Residency rule for dole unconstitutional, court told

PUBLISHED : Tuesday, 25 May, 2010, 12:00am
UPDATED : Tuesday, 25 May, 2010, 12:00am

The requirement that a permanent resident had to be living in the city almost continuously for a year before being eligible to apply for welfare was unconstitutional, the Court of First Instance heard yesterday.

The argument was made by barrister Hectar Pun, for George Yao Man-fai, an unemployed man who was denied the dole after he was sacked from his job on the mainland and returned to Hong Kong.

Pun said the requirement undermined a resident's freedom to travel and to choose their occupation. It also violated Article 36 of the Basic Law, which guaranteed residents the right to social welfare, and was therefore discriminatory because it treated residents differently.

But counsel for the Social Welfare Department said the rule was important for controlling the distribution of the resources of the welfare system.

Yao, a permanent resident, worked on the mainland for four years. He returned to Hong Kong in September 2008 after he was fired, with only enough savings to live for two months. Yao - who under the rule would not be eligible for the dole until July last year - applied for it in December 2008 and was rejected. He applied again with the same result.

Under the Comprehensive Social Security Assistance Scheme, an applicant for welfare must be a permanent resident, pass a means test and have lived continuously in the city for at least one year immediately before the date of application. The applicant is allowed to have been away from the city for up to 56 days in that period without losing eligibility.

If absent for more than 56 days, he has to live in the city to make up for the extra days he was out of it before his application will be considered.

The Social Welfare Department can exercise discretion in cases of genuine hardship.

Pun suggested to the court residents should not be 'penalised' for 'wholly innocent reasons', such as having to take care of a family member who had an accident overseas.

Mr Justice Andrew Cheung Kui-nung asked about the type of people affected by the rule. 'If a member of the press went to cover the earthquake on the mainland, or a volunteer went to contribute in a quake zone for a few months, would his right for social welfare be suspended?' he asked. Pun replied yes.

The judge raised other scenarios, such as an elderly person who had to attend the wedding of a son or daughter overseas and had to stay for a long time because they could not travel frequently, and students who studied overseas.

'If there is a provision that states if people travel overseas, they have to pay 10 per cent more in tax, that would be outrageous,' he said. 'How does it differ from the present case that suspends people's right to social assistance for being absent from Hong Kong for more than 56 days?'

The judge said this was a point he had to consider.

Jat Sew-tong SC, for the director of social welfare, said residence history was relevant in prioritising distribution of the limited resources of the social welfare system and ensuring the system's sustainability.

'Choices do have consequences,' Jat said. 'We are not penalising people for travelling. It is different from imposing a tax on them.'

The hearing was adjourned to June 8.

In June last year, a judge ruled in the High Court that the government policy that restricts eligibility to welfare payments to people who have lived in Hong Kong for not less than seven years does not violate the Basic Law or the Bill of Rights.

In that case, the plaintiff was a mainland woman, Kong Yunming, whose husband died two days after she arrived to join him in 2005.

Her application for comprehensive social security allowance was rejected by the department because she failed to meet the seven-year residency requirement.


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