[2005] UKSSCSC CIS_3280_2003 (05 January 2005)

CIS/3280/2003
CIS/1124/2004
CIS/1840/2004

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER
  
1.  (a)	On file CIS/3280/2003 (“the Sutton case”), I allow the Secretary of State’s appeal.  I set aside the decision of the Sutton appeal tribunal dated 24 February 2003 and I substitute a decision that the claimant was habitually resident in the United Kingdom and entitled to income support from 1 September 2002.

     (b)	On file CIS/1124/2003 (“the Sheffield case”), I allow the claimant’s appeal.  I set aside the decision of the Sheffield appeal tribunal dated 12 January 2004 and I substitute a decision that the claimant was habitually resident in the United Kingdom and entitled to income support from 20 August 2003.

     (c)	On file CIS/1840/2004 (“the Northampton case”), I allow the claimant’s appeal.  I set aside the decision of the Northampton appeal tribunal dated 19 November 2003 and I substitute a decision that he claimant was habitually resident in the United Kingdom and entitled to income support from 14 January 2003.

REASONS

2.	I consider these appeals together because they are all raise questions as to the approach to be taken by tribunals to the question whether a claimant is habitually resident in the United Kingdom and as to the approach to be taken by Commissioners when appeals are brought against tribunals’ decisions on that issue.

The facts of the three appeals

3.	In the Sutton case, the claimant was aged 82 when he arrived in the United Kingdom on 1 August 2002 with his wife.  Neither he nor his wife had ever lived in the United Kingdom before.  He had been born in South Africa but had moved to what is now Zimbabwe with his parents when he was aged 4 and had lived there ever since.  However, he was a British citizen with a right of abode in the United Kingdom.  He had lost his Zimbabwean citizenship due to his refusal to give up his British citizenship.  It is not in dispute that he arrived with a view to settling permanently in the United Kingdom due to his unhappiness with the state of Zimbabwe.  He and his wife had arrived on one-way tickets.  He was allowed to export only a very small amount of money and he gave his home in Zimbabwe to his step-son who, although living in south London, was able to invest the money in Zimbabwe.  He moved into his step-son’s flat while the latter went to live with friends.  He claimed income support on 8 August 2002 and his claim was treated as effective from 5 August 2002.

4.	On 2 September 2002, the Secretary of State disallowed the claim on the ground that the claimant was not habitually resident in the United Kingdom.  On 9 September 2002, the claimant appealed.  On 13 September 2002, the Secretary of State reconsidered the decision of 2 September 2002 but refused to revise it.  He did however decide that the claimant had become habitually resident on 13 September 2002 and awarded income support with effect from 16 September 2002.  The tribunal was therefore concerned only with the question whether the claimant was entitled to income support from 5 August 2002 to 15 September 2002.  On 24 February 2003, the Sutton appeal tribunal allowed the appeal and awarded income support from 5 August 2002 on the ground that the claimant had been habitually resident in the United Kingdom from that date.  The Secretary of State now appeals against the tribunal’s decision with my leave.

5.	In the Sheffield case, the claimant arrived in the United Kingdom on 15 June 2003 with her two children  She was then aged 33.  Originally, she had come from Somalia but she had lived in Holland for ten years and had acquired Dutch nationality.  Her children had been born in Holland and she had left her husband, from whom she was separated, there.  Indeed, she explained that she had come to the United Kingdom in order to get away from him because he was harassing her.  She wished to remain in the United Kingdom permanently.  She had a brother in Milton Keynes but she went to stay with a cousin in Sheffield.  Her other close relatives were in Somalia.  When she first came to the United Kingdom, she supported herself from a small amount of capital she had brought with her and from part-time cleaning work for a Somali community organisation.  She did not then speak English.  On 20 August 2003, she claimed income support.  On 17 September 2003, the Secretary of State disallowed her claim on the ground that she was not habitually resident in the United Kingdom.  On 25 September 2003, the claimant appealed and on 29 October 2003 the Secretary of State reconsidered, but refused to revise, the decision.  On 12 January 2004, the tribunal dismissed the claimant’s appeal.  The claimant now appeals against the tribunal’s decision with my leave.

6.	In the Northampton case, the claimant arrived in the United Kingdom on 14 November 2002.  She was a widow aged 62 who had been born in what is now Malawi and was a British citizen.  She had previously lived in the United Kingdom from 1976 to 1984 and from 1989 to 1997.  Between those periods she had lived in the United States of America and she had gone back to the United States in 1997 because her husband’s health was poor and the climate there was better.  She lived there with one of her sons.  Her husband died on 11 May 1998.  While living in the United States she had frequently visited the United Kingdom, where her younger son, her daughter, her sister and various grandchildren, nephews and nieces were, and also India, where she had other relatives and to where she took her husband’s ashes.  She eventually decided to return to the United Kingdom in 2002 with a view to settling here permanently.  That appears to have been prompted by a request from her elder son that she leave his house.  Upon her arrival in the United Kingdom, she went to live with her daughter and son-in-law.  Later, she moved to live with her son.  She claimed income support on 25 November 2002, the claim being treated as having been made on 19 November 2002.  On 2 December 2002, the Secretary of State disallowed the claim.  On 20 December 2002, she asked for the decision to be reconsidered but on 23 January 2003, the Secretary of State declined either to revise or supersede the decision.  On 4 April 2003, the claimant appealed and the appeal was accepted despite its lateness.  On 19 November 2003, the tribunal dismissed the appeal.  The claimant now appeals against the tribunal’s decision with my leave.  On 26 February 2004 she claimed pension credit, which has now replaced income support for those over pensionable age, and that was awarded from 7 October 2003.

The legislation and the primary issue in these appeals

7.	The effect of regulation 21(1) of, and paragraph 17 of Schedule 7 to, the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967, as much amended) is that the “applicable amount” of a claimant who is a “person from abroad” is “nil” and that the claimant therefore receives no income support.  At the time material to these appeals, regulation 21(3) and (3F) provided –

“(3)  Subject to paragraph (3F), in Schedule 7 –
  …;
  “person from abroad” means a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is –
(a)	a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 63/360/EEC or No. 73/148/EEC; or
(b)	a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967; or
(c)	a person who has been granted exceptional leave to enter the United Kingdom by an immigration officer within the meaning of the Immigration Act 1971, or to remain in the United Kingdom by the Secretary of State; or
(d)	a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom;
  …

(3F)	In paragraph (3) “person from abroad” does not include any person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.”

8.	Although it was argued before the tribunal in the Sheffield case that the claimant was a “worker” for the purposes of Council Regulation (EEC) 1612/68 and therefore fell within the scope of regulation 21(3)(a) and so could not be treated as not habitually resident in the United Kingdom, the tribunal, having been referred to R(IS) 3/97 and R(IS) 12/98, rejected that submission on the ground that the claimant’s 3½  hours a week work for the community organisation was “purely marginal and ancillary”.  That conclusion is not challenged on this appeal.  Therefore, there is now no suggestion in any of these cases that the claimant fell within any of subparagraphs (a) to (d) of regulation 21(3) and the question is simply whether any of the tribunals erred in its decision as to whether the relevant claimant was habitually resident in the United Kingdom at the material time.

9.	In Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937 (also reported as R(IS) 2/00), the House of Lords held that, in this statutory context, “a person is not habitually resident in any country unless he has taken up residence and lived there for a period”.  It was accepted that, in a case where a person abandons residence in one country upon taking up residence in another, a period of time may elapse between him ceasing to be resident in the first country and becoming habitually resident in the second.  The principal question that arises in each of these cases is how long that period must be.

Case law on the required period of residence

10.	In In re J (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562, Lord Brandon used the expression “an appreciable period of time”.  Having been referred to that case, Mr Commissioner Howell QC made some suggestions in R(IS) 6/96 as to what might amount to an appreciable period of time.

“28.	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 whichever 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 of 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 in this country.”

11.	In Nessa, the House of Lords took a very similar approach.  Lord Slynn of Hadley, with whom the other members of the House agreed, said –

“[A person who has never been to the United Kingdon before] must show residence in fact for a period which shows that the residence has become ‘habitual’ and, as I see it, will or is likely to continue to be habitual.

I do not consider that when he spoke of residence for an appreciable period, Lord Brandon meant more than this.  It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established.  Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, ‘durable ties’ with the country of residence or intended residence, and many other factors have to be taken into account.

The requisite period is not a fixed period.  It may be longer where there are doubts.  It may be short (as the House accepted in In re S (A Minor) (Custody: Habitual Residence) [1998] AC 750, my speech at p. 763A, and Re F (A Minor) (Child Abduction) [1994] F.L.R. 548, 555, where Butler-Sloss LJ said: ‘A month can be … an appreciable period of time.’)

There may indeed be special cases where the person concerned is not coming here for the first time, but is resuming an habitual residence previously had (Lewis v. Lewis [1956] 1 W.L.R. 200; Swaddling v. Adjudication Officer (case C-90/97) [1999] E.C.R. I-1075 [also reported as R(IS) 6/99].  On such facts the Adjudication Officer may or of course may not be satisfied that the previous habitual residence has been resumed.  This position is quite different from that of someone coming to the United Kingdom for the first time.”

12.	The principal respect in which the approach in Nessa is different from that in R(IS) 6/96 is that the House of Lords indicated that a shorter minimum period of residence might suffice to establish habitual residence where a person was not simply resuming an earlier habitual residence.  The Secretary of State argues that one month should now be regarded as the minimum and, in the Sutton case, cites CIS/4389/1999, where Mr Commissioner Angus, having considered Nessa, dismissed an appeal by the claimant against a decision of a tribunal holding that habitual residence had not been established after 22 days but would have been established after two months.  In that case, the claimant was a British citizen who had left Sudan because of the political situation there and who had family in Egypt, where she herself was not entitled to reside, Rumania and England.  The Commissioner said:

“I agree that broadly the purpose of the exclusion is to prevent people who have no immediate past residence in this country from claiming benefit as soon as they arrive in this country and whether or not they have any intention of making a home in this country.

My view is that, given the purpose of the benefit restrictions on new arrivals, the less the claimant’s ability to leave this country to take up residence elsewhere the shorter is the period of residence here which can be regarded as habitual residence.  However, it must be a period which is more than momentary in the claimant’s life history and I think that cannot be less than a month.  Anything less would largely defeat the purpose of regulation 21.”

13.	At the other end of the spectrum, the Secretary of State refers to CIS/4474/2003, where Mr Commissioner Jacobs considered the periods of residence suggested in R(IS) 6/96 and said –

“18.	…  The Secretary of State submits that the period of residence that [Mr Commissioner Howell] suggested was long by the standards of what Commissioners now accept when giving their own decisions on habitual residence. He submits when Commissioners give their own decisions on habitual residence, most accept a period of between one and three months as appreciable. That is my impression, although I see fewer of my colleagues’ decisions than does the Adjudication and Constitutional Issues Branch, where the representative is based. 

19.	What is an appreciable period depends on the circumstances of the particular case. But I agree with the Secretary of State that in the general run of cases the period will lie between one and three months. I would certainly require cogent reasons from a tribunal to support a decision that a significantly longer period was required. 

20.	I suspect that the cases in which a tribunal might find that a long period of residence was required would, on examination, better be analysed as cases in which the tribunal was not satisfied that the claimant had a settled intention to remain for the time being.” 

14.	The Commissioner also commented that the issue of viability mentioned in R(IS) 6/96 had not appeared in subsequent decisions and that placing too much weight on it was liable to result on those most needing benefit being least likely to qualify.  He suggested –

“17.	Perhaps the best way of taking viability into account is as an evidential aspect of proof of intention.  If the claimant has no apparent means of financial support, that is relevant to whether the person really had an intention to settle here.  But its significance must be assessed in the context of the whole of the evidence on intention.”

I respectfully agree.  That is particularly relevant in the present case where two of the claimants were over pensionable age.  However, I am not sure that that approach is very different from Mr Commissioner Howell’s because the latter seems to have been using the word “viable” in the sense of “realistic” or “genuine” without particular reference to financial viability, although that would be an element in considering whether a search for work was genuine.

The approach to be taken

15.	What emerges from both Nessa and R(IS) 6/96 is that a likelihood of remaining habitually resident is a requirement for the establishment of habitual residence in addition to a requirement for there already to have been a period of residence but that the strength of the likelihood of remaining is itself relevant when considering the length of the required period of residence.  The strength of the likelihood of remaining habitually resident in the United Kingdom may be demonstrated by, among other considerations, the reasons for choosing to come to the United Kingdom rather to stay in, or go to, any other country.  In my view, it is relevant that, in the extreme cases where regulation 21(3)(d) or regulation 21(3F) of the 1987 Regulations applies, a claimant may become entitled to payments of income support without becoming habitually resident at all.  It is logical that, in a case that is not quite so extreme but in which the claimant has clear ties to the United Kingdom and it is very unlikely that he will return to the country from where he has arrived, he should become entitled to benefit after quite a short period of residence.

16.	I am content to accept that, where a claimant is likely to remain in the United Kingdom permanently or for a substantial period of time, the conventional period that must have elapsed between his arrival and his establishing habitual residence is between one month and three months.  However, those are not rigid limits.  In an exceptional case, a person with a right of abode in the United Kingdom who, although not falling within the scope of regulation 21(3)(d), has been forced to flee another country and is nonetheless able to show a settled intention to remain in the United Kingdom might be accepted as habitually resident after less than a month of residence.  Perhaps less exceptionally, a person with no ties to the United Kingdom and making no effort to become established here despite a vague intention to remain might be found not to be habitually resident in the United Kingdom until considerably longer than three months had elapsed.

The powers of a tribunal

17.	One general issue that potentially arises in all these cases, but most acutely in the Northampton case, is whether a tribunal is entitled to award benefit on the basis that habitual residence was established on a date after the date of the Secretary of State’s decision.  This question arises because section 8(2) of the Social Security Act 1998 provides –

“ (2)	Where at any time a claim for a relevant benefit is decided by the Secretary of State – 
   (a)	the claim shall not be regarded as subsisting after that time; and
   (b)	accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.

Consistently with that, section 12(8)(b) provides –

“(8)	In deciding an appeal under this section, an appeal tribunal – 
   (a)	…; and
   (b)	shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

18.	In CDLA/2751/2003, a Tribunal of Commissioners sought to reconcile with those provisions regulation 13C of the Social Security (Claims and Payments) Regulations 1987 (S.I. 1987 No. 1968, as amended), which enables renewal claims for disability living allowance to be made in advance.  Regulation 13 similarly enables claims for income support to be made in advance.  Paragraphs (1) and (2) provide –

“(1)	Where, although a person does not satisfy the requirements for entitlement to a benefit on the date on which the claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day (‘he relevant day’) not more than 3 months after the date on which the claim is made, then the Secretary of State may –
  (a)	treat the claim as if made for a period beginning with the relevant day; and
  (b)	award benefit accordingly, subject to the condition that the person satisfies the requirements for entitlement when benefit becomes payable under the award.

(2)	A decision pursuant to paragraph (1)(b) to award benefit may be revised under section 9 of the Social Security Act 1998 if the requirements for entitlement are found not to have been satisfied on the relevant day.”

19.	Regulation 13A(1) and (3) is in similar terms and permits advance awards on initial claims for disability living allowance.  The Tribunal of Commissioners observed at paragraph 20 of the decision that the language of regulation 13A suggested that the mere effluxion of time could not itself be a change of circumstances for the purposes of that regulation or of regulation 13C.  That is the only reason that the regulations are consistent with sections 8(2)(b) and 12(8)(b) of the 1998 Act.  Regulation 13 must be construed in the same way.

20.	In the Northampton case, the Secretary of State has argued that regulation 13 has no application because being habitually resident in the United Kingdom is not a condition of entitlement to benefit.  He submits that the claimant satisfied the conditions of entitlement to benefit and the only effect of her not being habitually resident was that she was treated as a person from abroad and so had an applicable amount of nil.  Section 124(1)(b), (4) and (5) of the Social Security Contributions and Benefits Act 1992 provides –

“(1)	A person in Great Britain is entitled to income support if –
	  …
    (b)	he has no income or his income does not exceed his applicable amount;
	  …”

(4)	Subject to subsection (5) below, where a person is entitled to income support, then –
  (a)	if he has no income, the amount shall be the applicable amount; and
  (b)	if he has income, the amount shall be the difference between his income and the applicable amount.

(5)	Where a person is entitled to income support for a period to which this subsection applies, the amount payable for that period to which this subsection applies, the amount payable for that period shall be calculated in such manner as may be prescribed.”

21.	Subsection (5) applies only to incomplete weeks but I set it out because the Secretary of State presumably relies on the distinction between the basic entitlement guaranteed by subsection (1) and the amount which, it can be argued in the light of the language of subsection (5), is a matter of what is payable rather than of entitlement.  The distinction between entitlement and payability is regarded as significant in some areas of social security law where a person is considered to have an underlying entitlement to benefit even though no amount is currently payable, but the distinction is otherwise artificial because it is perfectly sensible to talk of an entitlement to payment and, in the absence of subsection (5), no-one would hesitate to regard the amount mentioned in subsection (4) as the amount of benefit to which a person was entitled under subsection (1).

22.	Where the amount of benefit to which a person is entitled is nil, it is natural to regard him as not being entitled to benefit at all.  The Secretary of State’s construction of the words “requirements for entitlement” in regulation 13 creates anomalies.  A person from abroad with no income would be regarded as entitled to income support because he satisfied the condition of section 124(1)(b), albeit that the amount payable was nil but such a person with, say, £1 pw income, would not be entitled to income support because his income would exceed his applicable amount and so the condition of section 124(1)(b) would not be satisfied.  In the context of regulation 13 of the Claims and Payments Regulations, that distinction makes no sense at all.  I therefore incline to the view that section 13 should be construed so as to apply where a claimant’s applicable amount is nil.  The effect would be that the Secretary of State would be entitled, but not obliged, to make an advance award of income support where all the conditions of entitlement were satisfied and were likely to continue to be satisfied save that the claimant had not yet resided in the United Kingdom long enough to establish habitual residence.  The award could be made effective from the date when habitual residence could be expected to be established.  More importantly, even if the Secretary of State had not exercised the power to make an advance award, a tribunal on appeal would be in a position to make an award from any date after the Secretary of State’s decision provided it was within three months of the date of claim, rather than adopting the traditional “all or nothing” approach.  (It is to be noted that a decision under regulation 13 to treat a claim as made other than on the actual date of claim is not made unappealable under Schedule 2 to the 1999 Regulations.)

23.	However, upon further consideration, it appears to be unnecessary in the present cases to take a firm view on the merits of the Secretary of State’s construction of regulation 13.  The alternative construction would itself create anomalies between those with no entitlement to benefit and those with a small entitlement which was due to increase in the future.  However, regulation 6(2)(a)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 permits the supersession of a decision where “it is anticipated that a relevant change of circumstances will occur”.  That regulation is made under section 10 of the 1998 Act, which permits the supersession of decisions made under section 8 and which, whether intentionally or not, includes no provision equivalent to section 8(2)(b).  There seems no reason why, in the context of regulation 6(2)(a)(ii), the effluxion of time should not be a change of circumstances.  Thus, if the Secretary of State’s approach is correct and he should award income support at a nil rate when finding a claimant with no income not to be habitually resident, he can immediately supersede that award so as to award benefit at a higher rate from the date when the claimant can be expected to have established habitual residence.  If he does not do so, he can be taken to have refused to supersede the award.  Any appeal can be taken to be both against the decision on the initial claim and against the refusal to supersede.  Notwithstanding the lack of any equivalent to section 8(2)(b) in section 10, the tribunal would still be bound by section 12(8)(b) on the appeal against the refusal to supersede.  However, the question whether the Secretary of State should at the date of his decision anticipated a change of circumstances due to the simple effluxion of time is similar to the question whether continued satisfaction of conditions of entitlement to disability living allowance is “likely” at the date of a decision by the Secretary of State and so the approach taken in R(DLA) 3/01, with which the Tribunal of Commissioners in CDLA/2751/2003 expressly did not disagree, is appropriate.  If the tribunal is satisfied that, at the date of his decision, the Secretary of State could have made an advance award, it has power to make that award and is not limited to any period of three months.  Thus, by a different route, one reaches similar, but not identical, conclusions, whether or not the Secretary of State is correct in submitting that regulation 13 of the Claims and Payments Regulations has no application.

24.	It is therefore unnecessary for me to decide whether or not the Secretary of State’s construction of regulation 13 is correct.  I note, however, that the Secretary of State’s assertion that the claimant had an underlying entitlement to income support in the Northampton case is wholly inconsistent with his assertion that she “did not have a valid claim between 2 December 2002 and 7 October 2003”.  I suspect that both the Secretary of State and claimants would find it much easier to work on the basis that, for most purposes, a person whose applicable amount is nil is not entitled to income support, which is the approach that best reflects the reality.

25.	In any event, in a case where a claimant shows an intention to take up prolonged residence in the United Kingdom and the only reason for not awarding an amount of income support greater than nil is that the claimant has not yet resided in the United Kingdom for a long enough period, the Secretary of State is, on any view, entitled to make an advance award from the date on which habitual residence is likely to be established and, if he does not do so, a tribunal may make an award from that date, subject only to the three month limit imposed by regulation 13 if regulation 13 applies.

26.	This has some implications for the way that the Secretary of State deals with cases while an appeal is pending.  There is a marked contrast between the way the Sutton and Northampton cases were handled.  In the Sutton case, the claimant’s appeal prompted a reconsideration of the claimant’s case and an award of benefit from 13 September 2002, although it is not revealed whether that decision was made in terms of revision (bearing in mind that regulations 3(4A) and 5 of the 1999 Regulations would permit revision of a refusal to make an advance award (either on a claim or on supervision) from the date from which the Secretary of State should have found that habitual residence would be established) or of supervision of an award at a nil rate or on the basis that the appeal could be treated as a fresh claim.  In the Northampton case, there is no evidence that the Secretary of State ever addressed his mind to the question whether habitual residence had become established since the original refusal of benefit and, on the basis that he considered that either an application for supersession or a new claim would have been required, the failure to prompt the claimant to make such an application or claim seems to me to border on maladministration when the submission to the tribunal was made at least five months later and it must have been obvious to the writer of the submission that habitual residence might have been established by then.  If, as I consider should be the case, any appeal is taken to include an appeal against a decision to refuse to make an advance award, a further application or claim is not required while the appeal is pending unless there has been a change of circumstances or, if regulation 13 applies, three months has elapsed since the date of claim.  The Secretary of State has adequate powers, under regulations 3(4A) and 5 of the 1999 Regulations, to revise the decision at any time while an appeal is pending.  The Secretary of State’s submission to the tribunal should address the question whether the tribunal should make an award from a date subsequent to the decision under appeal and will therefore, in effect, contain an explanation for the decision not having been revised to the satisfaction of the claimant.

The powers of a Commissioner

27.	Despite the fact that the limits of the conventional period of between one and three months are not rigid, the fact that there is a conventional period at all has some practical significance on an appeal to a Commissioner.  A Commissioner is likely to be far slower to interfere with a decision of a tribunal which has found habitual residence to be established from a date within the conventional period or not established before the end of that period than with a decision finding that habitual residence has been established after residence of less than a month or has not been established after more than three months.  An appeal to a Commissioner lies only on a point of law.  As was stressed in Nessa, the determination of the period that must have elapsed before a person coming to the United Kingdom involves an element of judgment and it follows that different tribunals may reach slightly different decisions (see Moyna v. Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 W.L.R. 1929 (also reported as R(DLA) 7/03)).  The fact that the Commissioner declined to hold the tribunal to have erred in CIS/4389/1999 because it had decided that the claimant had not established habitual residence after 22 days does not mean that he would necessarily have allowed an appeal by the Secretary of State had the tribunal decided that habitual residence had been established then rather than after a month.  An appellant must satisfy a Commissioner that there is some flaw in the tribunal’s reasoning or some other defect in its decision.  That may not be easy if the tribunal has apparently had regard to the relevant issues and has reached a decision consistent with habitual residence having been established within the conventional period or not substantially outside it.  However. as Mr Commissioner Jacobs suggested in CIS/4474/2003, it may be easier to show an error if the decision is inconsistent with habitual residence having been established within the conventional period and the tribunal’s reasoning does not clearly disclose why such an decision has been made.

Applying the principles to the Sutton case

28.	In this case, the tribunal found the claimant to have been habitually resident from the fifth day of his first ever period of residence in the United Kingdom.  That was well outside the conventional period and accordingly I have looked particularly carefully at the tribunal’s reasoning.  The tribunal directed itself to consider the claimant’s intention, the length of his stay in the United Kingdom from arrival to application for benefit and all other surrounding circumstances and implicitly criticised the decision-maker for rejecting the claim on the simple ground that the period of residence was not sufficiently long.  Having considered the facts, it found that the claimant had formed the intention to reside in the United Kingdom before his arrival and then said:

“In these circumstances, the length of stay from arrival to application for benefit was indeed short and that has to be given equal consideration with the other factors under the other to headings, and the three headings cannot be looked at separately, but must be considered as a whole.

“Accordingly, having formed the intention to come to the United Kingdom and reside here permanently prior to his arrival and taking every step that is consistent with that intention, the Tribunal were satisfied that he was habitually resident in the United Kingdom from 5.8.2002.”

29.	In my judgment, the tribunal’s decision is erroneous in point of law because, notwithstanding that the tribunal was referred to Nessa, it is not clear that it regarded a present intention to remain resident and a past period of residence as being two separate requirements for habitual residence.  The implied criticism of the decision-maker and the extreme shortness of the period of residence before the date from which benefit was awarded both suggest that the tribunal did in fact misdirect itself but it is enough that the reasoning is unclear.

30.	I can substitute my own decision.  The Secretary of State concedes that this was a case for a decision at the short end of the scale.  Although the tribunal described the claimant’s position in Zimbabwe as precarious, I can see no evidence that the pressure on him to leave was such as to justify a finding that the habitual residence had been established in less than the month that Mr Commissioner Angus regarded as generally necessary if the legislation was to be given any real practical effect.  Accordingly, I find that the claimant was habitually resident in the United Kingdom from 1 September 2002 (which was in fact the day before the Secretary of State’s original decision).

Applying the principles to the Sheffield case

31.	Here, the tribunal found that the claimant had not established habitual residence either at the date of the claim on 20 August 2003, just over two months after her arrival on 15 June 2003, or at the date of the Secretary of State’s decision on 17 September 2003, which was right at the top end of the conventional period.  I am not satisfied that the conclusion was not one that the tribunal could properly have reached but I accept the claimant’s submission that the tribunal misdirected itself because it clearly regarded three months as the minimum period of residence necessary in almost all cases before habitual residence could be established.  The error is understandable because the Secretary of State’s submission relied heavily on R(IS) 6/96 and mentioned Nessa only briefly.  The effect was that the tribunal was looking at the wrong range within which to fit this case. Furthermore, the tribunal did not consider whether the claimant had become habitually resident at any date after 17 September 2003.

32.	I can substitute my own decision.  The Secretary of State concedes that it would be appropriate to find the claimant to have been habitually resident in the United Kingdom by 17 September 2003.  However, the claimant submits that I should find her to have been habitually resident by the date of her claim and indeed that she should be treated as having been habitually resident since a month after her arrival.  Both parties point out that the claimant brought £900 with which to support herself and found part-time work paying £60 pw which was intended to be permanent.  She had no relatives in Holland, except for her estranged husband, and so had good reason for choosing to come to the United Kingdom, which was the only country in Europe where she did have relatives, which in turn made it likely that she would stay.  I do not accept the claimant’s submission that the claimant was habitually resident within a month of coming to the United Kingdom but she did not claim benefit then and so nothing turns on the point.  I am prepared to accept that this is a case were habitual residence can be taken to have been established somewhat before the end of the conventional period and I am prepared to accept the submission that that point had come by the date of claim, although, as I have indicated, I do not consider a tribunal would necessarily have erred in law in making a decision slightly less favourable to the claimant.

Applying the principles to the Northampton case

33.	The claimant’s original grounds of appeal were that the tribunal erred in not finding her to have been habitually resident from the date of her claim on the ground that she was merely resuming habitual residence that she had formerly had.  Reference was made to Swaddling v. Adjudication Officer (case C-90/97) [1999] E.C.R. I-1075 (also reported as R(IS) 6/99) but, as I indicated when I granted leave, that case is to be distinguished from the present case because there the claimant had been absent from the United Kingdom because he had been trying to establish himself in another Member State of the European Union.  The Secretary of State opposes the appeal and refers again to CIS/4474/2003 in which Mr Commissioner Jacobs drew distinctions between various persons who might be returning to live in the United Kingdom after a period overseas.  First, there was the person who had remained habitually resident here while absent from the country, for instance when on holiday or a short visit to relatives.  Secondly, there was the person who had ceased to be habitually resident here but resumed habitual residence upon re-entry, for instance a person who had been posted abroad by an employer.  Thirdly, there was a person who had ceased to be habitually resident in the United Kingdom and had not resumed habitual residence on re-entry.  Mr Commissioner Jacobs gave the example of a person who had emigrated and had returned only temporarily.  However, it seems to me that the same applies to a person who has emigrated but then decides to return permanently.  The distinctions between the categories are ones of degree.  The difference between the second and third categories turns very much on the temporary nature of the absence abroad.  Here, the tribunal found the absence in the United States from 1997 was intended to be permanent but, even if it was not, it was of a duration that was both prolonged and, until the end, indefinite.  In those circumstances, the claimant did not again become habitually resident in the United Kingdom until some period had passed.  The tribunal was perfectly entitled to take the view that that had not occurred by the date of the Secretary of State’s decision, which was a mere eighteen days after the claimant’s arrival in the United Kingdom.

34.	However, the tribunal accepted that the claimant had had, at the date of the Secretary of State’s decision, a firm intention of remaining in the United Kingdom.  In those circumstances, it erred in not considering whether the Secretary of State could have made an advance award.  I can make good that defect.  The Secretary of State has not complied with my direction to suggest what a sufficient period of residence would have been in this case.  That is consistent with his submission that the tribunal had no power to consider entitlement after the date of the decision under appeal but he could have made a suggestion without prejudice to his principle submission.  This is a case where the claimant had strong ties with the United Kingdom.  She was a British citizen, had previously lived in the United Kingdom for substantial periods and had most of her closest relatives here.  I am satisfied that she had become habitually resident here after two months and that she is entitled to income support from 14 January 2003.

	(signed on the original)	MARK ROWLAND
		Commissioner
		5 January 2005