UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14 of the Social Security Act 1998:

The decision of the Cardiff appeal tribunal under reference 188/06/02467, held on 14 March 2007, is not erroneous in point of law.

REASONS
2. This is an appeal by the claimant, brought with the leave of a district chairman. The Secretary of State's representative has not supported the appeal and the claimant's representative has made observations in response.

The issue

3. The issue in this case is whether the claimant had a right to reside at the time of his claim for income support on 23 August 2005. The claimant's appeal was heard by two tribunals. The decision of the first was set aside. The second tribunal found that the claimant did not have a right to reside and dismissed his appeal.
4. The relevant law is contained in the Immigration (European Economic Area) Regulations 2000 and Regulation (EEC) 1251/70.

The facts

Nationality

5. The claimant is Dutch.

Movements

6. He first came to the United Kingdom in 2001 and remained here until December 2004. He then returned to Holland to visit his sister. The visit was expected to be for two weeks, but while there he was detained in psychiatric care from 11 January 2005 to 15 August 2005. He then returned to the United Kingdom and the care of the Community Mental Health Team in Cardiff.

Work and benefits

7. When the claimant first came to the United Kingdom in 2001, he went to Bristol. He found two jobs through an agency there, one for three weeks and the other for one. In 2002, he moved to Cardiff and claimed a jobseeker's allowance. He received that allowance for a year. He then obtained work for three weeks before receiving jobseeker's allowance for a further year. There followed a period of work for three weeks and jobseeker's allowance for another year. That came to an end in October 2004, when he failed to register. He told the first tribunal that he could not cope with it any longer. He then claimed a carer's allowance as he had been caring for his mother and (I believe) brother. There was a delay in processing this claim, because he only had a temporary national insurance number, and no decision had been made when he went to Holland. So, between his arrival in 2001 and his departure for Holland in December 2004, the claimant had worked for a total of 10 weeks in periods of between one and four weeks and had, for most of the remainder of the time, received a jobseeker's allowance. The longest period of employment was for three weeks.
8. The claimant has not worked since his return. On 23 August 2005, he claimed income support. The decision-maker decided that, as a person from abroad, his applicable amount was nil. He was not, therefore, entitled to a payment of benefit.

Health

9. The claimant was diagnosed in Holland as having schizophrenia of the paranoid type with abuse of cannabis. The doctors found that he had no insight or understanding of his illness. There is medical evidence that 'Such periods of severe psychosis to warrant hospitalisation are usually the result of a prolonged period lasting several months leading up to this. I suspect therefore that his level of functioning was reasonably impaired in the build up period prior to this.' This is consistent with the evidence that the claimant was behaving oddly before he left for Holland and had on one occasion been brought home by the police after he had demanded money at a bank.

EC law

Worker status

10. If the claimant was a worker at the time of his claim for income support, he had the right to reside in the United Kingdom under regulations 5(1)(a) and 14 of the Immigration (European Economic Area) Regulations 2000.
11. Worker is a European concept. That means that it is defined by European law, through the decisions of the European Court of Justice. Member States cannot adopt their own definitions of the concept for European purposes. See Hoekstra v Bestuur der Bedrijfsvereniging voor Dertailhandel en Ambachten [1964] ECR 177.
12. Mr Commissioner Rowland analysed the cases in CH/3314/2005 and CIS/3315/2005. I do not wholly agree with that analysis and will set out the relevant principles in so far as they are relevant to this case.
13. Work means the performance of services under the direction of another for remuneration. See Lawrie-Blum v Land Baden-Wurttemberg [1986] ECR 2121, paragraph 17. The services must be in pursuit of an economic activity. See Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 17. The evidence of the few jobs that the claimant had been 2001 and 2004 suggests that they satisfied these conditions.
14. The temporary nature of the jobs is relevant. In Lawrie-Blum, the Court included in its definition of work that it should be for a certain period of time. However, the Court has held that work for any given period is not essential. See Lair v Universitat Hannover [1988] ECR 3161, paragraph 42. The Court has applied the same test whether the activity undertaken is part-time, irregular or intermittent: does it represent the pursuit of an effective and genuine economic activity? See Levin paragraph 11. Activities which are on such a small scale as to be purely marginal and ancillary do not amount to work. See Levin paragraph 17. In Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027, the work that was irregular and intermittent. It held (at paragraphs 14 and 15) that, in determining whether activities are purely marginal and ancillary, regard may be had to their irregular nature and limited duration. I consider that the same test is appropriate if the activity undertaken is temporary. The Court's reference to the 'very limited number of hours in a labour relationship' shows that the test applied to temporary work.

The position if the claimant was a worker

15. If the claimant was a worker, a number of questions arise:

•    Was the claimant temporarily incapable of work following the cessation of jobseeker's allowance in October 2004? If so he could remain a worker under regulation 5(2)(a) of the Immigration (European Economic Area) Regulations 2000.

•    Did the claimant's absence from the United Kingdom from December 2004 to August 2005 affect his status as a worker?

•    Was the claimant permanently incapable of work and so entitled to reside here under Regulation 1251/70?

If the claimant was not a worker, these questions do not arise.

Was the claimant a worker?

16. The tribunal found that the claimant was not a worker. However, the chairman did not set out how he had directed himself on the meaning of 'worker' or explain how he had applied the law to come to his conclusion. I could set the tribunal's aside on those grounds alone. However, that would be an empty exercise, because I am satisfied that the tribunal came to the correct and only conclusion it could on the evidence.
17. Applying the law set out above, especially the case of Raulin, the claimant was not a worker at any time from his first arrival in the United Kingdom. The work that he did was, as far as I know, full-time. However, it was only temporary and known to be temporary at the time. The fact that the first four weeks were obtained through an agency confirms that the nature of the work was likely to be temporary. In total he was only able to find work for 10 weeks in a period of three or four years. The work was also intermittent. Finally, the number of hours in the claimant's employment relationships was so small as to be properly described as marginal and ancillary.
18. Whether I consider the position immediately after he first obtained work, in December 2004 when he left for Holland, or at some time in between, the answer is the same. From the outset, all the work he was did was short-term with no certainty of longer-term engagement and nothing to suggest that this was a realistic possibility.

Disposal

19. I dismiss the appeal.

Signed on original on 08 October 2007

Edward Jacobs Commissioner