Hab Res test for Brit national

Not seen one quite like this before and am rather miffed about it.

Client is Brit citizen, worked in Australia for 14 years, developed serious illness, sold up and came home in Oct 2014. High anxiety and he did not want to make ESA claim until he had bought a house, got settled, etc., was happy to live off savings. Made ESA claim in early March 15, having bought said house and spent said savings. Declared he had been working abroad, sent proof of arrival date in UK, etc., sent in fit note from GP, returned ESA50 and got paid assessment phase ESA, all normal.

2 days ago no ESA payment, he rang up to enquire why and was told that Habitual Residence Test required. I spoke to call centre today and was told that reason it had flagged up was computer cross checking with airline/immigration records in late April showed he had arrived in country from abroad in Oct 14 and therefore HRT was required. Will send out HRT questionnaire and expect it to be dealt with in a ‘few weeks’. In meantime approach local welfare for help or manage some other way.

I can’t see why HRT is being raised now after he has already been paid ESA for 2 months and has been back in UK for 7 months. What is going on here? Anyone else seen the HRT being applied like this?

Billy

If it were me I would be marching them through the door of the closest public access Barrister I can find. Alterntaively Kirklees law centre and seeking advice on a JR of the suspension decision.

This is likely to be the new way of things; the default answer being “no” and suspension of benefit at the slightest hint of a problem; this is the climate we find ourselves in.

We need to be on a war footing!

Merci mon general. Do you have any thoughts yourself on grounds for engaging Mr Ewing?

I was going to take it up with the local DWP liaison worker. Fortunately this particular bloke is going to get through OK but others would likely find it much more of a struggle.

What hacks me off is that they aint going to learn anything relevant from a HRT questionnaire that he hasn’t already told them.

This seems to go beyond even the DWP’s normal practice (default decision is “no” then wait for appeal).  He’s clearly a UK national resuming residence having previously been resident in the UK, he’s served an “appreciable period of time” back in the UK (he’s even met the DWP’s arbitrary requirement that this is three months in all cases), he’s applied for and started to receive benefit, having clearly satisfied the decision-maker at the time that he is HR.  This is a clear error of law.  Did they say how long ago he would have had to arrived back here to not have received this treatment?  A bit worrying that they are doing this on the strength of some date matching exercise with Immigration.

I think they are perfectly entitled to conduct a habitual residence test, they really should have done it at the outset.  The scandal here is the delay: any sensible person can see that it should take about 10 seconds to conduct a habitual residence test in this case, there is no need to wheel out the full bureaucratic procedure.

I once had a client who returned from New Zealand after fifty years.  The tribunal decided that he was HR after one month, in accordance with the House of Lord’s decision in Nessa (still good law).

Nessa decision here - http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd991021/nessa.htm

I am assuming that this is a suspension of ongoing award whilst they conduct the HRT?

I think that given it is almost impossible that client could on the facts you have given fail the HRT then suspending award whilst they do this is unlawful.

In terms of getting the suspension lifted more quickly then you could write explaining hardship and asking them to lift immediately? See Suspension and Termination Guide  - paragraph 1052 amongst others is useful:

1052     If suspending payment will result in hardship, a decision to suspend should not be made. If an existing suspension is causing hardship, the payment of benefit must be re-instated immediately. If staying a decision would result in hardship the DM should make the decision and pay benefit.

See also what they should do when you make representations as to hardship at paras 2300 and onwards.

If they don’t play ball quickly then failure to follow a published policy without a good reason to do so is unlawful and threat of judicial review would remedy it.

In terms of the returning resident stuff I think the case that you really want (which explains Nessa in case of returning residents) is CIS 1304/97 & CJSA 5394/98  - this explains both the rules on acquiring HR immediately on return and that for those who do not the period should be short.

Bear in mind also the general approach which is that only in extreme cases where an appreciable period is needed would a period of longer than 3 months be appropriate.

Given they will almost certainly not find this such an extreme case and the period already here is now 7 months no purpose whatsoever is served by the suspension- another ground for JR I guess.

Martin