Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2008] NISSCSC C1_07_08(JSA) (19 June 2008)

Decision No: C1/07-08(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
JOBSEEKER'S ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 4 December 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Department, with the leave of the legally qualified member of the tribunal, against the decision of the tribunal, allowing an appeal from a decision of a decision-maker, to the effect that the claimant was entitled to jobseeker's allowance (JSA) (ie not a Nil award) as he was a worker for the purposes of Council Regulation (EC) 1612/68 and also, from 30 April 2006, for the purposes of Directive 2004/38/EC.
2. Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.
3. Mr McNamara, of Decision Making Services, has made written submissions on behalf of the Department. The claimant, the respondent in the present proceedings, has taken no active part in this case but all relevant correspondence in relation to the case has been sent to his last known address. However, it is unfortunate that no argument has been adduced by or on behalf of the claimant and that I have only been assisted in relation to this matter by the submissions made on behalf of the Department. While it is clear that the Departmental submissions have, as is the practice, been made by Mr McNamara bearing in mind the Department's position as something not dissimilar to an amicus curiae, it still would have been preferable to have received submissions by or on behalf of the claimant.
4. The claimant in the case is a United Kingdom national who, after a period abroad, returned to the United Kingdom on 31 January 2006 and subsequently submitted a claim for JSA from 1 February 2006. On 20 February 2006 a decision-maker of the Department decided that the claimant was not habitually resident in the United Kingdom and, consequently, that he was a person from abroad and was entitled to JSA at the applicable amount of Nil. The claimant subsequently appealed this decision to an appeal tribunal which allowed the appeal at a hearing on 4 December 2006. The Department applied for leave to appeal from the decision of the tribunal to the Commissioner. The application for leave to appeal was granted by the legally qualified member on 30 May 2007. On 22 January 2008 I accepted the Department's appeal, which was late, for special reasons.
5. The relevant domestic provisions in relation to this case are found in the Jobseeker's Allowance Regulations (Northern Ireland) 1996 ("the 1996 Regulations"). Regulation 85(4) and (4B) provide, inter alia:-

"85(4) Subject to paragraphs (4A) and (4B), in this regulation …

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

(4B) In paragraph (4), for the purposes of the definition of a person from abroad

no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland."

(This legislation has now been superseded by a new regulation 85A which came into force from 30 April 2006, but the older legislation is relevant in this case as it was in force when the claimant made his claim for benefit).

6. However, the issue in the present appeal is whether the tribunal was correct to find that the claimant was a worker for the purposes of Council Regulation (EC) 1612/68 and also for the purposes of Directive 2004/38/EC and, arising out of those findings, that the claimant was entitled to JSA.
7. The tribunal, in particular, found that the claimant remained a worker, both for the purposes of the Council Regulation and also for the purposes of the Directive, and as such, was not a person from abroad for the purposes of the Jobseeker's Allowance Regulations (Northern Ireland) 1996.
8. The tribunal gave a well-reasoned statement of reasons in support of its decision. The tribunal decided that the aggregate of all work done by the claimant, in various European Union countries over an eight year period amounted to at least one year's work. As such the tribunal determined that the claimant was a worker for the purpose of Council Regulation (EEC) 1612/68 and also for the purposes of Directive 2004/38/EC. It further determined that the fact that he was a returning United Kingdom national, who has exercised Treaty rights, did not exclude him from the scope of the relevant European provisions. In so doing the tribunal considered the jurisprudence of the European Court of Justice and in particular the cases of The Queen v Immigration Appeal Tribunal et Surinder Singh, ex part Secretary of State for Home Department C-370/90 and Integraut Scholz v Opera Universitaria di Cagliari and Cinzia Porcedda C-419/92. Accordingly the claimant could not be treated as not habitually resident in accordance with regulation 85(4)(a) of the 1996 Regulations.
9. The tribunal's reasoning was that, although the claimant was not currently employed, he nonetheless retained his status as a worker by virtue of the work that he had been engaged in outside the United Kingdom. The tribunal applied this rationale to workers status in accordance both with Council Regulation (EEC) 1612/68 and also for the purposes of Directive 2004/38/EC.
10. The preamble to Council Regulation (EEC) No. 1612/68 states as follows:

"Whereas freedom of movement for workers should be secured within the Community by the end of the transitional period at the latest; whereas the attainment of this objective entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, as well as the right of such workers to move freely within the Community in order to pursue activities as employed persons subject to any limitations justified on grounds of public policy, public security or public health;

…

Whereas the principle of non-discrimination between Community workers entails that all nationals of Member States have the same priority as regards employment as is enjoyed by national workers;

…"

11. Mr McNamara has submitted that it is clear that the purpose of the Regulation is to provide protection to non-nationals of the host Member State both in regards to eligibility for employment and also equality of treatment with national workers once employment has been secured. Therefore he submitted that, as a United Kingdom national returning to the United Kingdom, the claimant is not within the personal scope of the Regulation and cannot therefore be termed a worker.
12. In support of his submission he relied on the decision of Mrs Commissioner Brown in C3/05-06(JSA), which decided, inter alia, that the Regulation does not apply to a claimant who is a United Kingdom national who is in the United Kingdom and also that the Regulation does not apply to a United Kingdom national who returns to the United Kingdom as a work seeker, rather than a worker.
13. Mr McNamara also referred me to the Great Britain decision of Mr Commissioner Mesher in R(IS) 3/97, and in particular to the following passage:

"12. … The appeal tribunal decided that the claimant was a worker for the purposes of Regulation 1612/68 by virtue of his work in France and that he had not lost that status on moving to the United Kingdom. …

…

14. What Lair and Raulin do show, though, is that the place in which the person concerned has carried out occupational activities is of crucial importance. The passage cited above from the operative part of Lair (Lair v Universitat Hannover (Case 39/86 [1988] ECR 3161) refers to occupational activities carried out in the host State. In Raulin, (Raulin v Minister Van Onderwijs en Wetenschappen (Case C-357/89) [1992] ECR I-1027) the national court specifically asked whether in assessing whether a person is a worker within the meaning of Article 48 of the EEC Treaty account must be taken of all the activities which have been pursued within the European Community or solely of the activities most recently pursued in the host State. On this question the ECJ said, at paragraphs 17 and 19 of its judgment (and see point 3 of the operative part):

"17. With regard to the activities pursued in Member States other than the host State, it should be noted that the aim of Regulation (EEC) No. 1612/68 is to facilitate freedom of movement for workers and, to this end, to ensure integration of workers in the host country. The status of migrant worker and, consequently, the right to equality of treatment with national workers, is acquired only through the occupational activities exercised in the host country.

…

19. The answer to the third question must therefore be that in assessing whether a person is a worker, account should be taken of all the occupational activities which the person concerned has pursued within the territory of the host Member State but not the activities which he has pursued elsewhere in the Community."

That is a very precise ruling. The ECJ makes it clear that it is considering the status of worker for the general purposes of Regulation 1612/68, and not merely the question of a link between occupational activities and subsequent studies in a student case. That is why there is a reference to all the occupational activities which have been pursued in the host State, and not merely to the most recent occupational activity. Then it is ruled that in assessing whether a person is a worker within the host State occupational activities pursued elsewhere in the Community must be left out of account. …

15. It is at that point that the commonsense approach of the appeal tribunal parted company with the Community meaning which must be given to the meaning of "worker" for the purposes of Regulation 1612/68. The appeal tribunal erred in law in taking into account the work which the claimant had done in France in determining whether or not he was a worker. Since the undisputed evidence was that, at least at the date of the claim for income support, the claimant had never undertaken any occupational activities as an employee in the United Kingdom, the only possible conclusion was that he was not at that date a worker for the purposes of Regulation 1612/68. I must admit to finding the ruling in Raulin surprising. I can see the argument that a Member State need only integrate nationals of other Member States (and their families) and provide them with the same social and tax advantages as national workers when they have shown themselves to be part of the workforce of the host State. However, the result of the ruling is that people who would be workers if their occupational activities had been carried out in the host State are not workers because the identical activities have been carried out in other Member States. That does not seem likely to promote the freedom of movement of workers. But be that as it may, I cannot ignore the clear ruling in Raulin which establishes the Community meaning of worker for the purposes of Regulation 1612/68. It is that meaning which must be applied in the context of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations."

14. Mr McNamara accordingly submitted that the tribunal erred in law in determining that worker status could be retained in the host Member State even though the claimant had not undertaken any occupational activities in the United Kingdom since his return.
15. In Mr McNamara's submission, to attain worker status in the United Kingdom, a person must have actually worked in the United Kingdom. Therefore, as the claimant has not worked since his return to the United Kingdom, Mr McNamara submitted that he cannot have attained worker status and, consequently, the issue of retention of worker status cannot arise.
16. He also submitted that as the claimant returned to the United Kingdom as a work seeker, rather than as a worker, he cannot be a worker for the purposes of Council Regulation (EEC) 1612/68. In R(IS) 3/97 Mr Commissioner Mesher considered whether a person coming to the United Kingdom as a work seeker can be a worker for the purposes of Council Regulation (EC) 1612/68. At paragraph 11 of that decision, Mr Commissioner Mesher stated as follows:

"11. It is absolutely plain from the terms used by the ECJ that not all those to whom some provision of Regulation 1612/68 are workers and that if all that can be said in favour of a person is that the person has moved from one Member State to another in order genuinely to seek employment in the second Member State the person is not a worker for the purposes of Regulation 1612/68."

17. In my view, in light of Raulin, Lair and R(IS) 3/97, Mr McNamara's submissions are correct.
18. Although Mr Commissioner Mesher's decision is concerned only with Council Regulation (EEC) 1612/68, Mr McNamara submitted that the principle set out in this decision would equally apply to Directive 2004/38/EC.
19. Article 7(3)(b) of the Directive, which applies to the retention of worker status (attained in accordance with paragraph 1(a) of Article 7) states:

"3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

…

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with the relevant employment office;

(c) …"

20. Article 7(1)(a) of the Directive is in the following terms:

"1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

…"

21. However, Mr McNamara has persuaded me that Directive 2004/38/EC has no direct relevance to the issues in this case for the following reasons.
22. The decision to disallow the claimant's claim for JSA, from 1 February 2006, was given on 20 February 2006. The domestic legislation governing habitual residence at this time was to be found at regulation 85(4) of the 1996 Regulations. Regulation 85(4)(a) refers, inter alia to Council Regulation (EEC) No 1612/68 and Council Directive 68/360/EEC; it does not mention Directive 2004/38/EC, which was not then in existence. Accordingly, consideration of Directive 2004/38/EC in determination of the claimant's claim for JSA is unnecessary.
23. The domestic provisions were amended with effect from 30 April 2006 to reflect the date on which the United Kingdom complied fully with Directive 2004/38/EC. The insertion of regulation 85A into the 1996 Regulations provided that a person is not a person from abroad if he is a worker for the purposes of Directive 2004/38/EC; the Council of Regulation (EEC) 1612/68 is, therefore no longer directly relevant, from that date. It is possible that in its determination of the duration of the award of benefit, the appeal tribunal in allowing the claimant's appeal, considered whether the claimant was a worker for the purposes of Directive 2004/38/EC; however, this is unclear from the statement of reasons.
24. There is no legislative definition, as to what constitutes a worker for the purposes of either Regulation (EEC) 1612/68 or Directive 2004/38/EC. However, both measures were made as a consequence of Articles 39 and 40 of the Treaty, which both refer to the concept of a worker. It seems to me that the term "worker" must therefore be afforded a Community meaning within the scope of the Treaty, and that a worker for the purposes of Regulation (EEC)1612/68 is synonymous with the definition of a worker for the purposes of Directive 2004/38/EC.
25. However, due to the domestic legislation in force at the date of the claimant's claim for jobseekers allowance, the question at issue in these proceedings is whether the claimant is a worker for the purposes of Regulation (EEC) 1612/68. If the claimant is a worker for the purposes of Regulation 1612/68, it may be relevant, as to the duration of any award, whether he is a worker for the purposes of Directive 2004/38/EC. However a worker for the purposes of Regulation (EEC) 1612/68 would also be a worker for the purposes of Directive 2004/38/EC as the meaning of worker is to all intents and purposes identical for each provision.
26. As I have stated earlier I conclude that Mr McNamara's basic submission is correct. Relying on the authority of Mr Commissioner Mesher's decision of R(IS) 3/97, the claimant is not within the personal scope of Regulation (EEC) 1612/68 and cannot therefore be termed a worker. Accordingly the tribunal has erred in law by concluding that the claimant has retained his status as a worker by virtue of the work that he had been engaged in outside the United Kingdom. I also conclude that, in so far as it is still relevant, that he is also not within the scope of Directive 2004/38/EC and therefore cannot be termed a worker under that Directive from 30 April 2006.
27. In these circumstances I must conclude that the tribunal has erred in law by concluding that the claimant was not restricted to a Nil award of JSA as, in light of my findings, paragraph 14, of Schedule 4 of the Jobseeker's Allowance Regulations (Northern Ireland) 1996 requires a Nil award to be made to the claimant as a person from abroad. (The tribunal has inadvertently referred to Schedule 5, the equivalent legislation in Great Britain, but this minor error has no relevance to the important issues in this case).
28. I therefore allow the appeal. I set aside the tribunal's decision. In light of my conclusions I can give the decision that the tribunal should have given as there is no need to make any fresh or further findings of fact, namely, that the claimant is entitled to a Nil award of JSA from the date of claim, namely 1 February 2006.

(signed): J A H Martin QC

Chief Commissioner

19 June 2008