The person concerned applied for Disability Allowance on 27 November 2008. His claim was disallowed on 30 January 2009 on the grounds that he was not habitually resident in the State. He was notified of this decision in writing and of his right to appeal to the independent Social Welfare Appeals Office. He subsequently appealed this decision to the Social Welfare Appeals Office. On 2 September 2009, a Social Welfare Appeals Officer found the person concerned to be not habitually resident in the State for the purpose of qualifying for Disability Allowance.
Habitual Residency is a condition which a person must satisfy in order to qualify for certain social welfare assistance payments including disability allowance. This condition took effect from 1 May 2004 and affects all applicants regardless of nationality. Satisfying the Habitual Residency condition is just one of the conditions for receiving certain social welfare assistance payments. A person must also satisfy the other conditions that apply in order to get a payment. The legislation underpinning Habitual Residence is Section 246 of the Social Welfare Consolidation Act 2005, as amended by Section 30 of the Social Welfare and Pensions Act 2007.
The 2007 amendment to Section 246 of the Social Welfare Consolidation Act 2005, incorporates into Irish law 5 factors that have been set down in judgements given by the European Court of Justice as relevant to determining whether a person is habitually resident. These 5 factors are; a person's main centre of interest; the length and continuity of their presence in the Common Travel Area; the length and reason for any absence from the Common Travel Area; the nature and pattern of their employment, if any, in the Common Travel Area and their future intentions to live in the Republic of Ireland as it appears from their particular situation.
The list is not exhaustive, no single factor is conclusive and some factors may have more influence than others, depending on a person's particular circumstances. It is necessary to weigh up all the information and balance the evidence for and against an applicant satisfying the Habitual residence condition and reach a decision based on the law.