Reply from SSWP to the SSAC on the 3 months living in the UK test for JSA

Hullo all,

I thought it might be helpful to point out that the Secretary of State’s response to SSAC (see here: http://www.rightsnet.org.uk/news/story/ssac-expresses-serious-concerns-about-some-as-implementation-of-changes-to ) about the 3 month living in UK test for JSA is a bit worrying in that he demonstrates he does not realise the extent to which his anti “benefits for EEA migrants” measure actually makes things harder for British citizens.

Here is what the Minister says:

“It has always been the case that UK nationals returning from abroad must satisfy the Habitual Residence Test and that this included the requirement to have been In the UK for an appreciable period. I therefore consider that the introduction of a fixed period of time which someone must have been living in the UK before being eligible to receive JSA (IB) provides much needed clarity. However, l recognise the Committee’s concerns and have asked my officials to undertake further work to ensure we have taken full account of Ihe impact of the three month requirement.”

As a matter of law it is incorrect to say that returning residents (whether UK or otherwise) always needed to be in the UK for an appreciable period of time in order to demonstrate habitual residence. There are two clear cases where this is incorrect:

• This first issue is that an absent UK resident may not indeed have lost their habitual residence during a period of absence (see for example KS v SSWP [2010] UKUT 156 (AAC) in which the Upper Tribunal held a claimant had not lost habitual residence in the UK during the two years they spent volunteering abroad as part of the “VSO” scheme). See here: http://www.osscsc.gov.uk/Aspx/view.aspx?id=2963

• The second issue is that the House of Lords in Nessa v. Chief Adjudication Officer [1999] 4 All England Law Reports 677 provided that the general rule that an appreciable period of time was necessary before habitual residence could be obtained did not apply in the cases of some returning residents (for whom habitual residence could be obtained immediately on arrival). Thus Lord Slynn said at p683:

“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 All ER 375 and Swaddling v Adjudication Officer [1999] All ER (EC) 217). 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.”

That possibility was then confirmed by a Social Security Commissioner in joined cases CIS 1304/97 & CJSA 5394/98 in which guidance was given as to when it might apply (see here: http://www.rightsnet.org.uk/pdfs/cmmr_upload/cis/cis130497.doc ).

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Martin.

It’s already begun….

see: http://www.rightsnet.org.uk/forums/viewthread/6033/