Secretary of State for Work and Pensions v Bhakta

An advance award of income support may be made where the claimant does not yet satisfy the habitual-residence requirement, but the decision-maker reasonably considers that it will be satisfied on a future date within three months unless circumstances change. The assessment is based on circumstances existing when the decision is made and involves likelihood or reasonable foreseeability, not certainty or near certainty. Sections 8(2) and 12(8)(b) of the Social Security Act 1998 do not prevent such an award. They prevent future circumstances being treated as already existing, but permit an assessment that present circumstances will continue. The appreciable period of residence required for habitual residence remains elastic and fact-sensitive.

Mrs Bhakta arrived in the United Kingdom on 14 November 2002 intending to settle here. Her claim for income support was refused because she was not yet habitually resident. An appeal tribunal dismissed her appeal, accepting her settled intention but finding that 18 days’ residence was insufficient.

Commissioner Rowland allowed her appeal and made an advance award under regulation 13 of the Social Security (Claims and Payments) Regulations 1987, effective two months after the claim. The Secretary of State appealed, arguing that such an award required prediction or speculation about future habitual residence and was barred by the Social Security Act 1998. The central issue was whether regulation 13 permitted an advance award where only the necessary period of actual residence remained outstanding.

1. The appeal was dismissed unanimously. Lord Justice Auld held, with Lord Justice Longmore and Lady Justice Hallett agreeing, that regulation 13 of the Social Security (Claims and Payments) Regulations 1987 applied where a claimant had a settled intention to reside in the United Kingdom and the only outstanding issue was the length of actual residence needed to establish habitual residence.
2. Habitual residence required an assessment of whether the claimant had genuinely adopted the United Kingdom as the normal place of residence. Following Nessa v Chief Adjudication Officer [1999] 1 WLR 1937, actual residence for an appreciable period was a constituent of the requirement, not merely evidence of intention. The period was elastic and fact-sensitive. Past residence, likely future residence, ties and other circumstances could be relevant.
3. Under regulation 13(1), the relevant opinion concerned likelihood or reasonable foreseeability. Certainty or near certainty was unnecessary. Mere possibilities of unforeseen developments, such as ill-health or family tragedy, did not prevent an advance award. A relevant change of intention could, however, constitute a change of circumstances. Regulation 13(2) provided a safeguard by permitting revision if the requirements were not satisfied on the relevant day.
4. Sections 8(2) and 12(8)(b) of the Social Security Act 1998 did not conflict with regulation 13. The decision was based on circumstances existing at the date of decision, together with an assessment that they would continue. Lord Justice Longmore emphasised that the contrary construction would substantially deprive regulation 13 of its usefulness.
5. The Commissioner’s decision to make an award effective two months after the claim was within the bounds of reasonable judgment. The appellate court should not interfere with such a conclusion, consistently with Moyna v Secretary of State for Work and Pensions [2003] UKHL 44. The alternative route of advance supersession was not considered because no anticipated change of circumstances had been found.

• Court of Appeal (Civil Division) [2006] EWCA Civ 65: dismissed the Secretary of State’s appeal and upheld the Commissioner’s advance award.
• Social Security Commissioner CIS/1840/2004: allowed Mrs Bhakta’s appeal from the appeal tribunal, held that an advance award could be made, and awarded income support from 14 January 2003.
• Appeal Tribunal: dismissed Mrs Bhakta’s appeal, accepting her settled intention to remain but finding that 18 days’ residence was not an appreciable period.