Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2006] NISSCSC C7_05_06(IS) (21 June 2006)

Decision No: C7/05-06(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCOME SUPPORT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 13 September 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant against the decision dated 13 September 2005 of an appeal tribunal sitting at Dungannon. That tribunal dismissed the claimant's appeal against the Departmental decision dated 13 May 2005 to the effect that the claimant was not habitually resident in the United Kingdom but was a person from abroad within the meaning of regulation 21(3) of the Income Support (General) Regulations (Northern Ireland) 1987. Her income support (IS) was consequently nil.
2. In the appeal to me the claimant is represented by Mr Hatton of the Law Centre (NI) and the Department by Mr McNamara of its Decision Making Services branch. I am grateful to both gentlemen for their assistance in this matter. Both have expressed the view that the tribunal erred in law though there is some variation in their reasons for so doing.
3. The factual background to the case is that the claimant, a Portuguese National, arrived in the United Kingdom on 9 May 2004 and commenced employment in Northern Ireland on 10 May 2004. She remained in employment until 5 January 2005 when she ceased work. There may be some inconsistency in the evidence as to the reasons why she stopped work. However, it does appear that she was at the time pregnant with an expected date of confinement of 11 July 2005. She was in Portugal for six weeks from 28 March 2005. She claimed IS on 3 May 2005. The Department made the decision mentioned above in relation to IS and the tribunal upheld that decision on appeal.
4. The tribunal's reasons are, in my view, inadequate to explain the decision. Indeed the two representatives took a different view of the tribunal's conclusion in relation to whether the claimant had been a worker in Northern Ireland. Mr Hatton was of the view that the tribunal's finding that "Her work was irregular and limited in duration to 7 months." was indicative of a conclusion that she had never been a worker. Mr McNamara was of the view that the tribunal's remarks that the claimant had left her work voluntarily and not to undergo training and not being laid off temporarily were indicative of conclusion that she had been a worker while employed in Northern Ireland but had lost that status. I consider the reasons to be unclear and therefore inadequate in that crucial respect. I therefore set the decision aside as in error of law for that reason.
5. The matter falls for consideration under the said regulation 21. This regulation refers to Schedule 7 which sets out the weekly applicable amounts in special cases. Included amongst these special cases is the category of:

"person from abroad".

Such a person has an applicable amount of nil.

What the tribunal had to decide in this case was whether or not the claimant was a person from abroad. This is defined in regulation 21(3) so far as relevant to this case as:

"a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland,HHhh but for this purpose no claimant shall be treated as not habitually resident in the United Kingdom who is -

(a) a worker for the purposes of Council Regulation (EEC) No.1612/68 or (EEC) No.1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No.73/148/EEC …"

6. There are various questions raised by these provisions. Whether all these questions have to be answered and the order in which the questions should be approached is a matter which depends on the circumstances of each case. In this case the first question which the tribunal had to consider was whether or not the claimant was actually habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. In this case there appears to have been no residence other than in the United Kingdom. The question is therefore whether she was habitually resident in the United Kingdom. There are certain categories of person who are treated as habitually resident. These are set out in regulation 21(3)(a) to (d). The only categories which appear to have relevance for this case are those in that part of category (a) extracted above. I am unable to ascertain any conclusion recorded by the tribunal as to whether or not the claimant was actually habitually resident. Such a finding should have been made before the tribunal approached the question of whether the claimant could be treated as habitually resident. The absence of such a finding is an error of law.
7. The claimant in this case had, as mentioned above, arrived in the United Kingdom on 9 May 2004. She had worked in the United Kingdom from 10 May 2004 to 5 January 2005 when she stopped work. She had gone to Portugal for six weeks from 28 March 2005. It would therefore appear that her return date was somewhere around the date when she claimed IS. A tribunal dealing with this matter would have to first decide whether or not the claimant actually was habitually resident at the date of claim or so became at any time from the date of claim to the decision of the Department on 13 May 2005. Only if the tribunal decides that she was not so habitually resident would it have then to move to the various categories set out at regulation 21(3)(a).
8. There are two relevant categories of person mentioned in regulation 21(3)(a). If the claimant falls within either she can be treated as habitually resident. The two categories are interrelated and central to each is the question of whether or not the claimant is a worker. The first category is that of a worker for the purposes of (EEC) 1612/68 or (EEC) 1251/70. The second category is a person with a right to reside under Council Directive No. 68/360 EEC or No. 73/148/EEC. Directive 68/360/EEC covers workers and members of their family who come within regulations (EEC)1612/68 or (EEC) 1351/70. Directive 73/148 covers the self-employed, service providers and service users. The central question therefore for purposes of both the alternatives in regulation 21(3)(a) which are relevant to this case is whether or not the claimant was a worker for the purposes of Regulation (EEC)1612/68 or (EEC) 1251/70. It is, however, settled law that the word is to be interpreted broadly and according to Community rather than national law. It is also worthy of note that the claimant must be a worker "for the purposes of" the said Regulations.
9. The tribunal (unless it concludes that the claimant was actually habitually resident) will have to decide whether or not as at the time of claiming and up to date of the decision the claimant was a worker as above. This will involve the investigation of the extent and period of the work which she did when she first came to the United Kingdom and the circumstances in which she ceased her employment. It may also be necessary for the tribunal to investigate whether the claimant was seeking work upon her return to the United Kingdom from Portugal. If the tribunal concludes that the claimant was a worker and ceased work due to incapacity the claimant may be able to retain the status of worker. These are all matters for a tribunal to investigate.
10. Regulation 1251/70 relates to the right of workers to remain in the territory of a Member State after having been employed in that State. Essentially it gives a right to remain permanently in the territory of a Member State to workers who have been employed in that State for at least 12 months and to their families. As such it does not appear that it can assist the claimant.
11. I consider that the tribunal erred in law for the reasons indicated above and I set its decision aside for that reason. I do not consider that this is a case where I can give the decision which the tribunal should have given. I therefore remit the matter to a differently constituted tribunal. That tribunal should consider whether at 3 May 2005 (the date of claiming) and in the period until 13 May 2005 the claimant was habitually resident in the United Kingdom. If it concludes she was habitually resident it need proceed no further. If it concludes she was not it should move to consider whether the claimant falls within any of the categories set out in the part of regulation 21(3)(a) extracted above. If the claimant is considered to have been habitually resident at the relevant time she was not a person from abroad for purposes of regulation 21(3). If she was not habitually resident and can satisfy regulation 21(3)(a) she will not be treated as not habitually resident and will therefore not be within the definition of a person from abroad for purposes of regulation 21(3). If she was not habitually resident and was not within the relevant categories she must be found to have been at the relevant time a person from abroad and her applicable amount be found to be nil.

(signed): M F Brown

Commissioner

21 June 2006