Board slams Minister over “discriminatory” housing decision

Tuesday 31 August 2021

A complaints watchdog has slammed the Deputy Chief Minister over his “discriminatory” decision to refuse Entitled status to a Jersey resident of five years because he had to go to Pakistan for five months to look after his mother.

In a critical report published today, the States Complaints Board (SCB) – which is responsible for reviewing islanders’ grievances with Ministers and Government Departments - also called out the “flawed” process for appealing against housing rights decisions.

The Board said the decision to not grant ‘Entitled for Work’ status to Mr X* should be reviewed and that he should be given the opportunity to present his case in person to the Deputy Chief Minister, Senator Lyndon Farnham, who has responsibility for the Control of Housing and Work Law.

Mr X first moved to the island from Scotland in 2015 with his wife and family to work with a local finance firm, under a Licensed status.

In August 2018, he took a period of unpaid leave from work to travel to Pakistan to care for his mother, who had suffered a stroke. He then returned to Jersey on in February 2019.

Pictured: Mr X said he was never told his absence would interrupt his period of residency.

Before his departure, he contacted the Customer and Local Services (CLS) department to advise them he would be out of the island for a while and was told to complete an ‘online’ form confirming this. He said he hadn’t been told his departure would interrupt his period of residency but that he would have done so anyway as his focus was to look after his mother, who has since passed away.

Whilst he was away from the island, Mr X’s employer kept his position open, and he made arrangements for his child to receive home schooling by the Children, Young People, Education and Skills (CYPES). 

In October 2020, he contacted CLS to establish his ‘Entitled for Work’ status but was told that, since he had been away, his period of ordinary residence had started from February 2019, when he returned from Pakistan, a decision which he considered “unreasonable”.

He appealed the decision, but both a Team Manager at CLS and the Housing and Work Advisory Group (HAWAG) maintained it, prompting him to reach out to the States of Jersey Complaints Board. 

Pictured: The Deputy Chief Minister, Senator Lyndon Farnham, has responsibility for the Control of Housing and Work Law.

The panel heard the case on in July, with the Team Manager from CLS and Neil Stocks, Senior Policy Officer for Immigration and Migration Policy putting forward the case for the Deputy Chief Minister.

They explained that the policy provision which allows absences to care for another person outside of the island excludes those with Licensed status.

They also said that, according to the Deputy Chief Minister and his colleagues, Mr X had failed to demonstrate he had maintained a “settled purpose” in the island during his absence. 

The Complains Board upheld Mr X's complaint, describing the decision to deny him ‘Entitled for Work’ status as “discriminatory”. 

They rejected the view that “discretionary policy provisions” exclude those with a Registered or Licensed status as it is not “expressly prohibited” as such, adding that the idea that they allow “greater flexibility” in the case of absences for people with Entitled status was “unreasonably discriminatory”.

“The need for a person to be absent from the island to care for a family member will be the same whatever the status of the person, and it is that need that should form the basis of assessment as to whether ordinary residence has been maintained,” they wrote.

The Board also said Mr X had shown evidence of his settled purpose, having ensured his employment remained open for him and arranged home schooling for his daughter, and that the Minister was “unreasonable” in concluding the contrary.

They also raised issues with the appeals process, which they described as “fundamentally flawed”, not only in its application but also in principle, and “contrary to the generally accepted principles of natural justice”.

Pictured: The Complaints Board said the appeals process was “fundamentally flawed".

They noted that the Deputy Chief Minister, who has delegated responsibility for the law, sits on the HAWAG, which means the current process requires him to reconsider his own decision after having taken his own views. 

They recommended instead that the process should mirror the one used in Planning appeals, and have three States members who have had no involvement in the original decision review it, before submitting their guidance to the Deputy Chief Minister who, likewise, will not have been involved in the original decision.

They also said the appellant should have the opportunity to address the Deputy Chief Minister, something that is currently possible but was not offered to Mr X.

The Complaints Board also urged for the “unreasonably restrictive” policy guidelines to be amended so that any particular relationship to the person being care for be removed, leaving the applicant to make the case that his absence as a carer was “essential”.

“The Board accepts that the policies in place are designed to protect the island from over population, but in this case we see no public benefit in requiring Mr X. to have the calculation of his period of ordinary residence reset to zero from the date of his return,” Geoffrey Crill, Chair of the Complaints Panel, said. 

“His ‘settled purpose in the island’ remained unchanged; although he had taken unpaid leave, he was still employed and his job had been held open until his return. His personal situation was such that he had no choice in having to leave the island, but it was clear that his intention had always been to return to Jersey when he could.

“Aside from the fact that we do not consider that the current ‘appeals’ process to be best practice, the Board was also concerned to learn that it is rare for appeals for applications for Entitled to Work status to be heard in person, and that those with Licensed status are excluded from the policy provisions which relate to caring for another person outside the island.

"Whilst we accept that exceptions could set precedents, we feel that discretion should not be applied discriminately, if it is to be fair.” 

*Name changed to protect family's privacy.