CJSA/980/2006
CIS/979/2006
CIS/981/2006

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER
  
1.	All three of the claimant’s appeals against the decision of the Fox Court appeal tribunal dated 21 November 2005 are unsuccessful.  I set the decisions aside but I substitute decisions to the same effect.  The claimant was not entitled to jobseeker’s allowance from 17 December 2004 because she was not actually habitually resident in the United Kingdom and she was not entitled to income support from 7 February 2005 or 14 July 2005 because she had no right of residence in the United Kingdom and, on that ground, could not be treated as habitually resident in the United Kingdom.

REASONS

2.	The claimant is a Dutch national who came to the United Kingdom on 8 December 2004.  On 17 December 2004, she claimed jobseeker’s allowance.  On 31 December 2004, the Secretary of State disallowed the claim on the ground that, in the light of her recent arrival, the claimant was not habitually resident in the United Kingdom.  The claimant appealed.  It appears that she continued to “sign on” for some time but, on 7 February 2005, she claimed income support.  By then she was some six months pregnant.  She gave birth on 4 May 2005.  On 31 May 2005, she was interviewed in connection with her claim and said she intended to seek work when her baby was older. On 21 June 2005, her claim for income support was disallowed on the ground that the claimant had no right to reside in the United Kingdom and, on that ground, could not be treated as being habitually resident.  On 14 July 2005, she appealed.  It appears that, at about the same time, she also asked for the decision to be “reconsidered”.  The form of this request is unclear but, on 22 July 2005, another decision was made to the effect that the claimant had no right to reside in the United Kingdom.  A week later, on 29 July 2005, the decision of 21 June 2005 was reconsidered but not revised, as part of the process of the Secretary of State considering his response to her appeal against it.  On 1 August 2005, the claimant appealed against the decision of 22 July 2005.

3.	All three appeals came before the Fox Court appeal tribunal on 21 November 2005 and were dismissed.  The claimant now appeals against all three decisions with the leave of a tribunal chairman and some support from the Secretary of State.  Her appeals were deferred to await the decision of the Court of Appeal in Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657; [2008] 1 W.L.R. 254 (also reported as R(IS) 8/07) and, meanwhile, her representative has ceased acting for her and she has not responded herself to the Secretary of State’s submission.

4.	In the first case, concerning jobseeker’s allowance, the Secretary of State first criticises the tribunal for not having regard to the question whether the claimant had a right to reside, but, as he concedes that she did have such a right as a workseeker and at the same time supports the tribunal’s decision that she was not actually habitually resident in the United Kingdom, that is not a point of great significance.  The tribunal was clearly entitled to find that the claimant was not in fact habitually resident in the United Kingdom at the date of the Secretary of State’s decision on 31 December 2004, by which time she had been in the United Kingdom for less than a month.  The better point, made both by claimant’s former representative and the Secretary of State, is that the tribunal erred in failing to consider whether an award could be mad in the light of Secretary of State for Work and Pensions v. Bhakta [2006] EWCA Civ 65 (reported as R(IS) 7/06).  In that case, it was held that, as the legislation then stood, an advance award could be made under regulation 13 of the Social Security (Claims and Payments) Regulations 1987 (S.I. 1987/1968) where a person was not habitually resident at the date of a decision but would be within three months of the date of claim if there were no change of circumstances and the other conditions of entitlement were met.  

5.	The Secretary of State submits that, if the claimant had become habitually resident before 17 March 2005, “it appears on the fact of it that the Commissioner should award JSA from 17 December 2004 even if, with the benefit of hindsight, the condition in regulation 13(1)(b) [that the claimant satisfy the requirements for entitlement when benefit becomes payable under the award] is not met”.  That is not what I understand the effect of Bhatka and regulation 13 to be.  First, regulation 13(1)(a) provides that the claim shall be treated as made for the period when the conditions of entitlement will be satisfied and so there is no question of benefit being awarded in this case in respect of any period before the claimant became habitually resident in the United Kingdom.  Secondly, the application of regulation 13 is discretionary and there is no need to employ it if there is no significant advantage to anyone in doing so.  

6.	In my view, there was no need to apply regulation 13 in the present case.  The Secretary of State submits that the claimant did not become habitually resident in the United Kingdom until three, or at least two, months after her arrival in the United Kingdom.  I agree.  In view of her lack of previous connection with the United Kingdom, other than having friends here, I consider three months to be the right figure.  By that time the claimant had claimed income support and her entitlement could just as well be considered in that claim.  (Although the claimant stated that she continued to “sign on” until 3 March 2005, she also said that she did so until she was advised to claim income support and it seems fairly clear that she actually ceased to “sign on” at the beginning of February rather than the beginning of March.)  Therefore, although the tribunal technically erred in not considering whether to make an award of jobseeker’s allowance from a date after 31 December 2004, my substituted decision is not to make such an award.

7.	I turn then to the second case, arising from the claim for income support made on 7 February 2005.  Although the claimant was still not actually habitually resident in the United Kingdom at that date, she was by the time the Secretary of State gave his decision on 21 June 2005.  The tribunal was therefore right to consider the question whether the claimant had a right of residence, in the absence of which she could not be treated as habitually resident even if she really was.  I agree with the submissions of both the Secretary of State and the claimant’s former representative that, in the light of CH/3314/2005 and CJSA/1475/2006 (see also CIS/2364/2006), the tribunal erred in not considering whether the claimant had a right of work as a workseeker, although, in the light of Abdirahman, it was right not to find a right of residence on any other ground.

8.	However, the Secretary of State submits that the weight of the evidence suggests that the claimant was not genuinely in the labour market between 7 February 2005 and 21 June 2005.  The claimant has not responded to that submission.  In fact, it does not matter whether the claimant was in the labour market or not for the first month of that period, because she was not actually habitually resident in the United Kingdom then.  I am satisfied that she was not genuinely in the labour market from 8 March 2005 to 21 June 2005.  There is no evidence that she was looking for work and she probably was not, having been wrongly advised that she need not do so.  She was also heavily pregnant at the beginning of that period, which would anyway have reduced her chances of obtaining employment, and she had a very young baby in the latter part of the period and had herself said that she would start looking for work only when her baby was older.  Accordingly, my substituted decision is to the same effect as the tribunal’s: the claimant was not entitled to income support because she was not, or could not be treated as, habitually resident in the United Kingdom.

9.	In respect of the third case, the Secretary of State submits that there was no valid appeal before the tribunal because this was in effect a second appeal against the decision of 21 June 2005.  However, it seems to me that whatever application the claimant had made on or about 14 July 2005 had in fact been, quite properly, treated as a new claim, which was disallowed on 22 July 2005.  In my view the tribunal was entitled to accept that there was a valid appeal before it, raising the same issues as the second appeal but in respect of a later period.  The tribunal again erred in failing to consider whether the claimant was a workseeker but, as the claimant has not supplied any evidence that she started looking for work between 22 June 2005 and 22 July 2005, my substituted decision is the same as in the second case.

	(signed on the original)	MARK ROWLAND
		Commissioner
		9 April 2008