PLH                                                       Commissioner's File Nos:  CIS 376/02 & 739/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Income Support
Appeal Tribunal:	Birmingham 
Tribunal case ref:	U/04/024/2001/05296 & 05297
Tribunal date:	17 October 2001
Reasons issued:	20 November 2001

1.	The two decisions given by the Birmingham appeal tribunal sitting on 
17 October 2001, on the habitual residence issues arising out of two claims made by this claimant for income support on 21 February and 20 April 2001 following his arrival in this country with his 12 year old daughter on 18 February 2001, were in my judgment erroneous in point of law, and I accordingly set them aside.  
2.	As conceded in the helpful written submission of Mr K McClure on behalf of the Secretary of State dated 3 May 2002, the tribunal despite referring expressly to the leading authority in this area which is the decision of the House of Lords in Nessa v CAO [1999] 1 WLR 1937, appear to have misdirected themselves about the effect of that decision in considering the two issues that arise on facts such as those of this case.  Those are whether the claimant has established residence in this country with a sufficiently settled intention of making it his home, and whether that residence has lasted for an appreciable period of time so as to qualify as habitual.  
3.	In the present case, Mr McClure’s submission is in my judgment clearly right in saying that in view of this particular claimant’s past history of established residence in this country (of which there was clear evidence before the tribunal, even if the exact details of his movements over the years were understandably less than fully documented) the tribunal were wrong in law in failing to consider the relevance and effect of his previous habitual residence in the United Kingdom in the context of Nessa. It is established by that case that the way the factual questions about habitual residence have to be answered are materially affected by whether a person who has lived in the United Kingdom before “is resuming an habitual residence previously had”.  
4.	In addition, the tribunal appear to me to have confused themselves by recording as they did in their statement of reasons sent to the parties on 20 November 2001 that there were three factors which led them to conclude that the periods of one month and three months from the claimant’s last date of arrival in the United Kingdom (which were the periods in issue) were not “appreciable” for the purposes of the second question, but then referring to three matters about his family and living arrangements which were really only relevant to the first question, about whether he was living here with a settled intention to make a home.  
5.	For those reasons, I accept that the tribunal’s two decisions rejecting the claimant’s appeals against the departmental decisions refusing him the normal income support to which he would otherwise have been entitled were based on errors in law and have to be set aside.
6.	That raises the question of what should now be done with the case, and again I consider it right to accept the suggestion in the written submissions on behalf of the Secretary of State that given the time that has already passed since the date of the claims at issue in this case, it would be preferable for me to substitute my own decision.  That requires me to redetermine the single issue of mixed fact and law involved in both appeals to the tribunal, making my own supplementary findings of fact so far as necessary on the material now before me. The substance of this appears from the chairman’s note of the proceedings on 17 October 2001 at page 50-57 of file CIS 739/02 to have actually been before the tribunal at that time, but is helpfully analysed in the statement annexed to the observations in reply on behalf of the claimant dated 
29 May 2002 giving details of the claimant’s pattern of residence in the UK and Bangladesh since 1962.  
7.	The material facts so far as necessary to record them for the purposes of this decision are that the claimant, who was born in Bangladesh and is now aged 65, originally came to the United Kingdom on 25 June 1962 at the age of 25 in order to work.  Substantially the whole of his working life has in fact been spent in this country; although of course, as with many other people who have devoted their work and skill to making a living here, the claimant retained substantial family ties in his original home country.  Also following a not infrequent pattern he has made numerous trips back to Bangladesh, particularly in his later years, for extended periods.  
8.	From soon after his arrival in 1962 until 1980 the claimant worked for a single employer in the West Midlands, John Bagnall & Sons Ltd, which (again following a pattern that is unhappily all too familiar) went out of business and was closed down.  He then managed to get another job at a restaurant in Bristol where he remained from 1981 to 1987, taking naturalised British citizenship on 19 May 1987.  However because of a physical attack he had suffered by thugs the previous year which caused a breakdown in his health he was unable to continue in full-time employment after that, and the periodic visits he had been in the habit of making back to Bangladesh became more frequent and prolonged.  
9.	According to the analysis supplied, the periods he had actually spent in the United Kingdom in the last five years before his re-entry with his daughter on 18 February 2001 were comparatively small, consisting of a spell of something under six months here in 1995, and visits of two months between November 1996 and January 1997, and just under three months from Christmas 1998 to March 1999, respectively.  It seems to me the tribunal were quite right in proceeding on the basis that (a) the claimant had previously established habitual residence in the United Kingdom over the many years when he had still been working and living here regularly; but (b) that previous habitual residence had not been retained over the five years down to his last entry on 18 February 2001, because of the alteration in the pattern of visits and his extended periods of what can only have been residence back in Bangladesh during that period.  
10.	As the Secretary of State’s submission correctly points out, that does not however mean that the previous established habitual residence in the UK should be ignored for the purpose of determining how soon such residence could be said to have been resumed after his latest re-entry.  A person with an established pattern of living in this country such as that is not of course to be viewed in the same light as a person coming here and claiming residence and benefits here for the first time: though the requirements of an appreciable period of actual residence and a settled intention to make a home here are, as held by the House of Lords, both necessary ingredients even for re-establishing a “resumed” habitual residence after a gap.
11.	On the evidence before the tribunal and before me, I see no reason to doubt the truth of the claimant’s contentions that he now has a sufficient settled intention of remaining here and making a home for himself and his family. His 12-year-old daughter accompanied him and at the date of the second decision and appeal to the tribunal he was already trying to get her into a school here, and he is trying to get permission for his second wife and younger daughter aged 3 to enter the country and live here with him in due course.  His current living arrangements at the date of the decisions under appeal were that he was living with his sister-in-law, and although her house is not really adequate for even him and his daughter to live in long term, and he was hoping to move out into more suitable accommodation, there is in my judgment nothing about that arrangement inconsistent with habitual residence in this country.  Nor, on the facts of this case, do the claimant’s admitted continuing family ties in Bangladesh and the fact that his wife and younger daughter are still living there until they can get entry into the United Kingdom, inconsistent with his re-establishing habitual residence here for himself in the meantime.  
12.	Everything therefore depends on what counts as an “appreciable period” of resumed residence in this context, so that his residence in the United Kingdom can be said to have become established as habitual after 18 February 2001.  As has been said many times in the cases where judges from the House of Lords down to more humble levels have had to struggle with the meaning of this expression, this is ultimately a question of fact and degree, depending on the individual circumstances of each case, and there are no hard and fast rules to apply.  For a returning citizen of this country coming back to live here again after a period of residence overseas (as this claimant is), the period may be fairly short: as little as a month or so. But it is not zero or minimal, since even a returning expatriate may change his plans again, and there is therefore at least some space of time after actual arrival when one simply has to wait and see.  
13.	Doing the best I can on the facts of this case, it seems to me that the claim to have already re-established habitual residence by the time of the first application for income support which the claimant made on 21 February 2001, that is just three days after his re-entry with his daughter, was clearly premature.  Moreover given his previous pattern of absences over the last five years and the fact that he was still only just beginning to make arrangements to set up a home and a life for himself and his family again here, it also could not be said that habitual residence had been re-established on the date of the decision made on 27 March 2001 refusing income support on that claim.  Accordingly although it was given for the wrong reasons, I confirm the substance of the tribunal’s decision to reject the appeal against the refusal of that first claim.  
14.	However it seems to me that it may fairly be said that by the date of his second claim, which was made on 20 April 2001, when the claimant had confirmed his intention to resume residence and live in this country permanently and had started making arrangements such as registering with a doctor and applying for his daughter to go to a suitable school, he had re-established his residence in this country sufficiently for the purposes of the habitual residence test.  Accordingly the decision I substitute for that of the tribunal on his second appeal relating to the claim he made on 20 April 2001 is that from and after that date he had re-established his status as an habitual resident of this country, and was accordingly entitled to income support on that claim in the normal way.
15.	The appeals are therefore allowed against both tribunal decisions of 17 October 2001, but the decisions I substitute are (1) to confirm the practical effect of the first, but (2) reverse that of the second; so that the claimant is to be accepted as once again habitually resident in the United Kingdom from 20 April 2001 onwards.

(Signed)
P L Howell
Commissioner
12 July 2002