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Neutral Citation Number:
Reported Number: R(S)1/93
File Number: CS 207 1990
Appellant:
Respondent:
Judge/Commissioner: Mr M. H. Johnson
Date Of Decision: 24/04/1991
Date Added: 01/07/2002
Main Category: Residence and presence conditions
Main Subcategory: temporary absence from Great Britain
Secondary Category:
Secondary Subcategory:
Notes: Presence condition - claimant suffering from progressive disease living in Malta where he had no right of permanent residence - whether “temporarily absent from Great Britain” The claimant suffered from multiple sclerosis and angina and was awarded sickness benefit followed by invalidity benefit. Because of the relief to his symptoms he started to spend time in Malta and by the middle of 1982 was spending most of his time there, occasional return visits being made to Great Britain where the claimant maintained a home. The claimant maintained that his status in Malta was that of a temporary or tourist resident whose stay was subject to extensions by the Maltese authorities. It was confirmed with these authorities that the claimant had no right to permanent residence in Malta. On 2 November 1989 the adjudication officer disqualified the claimant for receiving benefit because he was absent from Great Britain (Social Security Act 1975 section 82(5)(a)). He further decided that the claimant could not benefit from the reciprocal agreement with Malta because the claimant was not “temporarily” in Malta. On appeal the social security appeal tribunal confirmed the disqualification under section 82(5)(a) but found that the claimant was temporarily in the territory of Malta and therefore entitled to benefit by virtue of Article 9A of the National Insurance and Industrial Injuries (Malta) Order 1958. Held that: 1. the claimant’s expressed wish to return to Great Britain when his health improved was a remote hope rather than a realistic intention. He was not therefore “temporarily absent from Great Britain” within the meaning of regulation 2(1) of the Social Security Benefit (Persons Abroad) Regulations 1975 (para. 5); 2. whether a person is resident as opposed to being temporarily in a country is essentially a question of fact and degree. On this basis the Commissioner distinguished decision CS/2/1976 (paras. 11 and 12); 3. it was reasonable to conclude that by the time his benefit was disallowed in November 1989 the claimant had become permanently resident in Malta. The fact that he had not acquired a legal right to permanent residence in that country was not conclusive (para. 14). The adjudication officer’s appeal was allowed.
Decision(s) to Download: S1_93.doc S1_93.doc