UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CIS_825_2001 (21 August 2003)

 


CIS 825 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal.
2. Mr Bobezes is appealing with permission of a Commissioner against the decision of the Sutton appeal tribunal on 14 November 2000 under reference S 45 161 1999 01383. (The claimant has agreed that his own and his family names may be used in this decision).
3. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision (Social Security Act 1998, section 14(8) and (9). This case is not to be listed for rehearing without the further direction of a district chairman. Subject to any subsequent direction of a district chairman, the case is not to be listed for rehearing until the appellant has produced any evidence he wishes to produce to the tribunal to support his claim of discrimination or, if he has not done so in that period, the period of four months from the date of issue of this decision has elapsed.
4. I held an oral hearing of this appeal on 12 December 2001 and a further oral hearing on 2 May 2002 at Harp House. Mr Bobezes was represented by Mr James Maurici of counsel, instructed by Mr Conrad Haley of the Public Law Project. The Secretary of State was represented by Miss J Anderson of the Office of the Solicitor to the Department for Work and Pensions.
5. At that oral hearing, the parties both indicated issues which it was felt might appropriately be referred by me to the European Court of Justice for a preliminary ruling.

Further written exchanges between the parties about a reference and about the questions that might be put to the European Court then took place. These indicated less agreement between the parties about those issues, and raised further arguments about the need for a reference and the issues that might be covered by it. I have now given the matter further consideration and have concluded that I should decide the matter myself. I therefore make no reference to the European Court but set out my reasons for deciding the matter myself.

Background to this appeal

6. The facts of the case are not in dispute. Mr Carlos Bobezes, a Portuguese national, has lived with his wife and family in Great Britain for some years. Mr Bobezes entered Great Britain in exercise of the freedom of movement of workers, and worked in Britain for several years. He then became chronically disabled and permanently incapable of work because of liver problems. He and his wife continue to live in Great Britain.
7. It is not disputed that Mr Bobezes was a worker for the purposes of the rights of freedom of movement under the EC Treaty, and that he remains entitled to those rights under European Commission Regulation (EEC) 1251/70 of 29 June 1970 because he became permanently incapable of work while working in Britain.
8. The income of Mr and Mrs Bobezes and family consisted during the relevant period only of the following British social security benefits: severe disablement allowance in respect of his serious disablement, child benefit in respect of their children, and income support as a supplement to the other two benefits. It is agreed that Mr and Mrs Bobezes and their family had no other relevant income, and no relevant capital, during this period.
9. Entitlement to severe disablement allowance is not in question in this dispute. Entitlement to child benefit was in question at one stage. It is not now in question for the purposes of this appeal, although it is relevant that entitlement is based not on the British rules of entitlement but on the rights of Mr and Mrs Bobezes under Council Regulation (EEC) 1408/71 of 14 June 1971. British child benefit is a family benefit for the purposes of that regulation.

The issue in dispute

10. Entitlement of Mr and Mrs Bobezes to income support for themselves and their family is not in dispute, but the total amount payable weekly to Mr Bobezes is in dispute. This case concerns the entitlement of Mr and Mrs Bobezes to an additional amount of income support in respect of Sonia during the period under dispute. [This amount is for convenience called the "income support dependent child allowance".] Sonia is the daughter of Mrs Bobezes by a previous relationship but lived in the same household with her mother and Mr Bobezes (her stepfather) and was a member of their family at the start of the relevant period. She was born on 10 February 1982. The dispute specifically concerns the period from 10 September 1998 to 9 September 2000. Until 10 September 1998 Mr and Mrs Bobezes had been receiving both child benefit and income support dependent child allowance for Sonia, as she was a child for whom they were responsible and who was living in their household.
11. Sonia left Great Britain on a temporary basis in August 1998 to stay with her grandmother at her grandmother's home in Portugal. She was then 16 and left school in England in July 1998. Mr and Mrs Bobezes thought that Sonia was keeping undesirable company and arranged for her to go to her grandmother. She came back to Great Britain in late October or early November and then returned to Portugal in January 1999. She decided to register for an education course in Portugal, which she then attended. During the period from September 1999 she travelled between her home in Britain and her grandmother's home in Portugal on a number of occasions.
12. The Secretary of State decided that Mr and Mrs Bobezes were no longer entitled from 10 September 1998 to income support dependent child allowance for Sonia. However, this decision was only made after the amounts of income support had already been paid to Mr Bobezes for Sonia during that period. Accordingly, the Secretary of State also decided that Mr Bobezes had been overpaid an amount of income support and that the amount of the overpayment was recoverable from Mr Bobezes under section 71 of the Social Security Administration Act 1992.

The tribunal decision

13. Mr Bobezes appealed against these decisions. The appeal tribunal heard the case on 14 November 2000. The tribunal allowed the appeal in part, replacing the decision of the Secretary of State with a different decision based on the absence of Sonia from Great Britain. Its formal decision was:

"Appeal is allowed in part.

The decision of the Secretary of State issued on 28. 6. 99 is revised.

(i) Mr Bobezes shall submit a list of dates within the period 10/9/98 to 3/3/99 when Sonia was (a) in Great Britain and (b) in Portugal. Income support for her will only be overpaid and recoverable when her various periods of presence in Portugal respectively exceed 4 weeks.

(ii) I have rejected the arguments put, very capably, for the appellant under European Convention on Human Rights and EC law."

14. It is clear from the decision and statement of facts and reasons, and is accepted by the appellant, that the decision confirmed that in its view the Secretary of State was correct in ending entitlement to the income support dependent child allowance for Sonia under the terms of the IS Regulations in principle. But the Tribunal disagreed with the application of the Regulations to the facts with regard to the precise periods of time to which this applied.

Grounds of appeal

15. The appellant appealed to the Social Security Commissioner on the ground that the decision of the tribunal was in error of law because it discriminated against Mr Bobezes on the grounds of his nationality. Had Sonia been sent to stay with her grandparents and had they lived somewhere else in Britain, Mr Bobezes would have continued to be entitled to, and would not have been overpaid, the income support dependent child allowance for Sonia. If the claimant and family had been British, then the grandparents would probably have lived in Britain. But Mr Bobezes and family and the grandparents were Portuguese, and the grandparents lived, as would be expected, in Portugal. To stop the income support for Sonia while she was with her grandparents in Portugal, and to demand its repayment in these circumstances, was contended to be indirect discrimination against Mr Bobezes and his family on the grounds of their Portuguese nationality.

The relevant British law

16. A person in Great Britain is entitled to income support if he or she meets the conditions under sections 123 and 124 of the Social Security Contributions and Benefits Act 1992 and the Income Support (General) Regulations 1987 (the IS Regulations). Mr and Mrs Bobezes met those conditions throughout the period in dispute. Under regulation 17 of the IS Regulations, Mr and Mrs Bobezes were entitled to a weekly amount of income support for themselves as a couple and an additional amount ("income support dependent child allowance") for each child or young person who is a member of their family. The income support dependent child allowance is provided for by regulation 17(b) as follows:

(b) an amount determined in accordance with paragraph 2 of Schedule 2 in respect of any child or young person who is a member of his family, except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, except as provided for in regulation 44(1) (modifications in respect of children and young persons) would exceed £3,000;

In other words, Mr Bobezes had an entitlement to that amount for Sonia if she was a member of his family (the other provisions in regulation 17(b) not being relevant here).

17. Section 137(1) of the Social Security Contributions and Benefits Act 1992 defines "family" as meaning, in this case:

"a married or unmarried couple and a member of the same household for whom one of them is or both are responsible and who is a child or a person of a prescribed description."

The section defines "child" as meaning a person under the age of 16. Regulation 14 of the IS Regulations defines "a person of a prescribed description" for the purposes of section 137 of the Social Security Contributions and Benefits Act 1992 as:

"a person aged 16 or over but under 19 who is treated as a child for the purposes of [section 142 of the Social Security Contributions and Benefits Act 1992] (meaning of child for the purposes of child benefit), and in these Regulations such a person is referred to as a "young person".

18. Regulation 15(1) of the IS Regulations provides (subject to exceptions that are not relevant here) that:

a person is to be treated as responsible for a child or young person for whom he is receiving child benefit.

The conditions of entitlement for the child addition

19. Applying regulations 14, 15 and 17 to this case, Mr Bobezes could claim for Sonia both while she was under 16 and when she over that age subject to two conditions. The first condition is that he must at the relevant time have been receiving child benefit for Sonia. The second condition is that she must be a member of the same household as him.
20. As noted above, Mr Bobezes was receiving and entitled to child benefit for Sonia. It follows that Mr Bobezes was regarded as being responsible for her. Further, under section 143 of the Social Security Contributions and Benefits Act 1992 absences of children from the persons responsible for them are ignored for child benefit purposes for periods where the child is absent due solely to full time education, and are also ignored for up to 56 days in any 16 weeks in other cases. Sonia was a member of the same household as him until the period when she started going to Portugal to stay with her grandparents. No other person was entitled to income support for Sonia during the relevant period for the purposes of section 134(2) of the Social Security Contributions and Benefits Act 1992 and regulation 14(2) of the IS Regulations (provision against dual entitlement of members of a family).
21. Regulation 16 of the IS regulations defines when a partner of a claimant (including the claimant's husband or wife) or a child or young person, is treated as being in the same household as the claimant for the purposes of regulation 17. The tribunal decided that, apart from the effects of the absence in Portugal, Sonia was a member of the same household as Mr Bobezes during the period in question. But the tribunal decided that she stopped being a member of the same household when, on the facts, regulation 16(5) applied to the claim.
22. The issue in dispute in this appeal is the effect of regulation 16(5) of the IS Regulations on the entitlement of Mr Bobezes to the income support dependent child allowance for Sonia. Its relevance is this. Under regulation 16(1) as applied to this case, Sonia is treated as continuing as a member of the same household as Mr Bobezes notwithstanding that she is temporarily living away from Mr and Mrs Bobezes. But regulation 16(5) provides that this general rule does not apply to Sonia for any period when she had been continuously abroad for a period of more than four weeks. It was this rule in regulation 16(5) that the tribunal decided was to be applied to the claim by Mr Bobezes on the facts.
23. The relevant parts of regulation 16 are set out below. The words in question in this case are noted in bold. The text is in the form as amended at the relevant period for this case.

Circumstances in which a person is to be treated as being or not being a member of the household

(1) Subject to paragraphs (2) and (5), the claimant and any partner and, where the claimant or his partner is treated as responsible under regulation 15 (circumstances in which a person is to be treated as responsible or not responsible for another) for a child or young person, that child or young person shall be treated as members of the same household notwithstanding that any of them is temporarily living away from the other members of the family.

(2) Paragraph (1) shall not apply to a person who is living away from the other members of the family where -

(a) that person does not intend to resume living with the other members of his family; or

(b) his absence from the other members of the family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example the person is in hospital or otherwise has no control over the length of his absence), and the absence is unlikely to be substantially more than 52 weeks.

(3) – (4) not relevant to this case

(5) Subject to paragraph (6), paragraph (1) shall not apply to a child or young person who is not living with the claimant and who -

(a) in a case which does not fall within subparagraph (aa), has been continuously absent from Great Britain for a period of more than four weeks commencing -

(i) subject to paragraph (5A), where he went abroad before the date of claim for income support, with that date;

(ii) in any other case, on the day which immediately follows the day on which he went abroad; …

(5A) – (6) not relevant to this case

(7) Where a child or young person for the purposes of attending the educational establishment at which he is receiving relevant education is living with the claimant or his partner and neither one is treated as responsible for that child or young person that child or young person shall be treated as being a member of the household of the person treated as responsible for him and shall not be treated as a member of the claimant's household.

24. It is not disputed that the tribunal was right in deciding that both regulation 16(1) and 16(5)(a)(ii) of the IS Regulations apply to Mr and Mrs Bobezes and Sonia on the facts, and that regulation 16(1) is expressly subject to regulation 16(5). In summary, Mr and Mrs Bobezes were fully entitled to income support by reason of their presence in Great Britain and they were separately entitled to child benefit for Sonia. But they lost their entitlement to an additional amount of income support for Sonia for each period when Sonia had been continuously absent from Great Britain for a period of more than four weeks, although they would not have lost that right at that time had she moved to some other location in Great Britain. The appellant contends that the appeal tribunal was wrong to ignore the effect of European law in reaching that conclusion.

The application of European law

25. It is contended for Mr Bobezes that the application of regulation 16(5)(a) of the IS Regulations to his claim is subject to the requirements of European Union law and that that provision should not be applied to him. This is because it discriminates against him and his family on the grounds that they are Portuguese nationals and not British nationals. That argument is based :

(1) on the provision prohibiting discrimination on grounds of nationality in article 7 of Council Regulation (EEC) 1612/68 of 15 October 1968;

(2) on the provision prohibiting discrimination on grounds of nationality in article 3 of Council Regulation (EEC) 1408/71 of 14 June 1971, and that this is not excluded under Article 10a(1) if it is read subject to Article 10a(2);

(3) on the prohibition of discrimination on grounds of nationality in Article 12 EC read with Article 39 EC; and

(4) on the contention that the addition to income support for a child is a family benefit within article 4(1)(h) of Council Regulation (EEC) 1408/71 of 14 June 1971 and that accordingly article 74 of that Regulation applies to it directly.

26. The respondent contends that Council Regulation (EEC) 1408/71 applies in this case, and that therefore Council Regulation (EEC) 1612/68 cannot also apply, as the later Regulation takes precedence over Council Regulation (EEC) 1612/68. Further, the respondent contends that income support is fully within the terms of Article 10a(1) of Council Regulation (EEC) 1408/71. Accordingly the entitlement of Mr Bobezes is to be determined exclusively by British law and his rights are neither enhanced nor limited by reference to European Union law.

The basis of entitlement of the claimants under European law

27. Child benefit is a family benefit within regulation 4(1)(h) of Council Regulation 1408/71. It is not disputed that the claimant and his wife are entitled to child benefit for Sonia.
28. Income support is a special non-contributory benefit for the purposes of Council Regulation 1408/71 as it is referred to at point O (United Kingdom), paragraph (e) of Annex IIa to that Regulation and is accordingly within the provisions of Article 4(2a) and Article 10a of that Regulation. It is not disputed that the claimant and his wife are entitled to income support.
29. The respondent submits that the income support dependent child allowance is an additional amount of income support payable to a claimant for a child or young person and is not a separate benefit in the laws of Great Britain. Accordingly, the relevant European Union laws cannot be applied to the additional amount separately from income support as a whole. I accept that argument because in my view it is clearly accepted by the Court of Appeal , whose decisions are binding on me, that income support is a single benefit regardless of the different elements of which it is constituted in payment to a specific claimant. That is a question of British law and I see no relevant rule or principle of European law relevant to that approach in this case. I reject the alternative submission for the appellant that the additional amount is separately to be the subject of regulation 74 of Council Regulation 1408/71 as not arguable. Nor do I accept that the claimant has any other basis under Regulation 1408/71 for claiming income support or, specifically, this addition to it.
30. Mr Bobezes is entitled under European law to rights as a migrant worker and as a European citizen. The citizenship rights arise because Mr Bobezes is a Portuguese and therefore European citizen. The rights as a worker arise because he was a worker exercising his rights of freedom of movement in Great Britain. He continues to have the same rights in Great Britain by reason of his permanent incapacity for work, under Commission Regulation 1251/70. Mrs Bobezes is his wife and he has rights for her in that capacity. Mr Bobezes also has rights for the children of his family, including Sonia, and they received child benefit for Sonia during the relevant period by reason of the acceptance of those rights. The right to which he is entitled in this case derive from Regulation 1612/68, giving detailed effect to the Treaty commitment in Article 39, and not from the Treaty Article itself.

The application of Regulation 1612/68

31. Article 7 of Council Regulation 1612/68 of 15 October 1968 on freedom of movement for workers within the Community provides:

1 A worker who is a national of 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 regard remuneration, dismissal, and should he become unemployed, reinstatement or reemployment.

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

…

That wide wording has been the subject of many judgments of the European Court of Justice. It is clear law that in principle it will cover entitlement not to be treated differently with regard to entitlements to all forms of social security benefit. For the relevant periods Mr Bobezes was entitled to the same rights as a worker, and so was within the personal scope of the Regulation. He was "in" the United Kingdom so was within its territorial scope. His entitlement to income support brought him within the substantive field of application of the regulation. The claimant is entitled in principle to the protection of article 7(2) of the Regulation.

32. The respondent argues that the claimant is not entitled in fact to that protection because of article 42 of the Regulation. Article 42 (the first of the Final Provisions of the Regulation) provides:

2. This Regulation shall not affect measures taken in accordance with Article 51 of the Treaty.

Does Regulation 1408/71 apply?

33. Article 51 (now, after amendment, Article 42 EC) is the Article of the Treaty that authorises Council Regulation 1408/71 on the application of social security schemes and its predecessor, Council Regulation 3. This is argued to be relevant to the appellant's case because income support is within the scope of Article 10a of Regulation 1408/71 by reason of its inclusion in Annex IIa to that Regulation. Consequently, it is argued, Regulation 1612/68 does not apply. This requires some clarification. Article 10a of Regulation 1408/71 is an exception to the rules in Article 10 and Title III of the Regulation. Where it applies, the rules of coordination in Article 10 (waiving of residence clauses) and Title III (Articles 18 – 79, on special provisions relating to the various categories of benefit) do not apply. Instead, "persons … shall be granted the … benefits … exclusively in the territory of the Member State in which they reside". When Article 10a applies, none of the specific coordination rules of those other articles apply. The only rules that apply are those of the state of residence. It follows that a claimant cannot argue for the extension of rights to a benefit under the general principles of Article 10 or the specific provisions of Articles 18 – 79 if the benefit is one of those covered by Article 10a. In other words, its effect is to prevent a claimant making a claim for one of the benefits within Article 10a based on those other aspects of the Regulation.
34. A clear example of this is the decision of the European Court of Justice in Snares v Adjudication Officer, Case C-20/96, reported as R(DLA) 5/99. In that case a claimant sought to maintain a claim for disability living allowance when moving from Great Britain to Tenerife. The European Court ruled that the claimant could not rely on Article 10 of Regulation 1408/71 and the standard waiver of residence provisions because disability living allowance was within Article 10a. The Court also examined the amendments to Regulation 1408/71 by Regulation 1247/92 that introduced Article 10a and found that they were fully compatible with the Treaty.
35. But that is not this case. In this case, the claimant is not relying on Article 1408/71, or any part of it, to claim income support. And, as indicated above, the additional amount payable for Sonia is not a separate benefit. So Article 1408/71 is not specifically relevant to that either. The application of Regulation 1612/68 to this claim does not involve Article 1408/71. Consequently, there is nothing for Regulation 1612/68 to affect, and therefore nothing for Article 42 of that Regulation to protect.
36. In C50/99-00 (DLA) a Northern Ireland Commissioner adopts an argument that appears to conflict with this. While that decision is technically from a separate jurisdiction, my own view is that on European questions such as this the decision of a Northern Ireland Commissioner is entitled to the same respect from me as that of another British Commissioner. That case was another about claiming disability living allowance on the basis of a European argument. The claimant was at all relevant times a resident of the Republic of Ireland. She became a worker in Northern Ireland. She later claimed disability living allowance in Northern Ireland. But her claim was based on the argument that the residence and presence conditions for that benefit discriminated against her. Her argument, as here, was based on Article 7 of Regulation 1612/68. The tribunal held that she could not maintain that right by reason of Article 42(2) of that Regulation and the inclusion of disability living allowance within the scope of Article 10a of Regulation 1408/71.
37. There is a fundamental difference between that case and this. The claimant in that case had no right to disability living allowance unless she could avoid the effect of the Northern Ireland residence conditions. In other words, she had to rely on the residence waiver clause to maintain her right. That is the same point as Snares noted above. But she could not do that because of Article 10a. So there was an express provision in Regulation 1408/71 applying in her case on which Article 42(2) of Regulation 1612/68 could operate. That does not apply here. The claimant in this case does not need the waiver of the residence condition under Article 10 or the assistance of any other provision in Regulation 1408/71 to maintain his income support claim.
38. Nonetheless, the Tribunal and Commissioner in C50/99-00 (DLA) adopted wide reasoning to achieve the conclusion that the claimant did not have an entitlement to disability living allowance in that case. And the argument adopted was expressly that of the Department and is parallel to the arguments in this case. While I respectfully do not dissent from the decision of the Commissioner in terms of the entitlement of that claimant, I do not agree with the reasoning on which it is based.
39. The Commissioner set out a full analysis of European caselaw before reaching the following conclusions:

27 I agree with the Department that the legislation must not be interpreted so as to render meaningless Article 42(2) of Regulation (EEC) 1612/68. Mr Allamby (for the claimant) did not actually put forward an interpretation of that sub-Article. He based his main argument on the contention that the Tribunal had specifically excluded Regulation (EEC) 1612/68 from its consideration. This the Tribunal did not do. It did, as its reasoning sets out, consider Regulation (EEC) 1612/68 but found that by reason of Article 42(2) thereof that regulation could not affect Regulation 1408/71. It therefore applied that regulation.

28 It does not appear to me that Article 42(2) can be given anything other than its plain meaning, ie that Regulation (EEC) 1612/68 is not to affect measures taken under Article 51. The provisions of that regulation cannot have any effect on such measures. Mr Allamby did not contest their validity. The court has already said in Snares (para. 37) that DLA claimant who claimed post the entry into force of Article 10a in its present form were governed exclusively by the system of co-ordination established by that Article. The court itself used the word "exclusively". The claimant in this case is such a person. She is therefore governed by the said system of co-ordination exclusively, ie, she can obtain the listed benefits only in at the expense of and under the legislation of her country of residence.

40. Those two paragraphs make it plain why, on those facts, the full reasoning of the Commissioner does not apply in this case. But does the wider reasoning about Article 42(2) apply here, or should that reasoning be confined to those facts? In my view they should be so confined.
41. As far as I can see, the European Court of Justice has considered Article 42 in only one decision despite the many cases brought before it that involve, or potentially involve, both Regulation 1408/71 and Regulation 1612/68. The Republic of France advanced such an argument in the defence it put to the Court against Commission enforcement proceedings in Commission of the European Communities v French Republic, Case C-35/97 of 24 September 1998. France had excluded Belgian frontier workers from one of its supplementary retirement pensions. This was alleged by the Commission to be in breach of Article 7 of Regulation 1612/68. The French government resisted the claim on several grounds, the substance being that the Belgian workers could become entitled under two national schemes and that, by reason of Regulation 1408/71, the French scheme was not exportable, so that should prevail over any right under Regulation 1612/68. And (quoting from the Court judgment):

29 Furthermore, in accordance with Article 42(2) of Regulation 1612/68, the provisions of Regulation No 1408/71 takes precedence over those of Regulation 1612/68.

42. The Court rejected the French arguments. It found that the schemes in question were not covered by Regulation 1408/71, so they could not be assessed in the light of that Regulation. And:

44 Consequently, consistent with Article 42(2) of Regulation No 1612/68, the application of the provision of Regulation 1408/71 is not in question.

It is interesting that Article 42(2) does not appear to have been argued before the Court in any of the other cases where there might be an overlap. It is significant that the Court has never relied, so far as I can see, on Article 42(2) in its reasoning in any other case. And that includes cases such as Maria Martinez Sala v Freistaat Bayern, Case C-85/96, of 12 May 1998 where the European Court found both Regulations to be in issue and specifically referred back to the national court questions about the applicability of both Regulation 1408/71 and Regulation 1612/68.

43. I conclude from both the specific comments of the Court in EC Commission v French Republic and from the absence of the point being taken by or to the Court in other cases that the "plain meaning" attached to Article 42(2) in C 50/99-00 (DLA) is too wide. The right granted by Article 7(2) of Regulation 1612/68 is a fundamental aspect of the freedom of movement of workers – and, perhaps it should now be said, of European citizens. It is one of the essential aspects of the freedom granted by Article 39 (formerly Article 48) of the Treaty, securing the freedom of movement of workers. Regulation 1408/71 is about coordinating social security systems under Article 42 (formerly 51) of the Treaty by adopting "such measures as are necessary to provide freedom of movement of workers". Those Articles pursue parallel aims, and I do not readily read a final provision in Regulation 1612/68 as undercutting those parallel aims so as to reduce a worker's rights under Article 7 of that Regulation unless there is clear reason to do so. The reason to do so, as the European Court reflects, is that there is some provision of Regulation 1408/71 in application which provides a benefit to a worker in a different way to Regulation 1612/68 but, by reason of the purposes of those Regulations, to the same end. In other words, it is an example of what used to be given the Latin tag specialia generalibus derogant – a specific rule derogates from a general rule. But, in this context, both rules are concerned with granting rights and not restricting them.
44. In this case there are no European coordination rights granted to the claimant to establish his entitlement to income support. He gets it without reference to Regulation 1408/71. But, having obtained that right under British legislation, he then argues that the way in which he is given the benefit is discriminatory under Regulation 1612/68. He does not need to refer to Regulation 1408/71 to mount that argument, and equally there is no basis for the British government to resist it under Regulation 1408/71. The mere fact that income support is listed in Annex IIa to Regulation 1408/71 does not bring Article 42(2) of Regulation 1612/68 into play. Nor is Article 10a of Regulation 1408/71 or any other provision of that Regulation in question in this case. It is only if there is a provision of Regulation 1408/71 in question that Article 42 of Regulation 1612/68 needs to be considered. That is different from both the disability living allowance cases mentioned above where the claimants could only mount their cases by reference to Regulation 1408/71. In other words, they could not claim the benefit of both Regulations at the same time on the same benefit. That is not happening here.
45. My conclusion is that the claimant in this case is entitled to argue that he is being discriminated against under Article 7(2) of Regulation 1612/68, and that Article 42(2) does not block that right. It follows that I must set aside the decision of the tribunal.

Is there discrimination?

46. The fact that Mr Bobezes can seek to rely on Article 7(2) of Regulation 1612/68 does not of course mean that he establishes that he was the subject of discrimination. That must now be considered. And it must also be considered, if discrimination is established, whether that discrimination is justified. It is convenient again to cite the judgment of the European Court in EC Commission v French Republic:

37 The Court has consistently held that the equal treatment rule laid down in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see, inter alia, Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11 and Case C-57/96 Meints v Minister van Landbouw, Natuurbeheer en Visserij [1997] ECR I-6689, paragraph 44).

38 Unless it is objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage (Meints, cited above) paragraph 45.).

The Court went on to find that that was the position as regards the residence condition in the agreements setting up the pension schemes in that case.

47. The European Court also examined this issue in John O'Flynn v Adjudication Officer, Case C-237/94 of 23 May 1996, [1996] ECR I-2617. That concerned the application of Article 7 of Regulation 1612/68 to claims for funeral grants for deceased who died in Britain but were to be buried in another European Union state. The Court, in its judgment, set out the principles as above, supported by a more extended case law analysis. It set the test for indirect discrimination in paragraph 20 of its judgment as:

… a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage.

21 It is not necessary in this respect to find that the provision in question does not in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have that effect...

48. In connection with this issue, the Secretary of State submitted that "there may be a myriad of reasons why UK nationals wish their family members to travel overseas … The UK is recognised as a multi-cultural society with a very significant percentage of UK nationals having close family overseas (be it in Europe, Asia, Africa or the Caribbean)." The submission goes on to argue that the claimant has not established any argument that there is in fact indirect discrimination in Britain as alleged when viewed against that background.

I agree with that submission to the extent that the discrimination is not obviously there, but that is not to say that the claimant, given the chance, cannot establish it. And, of course, if it is established the Secretary of State is entitled to argue that it is justified. The appropriate step is now to refer the matter to the tribunal to consider if the claimant can establish discrimination and, if he can, to consider if that discrimination is justified.

Directions to the tribunal and parties

49. I direct the tribunal that the claimant has no entitlement to the addition to the claimant's income support for Sonia save to the extent found in the decision of the previous tribunal, which the new tribunal is to accept on that point (although the facts have yet to be found). But the claimant is also entitled to argue, for any period when he cannot claim under British law, that he is the subject of indirect discrimination under Article 7 of Regulation 1612/68 in the application of Regulation 16(5) of the Income Support (General) Regulations 1987 on the basis that he is entitled to the benefit of that regulation as an individual entitled to the rights that attach to the exercise of the freedom of movement of workers. Regulation 1408/71 is not relevant to this. It is for the tribunal to find as fact if there is, or is not, discrimination. If it finds that there is discrimination, then it is to consider whether there is, as indicated above, objective justification for that discrimination.
50. The parties have in their submissions made reference to a considerable amount of European caselaw to which I have only made limited specific reference. I direct the parties, in addition to any evidence and analysis that they wish to place before the tribunal, also to submit their skeleton arguments on the law relating to the issues that the tribunal must decide together with full copies of any European case to which reference is made, at least ten working days before the date of the tribunal's hearing.

David Williams

Commissioner

21 August 2003