Generally, a person must be habitually resident in the state to qualify for non-contributory benefits. In relation to certain benefits such as child benefit and healthcare, the persons must usually be ordinarily resident in the state. This requires a certain degree of continuity. The tax test does not necessarily apply. The circumstances and the lengths of time spent out of the country will be relevant in considering whether ordinary residence has ceased.
A person may not receive social welfare and insurance benefit increments while the relevant spouse is out of the State.
The foregoing may be subject to EU requirements and the Minister may vary the position by regulations. Regulations have been made to the effect that certain social insurance benefits continue to be payable while the relevant person is outside the state. This includes contributory state pension and widower pensions.
A person is not entitled to receive jobseekers’ allowance, disability allowance and some similar payments while he or she is resident whether temporarily or permanently outside the State. Child benefit is only paid in the State.
The non-contributory state pension is not payable to a person absent from the State except if the person resident in Northern Ireland where payment may continue for up to five years or until the person receives an equivalent payment in Northern Ireland. Similarly, widow’s non-contributory pension and guardian’s payments non-contributory are not payable outside the State.
Illness benefit may continue to be payable during such period as may be allowed if the absence is temporary and for the purpose of receiving treatment or while posted abroad. This also applies to maternity benefits. A limited pension is payable during such period as the Minister may allow having regard to the circumstances provided there was medical evidence of incapacity.
Jobseekers’ benefit may continue to be payable for the person and adult dependants while they are on holidays in respect of the first two weeks of an absence or during such other circumstances where their absence is temporary and there is good reason. The same applies to representation in an amateur capacity in sporting events.
Habitual Residence Test
In 2004, the habitual residence test was introduced in order to require a longer-term connection with the State. This was done in tandem with the accession of ten new EU member states and the decision to allow for freedom of movement as an from accession.
The habitual residence test applies to means tested payments and child benefit. It does not apply to insured (contributory) benefits. A person is presumed not to be habitually resident in the State unless he has spent a continuous period of two years in the State, the United Kingdom Channel Islands or Isle of Man.
Habitual residence requirements arise under EU social insurance regulation. It requires a habitual centre of interests and depends on a range of factors including residence, employment and the stability of the connection with the state concerned.
Habitual Residence Factors
The length of residence is not the sole criteria. The Department takes account of the following factors,
- length and continuity of residence,
- purpose of absence and length,
- nature and pattern of employment,
- centre of main interests,
There is no absolute requirement for two year’s residence within the Ireland and the UK, but in the absence of the same, it is presumed that person is not habitually resident.
The 2014 Act provides for changes in respect of the application of the habitual residence condition for entitlement to certain social welfare payments. The presumption that persons are not habitually resident in the State if they have not been present for a continuous period of 2 years in the State or any other part of the Common Travel Area at the date of making the application was removed.
In addition, a person must satisfy the habitual residence condition for the duration of his or her claim in order for entitlement to continue. This allowed for the review of habitual residence in respect of persons who were not required to satisfy such conditions under EU law at the date of application for the schemes concerned.
EU social security requirements may overrule some of the above positions. See our separate section in that regards. Some of the rules may be inconsistent with EU regulations in the area of equality and social insurance.
It may be that EU regulations on social insurance override the habitual residence requirement to a certain extent, where persons from other EU states exercise their right to take up residence for the purpose of employment.