Habitual Residence Condition and Travellers

The strucutre of this ITM Law Centre Document is as follows:


Section 1 – Introduction

Section 2 – Overview of HRC

Section 3 – Steps in the Process

Section 4 – How to Draft an Appeal – Template for the Social Welfare Appeals Office

Section 5 – Appeal Fails – Redress

Section 6 – Conclusion



SECTION 1 - INTRODUCTION

The Habitual Residence Condition is a condition that must be met in order for people to qualify for certain social welfare payments. The Irish government introduced the condition in 2004 to stop welfare fraud. It has recently come to the attention of the Law Centre and ITM that this practice of using the condition as a reason to deny social welfare has become more widespread. It has been affecting many Travellers returning from England. This new practice is reflected in the new DSFA guidelines on the HRC for 2010 evidenced by the fact that the following paragraph, which was contained in the 2008 Guidelines, has been omitted from the 2010 version:


The results have been devastating with many families forced into refuges and relying on family and charitable support with no income.

All of the cases that have come to the attention of the Law Centre have been appealed to the Social Welfare Appeals Office. In the event that they are unsuccessful, the individual Travellers concerned may choose to take their case to the Equality Tribunal or the High Court.

The purpose of today’s talk is to empower you as Accommodation Workers to draft these appeals to the Social Welfare Appeals Office. The matter will then only come to the attention of the Law Centre at the appropriate time, ie: when it is ready for litigation. The Law Centre would be happy to review any appeals drafted. Please note that this pamphlet has been prepared with a specific factual scenario in mind (ie: unemployed Irish Travellers returning to Ireland having lived in England), if you encounter a very different factual scenario please refer the matter to ITM for possible referral to the Law Centre.



Risk of poverty and homelessness

The current policy and practice is causing extreme hardship and distress.  Whilst the decision can be appealed and may be overturned, this can takes weeks or months, during which time the applicant has no source of income. There is a risk of extreme poverty and homelessness in these cases. This should be dealt with proactively by local groups. Put the person in touch with local charitable organizations such as the St Vincent de Paul as well as local homeless agencies.

Threat of eviction from private landlord

A landlord may not remove your items from the house and change the locks for non-payment of rent. They must issue you with a 28 day notice. Even after the 28 days they cannot remove your items or change the locks. The only person/office who can do that is the Sheriff’s office. If a landlord is threatening the above action due to non-payment of rent (because rent supplement has been withheld on the grounds of failure to satisfy the HRC) inform him by letter of your situation and:

• Appeal for time until the appeal has been determined
• Inform him that his proposed actions would amount to an illegal eviction
• If he still persists contact the Private Residential Tenancies Board (Tel: 01 6350600 or www.prtb.ie)

SECTION 2 – OVERVIEW OF HRC


When does the HRC apply?

The habitual residence condition must be met in order for people to qualify for certain social assistance payments in Ireland. These payments are:

• Jobseeker's Allowance
• State Pension (Non Contributory)
• Blind Pension
• Widow(er)'s Non Contributory Pension
• One Parent Family Payment
• Guardian's Payment
• Carer's Allowance
• Disability Allowance
• Supplementary Welfare Allowance (other than once off exceptional and urgent needs payments)
• Child Benefit

The Habitual Residence Condition is an additional condition to be satisfied along with the other conditions of entitlement for the payments concerned.

Who decides who is habitually resident?
Supplementary Welfare Allowance: an authorised officer of the HSE.
All other: a statutorily appointed Deciding Officer

What about self-employed Travellers?
Self-employment can be recognised as a viable proposition only if:

• the self-employment business has been registered with the Revenue Commissioners and proof of such registration is supplied
• the self-employment business is bona fide, legal self-employment of an ongoing nature.
• It must comply with any official requirements (in Ireland) with regard to registration / licensing/ insurance of the business and be financially viable.

Once Habitually Resident, Always Habitually Resident?
No. The question of habitual residence may, of course, be reviewed at a later date if the person appears to have transferred their centre of interest to another country.
 
How does the deciding officer determine who is Habitually Resident?
In determining whether a person is habitually resident in Ireland, all relevant evidence is taken into account including:

• the period before the person entered Ireland (and other parts of the CTA),
• the present period and
• the future intentions of the applicant as evidenced by his/her actions.

The Law
There are three relevant pieces of law, two DSFA circulars and several European Court of Justice cases on the HRC.
 
Section 246 of the Social Welfare Consolidation Act 2005 provides that:
 "it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless he has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date."

Two-year 'rule of thumb' amended following infringement proceedings against the Irish Government by the EU and Section 30 of the Social Welfare and Pensions Act 2007 added the following:

 "(4) Notwithstanding the presumption in subsection (1), a deciding officer or the Executive, when determining whether a person is habitually resident in the State, shall take into consideration all the circumstances of the case including, in particular, the following:

a.    the length and continuity of residence in the State or in any other particular country;
b.    the length and purpose of any absence from the State;
c.     the nature and pattern of the person's employment;
d.    the person's main centre of interest, and
e.    the future intentions of the person concerned as they appear from all the circumstances."

These five factors derive from the ECJ ruling in the Swaddling case.

Subsection (9) inserted by the 2009 Act which states that “Notwithstanding that a person has, or is taken to have in accordance with subsection (6), a right to reside in the State the determination as to whether that person is habitually resident in the State shall be made in accordance with subsections (1) and (4)”.

DSFA Circular No. 8/09 indicates that “this clause puts a greater onus on persons who have been present for less than 2 years in the Common Travel Area”.   Conversely this means that a lesser onus should be placed on persons who have been present for more than 2 years in the Common Travel Area.

(This was further amended by Section 15 of the Social Welfare and Pensions (No. 2) Act 2009. This amendment is relevant to refugees.)


SECTION 3 – STEPS IN THE PROCESS

Step 1: Traveller returns from England and applies for one of the social welfare allowances listed above. Ask to fill in a HRC 1 form

Step 2: A letter of refusal comes to the Traveller from Social Welfare Services of the HSE. Within 21 days appeal the refusal to the Social Welfare Appeals Office (see sample form attached). Include the following:

1. A well-drafted Section C (see below for more details)
2. Copy original letter of refusal
3. Copy lease in Ireland
4. Copy letter from Housing Benefits/Council Tax Benefits office in UK acknowledging return to Ireland and that benefits have been stopped
5. Copy Irish Housing Application/confirmation of receipt of application
6. Copy letter from children’s school confirming enrollment
7. Copy letter from GP/Health Centre confirming registration
8. Any other documentary evidence of intention to remain

Request an oral hearing and that the matter be expedited on the grounds that the person is homeless/at risk of homelessness and destitution.

Step 3: Contact the Law Centre if the appeal fails.


SECTION 4 – HOW TO DRAFT AN APPEAL – TEMPLATE FOR THE SOCIAL WELFARE APPEALS OFFICE


Drafting the Appeal
The Appeal will be sent in on the standard SWAO application form

Section C requests that you set down all details you wish to have considered as grounds for your appeal. This should be done on a separate piece of paper and may be outlined as follows (omit any irrelevant statements and add more details where required):

SECTION C - GROUNDS FOR APPEAL
I enclose a copy of my original letter of refusal from the Deciding Officer/HSE.

Factor 1: “Length and Continuity of residence in the State or in any other particular country”
We have many relatives living near us in Ireland as listed below:
Daughter: (Name and Address)
Cousin: (Name and Address)
Son: (Name and Address)
Sister: (Name and Address)
Brother in Law: (Name and Address)
Also the following relatives are buried in Ireland: eg: parents, grandparents, aunts, uncles, siblings, etc.

We have taken up residence in our old caravan.

I was born in Ireland and lived in Ireland for X years before moving to England.

We resided in England for X years before returning to Ireland.

We have no remaining ties with England eg: children taken out of school, all belongings moved, ended tenancy, returned loaned caravan, left Health Centre, left work, stopped social welfare payments (proving we are not entitled to social welfare payments in any other State), family no longer live there.

Factor 2: The length and purpose of any absence from the State
We visited Ireland at regular intervals while living in England (eg: every summer for 6 weeks staying with my sister in Galway OR staying in our caravan which we kept near my sister’s home in Galway).

We did not purchase a home in England and were not employed in England.

We went to England (insert reason) and have maintained links with Ireland. We intended to live there for X years and stayed there for Y years.

We decided to return to Ireland (eg: when my sister’s husband died, when our children moved out and married, when my parents who lived in England with us died, etc.).

We intend to live out the rest of our days in Ireland/we intend to live in Ireland for the foreseeable future.

We moved all our furniture and our van/caravan/car to Ireland.

(Include entire employment history of life)

My spouse, children, sister etc returned to Ireland with me.

While we were in England I let my brother live in our caravan and he is now moving out to allow us to move back in. I therefore satisfied the HRC on arrival in Ireland as we are now returning to resume our permanent residence in Ireland as per the Swaddling case.

We kept links with Ireland by (eg: name and give year of weddings, funerals), keeping registered with (eg: car insurance or registration), etc.

I enclose proof of the termination of my tenancy in England and the termination of my employment/welfare entitlements in England.

We returned to Ireland on X date and have been here everyday since (explain any brief absences since return).

Factor 3: The nature and pattern of the person’s employment

(Reason number 1 for my refusal was that I have no record of employment in Ireland.)

I have been living in Ireland for X years and have been working in stable employment with (insert name of employer) since X date. I am therefore presumed to be habitually resident in Ireland and there is nothing to rebut this presumption.

I am not currently in employment/have never been employed. This factor is of no relevance to my case and should certainly not be taken into account in any adverse way.

Factor 4: The Applicant’s main centre of interest

(Reason number 2 for my refusal was that Ireland is not my centre of interest.)

My home and my family are in Ireland and Ireland is my main centre of interest.

I was born in Ireland/I hold an Irish passport/all my family are Irish resident (ie: sisters, brothers, parents, children, etc).

I have lived in Ireland most of my life.

An applicant's main centre of interest, at the time of application, must be in the Republic of Ireland.

My home is (insert address)

My family live near me (see above under Factor 1).

I am a member of eg: FAS, Medical centre, etc. and enclose documentary evidence of this.

My car is here and is registered and insured here, my furniture and caravan and all my belongings are here.

I gave up a council house/returned a loaned caravan to the state in England.

I have taken up a one year lease of a house and enclose a copy of my lease/I have been trying to get a lease of a property and enclose a letter from my letting agent/letters of refusal from several landlords.

 Factor 5: The future intentions of the person concerned as they appear from all the circumstances

As a member of the Travelling Community I have a traditionally nomadic type lifestyle and do not have permanent homes etc. This should not mitigate against me in your decision and special recognition should be given to the nature of my lifestyle when considering this and the other factors, in accordance with the Equality Acts 2000-2004.
 
I have come to Ireland with the intention of resettling here.

I made arrangements for accommodation before moving to Ireland (insert details).
 
I bought a one way travel ticket to Ireland (copy attached).

I have made an application to the Housing Section of my local authority (I enclose copy receipt of same).

I have transported all my belongings to Ireland including….
 
I own a car and have reregistered it and insured it in Ireland/am in the process of reregistering and insuring it in Ireland (see documentation attached).


Irrelevant Considerations:
The following reasons for refusal were irrelevant considerations for the purposes of establishing habitual residence therefore rendering the decision flawed and unsafe:
Eg:
1. “the person deprived themselves of income in the UK”
2. “Ireland is in a recession”

(Irrelevant considerations are those not stated in the Guidelines to be relevant.)

Consistency in decision-making
According to the 2010 Guidelines:
“In making a determination on Habitual Residence, Deciding Officers should have regard to any previous HRC determinations issued in respect of the same applicant if other claims for assistance payments or child benefit have already been allowed or refused.”

It goes on to state that “The deciding officer should therefore establish whether the same factors continue to apply, and full account must be taken of the latest relevant evidence and information. Where a deciding officer proposes to make a decision on HRC which is different to a previous HRC decision in respect of the same person, both deciding officers should consult so as to ensure a consistent interpretation of the applicant's HRC status.”

I was previously receipt of (name one of the social welfare allowances listed above as relevant to the HRC that you were in receipt of immediately on your return to Ireland) from X date to Y date. I was assessed as habitually resident for the purposes of this payment. There is no evidence that the deciding officer sought to establish whether the same factors continue to apply or that both deciding officers consulted so as to ensure a consistent interpretation of the my HRC status – according to 2010 DSFA Guidelines this may be challenged.  

Any new or additional evidence since original application…

We now owe €5000 in rent and our landlord has started to put pressure on us for this back rent and we fear we will soon be threatened with eviction and rendered homeless.  We are also destitute as our family has no source of income and we have no money for food/electricity, etc.

We therefore request that you expedite this application as a matter of extreme urgency and we request an oral hearing.

Enclosures:

1. Copy letter of refusal of Social Welfare Payment dated (within 21 days) - Essential
2. Copy letter from Housing Benefits/Council Tax Benefits office in UK acknowledging return to Ireland and that benefits have been stopped
3. Copy Irish Housing Application/confirmation of receipt of application
4. Copy letter from children’s school confirming enrollment
5. Copy letter from GP/Health Centre confirming registration
6. Car insurance and registration in Ireland
7. FAS membership
8. Local club or library membership
9. Copy one way ticket to Ireland
10. Copy lease/letter from letting agent confirming seeking accommodation
11. Any other documentary evidence of intention to remain

SECTION 5 - APPEAL FAILS - REDRESS


1. The Ombudsman

Office of the Ombudsman
18 Lower Leeson St, Dublin 2
Lo-call: 1890 223 030 Tel: (01) 639 5600 Fax: (01) 639 5674
Email: ombudsman@ombudsman.gov.ie
Web: www.ombudsman.gov.ie

Office of the Ombudsman for Children
Millennium House, 52-56 Great Strand St, Dublin 1
Freephone: 1800 202 040 Tel: (01) 865 6800
Email: oco@oco.ie Web: www.oco.ie

2. Equality Tribunal

The application of the HRC potentially discriminates on the grounds of membership of the Traveller community under the Equality Acts 2000-2004 on the basis of indirect discrimination.  

Indirect discrimination occurs when apparently neutral provision puts persons from a particular group at a particular disadvantage.  As many Travellers live a nomadic lifestyle, they often spend time living in Northern Ireland and England and the Republic of Ireland for varying periods. Therefore the application of the HRC to the CTA has a disproportionate negative impact on Travellers.

Discrimination may only be argued in respect of access to services. Donovan v. Donnellan  an Equality Officer interpreted the term “service” and concluded that ‘while State services are not specifically mentioned as being covered they are not specifically excluded either and I believe that certain services provided by the State are available to the public and are covered by the Act, e.g. social welfare services, health services, etc.’  

3. Judicial Review

This is a High Court application to review a decision. It can take many years to progress. You will need a solicitor and a barrister.

In light of the provisions of section 246(1), we are informed that the position being adopted by the Department in relation to Irish citizens who are resuming residence where all of the period of absence has been spent in the CTA would not necessarily stand up to judicial scrutiny.  If subsection (1) had been deleted by the Oireachtas the position would, of course, be different.

A decision can also be challenged on the grounds of unreasonableness but the reasonableness of the decision can only be judged against the facts as presented to the decision maker.   Therefore it is important that all relevant information is given at the appeal stage. Judicial Review is not an opportunity for a fresh appeal.

It is also important that any request by the Appeals Officer for information is dealt with comprehensively and speedily.  In this regard there is an interesting  recent case Ayavoro v Health Service Executive (HSE) & Minister for Social & Family Affairs 2009 High Court. In that case the Applicant brought judicial review proceedings against the HSE and Minister for Social & Family Affairs in relation to a refusal of his claims for Supplementary Welfare Allowance and Jobseeker’s Allowance.  In the course of his judgment O’Neill J. was critical of the Applicant’s failure to respond to requests for information in relation to his claim and it compromised the case.


SECTION 6 – CONCLUSION


If you come across a similar refusal on the grounds of the HRC make sure to get the appeal in without delay to the SWAO. Follow the template on pages 8-13 of this handout and be sure to include documentary evidence. Be aware of the 21 day time limit for appeals. If necessary, draft the form and have it signed and send it in by email (email address is on the form) and indicate that Section C and the documentary evidence will follow.

Contact the Law Centre if you want us to review the appeal once written.

In the event that the appeal fails, contact the Law Centre to see if the matter may be progressed further. 

This document was originally presented to the ITM Accommodation Working Group on the 10th March 2010