UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CDLA_708_2007 (10 July 2008)

 


DECISION

1. This appeal by the claimant does not succeed. The decision given by Sutton appeal tribunal under reference 154/06/00770 on 9 November 2006 contains no material error of law. Therefore that decision stands and the claimant is not entitled to any rate of either component of disability living allowance from and including 25 October 1999.

REASONS

Introduction

2. This appeal raises a short but important point about the application of paragraph 1 of Part II of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 ('the 2000 Regulations').
3. The point arises as follows:

(a) The claimant is now 13 years old and, unfortunately, suffers from a severe learning disability with associated communication difficulties and behavioural problems. He was born in India and is an Indian national. He lives with his mother and her husband (who are also Indian) and with his younger sister who is now 8 years old. The claimant's sister was born in Belfast and is a citizen of the Republic of Ireland under the jus soli provisions of Irish law as they existed before 1 January 2005.

(b) The claimant came to the UK to join his mother on 30 January 1999 when he was just four years old. His leave to enter the United Kingdom was subject to the condition that he should not have recourse to public funds and it is not in dispute that subsequent grants of leave to remain have also been subject to the same condition.

(c) Despite that condition, the claimant's mother (who has been appointed to exercise the claimant's rights under regulation 43 of the Social Security (Claims and Payments) Regulations 1987) claimed disability living allowance (DLA) on his behalf in October 1999. It is right to say that, from the outset, the claimant's mother disclosed the fact that the claimant was an Indian national. At the time, she does not appear to have been asked more detailed questions about his immigration status.

(d) On 1 April 2000, the claimant was awarded, and subsequently received, the lower rate of the mobility component and the middle rate of the care component of DLA from 25 October 1999 to 5 December 2005. In August 2005, his mother submitted a renewal claim and, on 11 September 2005, a further award was made at the same rates for seven years from 7 December 2005 to 6 December 2012.

(e) However, on 31 October 2005, following more detailed enquiries about the claimant's immigration status, a decision maker acting on behalf of the Secretary of State revised the decisions of 1 April 2000 and 11 September 2005. The revising decision was that the claimant was not entitled to disability living allowance from and including 25 October 1999 because he was a 'person subject to immigration control' and was therefore excluded from entitlement to benefit by section 115 of the Immigration and Asylum Act 1999 ('the 1999 Act').

(f) The claimant appealed against that decision on the grounds that he was not excluded from entitlement to DLA because he was a 'member of the family' of an EEA national (i.e., his younger sister). The tribunal rejected that argument and confirmed the Secretary of State's decision. The claimant now appeals to the Commissioner with the leave of a District Chairman.

The relevant law

Before 3 April 2000

4. The decision maker based his decision on section 115 of the 1999 Act. However as the submission writer and the tribunal tacitly recognised, that was not strictly correct. The 1999 Act did not come into force until 3 April 2000 and therefore could not have had the effect of excluding the claimant from benefit before that date.
5. Before 3 April 2000, the relevant law was contained in s. 71(6) of the Social Security Contributions and Benefits Act 1992 ('the Act') and reg. 2 of the Social Security (Disability Living Allowance) Regulations 1991 ('the DLA Regulations'). So far as is relevant to this appeal, those provisions read as follows:

'Disability living allowance

71.—(1)-(5) …

(6) A person shall not be entitled to a disability living allowance unless he satisfies prescribed conditions as to residence and presence in Great Britain.'

'Conditions as to residence and presence in Great Britain

2.—(1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of section 71(6) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that-

(a) on that day-

(i) he is ordinarily resident in Great Britain; and

(ia) Subject to paragraph (1A), his right to remain in Great Britain is not subject to any limitation or condition; and

(ii) he is present in Great Britain; and

(iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day; and

(b) …

(1A) For the purposes of paragraph (1)(a)(ia), a person's right to reside or remain in Great Britain is not to be treated as if it were subject to a limitation or condition if—

(a) he is a person recorded by the Secretary of State as 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;

(b) he is a person who has been granted exceptional leave outside the provisions of the immigration rules within the meaning of the Immigration Act 1971 to remain in the United Kingdom by the Secretary of State;

(c) he is a national, or a member of the family of a national, of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993;

(d) he is a person who is—

(i) lawfully working in Great Britain and is a national of a State with which the Community has concluded an Agreement under article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families, or

(ii) a member of the family of, and living with, such a person; or

(e) he is a person in respect of whom there is an Order in Council under section 179 of the Administration Act 1992 giving effect to a reciprocal agreement which, for the purposes of disability living allowance, has the effect that periods of presence or residence in another country are to be treated as periods of presence or residence in Great Britain.

(2)- (6) …'

From 3 April 2000

6. From 3 April 2000, the DLA Regulations were amended by regulation 11 of the 2000 Regulations. As amended, regulation 2 of the DLA Regulations read as follows

'Conditions as to residence and presence in Great Britain

2.—(1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of section 71(6) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that-

(a) on that day-

(i) he is ordinarily resident in Great Britain; and

(ia) [Revoked]

(ib) he is not a person subject to immigration control within the meaning of section 115(9) of the … [1999 Act] or section 115 of that Act does not apply to him for the purposes of entitlement to disability living allowance by virtue of regulation 2 of the [2000 Regulations], and

(ii) he is present in Great Britain; and

(iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day; and

(b) …

(1A) [Revoked]'

7. On the same day, s. 115 of the 1999 Act came into force and, so far as relevant, was in the following terms:

'Exclusion from benefits

115.—(1) No person is entitled to income-based jobseeker's allowance under the Jobseekers Act 1995 or to—

(a)-(c) …

(d) disability living allowance,

(e)-(k) …

under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

(2) …

(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

(4) Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies.

(5)-(8) …

(9) "A person subject to immigration control" means a person who is not a national of an EEA State and who—

(a) …

(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c)-(d) …

(10) …'

8. Unless section 115 does not apply to him by virtue of regulations made under the power conferred by section 115(3), the claimant is a person subject to immigration control under s.115(9)(b) and is therefore excluded from entitlement to DLA by both section 115(1)(d) and regulation 2(1)(a)(ib) of the DLA Regulations
9. The Secretary of State has exercised that power to make regulation 2 of the 2000 Regulations, which—as it applies to this appeal—reads as follows:

'Persons not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999

2.—(1) …

(2) For the purposes of entitlement to … disability living allowance, under the … Act, … a person falling within a category or description of persons specified in Part II of the Schedule is a person to whom section 115 of the Act does not apply.

(3) For the purposes of entitlement to … disability living allowance under the … Act, … a person in respect of whom there is an Order in Council made under section 179 of the Social Security Administration Act 1992 giving effect to a reciprocal agreement in respect of [that] benefit, … is a person to whom section 115 of the Act does not apply.

(4) For the purposes of entitlement to—

(a) …

(b) … disability living allowance… under the … Act, … a person who is entitled to or is receiving benefit by virtue of paragraph (10) of regulation 12 is a person to whom section 115 of the Act does not apply.

(5)-(6) …

10. The United Kingdom does not have a reciprocal social security agreement with India and regulation 2(3) of the 2000 Regulations therefore does not apply to this appeal.
11. Regulations 2(4)(b) and 12(10) of the 2000 Regulations are also irrelevant. The latter regulation establishes transitional protection for some claimants who were entitled to DLA before 3 April 2000. The claimant was, of course, actually in receipt of DLA before 3 April 2000 by virtue of the decision dated 1 April 2000. However, the effect of the decision under appeal is that he was not entitled to the benefit he received. Moreover, as it relates to the claimant, the law is to all intents and purposes the same both before and after 3 April 2000. It follows that, if he was entitled to DLA before the change in the law, he is also entitled to it afterwards and does not need to rely on any transitional protection to achieve that result. So, as regards regulation 12(10), the claimant's position is that unless he wins this appeal and re-establishes his entitlement to DLA before 3 April 2000, he does not qualify for transitional protection; and if he does win his appeal he no longer needs that protection.
12. It follows that the claimant's appeal can only succeed if he can bring himself within regulation 2(2) as 'a person falling within a category or description of persons specified in Part II of the Schedule' to the 2000 Regulations. That Part of the Schedule is in the following terms:

'PART II

Persons not excluded under section 115 of the Immigration and Asylum Act from entitlement to attendance allowance, severe disablement allowance, invalid care allowance, disability living allowance a social fund payment or child benefit

1. A member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993.

2. A person who is lawfully working in Great Britain and is a national of a State with which the Community has concluded an agreement under Article 310 of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families.

3. A person who is a member of a family of, and living with, a person specified in paragraph 2.

4. A person who has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation.'

13. The Republic of Ireland is a Member State of the European Community and therefore is not a state with which the Community has established an association agreement under Article 310 of the Treaty of Amsterdam. Neither is India. Further, the claimant's younger sister was only five years old at the date of the Secretary of State's decision, and may therefore safely be assumed not to be 'lawfully working' in the UK. It follows that paragraphs 2 and 3 of Part II of the Schedule do not assist the claimant. Neither does paragraph 4: the claimant's parents have confirmed to me that they did not give any maintenance undertaking was the claimant was granted leave to enter the UK
14. However, the Republic of Ireland is a contracting party to the EEA Agreement. It is therefore argued on behalf of the claimant that his sister is 'a national of a State contracting party to the Agreement on the European Economic Area' within paragraph 1 of Part II and that he is a 'member of [her] family'. Therefore, it is said, section 115 does not apply to him and he is not excluded from entitlement to DLA either under that section or under regulation 2 of the DLA Regulations.

The EEA Agreement

15. At first sight that submission seems unanswerable. The claimant's sister is an EEA national and, at least while they continue to live in the same household, it would be ordinary use of English to say that he is member of her family.
16. However, I have concluded that matters are not quite so straightforward. Paragraph 1 is plainly intended to comply with the United Kingdom's international obligations under the EEA agreement. In my judgment it follows that the phrases 'member of a family' and 'national of a State contracting party to the Agreement on the European Economic Area' should both be interpreted in accordance with that Agreement.
17. The following provisions of the Agreement are relevant.
18. The preamble to the Agreement records that the contracting parties are:

'DETERMINED to provide for the fullest possible realization of the free movement of good, persons, services and capital within the whole European Economic Area, …'

and notes that:

'WHEREAS, in full deference to the independence of the courts, the objective of the Contracting Parties is to arrive at, and maintain, a uniform interpretation and application of this Agreement and those provisions of Community legislation which are substantially reproduced in this Agreement an to arrive at an equal treatment of individuals and economic operators as regards the four freedoms and the conditions of competition;'

19. Article 1 of the Agreement provides:

'Article 1

1. The aim of this Agreement of association is to promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area, hereinafter referred to as the EEA.

2. In order to attain the objectives set out in paragraph 1, the association shall entail, in accordance with the provisions of this Agreement :

(a) the free movement of goods;

(b) the free movement of persons;

(c) the free movement of services;

(d) the free movement of capital;

(e) the setting up of a system ensuring that competition is not distorted and that the rules thereon are equally respected; as well as

(f) closer cooperation in other fields, such as research and development, the environment, education and social policy.'

20. Article 4 provides:

'Article 4

Within the scope of application of this Agreement, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

That Article is equivalent to the first sentence of Article 12 of the EC Treaty.

21. Article 6 states:

'Article 6

Without prejudice to future developments of case law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treaties, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement.'

22. Articles 28 and 29 state:

'Article 28

1. Freedom of movement for workers shall be secured among EC Member States and EFTA States.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of EC Member States and EFTA States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of EC Member States and EFTA States for this purpose;

(c) to stay in the territory of an EC Member State or an EFTA State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of an EC Member State or an EFTA State after having been employed there.

4. The provisions of this Article shall not apply to employment in the public service.

5. Annex V contains specific provisions on the free movement of workers.

Article 29

In order to provide freedom of movement for workers and self-employed persons, the Contracting Parties shall, in the field of social security, secure, as provided for in Annex VI, for workers and self-employed persons and their dependants, in particular:

(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;

(b) payment of benefits to persons resident in the territories of Contracting Parties.'

Articles 28 and 29 are equivalent to Articles 39 and 42 of the EC Treaty respectively.

23. Annex V to the Agreement (to which effect is given by Article 28(5)) gives effect to Directive 2004/38/EC ('the Citizenship Directive') and Council Regulation (EEC) No 1612/68 throughout the European Economic Area. Annex VI (to which effect is given by Article 29) gives similar effect to Council Regulation (EEC) 1408/71.
24. Taking into account the Agreement as a whole, and the provisions quoted above in particular, I have concluded that the scheme of the Agreement is to extend the provisions of European Community law relating to the free movement of goods, persons, services and capital to the EFTA states. That geographical extension of the single market is subject to the modifications stipulated in the various Annexes and Protocols. But the effect of those modifications is generally to restrict the rights of certain EEA nationals rather than to extend them. I therefore conclude that:

(a) the claimant's sister has no greater rights under the EEA Agreement than she does as an Irish national and EU Citizen under EC law;

(b) under the EEA Agreement, the claimant derives no greater rights from his relationship with his sister than he derives from that relationship under EC law.

25. Under EC law, the claimant has no rights as a member of his sister's family because:

(a) he is not her spouse, or an ascendant or descendant relative. Neither is he dependent on her. He is therefore does not her 'family member' for the purposes of the citizenship Directive (see, Article 2(2), of the Citizenship Directive);

(b) Council Regulation (EEC) 1408/71 has no application to the case because the sister has never been employed or self-employed is therefore outwith the personal scope of that Regulation (see Article 2); and

(c) The claimant's sister is not a 'worker' for the purposes of Council Regulation (EEC) No 1612/68 and, in any event, the claimant does not fall within any of the categories of family member upon whom rights are conferred by Title III of Part I of the Regulation (Workers Families).

26. As the claimant has no rights under EC law by virtue of being his sister's brother, and as I have concluded that the EEA agreement does not confer any greater right on him, it cannot be correct to interpret paragraph 1 of Part II of the Schedule to the 2000 Regulations as bearing its ordinary English meaning. To do so would be to interpret a provision that is intended to give effect to the EEA Agreement as bestowing a right under the domestic law of the UK that the claimant is not entitled to assert under that Agreement or under EC law.
27. I therefore conclude that:

(a) 'national of a State contracting party to the Agreement on the European Economic Area' in paragraph 1 must be construed as a reference to an EEA national who is exercising his or her rights or freedoms under the EEA Agreement (whether or not he or she also has equivalent rights under EC law); and that

(b) 'member of a family' of an EEA national must be interpreted as meaning a person who has rights under the EEA Agreement as such a family member.

28. Even if, which in my view is doubtful, the claimant's sister was exercising an EEA right by her residence in the UK, the claimant does not derive any rights under the EEA Agreement by virtue of his relationship with her. Therefore paragraph 1 of Part II f the Schedule to the 2000 Regulations does not apply to him and he is a person subject to immigration control with no entitlement to non-contributory benefits, including DLA.

Conclusion

29. For those reasons, the tribunal's was correct in law to decide as it did and I am legally obliged to refuse the claimant's appeal against it.

(Signed on the original)

Richard Poynter Deputy Commissioner 10 July 2008