstances. This statement of the European Court of Justice has been followed and applied in two Commissioners' decisions involving unemployment benefit, R(U) 7/85 and R(U) 8/88, and has been closely followed by adjudication officers in determining questions of habitual residence for income support since 1 August 1994.
17. On the basis that the claimant's rights of occupation in the United Kingdom derived from her nationality and not from any community law rights such as those protecting workers, and that the tribunal formed its view on the facts having regard to the main issues identified as relevant in Di Paolo, the adjudication officer submits that their decision was not erroneous in law.
18. Before 1 August 1994, the system of social security in this country extended means-tested social assistance to those physically present here and in need of it, in a way not paralleled in many countries of the European Union or outside it. By s. 124 Social Security Contributions and Benefits Act 1992, a person in Great Britain was entitled to income support if over the age of 18, without sufficient resources of his own, and without work but available for and seeking it. The amount of income support payable to a person entitled to it is described as his "applicable amount" that is the total of his requirements assessed on a standard basis, less the amount of any income that he actually has or is treated as having: see s. 124(4). By s. 135(1), the applicable amount is to be such amount, or the aggregate of such amounts, as may be prescribed and s. 135(2) specifically provides that subs. (1) includes power to prescribe nil as an applicable amount. If s. 135 stood alone it might be said that the power to prescribe an amount for a particular benefit was one that had to be exercised in the same way for all persons affected by it; but s.175(3) appears to modify this by enabling the power to be exercised differently as regards different cases or classes of case. The habitual residence condition has been introduced into the income support regulations in exercise of these powers, and as noted above the Divisional Court has held this exercise to be valid, although I understand that its decision may be subject to appeal.
19. The provision into which the new test has been inserted is reg. 21 of the 1987 income support regulations which is headed "special cases" and provides for a series of special calculations of the "applicable amount" for particular categories of persons set out in Schedule 7, such as for example hospital or mental patients, or persons in legal custody. One of these categories is a "person from abroad", defined by reg. 21(3) as a person falling within one of various types of immigrations status such as a person having limited leave to remain in this country or being subject to a deportation order. The prescribed "applicable amount" for such a person is normally nil.
20. An additional definition of "person from abroad" was inserted into reg. 21(3) from 1 August 1994 by reg. 4(1), SI 1994 No. 1807, so that the expression now:

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

with some exceptions that do not appear to apply in the present case: it was not argued on behalf of the claimant that any of them did and I have not considered them further. It is common ground that apart from the exclusion in reg. 21 the claimant would have satisfied the statutory conditions for income support under s. 124 of the Act in the relevant period of her claim, so that the question for the tribunal came down to whether they were satisfied she was not habitually resident in the British Isles.

21. It appears to me that as s. 124 confers a general entitlement to income support by reference to physical presence in Great Britain regardless of a person's origin, the tribunal must be satisfied that she is not habitually resident in the British Isles before she can be excluded from benefit, rather their having to be affirmatively satisfied of habitual residence here before entitlement to benefit is established. While not conceding this point, Mr. Jones made no detailed submission to the contrary. In most cases it should make little difference, as it should be reasonably clear on which side of the line a particular case falls once it is clear about the test to be applied, and a tribunal should endeavour to resolve any genuine doubts by enquiring further for itself into facts, rather than regarding this as a question of a "burden of proof" to be placed on one side or the other.
22. It is common knowledge that the change to the regulations was introduced following concerns expressed by the Secretary of State at a political gathering about the number of people of non English nationality claiming public assistance in this country. I need not comment on such concerns or the language chosen to express them. My only function in this appeal on a question of law is to determine the actual effect of the alterations that have been introduced into the legislation and approved by Parliament. I was told at the hearing that there are some 15,000 tribunal appeals in which similar points on the new test have arisen and I will therefore attempt some general guidance on the principles which ought in my view to be adopted in applying it for income support, before turning to the facts of this particular case.
23. "Habitual residence" is not defined in the regulations or in the numerous international treaties, Community instruments or Acts of the United Kingdom Parliament in which it now appears. There are many authoritative references to its having to be given its ordinary and natural meaning, but none of the authorities manages to provide a full explanation of what that ordinary and natural meaning is. This suggests that it is a concept for which a complete definition or list of relevant factors may not be possible: the facts of each case have to be considered in a common sense way, and cases where particular factors are emphasised as relevant are not to be taken as laying down these as the only factors to be taken into account in every different context.
24. The context in which the test of habitual residence was introduced for income support suggests that it was intended to be an objective test, consistent with our Community obligations as well as with existing United Kingdom law. To have introduced a test based on nationality or citizenship would of course have been contrary to our treaty obligations as a Member State of the European Union, the fundamental principles of which prohibit any discrimination on nationality or ethnic grounds. Hence the test focuses on the fact and nature of residence here and not on the legal right of abode. In preferring the test of habitual residence to that of domicile, the established pattern of recent United Kingdom legislation is again towards the more factual and objective test. Domicile in its English law sense depends to a large extent on intention and might give rise to inconsistency and confusion in relation to frontier movements between this country and others where the concept in that form is unknown: see R(U) 8/88, appendix 1, paragraph 6.
25. Logically the first point to clear out of the way is that the person who is not resident in this country at all cannot become habitual resident. Residence to my mind embodies a more settled state than merely physical presence in a country, so that a person who is a short stay visitor, or has come here for an operation or to receive medical treatment other than long-term care, is neither resident nor habitually resident. To count as resident, a person must be seen to be making a home here, even though it need not be his or her only home, nor need it be intended to be a permanent one, provided that it is genuinely home for the time being.
26. Whether a person who has established residence in a particular country has also become habitually resident in it is a question of fact, to be decided by reference to all the circumstances of the particular case: Re J (a minor) [1990] 2 AC 562 at 578G. In the absence of any statutory definition the expression, like the expression "ordinarily resident" considered in Shah's case, should take its meaning from ordinary and natural usage and should not be given a specialised meaning, still less a variety of different specialised meaning, when used in legal contexts.
27. The most important factors to be looked at in deciding whether a person has become "habitually resident" in this country as a matter of ordinary usage are in my judgment, the length, continuity and general nature of his or her actual residence here, rather than his or her intentions as to the future. A habit is not established in a day. A man who announced yesterday his intention of giving up his lifetime habit of smoking is not rightly described today as an habitual non smoker, nor will this description naturally apply to him until after some time has elapsed to see if new and healthier habits have become established in place of his old ones. Similarly a man who just got off the bus in Laugharne and for some reason never got back on again, has not become an habitual resident of the place until sufficient time has elapsed for a settled pattern of abode to be discerned, and it makes no difference if immediately after getting off the bus he announces his intention to stay in the boathouse there and write poetry for the rest of his life. Time must elapse before it can be seen that his presence as resident there has in fact become habitual. As observed by Lord Brandon in Re J at [1990] 2 AC pp. 58-9, a person may abandon habitual residence in a country in a single day but it does not follow that he thereupon becomes an habitual resident of another country to which he intends to move. An appreciable period of time, as well as settled intention, will be necessary to enable him or her to become so. During that appreciable period of time, the person will have ceased to be habitually resident in the first country, but not yet have become habitual resident in the second.
28. In my judgment, this factual approach to the meaning of habitual residence is not in any way inconsistent with anything said by Lord Scarman in Shah's case. It should be remembered that the context in which the remarks in that speech on the expression "ordinary residence" were made was the requirement of the Education Act for students to show three years, continuous ordinary residence in the United Kingdom before the start of their course, so as to qualify for a grant from their local education authority. Each of the students concerned in the appeal had thus demonstrated actual residence in this country for a continuous period of not less than three years. The House of Lords were therefore primarily concerned with the nature and purpose of this actual residence over a prolonged period, and in particular with whether it was necessary for the students to show that they had made this country their permanent home. The suggestion that a subjective intention to live in a place indefinitely was a necessary element in ordinary residence (as it would have been in the English law concept of domicile) was decisively rejected, at p. 343. The passage at page 343H referring to an abode adopted "voluntarily and for settled purposes" whether of short or long duration, follows immediately after this and is obviously focusing principally on the question of the required intention, since a period of three years actual residence would plainly be enough to establish ordinary residence if the right element of intention was also present.
29. That Lord Scarman did not intend the "settled purpose" to be the only element necessary to establish ordinary residence is made plain by the passage on the next page, at p. 344F, where he says:

"if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose."

In this passage Lord Scarman appears to me to be confirming that evidence of actual residence on an established and settled basis, for a long enough period to demonstrate that a habitual mode of life has emerged, is at least as important an element of the concept of ordinary residence as the mental elements which have to be assessed primarily by reference to past events, rather than expressions of future intention, is also made clear by the further passages at pages 345G, 348A, 348E, and 349D, in the last of which he says expressly that the relevant period is not the future, but one which has largely or wholly elapsed.

30. In my judgment therefore, and leaving aside for the moment the question of whether ordinary and habitual residence mean the same thing, what was said by Lord Scarman in the case is not authority for the proposition that habitual residence is demonstrated merely by showing that a claimant is living here voluntarily and for a purpose which can be described as "settled", however short its duration. In all cases, an appreciable period of time of actual settled residence has to be demonstrated as well as a settled intention, before residence can be rightly said to have become habitual. In requiring factual evidence as regards the past, as well as settled mental element, the approach of Lord Scarman and that of Lord Brandon in re J at [1990] 2 AC 578H-579A appear to me to be very similar.
31. Nor in my judgment is there anything inconsistent between such an approach and what was said by the European Court of Justice in their judgment in Case 76/76 Di Paolo. That case concerned an Italian national living in Belgium who had worked for a period in the United Kingdom and then returned to her family in Belgium, where she claimed unemployment benefit. The question was whether Belgium was the Member State in which she resided or to which she had returned as her country of habitual residence. On this depended whether she was able to claim unemployment benefit in Belgium under the terms of EEC Council Reg. No. 1408/71 on the Social Security rights of persons moving between Member States. The decision of the court appears to me wholly consistent with a factual approach to whether an habitual residence has been demonstrated in one Member State, by emphasising that an individual who has a stable employment for the time being in one country may be presumed to be residing habitually there while the employment continues, even though he continues to have family ties in another so that his ultimate intentions may be different. The court stresses that it is not only the family situation which must be taken into account, but the reasons which led him to move, the nature of his job, and the length and continuity of earlier residence in the State to which he or she returns, as the particular factors of most likely relevance to a person returning after a period of work abroad. I do not read the court as in any way suggesting that these are the only factors which may need to be taken into account, or that whenever questions of habitual residence have to be determined whether in the context of unemployment benefit or for any other purpose, the approach should be anything other than a factual and practical one taking into account all the individual's circumstances.
32. Paragraph 21 of the court's judgment deals with periods of absence which do not affect habitual residence. In the English text it reads "the concept of residence, such as defined above, does not necessarily exclude non habitual residence in another member State" but is I think easier to understand after reference to the French text at [1977] 2 CMLR 59 at 75, where the expression translated as "non habitual residence" is "un sejour non habituel", conveying something more in the nature of a stay than a period of residence. Thus understood, the point being made appears to me exactly the same as that made in Shah by Lord Scarman at p. 342 D-E where he refers to temporary or occasional absences of long or short duration as not being inconsistent with continued ordinary residence. I am therefore unable for my part to find that there is anything like such a dichotomy between the approaches of the House of Lords and the European Court of Justice in the leading cases as has been suggested in the submissions made to me.
33. Where there may I think be some divergence between the concepts of ordinary residence considered by the House of Lords in Shah and habitual residence which is the expression directly in point in Re J and of course in the case before me, is in the need to discern an "appreciable period of time" of actual residence after arrival in this country before the person concerned can become habitually resident. In this it appears to differ from the concept of ordinary residence, at any rate as so far interpreted for income tax purposes, where the earlier authorities suggest that ordinary residence can not only be abandoned but also changed to another country in a single day, see Macrae v. Macrae [1949] P. 397, 403. In that case the factor which Somervell LJ considered material in demonstrating that ordinary residence in a new country had commenced at once was an intention to make a home in that country for an indefinite period, see also R(F) 1/62 para. 11. To what extent this, which appears very close to the "real home" test expressly rejected by Lord Scarman in Shah, still stands as authority for the proposition that ordinary residence in the United Kingdom can be acquired from the moment of arrival as held by the tribunal of Commissioners in R(F) 1/62, may have to be decided in some future case on the meaning of that expression. However it cannot in my judgment be a reliable guide for habitual residence, for which the House of Lords has now expressly held that an appreciable period of actual residence is essential, per Lord Brandon, with whom all their Lordships concurred, in the passage at pp. 578-9 already cited.
34. What counts as an "appreciable time" for this purpose must depend on the facts of each individual case. At the risk of some circularity I would say it must be the kind of period which demonstrates according to the good sense and judgment of the tribunal a settled and viable pattern of living here as a resident, of the kind which would lead in normal parlance to the person being described as an habitual resident of this country. Without in any way detracting from the function of the tribunal to assess this for themselves on the facts of each actual case before them, a couple of similar examples may illustrate what I mean. For a citizen of the United Kingdom, of whatever ethnic origin, entering this country after a period of living abroad and intending to take up or resume residence here on an indefinite basis without any particular close continuing ties overseas, the acquisition of habitual residence might easily be demonstrated after three to six months settled residence here. Similarly with a person who comes here to work or for education purposes for a fixed period of years under a defined and viable work contract or education programme. (Less than three months would I think be more difficult, as even a returning expatriate may find the reality of life here less to his liking than he had imagined, and change his plans again). On the other hand for a person, of whatever nationality, whose main roots and family ties are overseas, and who just happens to have come to this country, staying with friends and enjoying the London scene, with the general hope of improving language skills or obtaining work but without much evidence of actually setting about it, twelve or more months actual residence here of a settled and viable nature would in my judgment be required before it could be said in normal parlance that they had become an habitual resident of this country.
35. I have used the word "viable" because it seems to me that the practicality of a person's arrangements for their residence is a necessary part of determining whether it can be described in ordinary usage as settled and habitual. In particular, in determining whether a person's plan for living in this country are viable, the possibility of claiming income support has to be left out of account, since otherwise one would be assuming the answer to the question that has to be decided. I do not mean that there must be no conceivable circumstances in which he or she might not need to resort to income support, since that would be a test hardly anyone could meet, but if the chances of his or her establishing and keeping up a home here at all are simply unrealistic unless bolstered by public assistance, such living arrangements cannot settled and viable.
36. I should add one word of caution to the last point. The need to demonstrate a settled abode in this country has become a requirement for persons arriving here from overseas, with the introduction of the habitual residence test. However the new regulations would not in my view justify extending the same requirement to established habitual residents of the British Isles so as to deprive them of income support. Every society that claims to call itself civilised accepts an obligation to provide a minimum level of support to its least fortunate members whatever their mode of life. The habitual residence test is concerned only with determining at what point recent arrivals are to be accepted as members of our society for this purpose. It does not mean that any existing members are to be excluded because they follow an alternative lifestyle or have no proper home at all.
37. Turning at last to the facts of this particular case, it seems to me quite clear that adopting the approach that I have tried to set out above, there was ample evidence of a settled pattern of actual residence by the claimant in this country between when she first arrived in the middle of 1992 and when she had to leave in 1994 to attend to her husband in what was thought to be his last illness. During the greater part of this period, she worked steadily and acted in every way as a normal resident here, so that in my judgment there can be no doubt that even taking into account her continuing family ties in Myanmar, she had become an habitual resident of this country by the time she left it on 20 July 1994. The tribunal in my view erred in law in not giving sufficient (or any) weight to the period and nature of her residence here before that date.
38. The claimant having been an habitual resident of this country when she left it on 20 July 1994, her period of absence in Myanmar of the specific purpose of carrying out her religious and family duties did not put an end to that habitual residence. It was in my view exactly the kind of temporary or occasional absence referred to by Lord Scarman in Shah at page 342D-E as not making a difference to ordinary residence and similarly by the European Court of Justice in paragraph 21 of the judgment in Di Paolo as not making a difference for the purpose of "habitual residence". Accordingly, when she returned to this country on 20 August 1994 to resume her actual residence here, she was in my judgment still an habitual resident of this country and ought to have been so treated by the adjudication officer for the purposes of income support.
39. The appeal is accordingly allowed and the tribunal decision of 22 November 1994 set aside. For reasons I have given, I substitute the decision set out in paragraph 2 above.

Date: 16 October 1995 (signed) Mr. P. L. Howell QC

Commissioner