[2007] UKSSCSC CJSA_3066_2006 (10 August 2007)

CJSA/3066/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	This appeal is unsuccessful.  I set aside the decision of the Coventry appeal tribunal dated 28 June 2006 but I substitute a decision to the same effect.  The claimant is not entitled to jobseeker’s allowance from 12 January 2006 because she was not habitually resident in the United Kingdom then or by the date of the Secretary of State’s decision on 9 February 2006.

REASONS

2.	The claimant is a Swedish citizen who arrived in the United Kingdom on 23 December 2005.  She had no work and claimed jobseeker’s allowance on 19 January 2006, seeking benefit from 12 January 2006.  Her claim was disallowed on 9 February 2006 on the ground that she was not habitually resident in the United Kingdom, the Secretary of State not accepting that she had a settled intention of remaining in the United Kingdom.  The claimant appealed.  The tribunal dismissed her appeal.  It took the view that the real issue was whether the claimant had a right of residence in the United Kingdom.  It decided she did not because she had never worked in the United Kingdom.  For good measure, it also agreed with the Secretary of State that the claimant was not in fact habitually resident in the United Kingdom, although it did accept that the claimant had at least expressed an intention to remain.  The claimant now appeals against the tribunal’s decision with the leave of a salaried legally qualified panel member.

3.	On 17 April 2007, I issued a direction requiring the claimant’s representative to make a submission and, in particular, requiring comments on my suggestion that, whether or not the claimant had a right of residence, it was arguable that she was not habitually resident in the United Kingdom.  The claimant’s representative has not responded and, in the circumstances of this case, I consider it unnecessary to obtain submissions from the Secretary of State.

4.	Since I issued my direction, I have given a decision in CJSA/1425/2005 and have accepted a concession made by the Secretary of State that a citizen of the European Union has a right of residence in any Member State for the purpose of seeking work.  It must, of course, be shown that a search for work is genuine and realistic but that does not usually impose a hurdle for such citizens greater than those imposed by the requirements of section 1 of the Jobseekers Act 1995 that a claimant be available for, and actively seeking, employment and have entered into a jobseekeker’s agreement.  The implication is that it is not appropriate to take the question whether a person has a right of residence for the purposes of regulation 85(4B) of the Jobseeker’s Allowance Regulations 1996 (S.I. 1996/207) as a preliminary point in jobseeker’s allowance cases.  Therefore, it seems to me that the Secretary of State was right to concentrate in the present case on the question whether the claimant was habitually resident in the United Kingdom.  As the claimant did not fall within the scope of any of heads (a) to (d) of the definition of “person from abroad” in regulation 85(4) of the 1996 Regulations, that involved considering whether the claimant was in fact habitually resident in the United Kingdom.

5.	The claimant has not actually challenged the tribunal’s finding that she was not habitually resident in the United Kingdom by the time of the Secretary of State’s decision and, given the limited period for which she had been present and the lack of other ties to the United Kingdom, it seems to me that the tribunal’s decision was clearly correct.  What the claimant has argued is that the tribunal should have considered whether she had become habitually resident within three months of the date of claim, on the ground that the tribunal could than have made what would have been an advance award had it been made by the Secretary of State (see Secretary of State for Work and Pensions v. Bhakta [2006] EWCA Civ 65 (reported as R(IS) 7/06), which has been recently reversed by legislation but not, of course, in respect of the period material to this case).

6.	However, as was confirmed in Bhakta, habitual residence depends on a person both having a settled intention of remaining in the United Kingdom and having completed an appreciable period of residence already.  It was held in that case that an advance award could be considered only if the person had a settled intention of remaining at the date of the Secretary of State’s decision so that it was only the completion of the appreciable period of residence that was outstanding.  Unfortunately, the tribunal’s decision does not make clear whether it found the claimant to have a settled intention of remaining in the United Kingdom at the date of the Secretary of State’s decision.  This, together with the tribunal’s approach to the right of residence, renders the tribunal’s decision erroneous in point of law because it is impossible to decide whether the tribunal erred in not considering an advance award (subject to the other conditions of entitlement being satisfied) if one does not know whether it found there to be a settled intention to remain.

7.	However, I can substitute my own decision for the tribunal’s.  Like the Secretary of State – but perhaps for slightly different reasons – I am not satisfied that the claimant did have a settled intention of remaining in the United Kingdom by 9 February 2006.  She may have intended to remain but I am not satisfied that the intention was settled.

8.	The claimant had never been to the United Kingdom before.  She had come alone, leaving her husband in Sweden because he was engaged on a course.  He was in receipt of unemployment benefit and was able to provide little financial support.  She was sleeping in the sitting room of a friend and, contrary to the submission of the Secretary of State, it appears that that was arranged before she came to the United Kingdom and she came at least to join that friend.  However, she had no relatives in the United Kingdom or other ties.  Originally, she came from Somalia.  She and her husband had moved to Sweden in 2000 and had acquired Swedish nationality.  She did not like Sweden because she had difficulty with the language and “didn’t like living there”.  She has lost two children there.  I do not know about her husband’s employment record but she had never had paid employment in Sweden, although having the children may have been one understandable factor.  Se was able to bring only £60 with her when she came to the United Kingdom.  She came to the United Kingdom because it was the nearest English-speaking country.  She had registered with agencies but had not found employment and, indeed, still had not found employment by the time of the tribunal hearing at the end of June 2006.  She had not registered with a doctor or opened a bank account.

9.	I appreciate that there is an element of “chicken and egg” about these cases and that it is difficult for a person to make arrangements for permanent accommodation until some source of income has been obtained.  Equally, a person may see little point in opening a bank account until he or she has some money to put in it.  However, it seems to me that a person who has come to an entirely unfamiliar country in the sort of circumstances the claimant did must to some extent be “testing the water” initially.  I incline to the view that there are some cases, like the present, where an intention to reside cannot be regarded as settled until an appreciable period of presence has elapsed.  In this case, I am not satisfied that any intention to reside in the United Kingdom had become settled within the six weeks that the claimant had spent in Coventry before the Secretary of State’s decision had been made.  

10.	Accordingly, no question of a retrospective advance award arises and it is unnecessary for me to consider whether an appreciable period of presence would have elapsed before three months had passed since the date of claim.

	(signed on the original)	MARK ROWLAND
		Commissioner
		10 August 2007