JH-v-Department for Communities (JSA) [2017] NICom 73

Decision No:  C6/17-18(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKERS ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 3 December 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of a tribunal sitting at Belfast on 3 December 2014.

2.	For the reasons I give below, I grant leave to appeal.  I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I direct that the appeal shall be determined by a newly constituted tribunal.

REASONS
	Background

3.	The appellant claimed jobseekers allowance (JSA) from the Department for Social Development (the Department) on 9 June 2014.  He indicated that he had returned to live in the United Kingdom (UK) on 7 June 2014.  He stated that he was an Irish national and had been outside the UK from 25 January 2014 to 25 April 2014 working for a Turkish company in Algeria.  He had subsequently been outside the UK from 29 April 2014 to 6 June 2014.

4.	On 18 June 2014, the Department decided that the appellant had not been resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland (the Common Travel Area or ‘CTA’) for the three months prior to his claim and therefore was not entitled to JSA.  The appellant appealed to a tribunal consisting of a legally qualified member (LQM) sitting alone.  However, it appears that he waived his right to an oral hearing of the appeal.  The tribunal disallowed the appeal.
5.	At the appellant’s request the tribunal issued a statement of reasons for its decision on 20 February 2015.  The appellant applied to the LQM for leave to appeal to the Social Security Commissioner but on 5 May 2015 the LQM refused leave to appeal.  On 2 June 2015 the applicant requested a Social Security Commissioner to grant leave to appeal.

	Grounds

6.	The appellant submits that the tribunal has erred in law on the basis that:

(i)	additional evidence he had submitted was not considered;

(ii)	it made a material error of fact.

7.	The Department was invited to make observations on the grounds of appeal.  Mr Gorman of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal’s decision was not in error of law and indicated that the Department opposed the appeal.

8.	The applicant’s case was then stayed pending the determination of another case before the Commissioners involving the same legislative provision and similar issues of fact.

	The tribunal’s decision

9.	The tribunal has prepared a statement of reasons for its decision.  From this I see that the applicant’s case proceeded as a “paper hearing” in his absence.  The tribunal had documentary material before it in the form of the Department’s appeal submission.  This in turn included a submission by Belfast Citywide Tribunal Service on behalf of the applicant.

10.	The tribunal found that the applicant had claimed JSA from 9 June 2014.  Prior to that claim the applicant had been working in Algeria from 25 January to 24 April 2014, returning to Northern Ireland at that point, but leaving again on 29 April 2014, returning on 7 June 2014 from Spain.

11.	The tribunal observed that the applicant could not be entitled to JSA unless he had been living in the CTA for the three months prior to claiming.  The tribunal rejected the submissions made on behalf of the applicant concerning the meaning of “living in” and the application of European Union law in the case.  It accepted the reasoning of the decision maker that the applicant had not been living in the CTA for a continuous period of three months prior to his claim, and disallowed the appeal.

	Relevant law

12.	Regulation 85A of the Jobseekers Allowance Regulations (NI) 1996 (the JSA Regulations) at the material date read:

85A. —(1) “Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. 

(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless— 

(a) the claimant has been living in any of those places for the past three months; and

(b) the claimant has a right to reside in any of those places, other than a right to reside which falls within paragraph (3).

…

	Hearing

13.	I held an oral hearing of the appeal. Mr Hatton of Law Centre (NI) appeared for the applicant. Mr Donnan of DMS appeared for the Department.  I am grateful to them for their submissions.

14.	At the outset of the hearing, Mr Donnan indicated that the Department now accepted that the tribunal had erred in law.  This concession was made on the basis of the decision I had given in the case of AEKM v Department for Communities [2016] NI Com 80.  The Department accepted that the tribunal had erred in law when addressing the factors relevant to the question of whether the applicant was living in the CTA throughout the material period.

15.	Mr Hatton for the applicant observed that there was some uncertainty in the facts before the tribunal.  However, he submitted, the tribunal had erred by not holding that the applicant had not ceased to live in the CTA during the period in issue.  He submitted that the tribunal had erred in its application of the relevant statutory test by failing to address the factors which a tribunal would need to address in order to make the decision consistent with AEKM.

	Assessment

16.	I do not make any criticism of the tribunal.  At the time of determining this appeal there was no relevant case law available to the tribunal on the interpretation to be given to the “living in” requirement in regulation 85A of the JSA Regulations.

17.	I subsequently gave a decision in AEKM v Department for Communities [2016] NI Com 80.  That decision was followed and applied by the Upper Tribunal Judge in TC v Secretary of State for Work and Pensions [2017] UKUT 222. In TC v SSWP, at paragraph 24, Judge White observes that the Secretary of State for Work and Pensions had accepted the proposition I had advanced in AEKM.  Mr Donnan similarly indicated that the Department in Northern Ireland has accepted my analysis of the relevant law.  This is not entirely surprising as much of what I said in AEKM emanates in turn from the Department’s own guidance in such cases. At paragraph 46 I said:

46.	Mr Donnan opened to me the internal criteria applied by the Department, and I consider that many of these are relevant to the question in hand.  It seems to me that the factors relevant to the question of whether someone is living in the CTA are those which tend to establish whether that is where he or she has a home.  Duration of past residence, previous enrolment in education, a history of work, family connections, established ownership or tenure of a dwelling and the compatibility of the purpose of any temporary absence with continued “living in” the CTA all appear to me to be relevant factors.  These factors are not exhaustive.  Where the person has more than one home, I consider that it is connected to the question of which of these has been the person’s primary home for the relevant period.

18.	The tribunal in the present case has addressed the details of the applicant’s absence from the CTA.  However, for the reasons given in AEKM, that is not the right approach.  In cases where a person who has been living in the CTA leaves for a period and then returns, the first question to ask should be whether that person has ever ceased to live in the CTA.

19.	The parties were in agreement that the tribunal had erred in law.  I too consider that the tribunal has erred in law for not making sufficient relevant findings of fact on which to base its conclusion, or in the alternative for misdirecting itself as to the meaning of living in for the purposes of regulation 85A.  I grant leave to appeal.  I allow the appeal and I set aside the decision of the appeal tribunal.

20.	I asked for submissions on how to dispose of the case.  The parties asked me to remit the appeal to a newly constituted tribunal for determination and I consider that I should accede to that proposed course.  I direct the new tribunal to have regard to what I say in AEKM and to make relevant findings of fact.  The tribunal will need to investigate the circumstances of the applicant’s life in the CTA at the material time in order to decide whether he had ceased living in the CTA.  I would encourage the applicant to attend the hearing or to present documentary evidence of his connections to the CTA at the material time in order to assist the tribunal in its task.

(signed):  O Stockman

Commissioner

7 December 2017