JSA & HRT Again!

[Deleted User]

There is no 3 months law. 3 months relates to some case law which doesn't apply to every case.

It's an acceptable time and you can gain or lose it in a day. https://www.housing-rights.info/habitual-residence-test.php

Tomsdottir

The Guardian article will be referring to the 3 month "living in" test which was introduced in 2013 as an amendment to the JSA Regs (reg 85A of the JSA Regs 1996). (The online JSA Regs on the legislation website aren't kept current, so you can find this particular amendment in SI (Statutory Instrument) 2013 No. 3196.)

This 3 month living in test says that most claimants have to have been living in the CTA for the previous 3 months - that is, the 3 months preceding their claim. The 3 month living in test also applies to child tax credit and child benefit.

But that's a separate requirement from the habitual residence test, which you'll find referred to in reg 85 of the JSA Regs 1996. This test applies to all of the means tested benefits and not just income based JSA. For income based JSA you have to satisfy the 3 month living in test as well as the habitual residence test (which includes having a right to reside).

"Habitual residence" is not defined in the regulations (which simply say you must be habitually resident to qualify). Instead its meaning has been worked out in case law, in common with many other key concepts in social security law.

simonr1603

On the CAB website it says,

"You should not be subject to the test if you've simply been abroad on a long holiday. In these cases you should be treated as a 'returning resident'. However, if you've spent three months or more living or working abroad you could find yourself subject to the test when you return to the UK"

Where/what do they base the three months on?

[Deleted User]

simonr1603 wrote: »

On the CAB website it says,

"You should not be subject to the test if you've simply been abroad on a long holiday. In these cases you should be treated as a 'returning resident'. However, if you've spent three months or more living or working abroad you could find yourself subject to the test when you return to the UK"

Where do they base the three months on?

"Should not" doesn't mean Can not. Your problem now is that you keep leaving the Uk for prolonged periods giving rise to thoughts it's benefits tourism and you are not in fact habitually resident.

Most of the info you find on the HRT applies to EU nationals in the UK not returning British nationals. Hence the 3 months being quoted.

Tomsdottir

Not sure what page you're looking at, but the Citizens Advice pages are simply a summary of regulations and case law that take up several large volumes (google Sweet and Maxwell social security law, for example). I assume that what they are getting at is that although you haven't been here for three months (so that it looks as though you may not satisfy the 3 month living in test) it's still the case that some categories of claimants are treated as if they had never left during a temporary absence.
If someone has been living here for years and they go abroad for a period of three months ( so that they don't appear at first to satisfy the three month living in test when they claim upon their return) and it's obvious from the outset that it's a temporary absence, they may not have lost their habitual residence during that temporary absence. In that situation, they can be treated as though they were actually present during their absence. It's as though they never left
Consider the following two scenarios:
Claimant A has been living part of the year here and part of the year in Australia, and this has been the case for 5 years. He hands in his notice at work, gives up his flat, gets rid of all his furniture and goes to Australia on a one way ticket to marry his fiancee. Things don't work out and he returns to the UK just under three months later.
Claimant B has lived his entire life in the UK. His job sends him to work in France for just under three months, and pay his NI contributions while he is away. He buys a return ticket, gets special leave from his work to take an extended holiday, arranges for a friend to water his plants whilst he's away and keep an eye on his flat.
It wouldn't be surprising if a decision maker decided that one claimant was subject to the HR test and the other wasn't. (Though these decisions can be challenged by claimants).
If your library has a copy of the CPAG Welfare Benefits and Tax Credits Handbook you can read about the relevant rules, case law and legislation in detail there (or the Disability Rights Handbook - doesn't just deal with disabled claimants). You can also see the guidance used by decision makers at the DWP themselves by googling "DWP decision makers guide" and looking in volume 2 chapter 7, part 3, which covers the residence and presence tests. This is not an authoritative statement of the law - just the DWP's interpretation, just as the Handbooks cited are an interpretation for claimants.

Tomsdottir

To save you wading through the entire volume in the decision maker's guide, the most relevant paras are 073729 (returning residents) and 072986 (three month living in test).

simonr1603

The last line of that paragraph

"This is a different situation to that where a person is temporarily absent from the UK and does not lose their habitual residence during that period of absence."

I wonder what they are classing as temporarily absent. In Example 1 a 12 week absence was temporary yet my 11 week absence isn't.

Tomsdottir

But have the DWP actually made a decision that you are not habitually resident or have they just asked for information to allow them to make that decision?
If you are out of the country before you claim benefit, they have to ask you for information about this to decide whether a) you were habitually resident before you left and if so b) whether the absence was a temporary one. Otherwise, how can they be in a position to decide whether you satisfy the test in the regulations?
You might be habitually resident, but that's not the same as saying you can't be subjected to the habitual residence test or the three month living in test. You might be a very good driver, but unless you have actually passed the driving test, the DVLA aren't going to be satisfied about that fact. They won't just take your word for it or accept testimonials from all of your passengers (otherwise I would never have passed, I suspect!) You have to take the test to pass it.
An advice organisation may with good reason tell you that in their opinion you have remained habitually resident based on the information you give them during what was probably quite a probing interview. But how can the DWP determine this? They weren't at your interview at the CAB. They need to gather the same information that the CAB did in order to draw conclusions, and they have specific forms and processes to allow them to do so. They have to ask you for information. In the examples in the DMG, those claimants would also have been given the same forms to complete that you received so that the DM can make a decision.
The process can be made much less stressful if JC staff are respectful and helpful, explaining what tests are being applied and why. It doesn't sound as though that happened in your case. Sometimes it helps to complain about the way you have been treated - a lot depends on how you feel personally about this. And it can be valuable for JC+ staff to be aware that they are being scrutinized (even if a complaint isn't upheld!) and held to account.

tomtom256

So you have effectively been out of the country for potentially three - six months in a 12 month period as you have been out of the country for 2 consecutive summers?


If so this is what is possibly tripping you up as they will be trying to decided if you live in the UK or America full time and what your intentions going forward are.


I.e. are you doing seasonal work in America in the summer then coming back to claim benefits out of season and then going back to America to work again.