Transcript Habitual Residence Condition and social welfare appeals

Habitual Residence Condition
and social welfare appeals
Kevin Baneham, BL
23rd January 2013
The following presentation is for information only and
should not be relied on as legal advice.
Outline
Some introductory points
Social Welfare contributory payments
EEA migrant workers
Application of the Habitual Residence
Condition
 Social Welfare appeals
 Other ways to challenge a decision
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Tensions and sources
 Persistent tension between EU principles of free
movement and non-discrimination against memberstates’ determination to have a link between social
welfare claimants and the host country.
 Good sources of information include those from FLAC
and the ‘Person or Number’ report 2011 as well as the
Department’s Operating Guidelines and the Social
Welfare Appeals Office 2011 Annual Report.
 Few definitive decisions; only summarised case studies.
 The concept of ‘habitual residence’ is also used in family
law, in particular with regard to children.
 Efforts to import habitual residence to other
entitlements, such as access to the housing list.
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ECHR v. EU
 European Convention
on Human Rights
 Based in Strasbourg
 Some high profile
decisions (ABC, Norris
and Airey)
 Incorporated into Irish
law (Donegan)
 Article 6 – right to a
fair hearing
 Court of Justice of the
European Union
 Based in Luxembourg
 Hears references from
national courts and cases
brought against
member-states
 Supremacy of EU law
 Free movement of
workers, coordination of
social security and EU
citizenship. Distinction
between workers and
non-active citizens.
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European Union and the EEA
Austria
Belgium
Bulgaria
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
United Kingdom
Croatia to join on the 1st July 2013
European Economic Area
Iceland
Lichtenstein
Norway
Switzerland
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Overview of social welfare
payments
Contribution-based
payments
 Based on PRSI
contributions either
paid in Ireland or
elsewhere
 Not subject to HRC
 Jobseeker’s Benefit;
Carer’s Benefit;
Contributory Old Age
Pension.
Assistance payments
 Means-tested and
subject to HRC
 For example,
Jobseeker’s Allowance;
Carer’s Allowance;
Disability Allowance.
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Other social welfare payments
Family Benefits
 Child Benefit
 One Parent Family
Payment
 Guardian’s Payment
 Maternity Benefit
 Domiciliary Care
Allowance*
 Family benefits have a
special place in EU law
Supplementary Welfare
Allowance
 Subsistence payment
 Exceptional needs
payment and urgent
needs payment not
subject to HRC
 Mechanism for paying
for housing support
 Integrated into
Department of Social
Protection
 Mainly subject to HRC
but has a special place
in EU law
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Factors to consider when assessing
a client’s case
 Has the client an entitlement to a
contributory payment in the light of
contributions paid here or elsewhere?
 Does the client have an entitlement
to Family Benefits or SWA as an EEA
migrant worker?
 Building a case to satisfy the Habitual
Residence Condition.
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Availing of contributory payments
 EU law provides for the coordination of
social security systems and the free
movement of workers and citizens.
 Habitual residence not applied to
contributory payments.
 Were any contributions paid in another EEA
state? They can by aggregated to Irish
contributions.
 The client must have paid a certain number
of PRSI contributions. The relevant tax year
for 2013 is 2011.
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EEA migrant workers
 EU law has sought to encourage the
movement of migrant workers.
 EEA migrant workers can be entitled to
Family Benefits.
 Minimum subsistence payment also
available to EEA migrant workers.
 An EEA migrant worker is exempt from
HRC for these benefits (despite what
section 192 of the 2005 Act says).
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Entitlement to Family Benefits
 For the purposes of Family Benefits, any EEA
citizen who is employed or self-employed (or in
receipt for Jobseeker’s Benefit) does not have
to satisfy HRC to receive a Family Benefit;
 A non-EEA citizen who has worked in another
EEA state and is employed or self-employed
here can receive Family Benefits, provided they
are legally at work and legally present here
and subject to PRSI. Their dependents must
reside in the EEA.
 Other non-EEA nationals must pass the HRC.
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Sidenote – Carer’s Allowance
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Is it appropriate that Carer’s Allowance is not now defined
as a Family Benefit?
The relevant EU Regulation states that a ‘Family Benefit’
means “all benefits in kind or in cash intended to meet
family expenses, excluding advances of maintenance
payments and special childbirth and adoption allowances
mentioned in Annex I.”
The Department Operating Guidelines state the Domiciliary
Care Allowance is a Family Benefit, while other Government
documents suggest otherwise.
Is there something illogical about excluding Carer’s
Allowance from the scope of family benefits in situations
where, for example, Irish emigrants return to take care of
their ailing Irish relatives?
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EEA migrant workers & SWA
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An EEA national who has been engaged in “genuine and
effective” employment in Ireland should be regarded as a
migrant worker and will be entitled to a subsistence
payment, i.e. SWA.
Unlike the Family Benefits provisions, this is not available to
people who are self-employed.
What is “genuine and effective”? Opposite of “marginal and
ancillary” and ECJ has held that it includes low paid and
where the work is only for few hours per week.
Poor guidance on this point in the Department’s operating
guidelines, which asks whether the employment is “valid”
and “genuine”. Insufficient reference to ECJ case law,
except they are clear that the income earned does not have
to be above the SWA rate.
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SWA - link to the right of reside
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An EEA migrant worker’s entitlement to SWA is limited by
their right to reside in Ireland.
EU nationals who become involuntarily unemployed and
have worked here for less than one year, continue to have
a right to reside for another 6 months, provided they are
registered as a jobseeker.
EU nationals who have worked here for over a year have a
right to reside, provided that they are registered as a
jobseeker.
Students and EU nationals who have lived here for over 5
years have an ongoing right to reside.
EU nationals have a right to enter and reside in the State
for a 3-month period, provided they do not become an
“unreasonable burden” on the State.
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Applying the Habitual Residence
Condition
 The Habitual Residence Condition introduced in
Ireland in 2004 in anticipation of the expansion
of the EU;
 Similar to an existing provision in UK social
welfare law which was considered in a ECJ
decision Robin Swaddling v. Adjudication
Officer.
 Initially cast as a “two-year” rule but later recast in line with the Swaddling decision. The
right to reside provisions were inserted in
2009.
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The Common Travel Area
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The HRC was initially defined in 2004 as a rebuttable
presumption that a person who has not resided in the CTA
for the previous 2 years will not be habitually resident. This
suggests particular regard to residence within the CTA.
In Douglas v. Minister for Social Protection, the High Court
held that a person who moves to Ireland from elsewhere in
the CTA has to prove habitual residence in Ireland.
This differs from the position in the UK where an Irish
resident is automatically deemed as habitually resident
when they move to the UK. Despite the CTA and its
recognition in EU Treaties, there is a lack of reciprocity in
how HRC is treated between Ireland and the UK.
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Common Travel Area & HRC
 Appeals Office case studies suggest that while a
claimant will have to make a case out on the HRC
criteria, it is appropriate to rely on existing family
connections in Ireland and to look at future
intentions, such as enrolling children in school.
They also looked at evidence of cutting ties with
the UK.
 In the Department’s case studies, 5 out of 7
returning Irish nationals satisfied HRC. Of the
two who failed, one was actively looking for work
abroad and the other returning to missionary
work outside Ireland.
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Payments subject to HRC
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Jobseeker's Allowance
Blind Pension
Carer's Allowance
Disability Allowance
State Pension (Non Contributory)
Widow(er)'s Non Contributory Pension
One Parent Family Payment
Child Benefit
Domiciliary Care Allowance
Guardian's Payment (Non Contributory)
Supplementary Welfare Allowance (other than once off
exceptional and urgent needs payments)
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The Habitual Residence
Condition
Following the Swaddling decision, a decision maker is obliged to examine 5
factors in assessing habitual residence:
1.Length and continuity of residence in Ireland or elsewhere
2.Length and purpose of any absence from Ireland
3.Nature and pattern of employment
4.Applicant’s main centre of interest
5.Future intentions of the applicant.
According to the Operating Guidelines, “Although no single factor is
conclusive, the focus must be on determining the person's main centre of
interest, having regard to all of the relevant facts and circumstances of the
individual. It may be helpful in practice to consider that the first three
factors and the fifth factor help to determine where a person's main centre
of interest (factor 4) is, and that the determination of that main centre of
interest is in effect determining their place of habitual residence.”
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Dealing with the HRC
 Information submitted via the HRC1 form.
 Whether or not somebody is HRC is a matter of
fact, as opposed to a matter of law.
 The ECJ has held that while a HRC test is justified,
it must be capable of being justified on objective
grounds and implemented proportionally.
 Duty on Department to supply reasons to
explaining a decision not to find a person HRC.
 ‘Once and done’ – Once a claimant is deemed
habitually resident, they should not be subjected to
the test again.
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Factor 1 – Length and
continuity of residence
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The Department will examine where a person has lived and the
length of time they have been in Ireland.
The Operating Guidelines suggest that time spent in Ireland for
the following should not amount to habitual residence: to
study; for holidays; to visit friends; to do seasonal work; for
medical treatment or posted by his/her employer abroad to
work or in Ireland to seek employment (rather than to take up
an actual job offer).
UK Social Security decisions hold that a person must be in the
UK for an “appreciable” period and that this is 1 to 3 months.
It is notable that many of the Appeals Office case studies
involve claimants who had been in Ireland for one or more
years, yet who had to successfully challenge initial decisions to
refuse their claims.
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Factor 2 – length and purpose
of any absence from Ireland
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A person can either resume or re-acquire habitually residence
on the day they arrive to the State, for example if they have
strong existing links to the State; can demonstrate an intention
to stay and to cut ties with the country they came from.
Using Factor 1, a person who is habitually resident here should
not lose this if they go abroad to study; for holidays; to visit
friends; to do seasonal work; for medical treatment or posted
by his/her employer abroad to work or to seek employment
(rather than to take up an actual job offer).
The argument is that, just as a Polish person who visits friends
in Ireland does not gain HRC, a Polish person living here who
visits family abroad should not lose their HRC status. The
Appeals Office refers to a case where a Polish person went
back to Poland for training and medical treatment but returned
here to work.
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Factor 3 – Nature and pattern
of employment
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The Operating Guidelines say that there is a presumption that a
person working here for one month (or in self-employment for 6
months) will be habitually resident, while in employment.
The Department will look at the nature and pattern of work, e.g.
the number of hours, the length of the contract and the person’s
prospects.
Self-employment should be registered with Revenue and should be
bona fide.
A claimant must be legally working in Ireland. This is a problem for
many workers from Romania and Bulgaria who worked in Ireland
prior to the 1st January 2012 but did not have a work permit.
Appeals Office concern at excessive reliance on employment
records: points to cases where Department rejected claims where
a 16 year old who attended a special school had not worked or
where a Polish national had only 22 PRSI contributions, where her
employers had failed to regularise her employment.
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Factor 5 – Future intentions of
the applicant
 The Department looks at the person’s stated
intentions as well as evidence of the viability
of long-term residence in Ireland, with or
without reliance on public funds. They also
look at initial intentions.
 Emphasis on establishing ties in Ireland as
well as re-registering a car in Ireland or
transporting possessions to Ireland.
 They also look at severing ties with other
countries.
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Factor 4 – Centre of interest
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The claimant’s main centre of interest must be Ireland.
This is a combination of the other four factors as well as any
other relevant factors, including evidence of ties to Ireland:
activities, sport, relationships, employment.
This is the most important factor and your conclusions should
outline why the person’s main centre of interest is Ireland.
Easier test for returned Irish emigrants to meet.
The Appeals Office has expressed concern about undue weight
given to situations where a claimant has family living abroad.
The Department’s Guidelines provide that this should not
automatically mean that a person fails HRC, but this does not
go far enough. The question is whether a person has a durable
relationship with Ireland and surely working here while having
family abroad is evidence of durability.
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Right to reside
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In 2009, the HRC test was made more difficult to pass as a
claimant must also have a right to reside to be considered
habitually resident.
Certain people automatically excluded from being habitually
resident, e.g. people seeking asylum, subsidiary protection or
leave to remain.
A non-EEA national who does not have a work permit or visa
cannot meet HRC as they have no right to reside.
Some visas require that the applicant does not become a burden
on the State. The Guidelines state that where a person applies for
jobseeker’s allowance or SWA, the Department should consult INIS
in relation to the effect this has on their residence.
There is an issue arising for people from Romania and Bulgaria
who worked here while not having a work permit. This time does
not count towards HRC.
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Groups who automatically have
a right to reside
 Irish citizens
 Programme refugees and people granted leave
to remain, subsidiary protection and refugee
status
 In the case of refugees, their entitlement is
backdated to the date they generally became
entitled to the payment and not to when their
status as refugee was recognised.
 With conditions, EEA nationals and family
members of EEA nationals (even where they
are not EEA citizens).
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Challenging social welfare
decisions
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Social Welfare appeals office
Availing of Freedom of Information
Office of the Ombudsman
Equality Tribunal
Judicial review and appeals to the
High Court and the ECJ
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Social welfare appeals
 FLAC have published a recent, excellent guide
to Social Welfare appeals.
 Appeals system not fully independent of
Department.
 Appeals Office has resisted calls to publish
decisions and while the case studies are useful,
they are limited, potted summaries.
 Can dispose of appeals either summarily or by
way of oral hearing.
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Managing your appeal
 Pre-appeal option of requesting a review of the
first instance decision by the Deciding Officer.
 Once an appeal is lodged, comply with tight
time limits.
 Build your case against the original decision
and make fuller submissions once the appeal is
lodged.
 Ask for an oral hearing, but in particular if the
appeal relies on factual evidence to win.
 A claimant can be represented at a hearing.
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Using Freedom of Information
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A claimant should obtain their full file from the Department
by submitting a Freedom of Information request.
They can also use FOI to obtain a statement giving reasons
for any act affecting them or findings of fact made in
relation to any act. This provision puts an onus on the
Department to give reasons for a decision and to outline
findings of fact made regarding the applicant. This
challenges perfunctory negative decisions.
Such a request should open “Pursuant to section 18 of the
Freedom of Information Act, I ask you to provide reasons
for X and outline each finding of fact which based this
decision.” You could list each likely finding of fact to ask
how they were reached.
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Outcome of appeals
 If the appeal is unsuccessful, it can be
reviewed further by a Deciding Officer,
be reviewed by another Appeals Officer
or reviewed by the Chief Appeals Officer.
 You should obtain a copy of the report
of the Appeals Officer.
 Further reviews are paper-based.
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Office of the Ombudsman
 This is a parallel avenue to challenge social
welfare decisions, although there are also
lengthy time delays.
 Some 31% of cases referred to the
Ombudsman relate to Department of Social
Protection matters.
 4 cases relating to HRC are mentioned on
the Ombudsman website or used as case
studies in her Annual Reports.
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Equality Tribunal
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A claimant can make a complaint under the Equal Status Acts
against the Department where they believe they have been
discriminated against on one of the nine grounds.
Section 14 of the Equal Status Act, however, provides that any
action taken pursuant to an enactment or order of the court
the Act is not prohibited as discriminatory.
A number of cases taken where people have claimed that the
HRC test discriminated against them on grounds of nationality.
While the Equality Tribunal criticised the administration of the
Department, the HRC test was not held to be discriminatory or
implemented in a discriminatory fashion.
Occasional successes against the Department, for example in
relation to a centralised SWA service for members of the
Travelling community.
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Using the Courts
 Option to appeal on a point of law for which
legal aid might be available.
 There is also the option of Judicial Review
where the Court examines the legality of the
decision, including how it was made.
 There may also be option of referring the case
to the European Court of Justice where there is
a point of EU law at stake, including an
allegation that the Department did not act
proportionally or in line with objective
considerations.
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The end
Thank you
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