If you have clicked on this page, you will either be a UK citizen who has been out of the UK for a while, or a citizen of the Channel Islands, the Isle of Man, or the Republic of Ireland who has either been out of the UK for a while or has never lived in the UK before.

If you fit the description above, you’re in a pretty good position. Passport control should have let you into the country without any problems, as the law says you have every right to be here.

In general, you also have the right to all the benefits that any UK citizen would be entitled to.

There are, however, two problems:

• One is called the past presence test.
• The other is called the habitual residence test.

(Strictly speaking it’s not quite that simple. There are also rules about presence and ‘ordinary residence’, but if you are really living in the UK and don’t have a home elsewhere it is unlikely that they will be a problem for you.)

The past presence test

This test only applies to Attendance Allowance, Disability Living Allowance, Personal Independence Payment, and Carer’s Allowance.

For these benefits, this rule normally means that you must have been in the UK for at least 104 weeks in the 156 weeks before you make your claim. In effect, therefore, you cannot normally get any of these benefits until you have been in the UK for 2 years.

The habitual residence test

Originally, as I understand it, the habitual residence test was designed to stop British people who lived abroad claiming benefits if they were visiting the UK on holiday. The rule says, in effect, that until the government is satisfied that you really have set up home here permanently it does not see why you should get benefit.

The problem, of course, for you is that you aren’t here on holiday. Perhaps you were working abroad for a while, or were caring for an elderly relative in a foreign country, but now you are back in the UK and plan to stay. Sadly until the DWP agrees that this is the case, you cannot get some benefits (well most benefits, really).

The benefits that are affected by this are:

• Income based Employment and Support Allowance, income based Jobseeker's Allowance, Income Support, Universal Credit, and Pension Credit
• Disability Living Allowance, Personal Independence Payment, Attendance Allowance, and Carer’s Allowance
• Housing Benefit and Council Tax Support

In practice, the habitual residence test it not generally a problem for Disability Living Allowance, Personal Independence Payment, Attendance Allowance, and Carer’s Allowance. This is because you normally need to be in the UK for 104 weeks (i.e. two years) in the last three years to get any of these benefits anyway, by which time the conditions for passing the habitual residence test are almost certain to be satisfied. It may still be a problem if you are claiming Disability Living Allowance, Personal Independence Payment, or Attendance Allowance because you are terminally ill, because the 104 weeks rule is waived in this type of case.

How and when will the DWP agree you are really staying?

This is a really hard question to answer, as there’s no hard and fast rules. It is very unusual for the DWP to accept that someone is habitually resident from day one: on the other hand it is also very unusual for them not to accept someone as habitually resident after three months from when you arrive. In general, the more evidence they have that you plan to stay the shorter you will need to wait.

But beware...

Since 1st January 2014 there is a new rule for income based Jobseeker's Allowance claimants, which says that you are not habitually resident unless you have been living in the Common Travel Area for at least 3 months. This seems to be designed to put off people from Romania and Bulgaria but affects everybody who comes back to the UK from abroad, even if you are British. It does not apply if you are claiming any of the other benefits covered here

So if you claim a benefit and are refused for this reason, you have a problem: when do you try claiming again?

• On the one hand, there’s nothing in the law to stop you making a new claim for benefit on a daily basis, until you make one which is accepted. But it’s unlikely you would really want to do this.
• On the other hand, if you wait three months before making a new claim, you’ll save yourself a lot of effort, but may also lose out financially, as the DWP might have accepted a claim made only a month after you your first claim.
• As neither of those seem very sensible, you’ll have to make a compromise: perhaps making a new claim every month, for instance.

An example might help...

Hussein is a British Citizen, but has been working in Saudi Arabia. but the job has ended because of health problems and he is back in the UK. He is single and has no children. He returns to the UK on 10th February, and on 12th February makes a new claim for Employment and Support Allowance. At this point he is living with relatives. The Jobcentre Plus write to him on 17th February asking him to fill in a form about where he has been, and about his plans. He completes the form, explaining that he intends to stay in the UK and adds that he has registered with a GP. He includes a copy of his airline paperwork which shows that he bought a one-way ticket. On 28th February the Jobcentre Plus makes its decision: he is not entitled to income based Employment and Support Allowance because he ‘does not satisfy the habitual residence test.’ (He is also told that he is not entitled to contribution based Employment and Support Allowance because he does not have enough recent national insurance contributions.) Hussein decides to wait until after he’s been in the UK a month, and then makes a new claim, on 11th March. He has now rented a flat to live in. When they send him a form this time, he is able to include a copy of the tenancy agreement and details of a GP he has registered with as well as the airline paperwork. (He also makes a new claim for Housing Benefit at this point.) On 25th March he receives another refusal letter from the Jobcentre Plus. The local authority refuse his claim for Housing Benefit as they go with the decision of the Jobcentre Plus. He then makes a third new claim on 4th April (he was going to wait until two months from his arrival but is getting worried about rent arrears). Again the Jobcentre Plus writes asking for more information. Again he replies, with copies of his tenancy agreement, his GP details, and the airline documents. This time, on 18th April, he is awarded Employment and Support Allowance, from 4th April. He is also awarded Housing Benefit from 4th April.

 

Note: That when Hussein is finally successful, he is only paid from the date of that final claim: he cannot get any backdate. This is one of the reasons not to leave it too long between each claiming If he had been trying to get Jobseeker's Allowance there would have been no point in applying at all until he had been back for 3 months: this is because of the change to the law from 1st January 2014 onwards (see warning box above)

What about appealing?

You can appeal any decision that says that you do not satisfy the habitual residence test. And these appeals can continue even if a later claim is successful.
 

How to appeal

If you are refused benefit, it is very important to read the decision letter to find out exactly why you have been refused. This is because if you do this: You can choose your appeal arguments to match their reasons ⁃ You can think about what evidence you have that shows that they are wrong; You know which reasons for giving you benefit that they haven’t considered; Also, you might learn that it might not have anything to do with you being from abroad at all, in which case the information on this page isn’t going to be much help. In habitual residence cases things can often come down to a difference of opinion about the facts. It’s often not clear cut. So, yes, a tribunal might agree with the Jobcentre Plus (or Her Majesty’s Revenue & Customs), but they might not, especially if you are able to get more evidence.

A new appeal procedure now applies to most benefits (from 28th October 2013). But as it does not yet apply to everything we need to look at the old procedure as well...


New Procedure (applies to everything apart from Housing Benefit and Council Tax Support)


The new procedure is a two stage process. Before you appeal, you must first ask the people that made the decision for a mandatory reconsideration. They must then write to you to tell you whether they have changed the decision or not. If they have not changed the decision, or they have changed it but you don’t like the new decision either, you must then send an appeal to Her Majesty’s Court and Tribunals Service (the Tribunal Service for short).

The Tribunal Service will then put you on a waiting list for a hearing date, at which they will consider your case.

Your request for a mandatory reconsideration must normally get back to them within a month of the date of the decision Your appeal must normally get to Her Majesty’s Court and Tribunals Service within a month of the date of the the letter telling you the result of the mandatory reconsideration.

Here’s some things to bear in mind:

• When you write asking for a mandatory reconsideration, there is no special form, so it’s important to make sure you include information like your National Insurance Number, the date of the decision you’re not happy with, and exactly why you disagree with the decision. You could use the example have written here
  .
• When you write your appeal, you should use the form www.justice.gov.uk/downloads/forms/tribunals/sscs/sscs1.pdf

At Section 6 of the appeal form it asks whether you want to attend a hearing of your case: you generally have better chance of success if you attend your hearing

Hussein writes to the Jobcentre Plus to say that he is wants them to look again at both refusal decisions: On 7th March he writes to ask them to look again at the decision made on 28th February about the claim made on 12th February On 13th April he writes to ask them to look again at the decision made on 25th March about the claim made on 11th March The Jobcentre Plus look at both decisions but writes to Hussein to say that they will not change either of them. So Hussein posts appeal forms on both decisions to Her Majesty’s Court and Tribunals Service. The Tribunal Service decides to hear both cases together, and on 3rd September a tribunal decides that although the decision about the first claim was right, the decision about the second claim was wrong. The tribunal judge decides that by the time Hussein made his second claim, there was enough evidence to show that he was habitually resident in the UK. He receives arrears of Jobseeker's Allowance covering the period from 14th March to 6th April and of Housing Benefit from 11th March to 3rd April

Old Procedure (applies to Housing Benefit and Council Tax Support only)

With the old procedure you send your appeal initially to your local authority (Council). Each local authority will have its own form for this.

They will then consider your appeal. If they do not change their decision they should pass the case on to the Tribunal Service.

The Tribunal Service will then contact you asking you some questions.

One of the questions the Tribunal Service will ask you is whether you want to attend a hearing of your case: you generally have better chance of success if you attend your hearing.

The Tribunal Service will then put you on a waiting list for a hearing date, at which they will consider your case.

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