An habitual problem

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.