UK national - HRT & ’Appreciable Period’

My client returned from Italy to the UK after 19 years working abroad.  He’d lost his employment, housing and relationship due to mental illness and had no other option but to return to reside with family in the UK.  He is a UK passport holder and applied for IB ESA shortly after his return.

The decision has come back that he has failed the HRT due to not being in the UK for an ‘appreciable period’.  The time between his return and the decision was a little over 2 months.

I’ve look at Nessa and the decisions in CIS 1304/97 & CJSA 5394/98 and got an idea of the arguments used.

I just wanted to check that there hasn’t been anything more recent about the ‘appreciable period’ of time in order to pass the HRT as I know that the 3-month rule came in for IB JSA, does this apply to ESA as well?

If so is it worth appealing against this decision, or would it be better to wait for the three month period to pass and re-apply?

One other factor is that UC Full Service arrives on 11.10.17 here - does that effect anything at all?

Thanks in advance for the help - first post so apologies if I’m missing something obvious.

I think the Swaddling case should still be regarded as good law in the case of special non-contributory cash benefits.  Where a UK citizen has been habitually resident and worked in another member state and then returns to the UK with the intention of remaining in the UK for the foreseeable future, and s/he still retains his/her main family connections in the UK, any residence requirements in the national rules cannot frustrate the UK’s status as the competent state.  I think that would certainly put the kibosh on the 3-month JSA qualifying period and probably prevent the “appreciable period” requirement from blocking ESA(ir) as well.

One possible distinguishing feature of Swaddling is that Mr S was looking for work back in the UK, but I’m not sure too much turns on that.  Probably more important is where the person’s family ties are - you say the UK in your client’s case, which I think makes the court’s comments in Swaddling very applicable indeed.

http://www.bailii.org/eu/cases/EUECJ/1999/C9097.html

I used this argument in my MR the other day for a client who returned from Abu Dhabi whose family ties are here. In fact it was the processing centre themselves that suggested the MR rather than putting in a new claim that would more than likely be awarded as he had been in the country for 2 months.

Thank you both - much appreciated.  Will check Swaddling and push on with the MR.

Might be an idea to stick in a fresh claim and try to expedite a decision on that one, so that if refused again, you can MR and then appeal and ask for both to be heard together, to avoid losing out on entitlement in the meantiime. We used to encourage people to do this on a monthly basis, with is time consuming, but does give FtT more scope in their decision making.