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Guidance on the habitual residence test should ease the burden on social services, writes Gary Vaux.

Asylum seekers make headlines, but many social services departments are faced with heavy demand from people who have failed what is known as the "habitual residence test".

The HRT was designed to stop "benefit tourism". Yet its impact has been felt very heavily among the UK's black population, as well as among other British citizens who are returning to the UK after a time abroad.

The Department for Work and Pensions has recently sent out fresh guidance to social security staff on the application of the test. It says that "habitual residence should be given its ordinary and natural meaning, by considering all the facts of the case in a common sense way". Telling social security staff to use common sense is, of course, a major departure for the benefits system.

The regulations say that in order to get means-tested benefits, a person has to be habitually resident in the common travel area (CTA), which is the UK, Channel Islands, the Isle of Man and the Republic of Ireland.

Three years ago, after what was known as the Swaddling case, the Department of Social Security (as was) accepted that a person with habitual residence who went to live elsewhere in Europe and then returned to the CTA could be habitually resident immediately.

Despite this ruling, many people in that situation still have their benefits stopped and have to turn to social services or charities for help until their case is resolved.

The new guidance should stop that situation from recurring. It confirms that a claimant who was previously habitually resident in the CTA, who moved to live and work in another member state, and returns to resume the previous habitual residence, is habitually resident immediately on arrival back in the CTA.

The guidance also makes it clear that this interpretation of the legislation does not apply to people who have returned to the CTA from outside the European Union. In that case, the claimant would have to prove habitual residence by taking up residence in the CTA and living there for a period. It is not enough that the person came to this country voluntarily and with the intention of settling here. There is no set time limit. However, it "must be a period that is more than momentary in a claimant's life history", to use a phrase in an EU commissioner's decision (CIS/4389/99).

But it is also possible for a person to be habitually resident immediately upon arrival in the UK. If a person abandons their life in a country in circumstances which make the decision irrevocable and returns to take up residence in the UK, they could be habitually resident immediately they return.

For example, a female UK citizen lived with her partner in Canada for several years. She returned to the UK following her partner's imprisonment. Before returning, she had arranged for the future schooling of her children and had also obtained a firm offer of employment. The claimant left nothing in Canada and intended to bring up the children in her parents' home before finding permanent accommodation. She was habitually resident from the moment she arrived in the UK.

Social security staff can look at the practicalities of a person's arrangements to live in the CTA, but this is only one factor. The need to claim benefit in the short term should not be taken into account.

The new guidance may reduce some of the demand on social services to fund HRT "victims" - so long as social security staff use their common sense, of course.

Gary Vaux is head of money advice, Hertfordshire Council. He cannot answer queries in person, by post or by phone. If you have a question to be answered in Welfare Rights, please write to him c/o Community Care.