UK Social Security and Child Support Commissioners' Decisions

You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [1997] UKSSCSC CIS_12909_1996 (25 June 1997)
URL: http://www.bailii.org/uk/cases/UKSSCSC/1997/CIS_12909_1996.html
Cite as: [1997] UKSSCSC CIS_12909_1996

[New search] [Printable RTF version] [Help]

[1997] UKSSCSC CIS_12909_1996 (25 June 1997)

R(IS) 12/98

Mr. J. Mesher CIS/12909/1996

Person from abroad - habitual residence - European Union national - French national who worked as an au pair in the United Kingdom - whether a worker for the purpose of Regulation 1612/68 - whether retained worker status on ceasing employment

The claimant was a French national who came to the United Kingdom on 22 May 1995. On 20 June she entered into an arrangement with a family to act as an au pair, working 13 hours a week in return for £35 per week and free board and lodging. The arrangement ended on 28 July, although it was not entirely clear from the evidence subsequently given to the tribunal whether it was the employer or the claimant who terminated it.

The claimant made a claim for income support on grounds of unemployment, which was treated as having been made on 31 July. The adjudication officer refused the claim on the grounds that the claimant was not habitually resident in the United Kingdom. She appealed to a social security appeal tribunal and in the meantime entered into a fresh arrangement to act as an au pair from 15 August.

The tribunal refused the appeal on the grounds that on the date of claim the claimant (a) was not habitually resident in the United Kingdom; and (b) was not exempt from the habitual residence rules as a "worker" as defined in European Union law because her activity as an au pair "was not genuine and effective work". The claimant appealed to a Commissioner.

Held, allowing the appeal, that:

the tribunal decision was erroneous in law for a number of technical reasons. The Commissioner was therefore entitled to substitute his own decision (para. 8);

by the date of claim, the claimant had acquired the status of a worker for the purposes of Council Regulation (EEC) No. 1612/68 because her activities as an au pair were genuine and effective and not on such a small scale for it to be appropriate to regard them as marginal and ancillary. The claimant had provided services of economic value to her employer in return for remuneration that she needed to provide her with the necessaries of life. The arrangement had been intended at the outset to be long term and had not been entered into as a device to gain worker status (Levin v. Staatssecretaris van Justitie [1982] ECR 1035, ECJ and Raulin v. Minister van Onderwijs en Wetenschappen [1992] ECR 1027, ECJ applied) (para. 15);

having acquired the status of worker for the purpose of Council Regulation (EEC) No. 1612/68, a person who then ceases employment retains that status whilst unemployed and looking for work. It does not matter that the employment was left voluntarily, so long as the circumstances of leaving indicate that the person still intended to remain in the labour market (Lair v. Universitat Hannover [1988] ECR 3161, ECJ considered) (para. 21);

the evidence was that the claimant was available for and actively seeking work from 29 July to 14 August 1995 and had not taken herself out of the labour market. She was therefore to be regarded as a worker for the purpose of Council Regulation (EEC) No. 1612/68 during the period of her income support claim and so, in accordance with paragraph (a) of the second definition of "person from abroad" in regulation 21(3) of the Income Support (General) Regulations 1987, she could not be treated as not habitually resident in the United Kingdom.

The Commissioner substituted a decision that the claimant was entitled to income support for the period 31 July to 14 August 1995 (inclusive).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The claimant's appeal is allowed. The decision of the Coventry social security appeal tribunal dated 20 November 1995 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute my decision on the basis of the findings of fact made by the appeal tribunal with the addition of some further findings (Social Security Administration Act 1992, section 23(7)(a)(ii)). That decision is that the claimant is entitled to income support for the period from 31 July 1995 to 14 August 1995 (both dates included).

The background

The claimant is a French national. On 22 May 1995, when she was aged 20, she entered the United Kingdom for the first time. She was initially on an unpaid work placement as part of the secretarial course which she was following in France. That continued until 17 June 1995. From 20 June 1995 she obtained work as an au pair with a family. On her claim form she said that she worked for 13 hours a week and that she was paid £35 per week and it appears that she received free board and lodging. That came to an end on 28 July 1995, when it appears that the family terminated the arrangement (I shall have to return later to the way in which that work came to an end). On 2 August 1995 an income support claim form was received. The claim was treated by the Secretary of State as made on 31 July 1995. Following an interview on 7 August 1995, the adjudication officer on 9 August 1995 decided that the claimant was not entitled to income support because she was not, habitually resident in the United Kingdom.

The claimant appealed in a letter received on 21 August 1995. She referred specifically to the period from 28 July to 14 August 1995 and said that she had found another position as an au pair with a family. But in the two weeks between jobs she had had no money and only had anywhere to live through the charity of a friend. She also said that she intended to start educational courses in England in September 1996 and that her future and ambitions lay here. By the time that the appeal came to be heard the claimant had had a third position with a family and was then working as a cleaner at a public house. The claimant attended the hearing, where she was represented by Mr. Mark Hemingway of Coventry Legal and Income Rights Service. There was obviously a detailed and thorough hearing.

The appeal tribunal's decision

By a majority, the appeal tribunal disallowed the appeal and decided that the claimant was not entitled to income support from 2 August 1995. Its findings of fact were as follows:

"[The claimant] is a single person aged 21 years. She is a French national and came to the United Kingdom from France on the 22 May 1995. For the first four weeks of her stay in the United Kingdom she was not employed but was on a work experience exercise from her college in France. From the 20 June she obtained work as an au pair where she was given pocket money and free board and lodgings. She had three jobs as an au pair and on the 7 October 1995 she started work as a cleaner at the Burnt Post Public House in Coventry. She made a claim for income support on the 2 August 1995.

During October 1995 she made an application for a residence permit which was acknowledged by the Home Office on the 8 November 1995.

She now lives in Coventry with a male friend. She has most of her possessions in this country and most of her money is here."

The members of the appeal tribunal considered whether the claimant was to be treated as habitually resident in the United Kingdom by virtue of being a worker and whether she was habitually resident in fact. The majority decided against the claimant on both issues, whereas the chairman would have decided in her favour on both issues.

On the first issue, the majority said that the claimant:

"could not be regarded as being a worker at the date of claim as her work up until then had been merely as an au pair which was not genuine and effective work. In coming to this conclusion the majority of the members had regard to page 21 of the supplement to 'Income Related Benefit: the Legislation' [sc the 1994 Supplement] where it is stated that the nature of the work is relevant to establish this and that a teacher on a year's exchange or an au pair may remain habitually resident in the country from which they came."

The chairman considered that the claimant's work as an au pair was genuine and effective, so that she was a worker for the purpose of the regulations. The majority concluded that the claimant was not habitually resident in fact at the date of claim, and explained their reasons carefully. They thought that she might have become habitually resident by 7 October 1995 and suggested that she could make a new claim from that date. The chairman considered that the claimant was habitually resident here right from the date of claim.

Subsequent proceedings

The claimant now appeals against that decision, with leave granted by the appeal tribunal chairman. It has taken a long time since leave was granted to reach the stage of a decision being given, partly as the result of the raising at a fairly late stage of an argument that the income support provisions on habitual residence were ultra vires. An oral hearing of the appeal was held, at which the claimant was represented by Mr. R. de Mello of Counsel and the adjudication officer was represented by Mr. Nicholas Paines QC.

It is convenient here to set out the additional definition of "person from abroad" (who then has an applicable amount of nil under paragraph 17 of Schedule 7 to the Income Support (General) Regulations 1987) inserted into regulation 21(3) of the Income Support Regulations on 1 August 1994:

"'person from abroad' also means a claimant who is not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man, 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. 1252/70 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; or

(b) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on
28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on
31st January 1967; or

(c) a person who has been granted exceptional leave to remain in the United Kingdom by the Secretary of State."

Did the appeal tribunal err in law?

It was accepted on behalf of the adjudication officer that the appeal tribunal had erred in law. At the least, the majority seemed to misunderstood the effect of the claimant's being found to be a worker for the purpose of Council Regulation (EEC) No 1612/68, by its reference to whether an au pair or an exchange teacher might be said to retain habitual residence in the state of origin. That confuses habitual residence in fact with deemed habitual residence under paragraph (a) of the additional definition and casts doubt on whether the proper test of genuine and effective work was actually applied. In addition, the decision was made from
2 August 1995, when the claim was to be treated as made on 30 July 1995, so that a part of the period in issue was left out of the decision. And allied to that, the appeal tribunal failed to make clear what period it regarded as in issue on the appeal. It is established, by Commissioners' decisions CIS/11481/1995 and CIS/2326/1995, that an appeal tribunal considering a claim disallowed by virtue of the habitual residence rule must consider not only the position as at the date of claim, but also the period down to the date of its decision. That general principle is subject to the possibility of some event terminating the running of the claim for an indefinite period and thus limiting the period in issue to the period down to that event. In the present case, the appeal tribunal made some findings of fact relating to dates shortly before the date of the hearing, and a decision in the form of "not entitled to income support from date X" would normally be taken as covering the whole period down to the date of the hearing. However, the majority also suggested that the claimant should make a fresh claim from 7 October 1995, which indicates that that whole period was not being considered. That failure to explain the basis of the decision is an error of law.

For those reasons, the appeal tribunal's decision must be set aside as erroneous in point of law. It is clearly expedient for me, if possible, to substitute my decision on the basis of the evidence available, so that the case can be finally resolved. As will appear below, I have reached a view of the facts which enables me to do so.

The Commissioner's decision on the claim

(a) The period in issue

The first point is to determine the period in issue on the claim. The claim when it was made was to be treated under regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987 as made for an indefinite period. In some cases the taking up of full-time work will constitute a termination by the claimant of the running of the indefinite period under the claim. In this case, there is little evidence of the terms of the work which the claimant took up on 15 August 1995, except that she apparently (according to the typed version of the chairman's note of evidence) was paid £40 per week with free board and lodging. However, I am satisfied from the terms of the claimant's letter of appeal (noted in paragraph 3 above) that she intended to limit the claim to the period before she obtained her new au pair position on 15 August 1995 and to withdraw the period from that date onwards from her claim. Accordingly, the period in issue runs from 31 July 1995, the date on which the claim was treated as made, to 14 August 1995. As the problems of lack of evidence about the claimant's hours of work and earnings from her various occupations from 15 August 1995 onwards are therefore irrelevant, there is no need to refer the case back to a new appeal tribunal.

(b) General conditions of entitlement

In paragraph 4 of the submission dated 5 July 1996, the adjudication officer then concerned with the case said that it had been accepted that at the time of her claim the claimant satisfied the general conditions of entitlement, and was excluded only by the habitual residence rule. That appears to be the case for the period in issue, when the claimant had no income, no capital over £200, and was taking active steps to find work. I proceed on that basis. If I am ignorant of or mistaken as to any material fact, my decision may be reviewed. Thus the claimant can succeed either by showing that she was habitually resident in the United Kingdom for the period in issue or that she was to be treated as habitually resident. I consider whether the claimant can succeed on either ground, before looking at the issue of ultra vires.

(c) Habitual residence in fact

There was not a great deal of discussion of the question of actual habitual residence at the oral hearing. I do not as it turns out need to decide that question, but applying the principles set out in Commissioners' decisions CIS/1067/1995 and CIS/2326/1995, there can be little doubt that the claimant was not habitually resident during the period in issue. An appreciable period of settled residence had not elapsed. The evidence is that a settled intention was lacking or at best equivocal for the early weeks of the claimant's presence in the United Kingdom.

(d) Worker for the purpose of Regulation 1612/68

However, I am satisfied that by virtue of paragraph (a) of the additional definition of "person from abroad" in regulation 21(3) of the Income Support Regulations the claimant is not to be treated as not habitually resident.

In relation to Regulation 1612/68, Mr. Paines agreed, as had the adjudication officer in the written submission of 5 July 1996, that from 20 June 1995 to
28 July 1995 the claimant was a worker for the purposes of that Regulation. She was providing services for another in return for remuneration and the conditions summarised in the judgment of the ECJ in Raulin v. Minister van Onderwijs en Wetenschappen (Case C-357/89) (1992] ECR 1027 were met:

"13. It should be recalled that whilst part-time work is not excluded from the field of application of the rules on freedom of movement for workers, those cover only the pursuit of effective and genuine activities, to the exclusion of activities or. such a small scale as to be regarded as purely marginal and ancillary (judgment in Case 53/81 Levin v. Staatssecretaris van Justitie (1982] ECR 1035, paragraph 17). It is up to the national courts to make the necessary findings of fact in order to establish whether the person concerned can be considered to be a worker within the meaning of the case law.

The national court may, however, when assessing the effective and genuine nature of the activity in question, take account of the irregular nature and limited duration of the services actually performed under a contract for occasional employment. The fact that the person concerned worked only a very limited number of hours in a labour relationship may be an indication that the activities exercised are purely marginal and ancillary. The national court may also take account, if appropriate, of the fact that the person must remain available to work if called upon to do so by the employer."

In view of that agreement, which I accept, I do not need to go into any detail on the ECJ case law. But I do note the remarks of the ECJ in paragraphs 19 to 21 of the judgment in Nolte v. Landesvericherungsanstalt Hannover (Case C-317/93) (1995] ECR 4625. On the basis that the claimant here worked for only 13 hours a week, as she said, in return for £35 and board and lodging, I consider that those activities were not on such a small scale as to be regarded as purely marginal and ancillary. Her services were of economic value to her employers and her activities were the means of providing her with food and accommodation and other necessaries of life. Although the arrangement lasted only a few weeks, it appears that it was intended at the outset to be a long term arrangement. There is no evidence to suggest that the arrangement was entered purely as a device to gain worker status, so that I am satisfied that the activities were genuine.

Where the disagreement between the parties comes in is over the claimant's status for the purpose of Regulation 1612/68 after 28 July 1995. Mr. de Mello referred in particular to Article 7(1), which 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;"

He said that the obligations imposed when workers become unemployed are not limited to relationships with the previous employer and indicate that in such circumstances the persons remain within the meaning of "worker". That is supported by Article 7(3) on access to training and retraining, which will be of particular significance for unemployed workers. So far as domestic case law is concerned, he relied on Kennedy LJ's classification of categories of persons from abroad in relation to income support before August 1995 (at page 10 of the transcript of R v. Secretary of State for Social Security, ex parte Sarwar and Getachew (24 October 1996)). There, Kennedy LJ referred to European Economic Area nationals who were unemployed after a job in the United Kingdom as workers. So far as ECJ case law is concerned, Mr. de Mello relied on Hoekstra (née Unger) v. Restuur der Bedrijfsvereniging voor Detailhandel en Ambachten (Case 75/63) [1964] ECR 177 and Lair v. Universitat Hannover (Case 39/86) [1988] ECR 3161. Hoekstra concerned the meaning of "wage earner or assimilated worker" in Council Regulation 3 of 25 September 1958, a predecessor of Council Regulation 1408/71. The claimant had ceased to be compulsorily insured for sickness on her ceasing employment, but continued with voluntary insurance. The ECJ held that it followed from Article 43(3) of the Treaty of Rome and Regulation 3 that the protected "worker" is not exclusively one who is currently employed, but protection logically extends to a worker who, having left a job, is capable of taking another. Lair concerned a French migrant worker who left employment in Germany and was refused a maintenance grant to undertake university study. Mr. de Mello submitted that the decision recognised that a person who was no longer employed could invoke Article 7(2) to claim the same social advantages as national workers.

Mr. Paines' submission on Regulation 1612/68 was that it is vital to distinguish between those who leave employment voluntarily and those who do so involuntarily. By reference to Lair and to Raulin, he submitted that where a person leaves employment voluntarily the status of worker is lost, except in the case recognised in Lair of the undertaking of study linked to the previous employment. In the case of those who lose employment involuntarily, he was not prepared positively to concede that the status of worker was retained while the person made genuine efforts to find new employment, but put it that guidance would be welcomed. Mr. Paines suggested that the circumstances in which the claimant in the present case left her first au pair position had not been sufficiently investigated by the appeal tribunal for it to be said whether she left voluntarily or involuntarily.

I get no assistance from Kennedy LJ's remark in Sarwar and Getachew, which was clearly not intended to have any prescriptive effect. Nor do I from the specific decision in Hoekstra, since Article 4 of Regulation 3 referred to wage-earners or assimilated workers who "are or have been subject to the legislation of one or more of the Member States". That establishes a specific context absent from Regulation 1612/68. It seems to me that the important matter is to identify the principles established by the ECJ. I have already discussed Lair and Raulin to some extent in decision CIS/4521/1995, which was mentioned in the oral hearing. There, in paragraph 13, I rejected a submission that an employed person ceased to be a worker for the purpose of Regulation 1612/68 immediately on losing employment for whatever reason. However, I did not have to decide the question posed in the present case, because the claimant in CIS/4521/1995 had never been employed in the United Kingdom. I now have to address that question.

It is helpful to set out most of what is said in the judgment in Lair about the concept of "worker":

"29. In this connection the three Member States which have submitted observations argue that a person loses the status of worker, on which the social advantages depend, when, in the host State, he gives up either his previous occupational activity or, if unemployed, his search for employment in order to pursue full-time studies. The Commission disagrees with that view.

It should be noted first of all that neither Article 7(2) of Regulation No 1612/68 nor Articles 48 or 49 of the EEC Treaty provides an express answer to the question whether a migrant worker who has interrupted his occupational activity in the host State in order to pursue university studies leading to a professional qualification is to be regarded as having retained his status as a migrant worker for the purposes of Article 7 of the Regulation.

Although the wording of those provisions does not provide an express answer to that question, there is nevertheless a basis in Community law for the view that the rights guaranteed to migrant workers do not necessarily depend on the actual or continuing existence of an employment relationship.

With regard to nationals of another Member State who have not yet taken up employment in the host State, it should first be noted that Article 48 (3)(a) and (b) guarantees such persons the right to accept offers of employment actually made and to move freely within the territory of the Member States for that purpose. Those provisions were implemented by Part I, Title I of Regulation No 1612/68.

Persons who have previously pursued in the host Member State an effective and genuine activity as an employed person as defined by the Court (see the judgments of 23 March 1982 in Case 53/81 Levin v. Staatssecretaris van Justitie [1982] ECR 1035, and 3 June 1986 in Case 139/85 Kempf v. Staatssecretaris van Justitie [1986] ECR 1741) but who are no longer employed are nevertheless considered to be workers under certain provisions of Community law.

First, under Article 48 (3) (d) of the EEC Treaty, persons who remain in the territory of a Member State after having been employed in that State are regarded as workers. Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State ( ... ), which implemented that provision of the Treaty, gives workers whose occupational activity has terminated and their families the right, under certain conditions, to remain permanently in the territory of a Member State. Secondly, Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Members States and their families ( ... ) prohibits Member States in certain circumstances from withdrawing a residence permit from a worker solely on the ground that he is no longer in employment. Thirdly, and lastly, under Article 7(1) of Regulation No. 1612/68 a migrant worker who has become unemployed may not be treated differently from national workers in the same position as regards reinstatement or re-employment.

Furthermore, Article 7(3) of Regulation No. 1612/68 guarantees migrant workers access, by virtue of the same right and under the same conditions as national workers, to training in vocational schools and retraining centres. That right to specific training, guaranteed by Community legislation, does not depend on the continued existence of an employment relationship.

It is therefore clear that migrant workers are guaranteed certain rights linked to the status of worker even when they are no longer in an employment relationship.

In the field of grants for university education, such a link between the status of worker and a grant awarded for maintenance and training with a view to the pursuit of university studies does, however, presuppose some continuity between the previous occupational activity and the course of study; there must be a relationship between the purpose of the studies and the previous occupational activity. Such continuity may not, however, be required where a migrant has involuntarily become unemployed and is obliged by conditions on the job market to undertake occupational retraining in another field of activity.

Such a conception of freedom of movement for migrant workers corresponds, moreover, to current developments in careers. Continuous careers are less common than was formerly the case. Occupational activities are therefore occasionally interrupted by periods of training or retraining.

The answer to the second part of the first question should therefore be that a national of another Member State who has undertaken university studies in the host State leading to a professional qualification, after having engaged in occupational activity in that State, must be regarded as having retained his status as a worker and is entitled as such to the benefit of Article 7(2) of Regulation No 1612/68, provided that there is a link between the previous occupational activity and the studies in question."

In Raulin, the ECJ confirmed the principle set out in paragraph 39 of Lair, and put it the other way round, that "a migrant worker who leaves his job and begins a course of full-time study which has no link with his previous occupational activities does not retain his status as a migrant worker for the purposes of Article 48 of the EEC Treaty, except in the case of a migrant worker who becomes involuntarily unemployed".

I consider that paragraph 29 of the judgment in Lair is particularly significant in identifying the principles for which the case stands. The ECJ's description of the argument put forward by the three Member States (including the United Kingdom) shows clearly that the Court was dealing with a situation where a person had taken herself out of the labour market either by giving up a job for full-time study (during which the person would not be looking for work) or by giving up the search for work as an unemployed person for full-time study. The principles set out in paragraphs 37 and 39 concern the circumstances in which a person who would ordinarily be treated as outside the labour market for such a reason should nonetheless still be regarded as having the status of worker. That is why there are requirements for fairly specific links to past or future occupational activities. But such requirements are unnecessary where the circumstances do not suggest an abandonment of the labour market. In paragraph 29, the ECJ seems to assume that a person who has had the status of a migrant worker does not lose that status while unemployed and searching for employment. That must, in my judgment, be right. It is in accord with the terms of paragraphs (1) and (3) of Article 7, as mentioned in paragraphs 34 and 35 of the judgment. If a person who has become a full-time student, as in Lair and Raulin, may nevertheless retain the status of worker under certain conditions, it seems to me that a fortiori a person who has left employment but remains in the labour market must retain the status of worker for the purpose of Regulation 1612/68. In that context, it does not matter in itself whether the previous employment was left voluntarily or involuntarily. The question is whether the circumstances of the leaving, and in particular the person's intentions and actions at the time, indicate that the person was still in the labour market or not.

I have no doubt that that approach accords with the Community meaning of worker in Regulation 1612/68, and I see no need to refer any questions to the ECJ. The result has the merit of being in line with the factual result in Scrivner v. Centre public d'aide sociale de Chastre (Case 122/84) (1985] ECR 1029. Mr. Scrivner was a British national who had lived and worked in Belgium since 1978. In 1982 he left his employment for personal reasons and registered as being in search of employment. He was refused entitlement to the "minimex" as he had not been resident in Belgium for the previous five years. The questions referred by the national court were about whether the minimex was a social security benefit within Regulation 1408/71 or a social advantage under Article 7(2) of Regulation 1612/68. It appears from paragraph 4 of the Advocate General's Opinion (at [1985] ECR 976) that the national court accepted that Mr. Scrivner satisfied the requirements ratione personae for receiving the benefit of Community regulations, including Article 7(2) of Regulation 1612/68. Thus the national court must have accepted that Mr. Scrivner still had the status of worker despite his leaving employment apparently voluntarily. And the Advocate General in paragraph 9 of his Opinion expressly accepts that a migrant worker who becomes unemployed may claim social advantages under Article 7(2). Nothing can be read into the ECJ's lack of comment on this point by way of direct authority, because its power is only to answer the questions which the national court considers are necessary to its decision. However, the consistency of my view with the result of Scrivner is a small factor.

Applying those principles to the present case yields the clear result that the claimant was throughout the period in issue a worker for the purposes of Regulation 1612/68. It does not matter that there may not have been an exhaustive investigation of the circumstances in which the claimant left her first au pair position. It seems to me that her evidence was consistently that the employers terminated the arrangement. The suggestion that she left because the work was not acceptable only appears in the typed version of the chairman's note of evidence and is not supported by his handwritten notes. Be that as it may, it is plain that the claimant was available for employment and was actively seeking employment, as described in the interview on 7 August 1995, and that the circumstances of leaving employment did not indicate that she had taken herself out of the labour market. Therefore she retained the status of worker and by virtue of paragraph (a) of the additional definition of "person from abroad" she was not to be treated as not habitually resident in the United Kingdom.

(e) Right to reside in the UK pursuant to Directive 68/630

Accordingly, I do not need to consider the argument that the claimant may have had a right to reside in the United Kingdom pursuant to Directive 68/630, depending on how long her first au pair position had been expected to last and whether she left it voluntarily or involuntarily. A good deal of new evidence would have been needed in order to base a decision on that provision.

(f) Worker for the purpose of Regulation 1251/70

I should, however, mention the effect of Regulation 1251/70 on the right of workers to remain in the territory of a Member State after having been employed in that State, which did not receive any real attention in the oral submissions. A claimant who is a worker for the purposes of that regulation. is also excluded from being treated as not habitually resident in the United Kingdom. The test is not whether the claimant has a right to remain in the United Kingdom under Regulation 1251/70. In paragraphs 6.15 to 6.19 of the written submission to the appeal tribunal, adopted in paragraph 24 of the written submission dated 5 July 1996, the adjudication officer argues that, as the claimant did not meet the conditions in Article 2 of the Regulation for the existence of a right to remain, she was not a worker for the purposes of the Regulation. Article 1 provides that the provisions of the Regulation shall apply to "nationals of a Member State who have worked as employed persons in the territory of another Member State" and to their families. As I have had no specific submissions directed to this point, I express no definite conclusion. However, it might well be argued in some other case, especially in view of Article 4 (2) treating periods of involuntary unemployment as periods of employment for the purposes of Article 2, that a national of a Member State who has worked as an employed person in the United Kingdom (no doubt subject to the condition that the work was genuine and effective) is a worker for the purposes of Regulation 1251/70. The terms of paragraph 34 of the ECJ's judgment in Lair could be cited in support.

(g) Ultra vires

Because of the view that I have taken of the Community meaning of "worker" for the purpose of Regulation 1612/68 and the effect on the additional definition of "person from abroad", it is also unnecessary for me to express any opinion on Mr. de Mello's argument on ultra vires and on the alleged incompatibility of the habitual residence rule with Article 6 of the Treaty of Rome.

Conclusion

It follows from the above that my decision must be that the claimant is entitled to income support from 31 July 1995 to 14 August 1995. That decision is set out in paragraph 1 above. It will be for the adjudication officer to calculate the amount of entitlement. If there is any disagreement about the result of that calculation, the appeal may be returned to a Commissioner for further decision.

Date: 25 June 1997 (signed) Mr. J. Mesher

Commissioner