[2007] UKSSCSC CIS_1138_2006 (18 December 2007)

CIS/1138/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Stockport appeal tribunal dated 19 January 2006.

REASONS

2.	It is clear that the claimant made two claims for income support, one on 29 April 2004 (see docs D2 and D3) and one on 24 June 2004.  They were both refused, in separate decisions given on 30 April 2004 and 12 July 2004, on the ground that the claimant was not habitually resident in the United Kingdom.  It appears that the claimant appealed against both decisions.  Her first appeal was struck out and then reinstated (see docs D2 and F1).  It was supposed to be linked with the second appeal but that appears not to have happened and the tribunal hearing the appeal against the second appeal appears not to have believed that the first claim had ever been made.  What has happened to that first appeal I do not know.  Anyway, that tribunal dismissed the appeal against the second decision on the ground that the claimant had no right of residence in the United Kingdom and, in any event, was not actually habitually resident here by 12 July 2004 and it is against that decision that the claimant now appeals.

3.	The second claim was made after regulation 21(3G) had been inserted into the Income Support (General) Regulations 1987 (S.I. 1987/1967) on 30 April 2004, providing that a person could not be treated as habitually resident in the United Kingdom if she did not have a right of residence in the United Kingdom.  The claimant in this case was a Dutch national who first came to the United Kingdom on 1 April 2004.  She was not looking for work and, in the light of the decision of the Court of Appeal in Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657, it is clear that the tribunal was right to find that she had no right of residence in the United Kingdom.

4.	The claimant, however, relies upon the fact that she had made the first claim before 30 April 2004, presumably in order to gain the advantage of transitional protection conferred by regulation 6 of the Social Security (Habitual Residence) Amendment Regulations 2004 (S.I. 2004/1232).  She argues that the tribunal erred in finding that she was not habitually resident on 12 July 2004.  The problem from her point of view is that that transitional protection applies only if she was entitled to income support on 30 April 2004.  Thus, it would have to be found that she was actually habitually resident in the United Kingdom on 30 April 2004.  As her first claim has already been disallowed, a decision in her favour can technically only be made in the context of the appeal against the first decision but there is no point in deferring this case any longer because it is quite inconceivable that the claimant could properly be found to have been habitually resident in the United Kingdom on 30 April 2004, only a month after her arrival, having regard to the general approach I described in paragraph 15 of R(IS) 7/06.  Therefore, although I consider that the tribunal was wrong to ignore the existence of the first claim of which there was documentary evidence before it, I am satisfied it reached the right conclusion.

	(signed on the original)	MARK ROWLAND
		Commissioner
		18 December 2007