Welfare Rights Officer, Adult Social Care, Cornwall County Council, Truro Member since 30th Oct 2008
Another habitual residence query! Wed 12-May-10 03:49 PM
I am looking for some case law or anything else that deals with the question of a returning British Citzen who has come back to the UK but went straight into hospital.
Client has lived abroad for many years and her husband and children still live abroad. She fell ill and returned to the UK was immediately admitted to hospital and has remained there for the past year although she occasionally goes home on leave to her mothers house in the UK. Looking at Reg70 of the ESA regs and Swaddling et al I cannot find anything to say that person in hospital is automatically deemed to be not habitually resident but I wondered if anyone had come across any similar cases.
DWP have refused to pay her any benefits and this is now under appeal. I have not yet had the papers so I don't know how soon after her arrival in the UK she made the ESA claim or if she has made any other claims since then.
welfare rights adviser, sefton metropolitan borough council, liverpool. Member since 22nd Jan 2004
RE: Another habitual residence query! Mon 17-May-10 10:29 AM
It all depends where she has returned from. If she has returned from within the EEA then she might be able to rely on community law to be treated as habitually resident from day one. If she cannot rely on community law or is returning from outside the EEA then she will have to be here for an appreciable period of time, in the usual run of cases between 1-3 months. However, in some instances the period might be shorter or longer. It all depends upon the facts. Being in hospital is merely one factor under consideration. Two cases highlighting the issues are CIS/4474/2003 and CIS/3280/2003.