MO’N-v-Department for Communities (JSA) [2017] NICom 73

Decision No:  C5/17-18(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 22 January 2015

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 22 January 2015.

2.	For the reasons I give below, I grant leave to appeal and I allow the appeal.  I set aside the decision of the appeal tribunal under Article 15(8)(a)(i) of the Social Security (NI) Order 1998.  I give the decision which I consider the tribunal should have given, without making further findings of fact.

3.	My decision is that the appellant was living in the Common Travel Area (the CTA) in the three months prior to her claim for Jobseeker’s Allowance (JSA) on 18 August 2014.

	Background

4.	The appellant claimed jobseekers allowance (JSA) from the Department for Social Development (the Department) on 18 August 2014.  She indicated that she had returned to live in the United Kingdom (UK) after a period volunteering in Ecuador.  She stated that she was a British national and had returned from Ecuador on 15 August 2014, having previously left the UK on 6 February 2014.

5.	On 28 August 2014, the Department decided that the appellant “had not been resident in the UK/Common Travel Area for the 3 month period immediately prior to her claim to Jobseeker’s Allowance” and therefore was not entitled to JSA.  The appellant appealed to a tribunal consisting of a legally qualified member (LQM) sitting alone.  The tribunal disallowed her appeal.

6.	At the appellant’s request the tribunal issued a statement of reasons to her on 29 April 2015.  The appellant applied to the LQM for leave to appeal to the Social Security Commissioner but on 17 July 2015 the LQM refused leave to appeal.  On 18 August 2015 the applicant requested a Social Security Commissioner to grant leave to appeal.

	Grounds

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

(i)	it made a material error of law by deciding that the applicant was not “living in” the CTA for the three months prior to her claim to JSA;

(ii)	it made a decision which was contrary to EU law.

8.	The Department was invited to make observations on the grounds of appeal.  Mr Donnan of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal’s decision was not an unreasonable one on the facts and indicated that the Department opposed the appeal.

9.	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

10.	The tribunal has prepared a statement of reasons for its decision.  From this I see that it had documentary material before it including the Department’s submission and a submission from the applicant’s representative including documentary evidence.  The applicant did not attend the tribunal hearing but was represented by Ms Loughrey of Law Centre (NI).

11.	The tribunal found that the applicant had claimed JSA from 18 August 2014.  Immediately prior to her claim she had been outside the CTA from 6 February to 15 August 2014.  During that time she had been engaged in voluntary work in Ecuador.  The tribunal had heard argument that the applicant’s absence from the UK was temporary and that she remained “living in” Northern Ireland despite the fact that she was not physically present.  It was argued that since she retained all her connections to Northern Ireland and her intention was always for a temporary absence, she continued to live in Northern Ireland.

12.	The tribunal rejected the argument and concluded that the applicant was not living in the UK in the three months prior to her claim.  It found that the absence of 6 months could not be considered temporary.  It disallowed the appeal.

	Relevant law

13.	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

14.	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.

15.	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.

16.	Mr Donnan further submitted that an implication of my decision in AEKM was that the case law relevant to the previous form of the habitual residence test continued to apply to the current form of the relevant regulation.  He properly drew my attention to KS v Secretary of State for Work and Pensions [2010] UKUT 156 - a decision of Upper Tribunal Judge Levenson which was favourable to the present applicant.  That case concerned a claimant who was volunteering in India with Voluntary Service Overseas (VSO).

17.	Mr Hatton for the applicant observed that the applicant was in a similar position to the claimant in KS v SSWP, namely that she was outside the CTA for a temporary period of volunteering.  He pointed to various factors which had not been considered by the tribunal but which showed 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.

	Assessment

18.	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.

19.	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.

20.	The tribunal in the present case has found that the applicant was not living in the CTA while she was volunteering in Ecuador, as her six month absence could not be considered temporary.  I consider that the tribunal has erred in law by equating absence from the CTA with not living in 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.

21.	Mr Donnan had referred me to KS v Secretary of State for Work and Pensions [2010] UKUT 156 - a decision of Upper Tribunal Judge Levenson.  That case concerned a claimant who was volunteering with Voluntary Service Overseas (VSO) in India.  The Judge in that case considered the issue of whether his habitual residence in the UK had been lost, and observed that when he embarked on VSO the claimant had no intention of taking up long term residence in India but intended to return to the UK.  His absence from the UK lasted from November 2005 to June 2008 albeit that he visited the UK occasionally for a month at a time.  Judge Levenson held that the particular purposes for which the claimant left the UK, and the fact that his actions showed an intention to return to the UK, compelled a contrary conclusion to that reached by the first tier tribunal.

22.	The parties were in agreement that the tribunal had erred in law.  I too consider that the tribunal has erred in law.  I grant leave to appeal.  I allow the appeal.

23.	I asked for submissions on how to dispose of the case.  The parties asked me to determine the appeal myself, rather than remit it to a newly constituted tribunal.  In light of the availability of relevant evidence, which is not contested, I consider that it is appropriate to determine the appeal myself.

24.	I adopt the findings of the tribunal, namely that the applicant was born in Northern Ireland and completed primary and secondary education here.  She graduated with a degree in History from Manchester University in July 2013.  She was awarded JSA in August 2013 on return to Northern Ireland and did some voluntary work between September 2013 and January 2014.  In January 2014, she was awarded a place at the London School of Economics (LSE) and was due to register there on 30 September 2014.  On 7 February 2014 she undertook a trip to Ecuador for 6 months through the organisation Latitude Global Volunteering, and had a 180 day visa for that country.  While in Ecuador she was financially supported by her parents.  She did not open a bank account there.  Her possessions remained at her family home in Belfast.  She returned to the CTA at the end of her Ecuadorian visa with the intention of studying at the LSE.

25.	In all the circumstances, taking into account the relevant factors identified in AEKM, I consider that the applicant had not ceased to live in the CTA when she was temporarily abroad in Ecuador.

(signed):  O Stockman

Commissioner

6 December 2017