UK Social Security and Child Support Commissioners' Decisions

 


CIS/1133/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the Secretary of State's appeals. I set aside the decisions of the appeal tribunal dated 12 December 2005 and I decide that the claimant is not entitled to income support from 19 July 2004 and from 20 August 2004

REASONS

2. The claimant is a Dutch national who came to the United Kingdom on 14 March 2004 with her four dependant children. She had recently separated from her husband who presumably remained in Holland. She made the material claims for income support on 19 July 2004 and 20 August 2004. Those claims were disallowed on 4 August 2004 and 24 August 2004 respectively on the ground that the claimant's applicable amount was nil because she was a "person from abroad" who could not be treated as habitually resident in the United Kingdom because she had no right to reside in the United Kingdom (see regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967)). It is common ground that at no time between the date of her arrival in the United Kingdom and the dates of the Secretary of State's decisions did the claimant either work in gainful employment or even look for work.
3. The claimant appealed. It was accepted by her representatives, Leicester Law Centre, that the claimant did not have a right of residence by virtue of being a "qualified person" within the scope of regulation 6 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) but it was argued that she had a right of residence unless and until the Home Secretary decided she should be removed under regulation 21 of those Regulations or, in the alternative, that the "right to reside" test imposed by regulation 21(3G) of the 1987 Regulations was incompatible with Article 12 of the European Communities Treaty or, in the further alternative, that the "right to reside" test did not apply to a person who was actually habitually resident in the United Kingdom. The appeal tribunal accepted all three of those arguments and found that the claimant was habitually resident in the United Kingdom. The Secretary of State now appeals with the leave of the appeal tribunal.
4. It is now conceded by the claimant's representatives that, in the light of Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657, the Secretary of State's appeals must be allowed. I agree. The claimant plainly did not have a right of residence, regulation 21(3G) of the 1987 Regulations is not incompatible with Article 12 of the EC Treaty and the construction the tribunal placed on regulation 21(3G) was wrong. I must therefore allow the Secretary of State's appeals and reinstate his original decisions.
5. Before leaving this case I should comment on the trenchant criticisms of the appeal tribunal's decision made by the Secretary of State in his grounds of appeal. This was one of a considerable number of cases heard by the same appeal tribunal, constituted by a salaried legally qualified panel member, in which claimants were represented by the law centre who had prepared a standard submission. Some of those cases had been heard in June 2005 and the chairman had produced a common statement of reasons in October 2005. Although the present case was listed for an oral hearing, it appears that neither party attended and that the appeal tribunal therefore determined the case on the papers. When the decision notice was issued on 12 December 2005, the date of the hearing, there was attached to it a re-dated version of the reasons given in October. The decision notice made it clear that they were reasons "based on previous cases heard on this point of law". At the end of the statement of reasons, it was said that the tribunal granted leave to appeal.
6. The Secretary of State is right to say that leave to appeal could not be granted without there having been a request in writing (see regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991). In this case no request at all had been made when the legally qualified panel member first purported to grant leave but a new request was made promptly after receipt of the decision and leave was properly granted on 3 March 2006.
7. The Secretary of State also complains that the appeal tribunal had used the reasons from the previous hearing and that it "appears that the tribunal has done no more than rubber-stamp the submissions made by the claimant's representative, without recording or having regard to submissions made by the Secretary of State on the case before it". Later, the Secretary of State says –

"… it may be that to avoid any appearance of bias, further hearings on the same or similar issues should be heard by a differently constituted tribunal.

…

I submit that if the tribunal had acquainted itself with, and then applied, the Immigration (European Economic Area) Regulations 2000 and regulation 21(3G) of the Income Support (General) Regulations 1987, it would have had no difficulty in deciding the conditions it was necessary for the claimant to fulfil in order to have right to reside in the UK.

Further, the tribunal has given an excessively broad reading to the judgment in Trojani, giving it an effect which it should not have, and has read the words 'treated as' in the regulation so unreasonably as to constitute an error of law in itself."

8. The complaint of "rubber-stamping" is a complaint frequently made by claimants after tribunals have adopted submissions by the Secretary of State. There is nothing wrong in principle in a tribunal adopting submissions made by one party to the proceedings, provided, of course, that the submissions are right. The fact that complaints are so often made suggests, however, that it is wise to be careful. The other party's submissions should not be overlooked and it is desirable to make that clear. However, in the present case, the Secretary of State did not respond to the law centre's submissions and the references to Article 12 and Trojani v. Centre public d'aide sociale de Bruxelles (Case C-456/02) [2004] ECR I-7573 in his original submission were brief and were responded to by the law centre in its submission. Thus, by adopting the law centre's submission, the tribunal was adopting its response to the Secretary of State's submission. If the Secretary of State's submission and the law centre's submission were the same as those that had been used in the June hearing, I can see nothing wrong in the way the tribunal promulgated its decision. If, on the other hand, the arguments of the Secretary of State were new ones to which the law centre had made a new response, it seems to me to have been wrong for the legally qualified panel member to use the old reasons with the implication that the new arguments had not been considered, even if the ultimate wording might have been similar had those arguments been considered. I need make no finding as to whether there were any new arguments in this case.
9. The question of apparent bias is related. There could only be the appearance of bias if new arguments had apparently been ignored. A tribunal that has ruled on a point of law is entitled to make consistent decisions unless persuaded that its earlier decision was wrong and if no new arguments are presented it is entitled to refer to the reasons given for its previous decision. In any event, the suggestion that the legally qualified panel member should not sit on further appeals was misplaced in these grounds of appeal. That should have been the subject of a separate application to him to recuse himself when the situation arose or the subject of a complaint to the Regional Chairman. Any such application or complaint would have to have had some clearer evidence of actual or apparent bias than there is before me. The Secretary of State is no more entitled than a claimant to shop around until he finds a tribunal prepared to agree with him.
10. The last paragraph of the grounds of appeal was a perfectly proper and, as is now clear, correct submission. The previous paragraph, however, should not, in my judgment, have been written. A party is entitled robustly to submit that a tribunal has been wrong, even clearly wrong, but it is not appropriate to suggest that a tribunal has not acquainted itself with relevant legislation when it has adopted a coherent, even if weak, argument based on the terms of the legislation and the overriding effect of EC law.
11. I sense that the grounds of appeal were drafted as they were because the tribunal's own analysis of the law was superficial, as indeed the legally qualified panel member acknowledged. However, as the grounds of appeal accept, the tribunal really relied on the reasoning presented by the law centre and the grounds of appeal could therefore have been directed more profitably at the detail of the law centre's submission than at the tribunal's gloss on it. The consequence of a tribunal adopting a party's submission on the law is that if the submission is shown to be wrong the tribunal's decision will be erroneous in point of law too.

(signed on the original) MARK ROWLAND

Commissioner

4 October 2007