UK Social Security and Child Support Commissioners' Decisions

[2000] UKSSCSC CIS_4727_1999 (05 July 2000)

R(IS) 11/01


Mr. E. Jacobs CIS/4727/99

5.7.00

Applicable amount - person from abroad - habitual residence - European Union national - Dutch national settled in the United Kingdom to live near family carrying out voluntary work and receiving services - whether a "worker" for the purpose of Council Directive 68/360/EEC - whether a right to reside pursuant to Council Directive 73/148/EEC

The claimant was born in Somalia, but went to Holland to claim asylum during the civil war in Somalia. She obtained Dutch nationality. She entered the United Kingdom from Holland with her children on 10 January 1999. She was pregnant at the time. She claimed income support on
14 January 1999. The reasons recorded for her coming to this country were that she was lonely and isolated in Holland, and she had come to England to learn English and to settle with her friends and relatives here. On 1 February 1999 an adjudication officer decided she was not habitually resident in the United Kingdom and as a result she was a "person from abroad" as defined in regulation 21(3) of the Income Support (General) Regulations 1987 and not entitled to income support. She appealed to a social security appeal tribunal, arguing that she was not subject to the habitual residence test as she was person with a right to reside in the United Kingdom pursuant to Council Directive 68/360/EEC or Council Directive 73/148/EEC. In support of the latter contention she said she was paying for football training for her children and for services from the Somalia Support Group, and that she was acting as a volunteer carer. She also argued that paragraph 3(1) of Schedule 6 and section 12(8)(b) of the Social Security Act 1998, which prevented the tribunal from taking account of circumstances not obtaining at the time of the decision under appeal, was ultra vires. The tribunal dismissed the appeal and she appealed to the Commissioner.

Held, allowing the appeal but substituting a correctly reasoned decision to the same effect, that:

paragraph 3(1) of Schedule 6 and section 12(8)(b) of the Social Security Act 1998 were not ultra vires and had the effect that account could not be taken of a period of residence after the date of the adjudication officer's decision (paras. 13 to 16);

at the date of the adjudication officer's decision the claimant had been in the United Kingdom for less than a month, and as she had no previous personal connection the tribunal was entitled to hold that she had not been resident for an appreciable period (para. 17);

the claimant was not able to rely on the decision of the European Court of Justice in Swaddling v. Adjudication Officer (R(IS) 6/99) to claim an exemption from the requirement to establish an appreciable period of residence as the terms of that decision were closely confined to the facts of that case and concerned the scope of Council Regulation (EEC) 1408/71, whereas the claimant's circumstances fell outside the scope of that Regulation (para. 36);

the claimant did not have status as a worker in the United Kingdom for the purposes of Council Directive 68/360/EEC because status as a worker must be established in a Member State before any right against that State is acquired by that status and the claimant had not worked in the United Kingdom at the date of the adjudication officer's decision, and any work she may have undertaken in another Member State or on a voluntary basis was irrelevant (para. 22);

Council Directive 73/148/EEC was concerned with the cross-border provision of services and if there was no cross-border element in a case, it did not apply - although the case-law referred to the duration of the services, that was not the decisive consideration but was merely of evidentiary value because if a person went to a State to receive a service provided by someone within that State and that service was going to be received indefinitely, that showed the person had become established there and as both provider and recipient were in the same State, the Directive did not apply (para. 32);

the evidence showed that the claimant came to this country in order to settle here and to be closer to her friends and family rather than to provide or receive any of the services identified in the evidence, and although the services may be received or provided for only a finite period the intended duration of her residence took her outside the scope of Council Directive 73/148/EEC, as it removed any cross-border element from the provision and receipt of those services (para. 33).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision:

1. My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998.

1 The decision of the Bexleyheath social security appeal tribunal held on 7 May 1999 is erroneous in point of law: see paragraph 12.

2 Accordingly, I set it aside and, as I can do so without making fresh or further findings of fact, I give the decision that the tribunal should have given.

3 My decision is:

The claimant is not entitled to income support from and including
14 January 1999.

The appeal to the Commissioner

2. I directed an oral hearing of this appeal. It was held in London on
   4 July 2000. The claimant did not attend and, although she is advised by solicitors, was not represented at the oral hearing. The Secretary of State was represented by Miss A. Powick of the Office of the Solicitor to the Departments of Health and Social Security. I am grateful to her for her research and for her clear and concise submissions.
3. This is an appeal to a Commissioner against the decision of the social security appeal tribunal brought by the claimant with the leave of the tribunal's chairman. The Secretary of State, who replaced the adjudication officer as a party to this appeal on the coming into force of the Social Security Act 1998 in respect of income support, supports the appeal.

The history of the case

The evidence presented by the claimant on her claim

4. The claimant was born in Somalia, but went to Holland to claim asylum during the civil war in Somalia. She obtained Dutch nationality. She entered the United Kingdom from Holland with her children on 10 January 1999. She was pregnant at the time. She claimed Income Support on 14 January 1999. (There is some uncertainty about the date of her arrival. I deal with the case as if she arrived on 10 January, but the correct date may have been 12 January. My decision would be the same whichever is the correct date of arrival.)
5. When asked why she had come to this country, she said that she was lonely and isolated in Holland and had relatives here. She told the tribunal that the information relied on by the adjudication officer had been supplied through a Somali speaker at the Benefits Agency. She also told the tribunal that she did not say some of the things recorded on the form and that she had come to England to learn English and to settle with her friends and relatives here.

The adjudication officer's decision

6. An adjudication officer decided that the claimant was not habitually resident in the United Kingdom. The decision was made on 1 February 1999 and issued on
   4 February 1999.
7. The effect of this decision was that the claimant was a "person from abroad" as defined in regulation 21(3) of the Income Support (General) Regulations 1987. This meant that the applicable amount used to calculate the amount of her entitlement to income support was nil (see paragraph 17 of Schedule 7 to those Regulations). The result was that she was not entitled to income support.

The appeal to the social security appeal tribunal

8. The claimant appealed against that decision to a social security appeal tribunal. Her letter of appeal was written by a firm of solicitors. The letter stated that the claimant had come to this country so that her children could be educated here in order to learn English.
9. At the hearing of the appeal, the claimant was represented by counsel. He argued that the claimant was not subject to the habitual residence test. She was paying for football training for her children and for services from the Somalia Support Group. The presenting officer commented that he believed the charges were so small as to be insignificant. There was also written evidence that the claimant was acting as a volunteer carer. I do not know when she began to do this. I assume to the claimant's advantage that all these activities began before the date of the adjudication officer's decision.
10. Counsel also argued that section 22(8) of the Social Security Administration Act 1992, inserted by paragraph 3(1) of Schedule 6 to the Social Security Act 1998, was ultra vires. That subsection prevented the tribunal taking account of circumstances that were not obtained at the date when the decision appealed against was made. Section 22(8) is to the same effect as section 12(8)(b) of the 1998 Act, which now applies.

The tribunal's decision

11. The tribunal confirmed the adjudication officer's decision. Its reasoning is contained in its decision notice and the full statement of its decision. The tribunal decided that: (i) the habitual residence test did apply to the claimant; (ii) she was not habitually resident as she had not been present for an appreciable period at the date of the adjudication officer's decision; and (iii) she was not protected by European law as 'the alleged services were not "services" within the regulations and guidance'.

The error of law

12. I will not dwell on the error of law. The error is that the tribunal failed to deal with the correct issues arising under European law. In particular, it applied the concept of migrant worker to the Directive dealing with services, in which the concept is irrelevant. This error was not surprising, given the complexity of the legislation and issues. Despite this error, I am satisfied the tribunal came to the correct conclusion in law on the evidence at the hearing and I substitute my own decision to the same effect.

The Social Security Act 1998

13. One of the grounds of appeal to the Commissioner was that the Social Security Act 1998 was ultra vires in preventing the tribunal from taking account of circumstances after the date of the adjudication officer's decision.
14. I indicated in a direction that this argument was not sustainable. Despite this, the claimant's solicitor repeated it in response to the Secretary of State's submission. I did not ask Miss Powick to deal with this argument at the oral hearing.
15. The flaw in the argument can be seen by translating ultra vires into English. Indeed, I doubt if the argument would, or even could, have been presented in English. The words mean "beyond the powers". Legislation is made by Parliament and cannot be beyond the powers of Parliament, unless it is in breach of European law. Subordinate legislation is different, as it may be beyond the powers of the enabling statute, but the provision in this case is in a statute.
16. The argument presented for the claimant amounts to a powerful criticism of the effects and inconvenience of sections 22(8) and 12(8)(b). It points to the problems involved in making repeated claims for income support until the point is reached at which a claimant becomes habitually resident. There are certainly difficulties in interpreting and applying those provisions. I discussed some of them in CDLA/4734/1999 [R(DLA) 3/01] and others have arisen in later cases. However, whatever those difficulties, it is clear that neither a tribunal nor a Commissioner may take account of a period of residence after the date of the adjudication officer's decision.

Actual habitual residence

17. In order to be actually habitually resident in the United Kingdom, the claimant had to prove residence for an appreciable period: see the decision of the House of Lords in Nessa v. Chief Adjudication Officer [1999] 4 All England Law Reports 677 [R(IS) 2/00]. Although the House of Lords recognised that there were exceptional cases in which this requirement was not necessary, the claimant does not fall within any of them. Miss Powick argued that the claimant was not habitually resident in the United Kingdom at the date of the adjudication officer's decision. I agree. At the date of the adjudication officer's decision, the claimant had been in the United Kingdom for less than a month. She had no previous personal connection with this country. Her only connection was that she had friends and family here. The tribunal was entitled to hold that she had not been resident for an appreciable period at the date of the adjudication officer's decision. Indeed, I cannot see how it could have reached any other conclusion on the evidence. As the tribunal could not take account of residence after that date, it could not decide that the claimant had become habitually resident from a later date. Neither can I.

European law

18. The main argument for the claimant is that she did not have to show actual habitual residence, as she was "a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC": see head (a) of the definition of "person from abroad" in regulation 21(3) of the Income Support (General) Regulations 1987
19. The chairman granted leave to appeal to a Commissioner on one ground, but refused leave on this ground. That does not restrict the scope of the appeal. A party is entitled to raise any argument on an appeal and this must be considered.

Work seeker

20. No argument was presented to the tribunal on Directive 68/360/EEC. However, in response to the Secretary of State's submission, the claimant's solicitor wrote that the claimant should be treated as a work seeker under Council Directive 68/360/EEC. That Directive has the same personal scope as Regulation (EEC) No. 1612/68: see Article 1 of the Directive.
21. Miss Powick argued that neither the Directive nor the Regulation applied on the facts of this case. I agree.
22. The claimant did not have status as a worker in the United Kingdom under European law at the date of the adjudication officer's decision.

1 Status as a worker must be established in a Member State before any right against that State is acquired by that status: see paragraph 17 of the decision of the European Court of Justice in Raulin v. Minister van Onderwijs en Wetenschappen [1992] ECR I-1027. The claimant had not worked in the United Kingdom at the date of the adjudication officer's decision. The claimant's solicitor has written in response to the Secretary of State's submission that she has worked in the EEC, although the claimant's counsel told the tribunal that she had never worked in Holland. Even if she did work in Holland or in another Member State, this is irrelevant.

2 There is evidence that the claimant has undertaken voluntary work, but only work for remuneration can qualify a person as a worker: see paragraph 17 of the Judgment in Lawrie-Blum v. Land Baden-Wurttemberg [1986] ECR 2121.

23. The claimant's only rights in this country were as a work seeker. This status qualified her only for equal treatment as regards access to employment: see paragraph 26 of the decision of the European Court of Justice in Centre public d'aide sociale de Courcelles v. Lebon [1987] European Court Reports 2811.

Provision and receipt of services

24. An argument on Directive No. 73/148/EEC was presented at the hearing before the tribunal. It was that the claimant or her children were recipients of services and, therefore, had a right to reside pursuant to that Directive. The services were the football tuition and those provided by the Somali Support Services. The former was provided to the claimant's children, the latter to the claimant. I have also taken into account that the claimant provided voluntary service as a carer.
25. I am grateful to the officer of the Secretary of State who wrote the submission to the Commissioner and to Miss Powick for their researches. They have identified only three decisions of the European Court of Justice as directly relevant. They are: Luisi and Carbone v. Ministero del Tesoro [1984] European Court Reports 377; Steymann v. Staatssecretaris van Justitie [1988] European Court Reports 6159; and Sodemare SA v. Regione Lombardia [1997] European Court Reports I-3395. I was unable to find any other authorities that were directly in point, although there are others that establish relevant principles. Miss Powick was equally unsuccessful, despite searching in the database of the European Court.
26. European law is concerned with persons, services and capital. Freedom to provide services is governed by Articles 59 and 60 of the EEC Treaty. These Articles refer to the freedom to provide services within the Community.
27. The freedom to provide services within the Community would be reduced unless there was also a corresponding freedom to travel to receive those services.

1 This was recognised by the European Court of Justice in Luisi: see paragraphs 10 and 16 of the Judgment. That case concerned the freedom to remove currency from Italy in order to pay for tourism.

2 The point is also recognised in Directive No. 73/148/EEC. Article 1(1) lays down the personal scope of the Directive. It includes:

"(a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons or who wish to provide services in that State;

(b) nationals of Member States wishing to go to another Member State as recipients of services;

(c) the spouse and the children under twenty-one of such nationals, irrespective of their nationality".

Article 4(2) restricts the person's right of residence to the period during which the services are provided.

28. It is inherent in both the Treaty and the Directive that there is a cross-border element in the provision and receipt of services. If there is no cross-border element involved, no point of European law arises. This point has regularly been made by the European Court of Justice. For example, in Procureur du Roi v. Debauve [1980] European Court Reports I-833 at para. 9 of its judgment the Court said:

"the provisions of the Treaty on freedom to provide services cannot apply to activities whose relevant elements are confined within a single Member State. Whether that is the case depends on findings of fact which are for the national court to establish."

If the person concerned is established in a State and the services are provided in that State, there is no European element in the provision of the services. This was emphasised in para. 17 of the Judgment in Sodemare and in para. 9 of the Judgment in EC Commission v. Greece [1991] European Court Reports I-727. The cross-borderline element is inherent in the concept of provision of a service within the Community, as opposed to within a Member State.

29. Where a person has moved from one Member State to another, the legislation and the caselaw emphasise the importance of the link between the purpose behind the move and the provision or receipt of the service.

1 In the Directive, Article 1(1)(b) indicates that the person must be moving from one State to another for the purpose of receiving the service.

2 This was also emphasised generally in relation to the provision of services within the Community in paragraph 16 of the Judgment in Luisi:

"the freedom to provide services includes the freedom, for the recipients of the services, to go to another Member State in order to receive a service there".

30. The caselaw shows that not all provision and receipt of services are covered by the Treaty and the Directive. In Steymann, the Court was concerned with the provision of service, but its decision is expressed in terms of both provision and receipt. The case concerned a person who had moved from one Member State to another. In the other State he joined a religious community. He took part in economic activity on behalf of that community. The Court held that:

"an activity carried out on a permanent basis or, in any event, without a foreseeable limit to its duration does not fall within the Community provisions concerning the provision of services" (para. 16); and

"Articles 59 and 60 of the Treaty do not cover the situation where a national of a Member State goes to reside in the territory of another Member State and establishes his principal residence there in order to provide or receive services there for an indefinite period" (para. 17).

However, the Court recognised that the person might nonetheless be able to rely on the provisions governing the movement of workers and the right of establishment (para. 16).

31. Steymann was followed in Sodemare. Again the Court was concerned with the provision, rather than the receipt, of services. The service involved was long-term residential health care. The Court bore in mind that:

"the right freely to provide services may be relied on by an undertaking as against the State in which it is established if the services are provided for persons established in another Member State" (para. 37),

but decided that:

"those same provisions do not cover the situation where a national of a Member State goes to the territory of another Member State and establishes his principal residence there in order to receive services for an indefinite period" (para. 38).

This point is made even more clearly in the opinion of the Advocate-General: see footnote 75 to para. 48 of his Opinion.

32. My analysis of the caselaw is this. The provisions of European law are concerned with the cross-border provision of services. If there is no cross-border element in a case, no European point arises. The cases refer to the duration of the services. However, this is not the decisive consideration. It is merely of evidentiary value. If a person goes to a State and provides services to others within that State that may continue indefinitely, this shows that that the person has become established there with the result that both provider and recipient are in the same State. So, no European issue arises. If a person goes to a State to receive a service provided by someone within that State and that service is going to be received indefinitely, this shows that the person has become established there. Again the result is that both provider and recipient are in the same State and no European issue arises.
33. Miss Powick argued that the claimant did not fall within either the Treaty or the Directive. I agree. The evidence shows that the claimant came to this country in order to settle here. She did not come here in order to provide or receive any of the services identified in the evidence. Her purpose in coming was to be closer to her friends and family. The purpose of her move to the United Kingdom takes her outside the scope of the Directive, as the purpose was not linked to the provision or receipt of a service. Although the services may be received or provided for only a finite period, the intended duration of her residence takes her outside the scope of the
     
    

Treaty, as it removes any European element from the provision and receipt of those services.

34. Miss Powick mentioned two other points. It is not necessary to rely on them, as this aspect of the claimant's case fails on other grounds. I mention them for completeness. First, the service of football tuition was provided not to the claimant but to her children. They are within the personal scope of the Directive, but none of them is the claimant. Second, the services covered by European law are those that are "normally provided for remuneration": see Article 60. Work as a carer may often be provided for remuneration, as may football tuition, but the services of the Somali Support Services would probably not be provided in return for payment.
35. Two final points. The charges for football tuition and any charge that might be made by the Support Services may have been small. This raises the question whether nominal charges constitute "remuneration" within European law. It is not necessary to reach a conclusion on this issue. Nor is it necessary to resolve the wider issue of what is and is not a "service" under European law.

Movement of persons

36. I have also considered whether the claimant could benefit from the freedom of movement of persons within the Community. In particular, I asked Miss Powick whether the judgment in Swaddling v. Adjudication Officer [1999] All England Law Reports (European Cases) 217 [R(IS) 6/99] was relevant. She argued that it was not. I agree. The Court decided that requiring an appreciable period of residence in order to establish entitlement to income support was not compatible with Regulation (EEC) No. 1408/71. The terms of the decision was closely confined to the facts of the case. It involved a claimant who moved from the United Kingdom and became a worker in another Member State before returning to the United Kingdom to join his family and seek work. The reasoning was based on the scope of the Regulation. It does not apply in this case. The claimant has not moved from one State to another and then back again. It is also possible that she has not worked in the Community at all.
37. I asked the parties whether there was a question of European law on which a reference to the European Court of Justice was appropriate or necessary. No question has been identified.

Conclusion

38. I am sure that by now the claimant has become habitually resident in the United Kingdom and is no longer barred from entitlement to income support on that basis. The Social Security Act 1998 prevents the tribunal and the Commissioner from considering any change of circumstances after the date of the adjudication officer's decision. However, the claimant was entitled to make a fresh claim to income support at any time and her residence status will have been judged at the time of that claim. As she is being advised by solicitors, she will no doubt have already done this.

Date: 5 July 2000 (signed) Mr. E. Jacobs Commissioner