Can I request that my UC be backdated after passing habitual residency test?

deviantaxis

Hello,

I'm a UK citizen with a UK passport. I moved to Canada for a period of two years from 2022–2024 on a working-holiday visa. I arrived back in the UK at the tail-end of September 2024 and applied for UC mid-October 2024.

I was almost immediately refused for failing the habitual residency test as they claimed my 'center of interest' was not in the UK, even though I explained that I no longer had any ties to Canada — no family, no housing, no belongings, no job and no visa or possibility of return.

The letter of refusal explained that I should wait approximately three months and try again, so in January 2025, I reapplied and was successful. I recently received my first payment.

Is it reasonable for me to request that my claim be backdated, seeing as I now passed the habitual residency test? Is such a request even possible? If so, will they backdate it back to October 2024?

Any advice is much appreciated,

Many thanks.

huckster

Not possible to backdate once first UC statement has been issued.

You couod ask for mandatory reconsideration of the first HRT decision that you were not entitled and had to wait for 3 months before applying for UC. 

From what understand of HRT, if someone was resident and earning money abroad for an extended period of time, they should have put money to one side, so they could support themselves after returning to the UK while they searched for employment.  

HRT is quite complex and you may wish to contact Citizens Advice to see whether there is case law that could help with mandatory reconsideration.

deviantaxis

@huckster Ah okay, I understand, thank you very much for your help!

HillStreetBlues

Did they ask about ties to the UK? As at first glance you had a 2 year holiday.

deviantaxis

HillStreetBlues said:

Did they ask about ties to the UK? As at first glance you had a 2 year holiday.

Yes, they did. I told them that all my family lives in the UK, and that I was returning to live at the same address I lived at before I left.

I did technically work while I was in Canada but it was all freelance.

HillStreetBlues

deviantaxis said:

HillStreetBlues said:

Did they ask about ties to the UK? As at first glance you had a 2 year holiday.

Yes, they did. I told them that all my family lives in the UK, and that I was returning to live at the same address I lived at before I left.

I did technically work while I was in Canada but it was all freelance.

https://www.gov.uk/guidance/homelessness-code-of-guidance-for-local-authorities/annex-1-the-habitual-residence-test

7. If the applicant is returning to the UK after a period spent abroad, and it can be established that the applicant was previously habitually resident in the UK and is returning to resume their former period of habitual residence, they will be immediately habitually resident.

You were previously habitually resident  and you returned to resume that residence even at the same address it seems pretty clear cut in your case.

huckster

Re HRT there can be a 1 to 3 month wait before entitlement to UC, but the question is whether the 3 month period was appropriate based on the circumstances the Decision Maker took into consideration. This is from Advice for Decision Makers guidance.

Appropriate period of time

C1957 The appropriate period of time need not be lengthy if the facts indicate that a person’s residence

has become habitual in nature at an early stage
1

. In some circumstances the period can be as little as a

month, but it must be a period which is more than momentary in a claimant’s life history
2

. A period of

between one and three months is likely to be appropriate to demonstrate that a person’s residence is

habitual in nature. Cogent reasons should be given where a period longer than three months is

considered necessary3

.

1 House of Lords, Nessa v CAO (1999) 1 WLR 1937 HL; 2 CIS/4389/99; 3 CIS/4474/03

HillStreetBlues

The OP should reference C1964 as that is a mirror image of their circumstances.

C1964
 In deciding whether the claimant is resuming previous residence the DM should take account of
the length and continuity of the previous residence in the CTA and whether the claimant has maintained
suffcient links with the previous residence to be said to be resuming it rather than commencing a new
period of residence.
Example
The claimant, a UK national, lived and worked in UK before moving to Germany where he worked for
several years. He was made redundant and having failed to fnd work in Germany for three months he
returned to the UK where he had family and friends. On claiming UC he stated that his intention was to
fnd work and remain permanently in the UK. UC was awarded because he was resuming a previous
habitual residence

Clearly returning to the same property shows maintaining links to the previous residence, so I personally can''t see how  the OP isn't resuming a previous  habitual residence.

Muttleythefrog

Agree with above.. surprised at their decision... immediate passing of HRT seems reasonable in the circumstances and given case law and guidance.

Northern_Wanderer

Disabilty Rights Handbook Ed 48, P281: "There is no definitive list of factors that determine habitual residence but you must show a "settled intention" to live here. ....you can, depending on your circumstances, be be accepted as habitually resident ........ or even from your first day of residence, if you are returning to reside here and you were previously habitually resident."

I would get advice from CAB and do a Mandatory Reconsideration on your first claim.

HillStreetBlues

Muttleythefrog said:

Agree with above.. surprised at their decision... immediate passing of HRT seems reasonable in the circumstances and given case law and guidance.

I expect the OP was on the IEC, the OP had a maximum stay of two years, It's basically a holiday visa that allows work, sadly I'm not surprised at their decision they could get so wrong.