The case
Secretary of State for Work and Pensions v Bhakta [2006] EWCA Civ 65, February 15, 2005
Auld, Longmore and Hallett LLJ.
The claimant, Mrs Bhakta, is a British Citizen who had previously lived in the United Kingdom for substantive periods and who has most of her closest relatives here. In November 2002, she decided to return to the United Kingdom on a permanent basis having previously lived with her son's family in the United States since 1997. Her claim for Income Support was initially refused as she did not satisfy the habitual residence test. After waiting some 12 months for her appeal to be heard, a tribunal decided that Mrs Bhakta had a settled intention to remain at the time the claim was made but the appeal was refused because the tribunal could only have regard to the 18 day period since her arrival and the period of actual residence did not amount to an 'appreciable period' (Nessa). [1] The tribunal said it was bound to take this view because it could only have regard to circumstances at the time the decision on the decision on the claim was made: sections 8(2) and 12(8)(b) of the Social Security Act 1998. Mrs Bhakta's only option was to make a fresh claim.
Mr Commissioner Rowland then allowed Mrs Bhakta's appeal against the tribunal in CIS/840/2004. Using the provisions for making an advanced award [2] the Commissioner decided that Mrs Bhakta's residence would become habitual within two months of the date the claim was made. The Department appealed, arguing that there was no power to make an advance award in habitual residence cases as this would involve prediction or speculation which was prohibited under the 1998 Act.
Dismissing the Secretary of State's appeal, the Court held that when Mrs Bhakta's claim was disallowed, the decision-maker should have considered whether the claim could be treated as made on a later date under the provisions for making an advanced award. The decision-maker (and therefore the tribunal on appeal) could award benefit from the date that the claimant would satisfy the habitual residence test.
'It follows that in each case there is a very broad spectrum of facts that may enable a decision-maker to determine the point at which he can be reasonably confident that a claimant has both the intention to remain and a reasonable foreseeability of fulfilling it. Where reasonable confidence as to continuance of such an intention becomes speculation in such decision-making is essentially a matter of fact for the decision-maker. The mere possibility that later unforeseen developments, such as ill-health or family tragedy might affect the will or the ability of a claimant to adhere to an intention to settle here, should not, in my view, prevent the Secretary of State from deciding in his or her favour on a claim for advance income support.
... it is not necessary where a claim for an advance award is made that there should be certainty or near certainty of the claimant achieving whatever 'appreciable period' of actual residence is considered appropriate by the decision-maker. It is plain from the wording of regulation 13(1) that something less than certainty is required, since it confers on the Secretary of State a power to make such an award where, in his 'opinion', the claimant will satisfy the requirement at a future date 'unless there is a change of circumstances.'
[1] Nessa v Chief Adjudication Officer [1999] 1 WLR 1937, R(IS) 2/00
[2] Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), Regulation 13(1) and (2)..
