JMH/SH/CW/4
Commissioner’s File:	CIS/12703/1996

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The appeal is dismissed. 

2.	This is an appeal with the leave of the chairman from the decision of a SSAT dated 6.7.95.  The claimant, a Bangladeshi National, has the right of abode in the UK.  She came to the UK on 28.2.95 and, on 5.4.95, made a claim for income support.  It is clear that unless she can show at any time down to the hearing in front of the tribunal that she was “habitually resident” in the UK, her applicable amount is, under regulation 21 of, and Schedule 7 to, the General Regulations, nil.

3.	The claimant is married with two children.  Her husband does not have the right of abode in the UK and remains with the children in Bangladesh.  He is unemployed but works unpaid for his family with whom he and the children live.  The claimant stated in her grounds of appeal (T3),

“Hopefully in the near future they [i.e. the husband and children] will obtain [the] right to enter this country.”

4.	The claimant lives here with her mother, three sisters and a brother all of whom are unemployed.  One sister travelled with the claimant and entered the UK on the same day.  That sister made a claim for income support which was successful.  The claimant’s original claim, and repeat claim made on 18.4.95, have been unsuccessful.

5.	From the decision of the AO not to award benefit, the claimant appealed to the appeal tribunal.  The claimant did not speak English - I do not know whether she does now - and was represented by a friend of the family at the hearing.  An interpreter was present.  In front of the tribunal the representative said:-

“The claimant lived in Bangladesh until coming to the United Kingdom.  Her father was a British subject and lived in the United Kingdom for many years.  The claimant came to the United Kingdom to seek a better job opportunity and a better life.  She has not yet found a job but she is going to a Textile Training Centre next week.  She intends to stay here indefinitely.  She says she will stay here even if her husband and children are not allowed to come.  She will visit her husband if she can afford it.  Her husband agrees to this as he has no alternative.”

and later:- 

“The claimant is learning English.  She lives with her other, 3 sisters and a brother, none of whom is employed.  She will not stay if she does not obtain benefit as her mother, sisters and brother cannot support her for long on their benefit. ...”

The tribunal dismissed the claimant’s appeal.  There was later an application to set aside that decision, an application which was correctly refused on 28.10.95.

6.	The AO supports the appeal on two narrow grounds:-

	(i)	The tribunal only dealt with the question whether the claimant was actually resident in the UK, and not whether she could be treated as resident.  Since she was not an EEC National, she cannot be treated as habitually resident.  That was the AO’s submission to the tribunal and no point was taken on it at the tribunal.  In these circumstances this submission of the AO seems to me to be groundless.  

	(ii)	In the light of the Commissioner’s decision in CIS/2326/95 by placing the emphasis on the question whether the claimant’s intention was dependent on benefit entitlement and they erred in law.  For reasons which will appear I think that there is a difference between viability of residence and settled intention of residence and in CIS/2326/95 the Commissioner acknowledged that viability was in any event one, though only one, factor in judging whether a person was habitually resident.

7.	The claimant’s submissions are to be found at pages 172/3.  Basically, her solicitors stated that the tribunal got the law wrong, but they also stated:-

	“	6.	The claimant arrived in the country on 28.3.95 with a right of abode.  She had come to the UK on a permanent basis to be near her mother, brothers and sisters.  She had made attempts in the wider community to gain employment and to improve her communications skills all indications as to her intention to settle in the UK.  The claimant remained in the UK until December 1995 at which time she returned to Bangladesh to attend to her eldest son who had become seriously ill.  The claimant has not yet returned to the UK and has no intentions of doing so until she is in a position to bring both her sons into the UK with her.”

That, if I may say so, is a very natural emotion but whatever else may be the case, it would appear to me that if at any time before the claimant left the UK in December 1995 she had attained habitual residence status, the circumstances of her leaving in December and her stated intention of not returning until she was in a position to bring both her sons to the UK with her had the consequence of her losing such status. 

8.	Before turning to the law, I should consider two points made by the claimant’s solicitors.

	(1)	In para 14 of submissions made by the AO to me, which deals with the failure of the tribunal to deal with the possibility of treating the claimant as habitually resident the tribunal erred in law but that that error did not materially affect the decision.  It is submitted on behalf of the claimant that that error did materially affect the decision.  I cannot see how the omission to deal with the point can in these circumstances be termed otherwise than immaterial.  

	(2)	In para 9 the representative refers to the claimant’s sister whose circumstances are apparently identical to those of the sister,  I do not know the precise circumstances of the claimant, nor is it relevant that I should.  For that decision was taken at the Benefits Agency level, and might well have been wrong, for all I know, but the fact that the sister was awarded benefit is, so far as I am concerned, irrelevant. 

9.	I now turn to the law.  “Habitually resident” is not the same as “ordinarily resident”.  In para 22 of Di Paolo v. Office National de L’Emploi 1977 ECJ 315 at para 22 the court stated that account should be taken “of the length and continuity of residence before the person concerned moved, the length and purpose of his absence, the nature of the occupation found in the other Member State and the intention of the person concerned as it appears from all the circumstances.”.

The term was also considered - and in my view is best considered - by Lord Brandon in Re J 1990 2/AC 562 at pps 578/9 thus:-

“It follows, I think, that the expression [habitually resident] is not to be treated as a term of art with some special meaning, but as rather to be understood according to the ordinary natural meaning of the 2 words which it contained.  The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case.  The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B.  A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long‑term residence in country B instead.  Such a person cannot, however, become habitually resident in country B in a single day.  An appreciable period of time and a 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 country A but not yet have become habitually resident in country B.”

10.	It seems to me that what the tribunal were saying was that an intention to settle here which is solely dependent and is conditional upon payment of benefit went to intention.  In those circumstances, it cannot be said that the claimant had a settled intention to stay come what may, but a conditional one if and only if she were awarded benefit.  Viability is different.  A person’s residence may not be viable without assistance, but nevertheless a person may maintain a settled intention to stay here in the meanwhile, and reside here supported by means other than income support.  The distinction is fine but, in any event, the tribunal said that they had considered the elements I have referred to above in Di Paolo.  If and in so far as they did not provide adequate reasons, I think that decision is amply justifiable having regard to the fact that the claimant’s husband and children, to be presumed to be her centre of interest, remained resident in Bangladesh.  Further, with the benefit of hindsight, the claimant naturally returned immediately to Bangladesh when her elder son became seriously ill in order to look after him.  

11.	If and so far as is necessary in pursuance of the powers in section 23(7) Administration Act 1992 I make such findings of fact as are necessary to support this decision.

					(Signed)	J M Henty
							Commissioner

					(Date)	16 April 1997