Secretary of State for Work and Pensions v Bhakta [2006] EWCA Civ 65

Case No C3/2005/0935

[2006] EWCA Civ 65

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER ROWLAND

CIS/1840/2004

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday, 15 th February 2006

Before

THE RIGHT HONOURABLE LORD JUSTICE AULD

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE

THE RIGHT HONOURABLE LADY JUSTICE HALLETT DBE

Between

THE SECRETARY OF STATE FOR WORK AND PENSIONSAppellant

PUSHPABEN BHAKTARespondent

(Transcript of the Handed Down Judgment of

Smith Bernal WordWave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7421 4040 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Ms Marie Demetriou (instructed by The Office of the Solicitor) for Appellant

Mr Desmond Rutledge (instructed by Park Woodfine) for Respondent

Judgment

Lord Justice Auld :

[1]This is an appeal by the Secretary of State against a decision by a Commissioner, Mr Commissioner Rowland, CIS/1840/2004, of 5th January 2005, awarding a claimant, Mrs Pushpaben Bhakta, an advance award of income support under Regulation 13 of the Social Security (Claims and Payments) Regulations 1987 (“the 1987 Claims and Payment Regulations”). It concerns the circumstances in which the Secretary of State has power to make such an award.

[2]The Secretary of State contends that he may only make an advance award where he is satisfied that, as a result of the mere passage of time, a claimant will satisfy the requirements at a future date, as distinct from, as Miss Marie Demetriou put it on his behalf, “predicting” or “speculating” that he or she will satisfy the requirements at a future date.

The legislation

[3]Section 124 of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”) specifies that a person in this country is “entitled to income support” if he or she has no income or no income that exceeds “the applicable amount”. The effect of regulation 21(1) of, and paragraph 17 of Schedule 7 to, the Income Support (General) Regulations 1987 (“the 1987 General Regulations”) is that the ‘applicable amount’ of income of a person from abroad ‘is nil’, so that such a person receives no payment by way of income support.

[4]At the material time, regulation 21(3) provided that a “person from abroad” included one “who is not habitually resident” in this country. The critical question, generally and on the facts giving rise to this appeal is, therefore, when and in what circumstances a person who has come to this country from abroad, ceases to be “a person from abroad” within the meaning of that expression in regulation 21 of the 1987 General Regulations, that is, becomes habitually resident so as to qualify for an “applicable amount” other than “nil” specified elsewhere in Schedule 7.

[5]The law on the matter is a mix of the legislative exclusion in regulation 21(3) from entitlement to payment of any sum by way of income support to a person not “habitually resident” in this country and of a relatively recent gloss on the meaning of that expression by Lord Slynn, speaking for all their Lordships, in Nessa v Chief Adjudication Officer

[1999] 1 WLR 1937

. Lord Slynn held, at 1942.D-H, that “habitual residence” for this purpose connotes both an element of retrospectivity and prospectivity, that is, residence at the time of the Secretary of State’s decision “for a period which shows that the residence has become ‘habitual’ and … will or is likely to continue to be habitual”. He reached that conclusion in the light of earlier authorities, in particular In re J (A Minor) (Abduction: Custody Rights)

[1990] 2 AC 562

HL, which concerned the meaning of “habitually resident” in a country under

Article 3 of the Convention

on the Civil Aspects of International Child Abduction. In that case, Lord Brandon, speaking for their Lordships, said, at 578, as one of a number of “preliminary points”, that habitual residence connoted “[a]n appreciable period of time” of residence as well as a settled intention” to take up long-term residence.

Lord Slynn’s reasoning in Nessa was as follows:

“With the guidance of these cases it seems to me plain that as a matter of ordinary language a person is not habitually resident in any country unless he has taken up residence and lived there for a period. … If Parliament had intended that a person seeking to enter the United Kingdom or such a person declaring his intention to settle is to have income support on arrival, it could have said so. It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing, ‘I intend to settle in the United Kingdom’ and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say I am going to live at X or with Y. He must show residence in fact for a period which shows that the residence has become ‘habitual’ and, as I see it, will or is likely to continue to be habitual. I do not consider that when he spoke of residence for an appreciable period, Lord Brandon meant more than this. It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence has been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, ‘durable ties’ with the country of residence or intended residence, and many other factors have to be taken into account.””

He added, at 1943A, that an appreciable period may be long or short, citing as an instance of the latter an observation of Butler-Sloss LJ (as she then was) in Re F(A Minor) (Custody) (Child Abduction)

[1994] FLR 548

, at 555, that ”[a] month can be … an appreciable period of time”. He mentioned also the possibility of “special cases” “where the person concerned is not coming here for the first time, but is resuming an habitual residence previously had”.

[7]The problem of what amounts to habitual residence in any given case has now been brought into sharp focus by statutory provisions introduced since Nessa applicable to a number of social security benefits, including income support. Section 8(2) of the Social Security Act 1998 (“the 1998 Act”) confines entitlement to benefit to circumstances obtaining at the time of the Secretary of State’s decision whether or not to grant it. Section 12(8)(b) of the 1998 Act similarly confines an appeal tribunal in its consideration of an appeal from a decision of the Secretary of State to circumstances obtaining at the time of his decision.

[8]Those provisions, considered on their own, do not permit the Secretary of State, or an appeal tribunal - retrospectively or prospectively - to anticipate circumstances not obtaining at the time of the Secretary of State’s decision as a basis for allowing a claim for a “relevant” social security benefit. In this context, it does not allow an award of income support where a claimant has not established “habitual residence” at the time of the Secretary of State’s decision, but was likely to do so in the future. However, it is common ground that any such appeal is by way of rehearing and the appellate tribunal may, if it holds the Secretary of State’s decision to be wrong on the circumstances before him, decide for itself what he should have decided.

[9]Given the retrospective as well as prospective constituent given by the House of Lords in Nessa to the statutory formula of “habitually resident” in the 1992 Act and the 1987 General Regulations,it is necessary to consider the application to it of the more generally applicable statutory restriction in the 1998 Act of the formula “circumstances … obtaining at the time” of the Secretary of State’s decision. The effect of that new restriction and its implications for the meaning of the term “habitually resident” in the context of a claim for income support by “a person from abroad” are the centre-point in this appeal.

[10]However, before I start to grapple with that potential difficulty, I should set out the first of two alternative ways in which the Secretary of State may provide - to put it neutrally - for the future needs of a claimant for income support. Regulation 13 of the 1987 Claims and Payment Regulations empowers the Secretary of State to make an advance award of income support, to become payable up to three months after a claim - the provision upon which the Commissioner relied to make such an award to Mrs Bhakta. “(1) Where, although a person does not satisfy the requirements for entitlement to a benefit on the date on which the claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day (‘the relevant day’) not more than 3 months after the date on which the claim is made, then the Secretary of State may –(a) treat the claim as if made for a period beginning with the relevant day; and

(b) award benefit accordingly, subject to the condition that the person satisfies the requirements for entitlement when benefit becomes payable under the award.” [my emphasis] I should note the safeguard – a power of revision - given to the Secretary of State by section 9 of the 1998 Act and a new regulation, regulation 13(2) of the same Regulations:

“A decision pursuant to paragraph (1)(b) to award benefit may be revised under … if the requirements for entitlement are found not to have been satisfied on the relevant day.”

[11]The 1998 Act also introduced an alternative way to that provided by regulation 13 of the 1987 Claims and Payment Regulations, for making provision for the future, a power of “supersession”, which has as its basis - unlike regulation 13 - some future relevant change of circumstance. Section 10 of the Act and regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”) empower the Secretary of State to determine that an original or revised decision on a claim is “superseded” where there has been “a relevant change of circumstances”, since the decision had effect or such a change is “anticipated”.

The Facts

[12]The facts are set out at paragraph 6 of the Commissioner’s Decision. In summary, Mrs Bhakta arrived in the United Kingdom on 14th November 2002. She had previously lived here from 1976 to 1984 and from 1989 to 1997. Between those periods she lived in the United States, and returned there in 1997 to live with her eldest son. She decided to come back to this country in 2002 with a view to settling here permanently. This appears to have been prompted by a request from her eldest son that she leave his house. Upon her arrival here, Mrs Bhakta went to live with her daughter. Later she moved in with another son.

[13]Mrs Bhakta claimed income support on 19th November 2002. On 2nd December 2002, the Secretary of State disallowed the claim on the ground that she did not satisfy the requirement in regulation 21(3) of the 1987 General Regulations of habitual residence in the United Kingdom. Specifically, his decision-maker found that:

“At this time [the claimant] has not been in the country for an appreciable amount of time to show a settled intention to stay.”

[14]Another decision-maker reconsidered this decision on 23rd January 2003. He maintained the Secretary of State’s position that Mrs Bhakta did not satisfy the requirement of habitual residence and, therefore, was not entitled to income support. This decision-maker’s reasons were as follows:

“[The claimant] states that the primary reason that she returned to the UK is because of her husband’s death, but he died in May 1998. Her reconsideration request indicates that she has visited the UK on several occasions but always returned to the USA. This indicates a pattern where the customer returns for a short period and then departs. The [claimant] returned to the UK on 14th November 2002 and claimed on 19th November 2002. At this point an appreciable period of time had not passed for [the claimant] to be considered Habitual Resident [sic] in the United Kingdom.”

[15]On 19th November 2003 an Appeal Tribunal dismissed Mrs Bhakta’s appeal from the Secretary of State’s decision, holding that, although it accepted she had a settled intention to remain here, she did not meet the Nessa requirement of having been, at the time of the Secretary of State’s decision, resident here for an “appreciable period of time”. This is how the Tribunal’s Chairman put it in giving the Tribunal’s reasons:

“For the avoidance of doubt I find that the appellant has a settled intention to remain in the United Kingdom and that she has had this intention from the time of her arrival. However, she also needs to establish that she had been actually resident in the United Kingdom for an appreciable period of time as at 2nd December 2002… I find that the only period that can be considered is the 18 day period between the arrival in the United Kingdom and the date of the decision and this does not constitute an appreciable period of time.”

[16]Mrs Bhakta’s appeal to Mr Commissioner Rowland against the Tribunal’s decision concerned solely the question of the date from which she should be regarded as habitually resident in the United Kingdom.

The Commissioner’s Decision

[17]The Commissioner found that the Tribunal, whilst correct in holding that the Secretary of State rightly denied income support to Mrs Bhakta at the time of his decision, had erred in failing to consider whether he had power to make an advance award of income support under regulation 13(1) of the 1987 Claims and Payment Regulations, namely on the basis that, unless there was a change of circumstances, she would satisfy the requirement of habitual residence at a future date within the three month period. The Commissioner held that future establishment of habitual residence as a condition of entitlement for income support under section 124 of the 1992 Act and regulation 21(1) of, and paragraph 17 of Schedule 7 to, the 1987 General Regulations, could constitute satisfaction of the “requirements for entitlement” to benefit in respect of which an advance award could be made under regulation 13 of the 1987 Claims and Payment Regulations. That was so, even though a claimant, under those provisions was treated as having an “applicable” amount at the time of the Secretary of State’s decision, albeit one of “nil”. The effect of this, he said: was that :

“22. … the Secretary of State would be entitled, but not obliged, to make an advance award of income support where all the conditions of entitlement were satisfied and were likely to continue to be satisfied save that the claimant had not yet resided in the United Kingdom long enough to establish habitual residence. The award could be made effective from the date when habitual residence could be expected to be established. ….” “25 … where a claimant shows an intention to take up prolonged residence in the United Kingdom and the only reason for not awarding an amount of income support greater than nil is that the claimant has not yet resided in the United Kingdom for a long enough period, the Secretary of State is, on any view, entitled to make an advance award from the date on which habitual residence is likely to be established and, if he does not do so, a tribunal may make an award from that date, subject only to the three month time limit imposed by regulation 13, if regulation 13 applies.”

[18]In so deciding, the Commissioner acknowledged the tension between the power to make an advance award under regulation 13 of the 1987 Claims and Payments Regulation and sections 8(2) and 12(8)(b) of the 1998 Act confining the Secretary of State and an appeal tribunal respectively to determination of the matter on the basis of circumstances obtaining at the time the Secretary State made his decision. However, at paragraphs 18 and 19 of his Decision, he held that regulation 13 should be construed, as a Tribunal of Commissioners in R(DLA) 4/05 hadconstrued an identical provision in regulation 13A of the 1987 Claims and Payment Regulations, namely that “the mere passage of time” could not amount to “a change of circumstances” so as to exclude a prospective award on an initial claim for disability living allowance.

[19]As to satisfaction of the Nessa test, which is what the regulation 13(1) scheme for advance awards entails, the Commissioner, in paragraph 15 of his decision, spoke, as Lord Slynn did in Nessa at 1942G-H (see paragraph 6 above), of the likelihood of continued residence::

“15. … a likelihood of remaining habitually resident is a requirement for the establishment of habitual residence in addition to a requirement for there already to have been a period of residence but that the length of the likelihood of remaining is itself relevant when considering the length of the required period of residence. The strength of the likelihood of remaining habitually resident in the United Kingdom may be demonstrated by, among other considerations, the reasons for choosing to come to the United Kingdom rather to stay in, or go to, any other country. In my view, it is relevant that, in the extreme cases where regulation 21(3)(d) or regulation 21(3F) of the 1987 Regulations applies, a claimant may become entitled to payments of income support without becoming habitually resident at all. It is logical that, in a case that is not quite so extreme but in which the claimant has clear ties to the United Kingdom and it is very unlikely that he will return to the country from where he has arrived, he should become entitled to benefit after quite a short period of residence.”

[20]Applying those principles to the facts of the case, the Commissioner concluded at paragraph 34 of his Decision:

“ …the tribunal accepted that the claimant had had, at the date of the Secretary of State’s decision, a firm intention of remaining in the United Kingdom. In those circumstances, it erred in not considering whether the Secretary of State could have made an advance award. I can make good that defect… This is a case where the claimant had strong ties with the United Kingdom. She was a British citizen, had previously lived in the United Kingdom for substantial periods and had most of her closest relatives here. I am satisfied that she had become habitually resident here after two months and that she is entitled to income support from 14th January 2003.”

Submissions

[21]On the hearing of the appeal before this Court, it was common ground between the parties that Mr Commissioner Rowland correctly held that regulation 13 of the Claims and Payments Regulations 1987 applies to satisfaction of “requirements for entitlement to a benefit” so that, where a person is not habitually resident, he or she is not entitled to any benefit at all, as distinct from entitlement to benefit of a “nil” amount, albeit that that is described in paragraph 17 of Schedule 7 to the 1987 General Regulations as the “applicable amount” for such a person.

[22]However, Miss Demetriou submitted that the Commissioner wrongly held that the Secretary of State could have made an advance award to Mrs Bhakta and that he could do so himself. She said that such a decision involved “prediction” or “speculation” as to whether Mrs Bhakta would be “habitually resident” in the United Kingdom at a particular date in the future. She pointed to a warning of the Tribunal of Commissioners in R(DLA) 4/05 against prediction or speculation. She maintained that the Commissioner’s application of regulation 13 was inconsistent with sections 8(2) and 12(8)(b) of the 1998 Act, confining the Secretary of State and an appeal tribunal respectively to determination of the matter on the basis of circumstances obtaining at the time of the Secretary of State’s decision, which, here, it was common ground, fell short of habitual residence.

[23]This is how the Tribunal in R(DLA) 4/05, in paragraphs 15 and 19 of its decision, expressed its warning against prediction or speculation:

“15. We … do not accept that the fact that regulation 12C(2)(b) provides that benefit is to be awarded ‘accordingly’ means that the Secretary of State must determine whether the conditions for entitlement will be satisfied on the renewal date by predicting what the extent of the claimant’s disablement will be on the renewal date. Again, that may have been the case before section 8(2) of the 1998 Act came into force but the express effect of section 8(2)(b) is that any decision made on a renewal claim cannot take account of circumstances not obtaining at the date of the decision. That precludes prediction.” “19. In our judgment, applying sections 8(2) and 12(8)(b) to decision-making on those prospective claims permitted by [the relevant] regulations … is perfectly consistent with sensible decision-making. There is nothing inherently unreasonable in requiring prospective claims to be determined on the basis of circumstances obtaining at the time of the decision and requiring further action, in the form of revision, supersession or a new claim, if circumstances change. On the contrary, there is much to be said for prohibiting speculation, which is what section 8(2)(b) does.”

[24]On the strength of that warning and the provisions of the 1998 Act, Miss Demetriou submitted that regulation 13 gives the Secretary of State power to make a prospective award of income support only where the mere passage of time would necessarily result in a claimant meeting the requirements of entitlement on a particular future date, not on the basis of a prediction or speculation that a claimant would satisfy the requirement of habitual residence on a future date. It is only then, she submitted, that both components of the test, intention and actual residence can be considered. To the extent, if any, that there is scope for prediction, she suggested that it is very narrow, for example, where it is known at the time of the Secretary of State’s decision that there will be a change in the law within the three months period entitling a claimant to benefit presently denied to him or her. She emphasised the retrospective part of Lord Slynn’s formulation of habitual residence in Nessa, at 1942G-H, namely “residence in fact for a period which shows that the residence has become ‘habitual’ and … will or is likely to continue to be habitual”. She maintained that this is necessarily a question of fact and is dependent on more than evidence as to intention of the sort mentioned by Lord Slynn in that passage (see paragraph 6 above) and mere effluxion of time. As to the latter, she observed that, even where a claimant has formed an intention to reside in the country, many developments could preclude or delay a conclusion of habitual residence, for example, reconciliation with a family member abroad, an offer of work in another country or loss of accommodation here.

[25]It followed, Miss Demetriou submitted, that satisfaction of the requirement of habitual residence is not capable of determination in advance. Any attempt by the Secretary of Sate to do so would entail the type of prediction or speculation precluded by section 8(2)(b) of the 1998 Act. She maintained that the scope for possible future uncertainty was well illustrated in this case by Mrs Bahkta’s history of moving backwards and forwards between this country and the United States.

[26]Mr Desmond Rutledge, on behalf of Mrs Bhakta, supported the Commissioner’s decision and his reasoning, that where a claimant has satisfied the Secretary of State that he or she had a firm and settled intention to remain in this country, then, in the light of Lord Slynn’s observations in Nessa, a period of between one and three months could suffice to establish habitual residence. His reasoning was that a finding of a settled intention to remain is a finding of a likelihood, which itself is a relevant factor in determining what would be an “appreciable time” of actual residence to constitute habitual residence for this purpose. He submitted that the Secretary of State may exercise his power to make an advance award where he is satisfied of a settled intention to remain, and all that remains is for him to determine that, in the absence of any reasonably foreseeable contrary developments, he will satisfy the appreciable period of residence part of the test. He maintained that the Secretary of State could or should have so decided on the facts here, and that the Commissioner’s decision to do so in his stead was within the reasonable bounds of the discretion given by regulation 13(1).

Conclusion

[27]I agree with the parties that the Commissioner correctly held that the provisions for making an advance award under regulation 13 of the 1987 Claims and Payment Regulations may apply to cases in which a claimant for income support has a settled intention to reside in this country and where the only issue is as to the length of period of actual residence to support his or her claim to be habitually resident in the future.

[28]Whether a person is “habitually resident” for the purpose of this legislation involves an assessment whether, at the time of the decision to grant or refuse income support of an applicable amount other than nil, he or she has genuinely adopted this country as his or her normal place of residence. In the context of entitlement of a person to social security benefit, just as in other contexts, it might have been sufficient and would be prudent for a decision-maker to look for a period of actual residence in this country as evidential support for an assertion of an apparently genuine intention to settle here. However, the House of Lords’ acceptance in Nessa of Lord Brandon’s stipulation in Re J of “an appreciable period of” residenceas a constituent, not just evidence, of habitual residence for social security benefit and other purposes, has produced a more rigorous, though still elastic, test. At the time of the Nessa decision, the potential rigour of that interpretation for the indigent newcomer to this country seeking an immediate award of income support was possibly capable of being remedied, albeit retrospectively, on appeal, as Lord Slynn tentatively noted in paragraphs 29 and 30 of his speech, since an appellate body was then entitled to consider the circumstances up to the date of its decision. Since Nessa, and, seemingly, with a view to speeding and simplifying the appellate process, that avenue has been closed by the enactment of the 1998 Act, which, as I have said, in section 12(8)(b) confines an appellate tribunal to circumstances obtaining at the time of the Secretary of State’s decision.

[29]However, the avenue of an advance award under regulation 13(1), coupled with the new safeguard of revision under regulation 13(2), of the 1987 Claims and Payment Regulations, remains. So also does the elasticity of the term “an appreciable period” of residence and the fact-sensitiveness of its application to the facts of each individual case: see e.g. CIS/4389/1999 and CIS/4474/2003, and the reasoning of Mr Commissioner Rowland in paragraph 15 of his decision in this case (see paragraph 19 above). The relevance to such an award of the length of a claimant’s past and likely future residence goes to, and depends upon, what the Secretary of State considers necessary to support the genuineness of his claimed intention to settle here. A critical “change of circumstance” within the meaning of regulation 13(1) of the 1987 Claims and Payments Regulations and sections 8(2)(b) and 12(8)(b) could be a relevant change of intention.

[30]It follows that in each case there is a very broad spectrum of facts that may enable a decision-maker to determine the point at which he can be reasonably confident that a claimant has both the intention to remain and a reasonable foreseeability of fulfilling it. Where reasonable confidence as to continuance of such an intention becomes speculation in such decision-making is essentially a matter of fact for the decision-maker. The mere possibility that later unforeseen developments, such as ill-health or family tragedy might affect the will or the ability of a claimant to adhere to an intention to settle here, should not, in my view, prevent the Secretary of State from deciding in his or her favour on a claim for advance income support.

[31]Accordingly, I agree with Mr Rutledge that it is not necessary where a claim for an advance award is made that there should be certainty or near certainty of the claimant achieving whatever “appreciable period” of actual residence is considered appropriate by the decision-maker. It is plain from the wording of regulation 13(1) that something less than certainty is required, since it confers on the Secretary of State a power to make such an award where, in his “opinion”, the claimant will satisfy the requirement at a future date “unless there is a change of circumstances”. That was the reasoning of Mr. Commissioner Mesherin the pre-1998 Act income support claim case of CIS/459/94, in which he held that the “change of circumstances” at which regulation 13(1) was directed was an unforeseen change. At paragraph 19 of his decision, he stated:

“The power to make an advance award is available whenever the current and anticipated circumstances are such that if they do not change the claimant will be entitled from some date within the following three months.”

He added that, although regulation 13(1) gave a wide discretion, there were protections against abuse, including the limit on the period within which the advance award may begin and the discretionary nature of the award.

[32]To like effect was the reasoning of the Tribunal of Commissioners on the prospective decision on a renewal claim in R(DLA) 4/05, to which I have referred. Following its observations in paragraphs 15 and 19 of its decision as to prediction or speculation (see paragraph 23 above), it continued, in paragraph 20, by ruling that the mere passage of time between the making of the original decision and the renewal date did not constitute a change of circumstances so as to offend section 8(2)(b) of the 1998 Act: “However, there is no element of speculation or prediction in the Secretary of State having regard to the effect on entitlement to benefit of the mere passage of time between the date of his decision and the renewal date. In our judgment, section 8(2)(b) does not preclude him from, for example, taking account of the fact that, by the renewal date, the three-month qualifying period for a particular rate of benefit will have elapsed or the claimant will have attained a certain age. Those are the inevitable consequences of there being no change in the circumstance obtaining at the time of the decision. …"

[33]The Tribunal went on, in the same paragraph to approve the approach of Mr. Commissioner Jacobs in R(DLA) 3/01, a disability living allowance claim, at paragraph 64, that a likelihood of continuance of conditions of entitlement, “disregarding fresh circumstances” is an appropriate test for satisfaction of no future change of circumstances during the relevant period.

[34]I agree with the reasoning of the Tribunal and Commissioners Mesher and Jacobs in those cases. I am reassured in doing so by the safeguard in regulation 13(2) enabling revision in the event of the requirements for entitlement not proving to be satisfied on “the relevant day”. A decision under regulation 13(1) that the requirement of habitual residence will, in the absence of a change of circumstances, be satisfied on a future date within the three months period is one that involves an exercise of judgment, namely as to the likely continuance of circumstances giving rise to inception of an entitlement to benefit on the projected date. It is one of likelihood or reasonable foreseeability, not a certain prediction. As a matter of judgment, it is one on which different decision-makers might reach different conclusions. Lord Hoffmann, speaking for their Lordships in Moyna v Secretary of State for Work and Pensions [2003] UKHL, 44,

[2003] 1 WLR, 1929

, at paragraph 25, reminded lower courts that such conclusions should not be disturbed by an appellate court so long as they fall within the bounds of reasonable judgment. In my view, Mr. Commissioner Rowland’s decision to make an advance award to take effect two months after the claim was open to him for the reasons that he gave. Accordingly, I would uphold his award.

[35]In the circumstances, and as counsel have agreed, it is unnecessary and would be inappropriate for this Court to consider, as an alternative, an award to Mrs Bhakta by way of advance supersession under regulation 6(2)(a)(ii) of the 1999 Regulations (see paragraph 11 above), which permits the Secretary of State to determine that an original or revised decision on a claim is or will be “superseded” where, respectively, there has been “a relevant change of circumstances since the decision had effect or such a change is “anticipated”. On the Commissioner’s ruling and finding, no such change was anticipated here.

[36]It follows that I would dismiss the Secretary of State’s appeal.

Lord Justice Longmore:

[37]The critical question of law in this appeal is whether the Commissioner was right to say (para. 25) “. . . in a case where a claimant shows an intention to take up prolonged residence in the United Kingdom and the only reason for not awarding an amount of income support greater than nil is that the claimant has not yet resided in the United Kingdom for a long enough period, the Secretary of State is . . . entitled to make an advance award from the date on which habitual residence is likely to be established and, if he does not do so, a tribunal may make an award from that date, subject only to the three month limit imposed by regulation 13, if regulation 13 applies.”

[38]If one just reads Regulation 13 in its context in the Social Security (Claims and Payments) Regulations 1987 SI 1987/1968, it is difficult to see how the Commissioner could be said to be wrong. My Lord has set it out in paragraph 10 of his judgment and it speaks for itself. Ms Demetriou for the Secretary of State submits, however, that by reason of the speech of Lord Slynn in Nessa v Chief Adjudication Officer

[1999] 1 WLR 1937

and the subsequent enactment of section 8(2) and 12(8) of the Social Security Act 1998 prohibiting both the Secretary of State and the appeal tribunal from taking into account circumstances which did not exist at the time when the original decision was made, neither the Secretary of State nor the appeal tribunal can make an advance award in cases where the requirements for income support are not present at the time of the decision.

[39]It is true that, in the course of upholding a submission that a mere settled intention to reside in the United Kingdom was not enough to enable a claimant to obtain income support because it was also necessary to show an appreciable period of residence in this country, Lord Slynn said this:- “If Parliament had intended that a person seeking to enter the United Kingdom or such a person declaring his intention to settle here is to have income support on arrival, it could have said so. It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing, ‘I intend to settle in the United Kingdom’ and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say, ‘I am going to live at X or with Y.’ He must show residence in fact for a period which shows that the residence has become ‘habitual’ and, as I see it, will or is likely to continue to be habitual. I do not consider that when he spoke of residence for an appreciable period, Lord Brandon [in Re J

[1990] 2 AC 562

, 578] meant more than this. It is a question of fact to be decided on the date when the determination has to be made on the circumstances of each case whether and when that habitual residence had been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, ‘durable ties’ with the country of residence or intended residence, and many other factors have to be taken into account.” This certainly shows that a claimant must adduce evidence that residence has become and is likely to continue to be habitual, but the House of Lords was never asked to consider Regulation 13 and the possibility of an advance award. If the quality of the claimant’s residence tends towards being habitual but has not yet extended for a sufficient period to become habitual fact, I see no reason why the Secretary of State or the appeal tribunal should not, in an appropriate case, utilize Regulation 13 and decide that “unless there is a change of circumstances”, the residence will have become habitual as from a particular date which will, then, become “the relevant day”.

[40]Nessa was decided under the law as it was before the passage of the Social Security Act 1998. Ms Demetriou’s second argument was that section 8(2) of that Act provided that the claimant was not entitled to benefit “on the basis of circumstances not obtaining” at the date of the Secretary of State’s decision and section 12(3) of the Act likewise provided that an appeal tribunal could not take into account “any circumstances not obtaining” at the time when the decision appealed against was made. If, said Ms Demetriou, the Commissioner concluded that the appeal tribunal ought to have considered whether the Secretary of State was entitled to make an advance award, that would be contrary to section 8(2) because the Secretary of State would be being encouraged to take later events into account.

[41]I disagree. When the Secretary of State considers whether to make an advance award, he considers the matter as at the date of his decision. He is not saying that the claimant is entitled to benefit “on the basis of circumstances not obtaining at that time” which would be, in any event, very difficult. He is saying that, at the time of his decision, he is of the opinion that the claimant will satisfy the requirement of habitual residence (or whatever other requirement he may be considering) on some future date, “unless there is a change of circumstances”. He is not basing his decision on “circumstances not obtaining at that time” but on circumstances obtaining at that time which he has no reason to think will change.

[42]I therefore do not consider that the Commissioner made any error of law in saying that the appeal tribunal should have considered whether the Secretary of State could have made an advance award. I am relieved to come to that conclusion because the Secretary of State’s argument would emasculate Regulation 13 of much of its usefulness and I do not think that it can have been Parliament’s intention in 1998 so to emasculate it. The purpose of sections 8(2) and 12(8) must, as the Tribunal of Commissioners who decided R (DLA) 4/05 say at paragraph 8 of their decision, have partly been to reverse the decisions in which it had been held that a claim for benefit was to be regarded as subsisting until any appeal had been determined, so that post-decision events could be taken into consideration. There may well be good administrative reasons for reversing those decisions but they do not extend to preventing the Secretary of State (or any appeal tribunal) from deciding that, on the basis of circumstances as they appear at the time a decision is made, a claimant will become entitled to benefit in the future. (The other purpose of section 8 was, no doubt, to make it clear that once a claim was rightly and unappealably decided, and circumstances later occurred which required a fresh look at the claimant’s entitlement, a new claim must be brought.)

[43]There is, therefore, no error of law in paragraph 25 of the Commissioner’s decision. He was right to say that the Secretary of State was entitled to make an advance award and that the appeal tribunal could do so, if the Secretary of State does not. He was, therefore, also right to say in paragraph 34 that the tribunal erred in not considering whether the Secretary of State could have made an advance award. He was right to consider that question himself. I am not sure that I would necessarily have reached the same conclusion as the Commissioner did. But this is an appeal on law and I can see no ground for interfering with the decision to which he came.

Lady Justice Hallett DBE:

[44]I also agree.