Casebase Number: G0053 Title of Payment: Jobseekers Allowance

Transcription

1 Casebase Number: G0053 Title of Payment: Jobseekers Allowance Northside Community Law and Mediation Centre Northside Civic Centre Bunratty Road Coolock Dublin 17 Date of Final Decision: 3 rd March 2014

2 Title of Payment: Jobseekers Allowance Date of Final Decision: 19 th March 2014 Keywords: Habitual residence condition - work history disallowed - formal appeal Organisation who assisted claimant: Limerick Community Law and Mediation Centre (LCL&MC) Casebase: G0053 Case Summary This case relates to the Appellant s Jobseekers Allowance (JA) claim, which was refused on the grounds that she did not satisfy the Habitual Residence Condition. On the 9 th December 2013, Limerick Community Law and Mediation Centre (LCL&MC) sought a review of the habitual residence disallowance on her JA claim. On the 31 st December 2013 the Department of Social Protection (DSP) issued a letter to the Appellant stating that the original decision should stand. A formal appeal was then lodged, and on the 3 rd March 2014 an oral hearing was held. The Appeals Officer allowed her appeal on the 19 th March Key Arguments: Department of Social Protection submitted that there was no evidence to substantiate the claim that the Appellant was habitually resident in the state. DSP submitted that the length and continuity of her residence in the State, immediately prior to her claim for JA did not provide for approval of her habitual residence. DSP submitted that the nature and purpose of her residency in the state did not provide for approval of her habitual residence. DSP submitted that her centre of interest was not in the state. DSP submitted that her immediate family did not reside in the state and that her children resided abroad. DSP submitted that she did not have an employment record in the state. Appellant submitted that she was habitually resident in the state. Appellant submitted that she had a ten year employment history in the state from Appellant submitted that her centre of interest was in the state. Appellant submitted that she had family ties and immediate family residing in the state; all eight of her siblings reside in Ireland. Key Conclusions:

3 Having carefully examined the evidence in the case and taking particular account of the oral hearing the Appeals Officer concluded that the Appellant did meet the habitual residence condition for the purpose of her Jobseekers Allowance claim. Summary of Benefit(s) Received: Jobseekers Allowance (JA) is a means-tested payment available to people who are unemployed, aged between 18 and 66years of age and who are available for, capable of and genuinely seeking employment. Applicants must meet the habitual residence condition and applicants must be able to provide evidence of this to the Department of Social Protection. Background: The Appellant was born in Ireland and prior to moving to the UK she had lived and worked in the state. On the 12 th August 2013, she returned from the UK to her siblings in Ireland after separating from her husband. The Appellant registered with FÁS and applied to the Department of Social Protection (DSP) for Jobseekers Allowance on 25 th September On the 26 th November 2013, DSP refused the Appellant s application on the basis that she did not satisfy the habitual residence condition. LCL&MC applied for a review of the decision on the 9 th of December 2013, setting out the reasons why the habitual residence disallowance on the Appellants JA claim was incorrect. LCL&MC submitted that the Appellant s centre of interest was in Ireland, as she had a 10 year employment history in the state from , had family ties and immediate family residing in the state; all of her siblings (4 brothers and 4 sisters), and a large extended family of cousins, aunts, uncle, nephews and nieces reside in the state.. The Deciding Officer in replying on the 31 st December 2013 reaffirmed that the habitual residence condition was not satisfied. Following this, the Appellant lodged a formal appeal on the 31 st December An oral hearing was held on the 3 rd March 2014 and on the 19 th March 2014 the appeal was allowed. The Appellant was granted arrears from the date of her original JA application. Date Appeal Lodged: 31 st December 2013 Date of Oral Hearing: 3 rd March 2014 Decision of the Appeals Officer: 19 th March 2014 [Appeal Allowed] Appeal Officers Reasoning and Conclusions: Social Welfare Legislation provides that in determining whether a person may be regarded as habitually resident in the state, particular attention must be paid to the following; the length and continuity of residence in the state; the length and purpose of any absence form the state; the nature and pattern of employment; main centre of interest; and future intentions as they appear from all circumstances.

4 Having carefully examined the evidence in this case and taking particular account of the oral hearing I have concluded that the appellant may be deemed to meet the habitual residence condition for the purposes of her jobseekers allowance claim of 25 th September In the circumstances the Appellant may be entitled to payment where the other qualifying conditions are met. Our Observations: When determining if a person is habitually resident in the state a Deciding Officer is obliged to examine all the claimant s circumstances, including in particular; (1) the length and continuity of residence in the state (2) the length and purpose of any absence form the state (3) the nature and pattern of employment (4) main centre of interest and (5) future intentions of the applicant. S. 246 (4) of the Social Welfare Consolidation Act 2005 [as amended] provides: s (4) Notwithstanding the presumption in subsection (1), a deciding officer or an Executive, when determining whether a person is habitually resident in the State, shall take into consideration all the circumstances of the case including, in particular, the following: (a) The length and continuity of residence in the Sate or in any particular country; (b) The length and purpose of any absence from the state; (c) The nature and pattern of the person s employment; (d) The person s main centre of interest; and (e) The future intention of the person concerned as they appear from all the circumstances These factors are not exhaustive, and the focus remains on establishing the applicant s main centre of interest. In this case the Appellant relied on evidence of existing family connections in Ireland, her previous employment record in Ireland, her intention to cut ties with the UK and her intention to remain in Ireland in the future, in order to establish that her main centre of Interest was in Ireland. In this regard, the importance of an oral hearing was crucial, as the Appellant was able to advance further details demonstrating Ireland as her main centre of interest, which enabled the Appeals Officer to establish that the Appellant satisfied the habitual residence condition. In summary, the facts in this case supported a claim that the Appellant had transferred her main centre of interest from the UK to Ireland. Of significance is the Department s flawed reasoning when rejecting the Appellant s claim. We refer in particular to their assertion that the Appellant presented no evidence to substantiate her claim that she was habitually resident. This is a factually incorrect statement. The Department further asserted the length and continuity of her residence in the State, immediately prior to her claim for JA did not provide for approval of her habitual residence, inferring that a person must be in the state for a defined period in order that they be regarded as habitually resident.

5 Contrary to the interpretation advanced by the Deciding Officer, there is no requirement that a person establish a particular length of residence prior to making a claim in order to prove habitual residence. Nor is it the case that a person must have an established employment record in order to show habitual residence in this State. The relevant statutory provisions as set out in S.246 of the Principal Act of 2005 (as amended) require a decision maker to examine all circumstances of the applicant with particular attention to five factors. The five factors are not a list of conditions; rather; they help to define the nature of the person s residence in the State. In the event that the claimant does not have an employment record, or a substantial period of residence, a decision maker is compelled to more closely examine other circumstances relevant to the claimant s residence. It also must be stated that the ECJ have been explicit in their opinion that a member state should not rely on a specific period of time to determine habitual residence, but must instead consider all relevant circumstances pertaining to the person s main centre of interest(see in particular ECJ C- 90/97, Swaddling). N.B. At the time of writing the Social Welfare and Pensions Bill 2014 was before the Houses of the Oireachtas. S 10 of the Bill proposes amendments to s.246 of the Social Welfare Consolidation Act 2005 [as amended]. For more information on Jobseekers Allowance and the habitual residence condition, useful links are: nemployed_people/jobseekers_allowance.html Deciding-Offic.aspx

6 For more information, contact us at: Northside Community Law and Mediation Centre, Northside Civic Centre, Bunratty Road, Coolock, Dublin 17 T: E: W: