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Neutral Citation Number:	2009 UKUT 269 AAC
Reported Number:
File Number:	CIS 3770 2008
Appellant:	ST
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	10/12/2009
Date Added:	21/01/2010
Main Category:	Income support and state pension credit
Main Subcategory:	other: income support
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2010] AACR 23. Applicable amount – severe disability premium – whether non-dependant normally residing with claimant The claimant had a stroke in January 2003 and her son came from India to look after her. The claimant was awarded income support with effect from February 2003 and a disability living allowance, consisting of the mobility component and the care component. Her son’s visa expired at the end of November 2003 and his application for indefinite leave to remain was refused. He remained in the United Kingdom, living with his mother, while challenging that decision. In 2008, the claimant applied for the severe disability premium to be taken into account in her award of income support. This was refused on the ground that she did not fall to be treated as being a severely disabled person by virtue of paragraph 13(2)(a)(ii) of Schedule 2 to the Income Support (General) Regulations 1987 as she had a non-dependant aged 18 or over normally residing with her. Her appeal to the appeal tribunal was dismissed and she appealed to the Upper Tribunal. It was argued for the claimant that the normality of a non-dependant’s residence with a claimant was a question of the quality of the residence rather than a purely factual question of their living arrangements, and that, because the son’s residence with his mother in the United Kingdom after his visa expired was unlawful and his presence in the United Kingdom precarious, he was not “normally” resident with her. Held, dismissing the appeal, that: 1. the natural reading of the wording of paragraph 13(2)(a)(ii) in the context of both paragraph 13 and the regulations as a whole is that the question whether a non-dependant is “normally residing” with the claimant is a purely factual question of their living arrangements and though that interpretation may give rise to some anomalies, those anomalies are not sufficient to displace the natural reading of the language in its context (CSIS/76/1991 and CIS/3072/2004 considered) (paragraphs 20 to 23, 26); 2. applying that interpretation, the son was clearly normally residing with the claimant (paragraph 24); 3. although the quality of a person’s residence may be relevant to the factual question of whether that person is normally residing with a claimant, it is neither directly in issue nor decisive (paragraph 25); 4. while there may be cases (as in CH/4004/2004) in which a person’s residence with a claimant is initially temporary, in the present case the son came to live with his mother desiring to stay for as long as his mother needed his help and he was able to remain in the country without being removed, and the circumstances showed that his residence was normal from the outset (paragraphs 32 to 34).
Decision(s) to Download:	[2010] AACR 23 bv.doc