Nessa v. The Chief Adjudication Officer and Another

The House of Lords held that for the purposes of Income Support a person is not "habitually resident" in the United Kingdom merely by arriving with a voluntary and settled intention to reside. Habitual residence requires taking up residence and living in the country for an appreciable period such that residence can properly be described as habitual. The Tribunal had erred in law by confining its enquiry to voluntariness and intention; the matter was properly remitted for further factual inquiry into whether residence of sufficient duration had been established. The court treated section 124 of the Social Security Contributions and Benefits Act 1992 and the Income Support (General) Regulations 1987 as framing the statutory entitlement but did not depart from ordinary language meanings of "habitual" and "ordinary" residence.

The appellant, Mrs Nessa, a national of Bangladesh with a right of abode, arrived in the United Kingdom on 22 August 1994 and applied for Income Support. The Adjudication Officer decided she was not habitually resident. A Social Security Appeal Tribunal accepted her evidence that she had come voluntarily and for settled purposes and found her habitually resident as at arrival. The Adjudication Officer appealed to the Social Security Commissioner who allowed the appeal and ordered a rehearing, concluding the Tribunal had failed to inquire whether an appreciable period of residence had been established. The Court of Appeal dismissed the appellant's appeal, holding that habitual residence requires an appreciable period of residence.

The House of Lords had to decide whether "habitual residence" could be acquired immediately on arrival by voluntary residence with a settled purpose, or whether an appreciable period of residence was required. The court reviewed earlier authorities on "ordinary" and "habitual" residence (including Lysaght, Ex parte Shah and In re J) and concluded that, in ordinary language, habitual residence ordinarily requires that a person has taken up residence and lived in the country for a period sufficient to make the residence habitual. The court held that voluntariness and settled purpose are relevant but not by themselves decisive and that the Tribunal had erred in law by limiting its enquiry to those elements. The House of Lords dismissed the appeal and agreed that the case should be remitted for further factual findings on whether an habitual residence had in fact been established.

Nature of claim: claim for Income Support based on status as habitually resident in the United Kingdom. Issues framed by the court: (i) the meaning of "habitual residence" for Income Support purposes; (ii) whether habitual residence can be acquired on the day of arrival by intention and voluntariness alone; (iii) whether the Tribunal had erred in law by failing to require proof of an appreciable period of residence. Reasoning: the court applied ordinary language meaning, relevant precedents and statutory context to conclude that an appreciable period of residence is generally required and remitted the matter for further factual inquiry.

Appeal dismissed. The Tribunal was wrong in law to treat voluntariness and settled purpose alone as sufficient to establish habitual residence; habitual residence ordinarily requires residence lived for an appreciable period and the question of whether such residence had been established should be remitted for further factual determination.

Adjudication Officer decision 14 September 1994 (claim refused); Social Security Appeal Tribunal decision 6 December 1994 (notified 30 March 1995) found habitual residence; Social Security Commissioner allowed Adjudication Officer's appeal and ordered a rehearing (6 June 1996); Court of Appeal [1998] 2 All E.R. 728 dismissed the appellant's appeal; House of Lords [1999] UKHL 41 dismissed the appeal and remitted the matter for further inquiry.