Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2007] NISSCSC C3_05_06(JSA) (23 January 2007)

Decision No: C3/05-06(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
JOBSEEKERS ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 26 April 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the Commissioner, by the claimant against a decision dated 26 April 2005 of an appeal tribunal sitting at Belfast. That tribunal disallowed the claimant's appeal against a departmental decision dated 21 December 2004 which disallowed jobseekers allowance (JSA) (income based) from 21 December 2004. The tribunal decided that the claimant would have to be habitually resident in Northern Ireland to be entitled to the benefit. Relying particularly on decisions C19/1304/1997 and CJSA/5394/1998 (two decisions of Mr Commissioner Jacobs in Great Britain) it concluded that he was not habitually resident in Northern Ireland at 21 December 2004. It appears that the claimant was later awarded JSA from and including 10 March 2005.
2. The background facts in the case as presented to the tribunal were not in dispute. The claimant is a UK national. He arrived in the UK on 16 December 2004 intending to stay permanently and claimed JSA (income based) on 21 December 2004. He was born in the UK and had lived, worked and claimed unemployment benefit in the UK (mostly in Northern Ireland) until he was 22 years old. He left Northern Ireland in March 1979 because he did not like the civil disturbances and moved to Germany where he worked for a time and then claimed benefit until end of November 2004. During the last four years of his time in Germany he attended a lorry driving training course from 17 September 2001 to 26 February 2002 but he did not intend to continue in training. On his return to Northern Ireland he lived with his biological mother whom he had known for 8-10 years. He first met her 10 years ago. Since then he kept in touch and visited once or twice yearly, the last time being two years previously. He also had a sister in the UK. He had left tools and clothes behind in Germany as he did not have enough money to bring them with him. He had not arranged employment in the UK before he arrived. He had rented a flat in Germany from a private landlord which he had given up. He owned no housing in Germany. He had two sons in Germany – one aged 18 and the other aged 9 who lived with his mother.
3. In its reasons the tribunal stated as follows:

"The Tribunal accepted the Department's submission that for someone in the claimant's category he would actually have to be habitually resident in Northern Ireland to enable him to be entitled to benefit. There was no issue about this in any case.

The claimant's case was that he was habitually resident in Northern Ireland as he had formed the intention to resume permanent residency in Northern Ireland now that he had contact with his biological family. As against this however he was leaving family behind him in Germany which was of a longstanding period having a partner and two sons aged 19 and 9 respectively. Interestingly it was only in the dying moments of the hearing that the existence of the younger was disclosed. This last matter weighed heavily on the Tribunal's mind when reaching its decision.

The claimant had been in Northern Ireland for, at the most, 5 days prior to applying for benefit and the decision was made that day therefore the Tribunal's decision was restricted to matters existing on 21.12.04 and later events could not be taken into consideration. In other words the Tribunal was restricted to the 5 day period along with evidence prior to that.

Having looked at the decided cases and in particular Commissioner Jacobs in C19/1304/1997, CJSA/5394/1998 in which he reviewed the existing law the Tribunal concluded that the claimant had not been in residence for an appreciable period amounting to habitual residence which would have allowed the claimant to claim benefit successfully. The matter must be judged on objective standards and the onus of proof lies with the claimant. The Tribunal on the evidence before it could not be satisfied that the claimant was actually habitually resident in Northern Ireland.

The appeal therefore fell and was disallowed."

4. The claimant appealed to a Commissioner. In the appeal to me the claimant has been represented by the Law Centre (NI) (initially by Mrs Carty and latterly by Mr Allamby) and the Department by Mr Millar of its Decision Making Services branch. I am grateful to all for their assistance. My decision is given in the final paragraph.
5. I found the grounds of appeal as initially presented somewhat lacking in clarity and they have changed somewhat as the proceedings progressed. The papers in the case are voluminous and I held an oral hearing of the appeal prior to which I obtained written skeleton arguments. The grounds set out in those arguments are the final grounds of appeal and are essentially twofold:-

(1) That the tribunal erred in failing to consider whether the claimant had exercised freedom of movement as a worker under Article 48 (now Act 39) of the EC Treaty or whether he was a worker for the purpose of Council Regulation (EEC) 1612/68. In this latter connection it was agreed that findings of fact on the appellant's work record in Northern Ireland and in Germany were required (and had not been made) with a view to ascertaining whether the appellant was a worker for the purpose of EEC Regulation 1612/68.

(2) That the tribunal had erred in not finding the claimant to have become resident in the UK on his arrival in December 2004 within the meaning of Article 10a of EEC Regulation 1408/71. In this connection it was submitted that the tribunal had given undue prominence to peripheral considerations and failed to take into account relevant matters. In particular, it had not investigated or made findings on the relationship with the claimant's younger son in Germany or with his biological family in Northern Ireland. Nor had it considered the potentially relevant factors outlined in the case on Nessa v Chief Adjudication Officer (1999) House of Lords in the consideration of whether or not habitual residence had been established.

6. The Department gave limited support to the appeal to the extent of accepting that the tribunal had erred in failing to consider whether or not the claimant could rely on EEC Regulation 1408/71. It nonetheless submitted that the tribunal had reached the correct conclusion that the claimant had not become resident on arrival within the meaning of Article 10a of Regulation 1408/71.
7. In relation to Article 48(39) of the Treaty and Regulation (EC) 1612/68 the Department submitted that these provisions did not apply to the claimant's circumstances as the claimant was a UK national searching for work in the UK. Alternatively the Department submitted that, if Article 48(39) and Regulation 1612/68 did apply, there was no link between the work that the claimant had done in the UK in the 1970's and his search for work in the UK in 2006. The claimant's situation had, therefore, to be compared with that of any national of a Member State. The Department relied on Collins v Secretary of State for Work and Pensions – case C-138/02 (paragraphs 28-29). It further submitted that the term "worker" was used in different senses in the different titles to Regulation 1612/68. Only those who had already entered into an employment relationship in the host State were entitled to the protection of Article 7(2) of Regulation 1612/68. The claimant was not within that category. Relying on CJSA/4065/1999 (paragraphs 16-17) the Department submitted that the claimant was not a worker for purposes of Title I to Regulation 1612/68 and not therefore a worker for purposes of the JSA Regulations.
8. In relation to their respective contentions concerning to Article 1408/71 both parties relied on the case of Swaddling v Adjudication Officer – Case C-90/97 but appeared to draw different conclusions from the judgment of the European Court in that case and in particular from paragraphs 29, 30 and 33 thereof. Mr Allamby requested that I make a referral to the European Court of Justice on the basis that there was a lack of clarity in the Swaddling decision which required clarification from that court. He also requested a referral on whether, if the Department's argument was correct that Regulation 1612/68 did not apply to returning nationals of the host State, such returning nationals were being treated less favourably than non-nationals coming to the UK for the first time to seek work. The Department opposed this referral request submitting that existing jurisprudence covered the matter. I decided not to make the said reference, being of the same view as the Department ie that the existing jurisprudence adequately covered the circumstances of this case.

The Domestic Legislation

9. It was common case that the claimant satisfied the conditions of entitlement for JSA (income based) and that he was not a person from abroad whose leave to enter or remain in the UK was subject to immigration control. What was in question here was whether the claimant was a "person from abroad" within the meaning of Regulation 85(4) of the JSA Regulations (Northern Ireland) 1996. If he was, it was common case that his applicable amount was nil. Regulation 85(4) defines "person from abroad" as meaning:

"a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland"

There are certain categories of claimants who are not to be treated as not habitually resident in the UK. It was common case that the only possibly relevant category was:

"a worker for the purposes of Council Regulation (EEC) No. 1612/68"

The Tribunal's decision and Regulation 1612/68

10. The tribunal accepted the Department's submission that the claimant could not be treated as being habitually resident under any of the Regulation 85(4) exceptions. Its reasoning could perhaps be clearer. However, when read against the background of the Department's submission to that effect it is clear that such was its conclusion. It then moved to decide whether the claimant was "actually" habitually resident. It records "there was no issue about this in any case". Certainly no issue was raised either by the Department or by the claimant to the effect that the claimant was a worker within Title II to Regulation 1612/68. Title II contains Article 7 which is the provision called in aid in the appeal to me. It provides:

"1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.

2. He shall enjoy the same social and tax advantages as national workers."

11. I am in agreement with Mr Millar that this provision has no relevance to the claimant's circumstances. It exists to provide protection for non-nationals of the host Member State and has no application to the nationals of that State. The provisions under Title I appear also to provide this protection. I therefore accept Mr Millar's submission that Regulation 1612/68 does not apply to the claimant, a UK national in the UK.
12. Mr. Allamby submitted that Article 7 came from Article 48 (now 39) of the Treaty of Rome and was to the effect that individuals in Member States had the right to exercise freedom of movement as workers and that this included the right to move freely within the territory of the European Union. He submitted further that it would be against the grain of the Treaty if a UK national exercising freedom of movement as a worker and then returning was to be treated less favourably than a national of another State coming to the UK. The purpose of the Treaty was to increase freedom of movement for workers and this clearly extended to tax and social advantages.
13. I consider Mr Allamby's submission in this matter to be misconceived. There is, as Mr Millar submits, no bar to the claimant returning to and residing in the UK. All those, irrespective of nationality who are returning to the UK (or entering it for the first time) after a substantial absence and residence abroad (unless one of the Regulation 85(4) exceptions applies) have to satisfy the habitual residence test. The same is true of those entering the UK for the first time. There is no discrimination here on the grounds of nationality and no evidence that it adversely affects UK nationals more than other nationalities. If there were, and returning nationals of the host State were being treated less favourably than those of other Member States in the host State there are provisions other than Regulation 1612/68 which deal with that – the prohibition on discrimination on grounds of nationality in the European Convention on Human Rights for example. Regulation 1612/68 is, as Mr Millar submits, to deal with the situation of non-nationals of the host State. The claimant is not therefore within its personal scope.
14. If I am wrong on that, I consider the alternative basis of Mr Millar's argument on Regulation 1612/68 to be correct as was the tribunal's conclusion thereon. The claimant was not a worker for purposes of Title II and Article 7 of that Regulation. The case of Brian Francis Collins v Secretary of State for Work and Pensions Case C-138/02 dealt with the interpretation of that Regulation. Mr Collins was born in the United States and possessed dual Irish and American nationality. As part of his college studies he spent one semester in the UK in 1978. In 1980 and 1981 he returned there for a stay of approximately 10 months, during which he did part-time and casual work in pubs and bars and in sales. He returned to the United States in 1981 and subsequently worked in the United States and in Africa. He returned to the United Kingdom on 31 May 1998 to seek work in the social services sector and claimed JSA on 8 June 1998. The matter eventually came before a Social Security Commissioner who, inter alia, referred the following question to the European Court:-

"Is a person in the circumstances of the claimant in the present case a worker for the purposes of Regulation No 1612/68 of the Council of 15 October 1968?"

The Court in answering this question in the negative stated at paragraphs 30 to 32

"30. In this connection, it is to be remembered that the Court's case–law draws a distinction between Member State nationals who have not yet entered into an employment relationship in the host Member State where they are looking for work and those who are already working in that State or who, having worked there but no longer being in an employment relationship are nevertheless considered to be workers (see Case 39/86 Lair [1988] ECR 3161, paragraphs 32 and 33).

31. While Member State nationals who move in search for work benefit from the principle of equal treatment only as regards access to employment, those who have already entered the employment market may, on the basis of Article 7(2) of Regulation No. 1612/68, claim the same social and tax advantages as national workers (see in particular, Libon, cited above, para 26, and Case C-278/94 Commission v Belgium [1996] ECR 1–4307, paragraphs 39 and 40).

32. The concept of "worker" is thus not used in Regulation No. 1612/68 in a uniform manner. While in Title II of Part I of the regulation this term covers only persons who have already entered the employment market, in other parts of the same regulation the concept of "worker" must be understood in a broader sense."

15. In Mr Collins' particular case the court concluded that even if his occupational activity in the UK was such that he could then be classed as a worker, no link could be established between that activity and the search for a job more than 17 years after it came to an end.
16. In the present claimant's case he had undoubtedly been a worker in the UK before he left for Germany in 1979 but I can see no link between that work and the search for another job in the UK some 25 years later. The claimant had not even been in employment in Germany since 1996. In the absence of such a link the claimant cannot be considered to be a worker for purposes of Article 7. He was not exercising freedom of movement as a worker but as a work seeker.
17. There was nothing in the facts of the case to raise the issue that the claimant was a worker within Article 48(39) of the Treaty or Article 7 of Regulation 1612/68. The tribunal, while its reasoning could have been clearer, obviously reached that conclusion and did not err in so doing. It was sustainable on the evidence. I should add that, in my view, the conclusion would have been correct even with the benefit of the additional information produced to me. There is, in my view, no merit in the first ground.
18. As regards the second ground which was based on Regulation (EC) 1408/71, much of Mr Allamby's argument centred again on the Collins decision and on the decision of the European Court of Justice (ECJ) on the case of Swaddling v Adjudication Officer (C-90/97). The background facts of that case were that Mr Swaddling was a UK national. From 1980-1988 he worked in the tourist industry in France but continued to pay UK National Insurance Contributions. His work entailed frequent visits to France and latterly he returned to the UK only occasionally. On being made redundant in 1988, Mr Swaddling worked for six months in the UK then returned to France where he held various media-related jobs on a fixed-term basis. The majority of these had been advertised in the British press and one of them entailed a period of training in the UK. He was made redundant in 1994 following the collapse of his employer's business as a result of the latter's failure to pay National Insurance Contributions for his employees. On January 1995 after an unsuccessful attempt to find work in France, Mr Swaddling returned to the UK where he lived with his sister. He declared that he no longer wished to take a job which entailed spending long periods of time abroad and, on 9 January 1995, he applied for income support (IS). The Adjudication Officer decided that he was not entitled to IS as he did not meet the habitual residence test (there is an equivalent provision for IS as for JSA) and was accordingly to be classed as a person from abroad with an applicable account of nil. An appeal tribunal allowed the appeal. The Adjudication Officer appealed to a Commissioner who reached the conclusion that for the purposes of the national legislation "habitual residence" presupposed an applicable period of residence in the UK in addition to the settled intention of residing there and that the claimant had become habitually resident eight weeks after his return ie on 4 March 1995. The Commissioner considered it necessary, however, to determine whether arguments based on Community Law would lead to a different conclusion. The Commissioner considered that IS did not fall within the scope of Article 4(1) of Regulation No. 1408/71 being insufficiently linked to any of the risks listed therein but considered the habitual residence provision might be contrary to Article 48 of the Treaty. (I pause here to note that "unemployment" being one of the links noted in Article 4(1) there would appear to be no doubt that the JSA is covered by Regulation 1408/71). The question posed by the Commissioner for decision by the court related therefore to the compatibility with Article 48 of the Treaty of the habitual residence test.
19. The court did not answer the question as it considered that IS was within Article 4(2a) of Regulation 1408/71 being a Special Non-Contributory benefit listed in Annex IIa thereto and consequently governed by the co-ordination provision Article 10a thereof. (I pause to note that income based JSA is also listed in Annex IIa and that the claimant is, as was Mr Swaddling, covered by Regulation 1408/71 as when employed he was subject to both the British and the German schemes). The court decided that Article 10a read together with Article 1(h) precluded the Member State of origin, in the case of a person who had exercised his freedom of movement in order to establish himself in another Member State, in which he had worked and set up his habitual residence, and who had returned to his Member State of origin, where his family lived, in order to seek work – from making entitlement to one of the benefits referred to in Article 10a of Regulation 1408/71 conditional upon habitual residence in that State, which presupposes not only an intention to reside there, but also completion of an appreciable period of residence there.
20. The court's reasoning in so far as relevant to the grounds of appeal in this case is centred in paragraphs 28, 29 and 30 of its judgment which I set out below:

"28. Pursuant to Article 1(h) of Regulation No. 1408/71, the term "residence" for the purposes of that regulation "means habitual residence" and therefore has a Community-wide meaning.

29. The phrase "the Member State in which they reside" in Article 10a of Regulation No. 1408/71 refers to the State in which the persons concerned habitually reside and where the habitual centre of their interests is to be found. In that context, account should be taken in particular of the employed person's family situation; the reasons which have led him to move; the length and continuity of his residence; the fact (where this is the case) that he is in stable employment; and his intention as it appears from all the circumstances (see, mutatis mutandis, concerning Article 71(1)(b)(ii) of Regulation No. 1408/71, Case 76/76 Di Paolo [1977] ECR 315, paragraphs 17 to 20, and Case C-102/91 Knoch [1992] ECR I-4341, paragraphs 21 and 23).

30. For the purposes of that assessment, however, the length of residence in the Member State in which payment of the benefit at issue is sought cannot be regarded as an intrinsic element of the concept of residence within the meaning of Article 10a of Regulation No. 1408/71. In particular, when, as in the present case, an employed person, on returning to his State of origin after exercising his right to freedom of movement, has made it clear at the time of applying for income support that he intends to remain in his State of origin, where his closest relatives live – whilst expressing his readiness, should the need arise in the context of some future employment, to travel from time to time to other Member States – he cannot be deemed not to satisfy the condition concerning residence within the meaning of Article 10a merely because the period of residence completed in his State of origin is too short."

21. Subsequent jurisprudence (R(IS)3/00 and Nessa v Chief Adjudication Officer (1999 J/WLR 193)) has clarified the situation as regards the interpretation of the Swaddling decision. On the basis of that jurisprudence (which the Collins decision tends to confirm) the situation post Swaddling in the case of a returning national covered by Regulation 1408/71 (as the claimant here is) is that while residence for an appreciable period is not an "essential" part of the concept of habitual residence (as employed in Regulation 1408/71) nonetheless in deciding whether or not a person is habitually resident, length of residence is a factor which can be taken into consideration as part of the general circumstances. I did not understand Mr Allamby to argue that returning UK nationals were automatically entitled to be treated as habitually resident immediately upon return. He argued rather that the habitual residence test in UK law was compatible with EC law so long as it did not go beyond what was necessary to establish a genuine link with the UK employment market. He argued further that for returning UK nationals it was not appropriate to have to serve an appreciable period. In his submission Swaddling was authority for the proposition that a returning national who had left the UK in exercise of his freedom of movement as a worker and returned should, where a genuine intention to stay was accepted, and where this was backed by other factors normally be treated as habitually resident without there being an appreciable period of residence. He acknowledged that the subsequent jurisprudence was "in a sense" that Swaddling was confined to its facts.
22. Mr Millar submitted that the facts in this case were different from Swaddling, Mr Swaddling having retained strong links with the UK. In the present case the tribunal had placed emphasis on the fact that the claimant had two sons in Germany and that contact with the claimant's biological mother was at a comparatively late stage in life. Applying the principles in Swaddling the tribunal was entitled to its conclusion that when all the factors were weighed up habitual residence was not established at the relevant time. Mr Millar submitted further that Mr Allamby was placing too much weight on the intention to stay factor.
23. As regards the adequacy of the tribunal's reasons, Mr Millar submitted that the tribunal had recorded that it accepted the Department's submission, had looked at "the decided" cases and placed particular reliance on decision CIS/1304/1997 and CJSA/5394/1998 in which Mr Commissioner Jacobs had reviewed the existing jurisprudence. The Department's submission to the tribunal covered Regulation 1408/71 and indicated that the principles of Swaddling but not its direct application to its facts were to be relied on. The tribunal's reasons could have been fuller but were adequate when read against the background of the submission.
24. I too consider that the tribunal's reasoning could have been fuller. It makes no express mention of Regulation 1408/71. However, I am prepared to accept that it is reasonably clear that the tribunal was accepting the Department's submissions on the matter and the reasoning is therefore adequate. The Department's submissions to the tribunal were, in relation to Swaddling, very similar to those made by Mr Millar before me and they are, I consider, correct.
25. The European Court's final decision in Swaddling is perhaps not well phrased but it is abundantly clear from paragraphs 29 and 30 of the reasons that length of residence while not an "essential" part of the test of habitual residence is a factor which can be taken into account in determining whether or not a claimant is habitually resident for the purposes of Regulation 1408/71. If it were otherwise the court would not have mentioned "length and continuity of his residence" as a factor of which "account should be taken in particular" in paragraph 29 of its judgment.
26. I accept the analysis of Commissioner Mesher in GB in CIS/15484/1996 on this matter and in particular consider that the word "intrinsic" in the decision in Swaddling is used to refer a "conditio sine qua non" of residence. In other words residence can be established by returning nationals without an appreciable period of residence but it will not necessarily be so established. It depends on the facts of the case.
27. That is, I consider the situation as regards Regulation 1408/71. I do not think it necessary to enter into an analysis of the interpretation of "habitually resident" in the domestic legislation. The Swaddling decision does appear to indicate that the test as applied to EC nationals exercising community rights may be more generous than as applied to non EC nationals. For this case, however, the matter is not of great importance as the Swaddling principles are being applied.
28. So doing then, did the tribunal make the correct decision? It has relied particularly on CIS/1304/1997 and CJSA 5394/1998 (reported as an appendix to CIS 4474/2003). In the latter decision Commissioner Jacobs states that Nessa makes it clear that a person:

"… a person who has previously been habitually resident will not automatically become habitually resident again on arriving back here."

At paragraph 32 thereof he states:

"32.1 It is relevant to consider whether there is doubt about the genuineness of a claimant's statements of intention on returning to the United Kingdom. If there is doubt, this may show that residence for an appreciable period is appropriate to demonstrate the genuineness of the stated intention. If there is no doubt, this may be a factor that points to habitual residence being established on arrival.

32.2 It is relevant to consider whether the claimant is in a position to make an informed decision about residence in the United Kingdom. A claimant who has been abroad for a long time may find the changes greater than expected and the difficulties of adjusting too great. This may show that residence for an appreciable period is appropriate to test the claimant's resolve. This is unlikely to be the case for a claimant who has only been absent for a short period, but the changes in the way of life in a country can alter significantly over a short time."

29. It is obvious that the tribunal in this case took into consideration the long standing period of residence in Germany – some 19 years and the fact that the claimant had two sons in Germany. Those are certainly weighty factors which it was entitled to consider.
30. The tribunal also, however, took into consideration that the claimant had a partner. I can ascertain no evidence for this. It appears to have been an assumption made on the basis that he had a nine year old son and therefore had a relationship at one time but there was no evidence to support the finding that the claimant had a current partner or indeed a recent one. I set the decision aside as in error of law for reaching a factual conclusion material to its decision for which there was no evidence.
31. I therefore now have to decide whether or not to give the decision which the tribunal should have given. I have decided to do so. There is ample evidence before me. The matter has been going on for some two years and it does not involve a lengthy period or a great sum of money. I have taken into consideration all the circumstances and accepted that the claimant has little contact with his second son but nonetheless that he does have two sons in Germany. Bearing in mind that there are factors (in particular the lengthy absence from the UK, the fact that he lived 19 years in Germany, the fact that he has two sons living there and the comparatively recent contact with his biological mother), I consider that some period of residence was required before the claimant could be said to be habitually resident in the UK. I do not find him to have had any current partner in Germany. I understand that the period imposed by the Department was something less than three months (benefit being awarded on 10 March 2005). The tribunal and a Commissioner, of course, are obliged to consider only circumstances obtaining at the date of decision under appeal (21.12.04) and at that date habitual residence did not, in my view, exist. I do, however, consider that by 10 February 2005 the claimant had become habitually resident in Northern Ireland and that other than the passage of time the circumstances at that date were as they had been on 21 December 2004. I therefore, relying on the decision of the Court of Appeal in England and Wales in Secretary of State for Work and Pensions v Bhakta (reported as an appendix to R(IS)7/06) and regulation 13(1) of the Social Security (Claims and Payments) Regulations 1987 make an award of JSA on that basis. Prior to 10 February 2005 he was not habitually resident and not entitled to JSA. The claimant wins his appeal to that extent.

(signed): M F Brown

Commissioner

23 January 2007