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[2008] UKSSCSC CIS_1096_2007 (18 February 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is given under section 14 of the Social Security Act 1998:

The decision of the Birmingham appeal tribunal under reference 024/06/01349, held on 15 November 2006, is not erroneous in point of law.

REASONS

The issue

This is one of a large block of cases in which the claimant was refused income support on the ground that he had no right to reside in the United Kingdom. The appeal tribunal confirmed the Secretary of State's decision. The district chairman who heard the appeal gave the claimant leave to appeal to a Commissioner. The issue raised on the appeal has been whether the transitional protection, for which the claimant did not qualify, was discriminatory under the European Convention on Human Rights and Fundamental Freedoms.

The facts and history

The claimant is Dutch. I do not know when he first came to the United Kingdom or when he first claimed income support. However, I do know that for some years he received income support for himself and his family, on the basis that he was incapable of work, until 16 September 2004, when he left the United Kingdom to attend his father's funeral in Djibouti. He expected to return after a month, but he was delayed by a heart attack and only came back to the United Kingdom in December 2004 of January 2005. In his absence, his wife claimed and received housing benefit. Whatever the precise date, he claimed income support on 4 January 2005, but this was refused on the ground that he did not have a right to reside. The tribunal confirmed that decision. The claimant has also taken over from his wife as the claimant for housing benefit.

The tribunal was right to decide that the claimant did not have a right to reside. I will now explain why.

The right to reside

Benefit legislation

Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992. A person's entitlement to income support is calculated by reference to an applicable amount. Section 135 provides:

'(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.

(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.'

The Income Support (General) Regulations 1987 are made, in part, under that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that the applicable amount for a 'person from abroad' is nil. 'Person from abroad' is defined by regulation 21(3):

'"person from abroad" means a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose no person is to be treated as not habitually resident in the United Kingdom who is-

(a) a worker for the purpose of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of "qualified person" in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004;

…'

This is qualified by regulation 21(3G):

'In paragraph (3), for the purposes of the definition of person from abroad no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.'

That is not easy to digest. Restating the law without the use of negatives it comes to this.

• In order to have an applicable amount higher than nil, the claimant must be habitually resident.

• In order to be habitually resident, the claimant must have a right to reside.

Directives

The claimant might have a right to reside under the Immigration (European Economic Area) Regulations 2000. Regulation 14(1) confers a right of residence on a 'qualified person'. That expression is defined by regulation 5. The claimant does not come within any head of the list in regulation 5(1)(a)-(h). He had been out of the labour market for many years and was not, therefore, a worker in the United Kingdom. He had not become a self-employed person and could not, therefore, have ceased such activity. He was neither a provider nor a recipient of services. He was self-evidently not self-sufficient. He was neither retired nor a student.

Regulations

The claimant did not have a right to reside under Regulation (EEC) 1251/70. That Regulation only applies to persons who have been workers. At the time of his claim, the claimant had not been a worker here and could not, therefore, claim the benefit of the rights under that Regulation.

EC Treaty

Article 18 of the EC Treaty confers a general right of freedom of movement and residence for EU citizens:

'1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measure adopted to give it effect.'

Article 12 of the Treaty confers a general right to freedom from discrimination on the ground of nationality:

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

There are a series of Directives dealing with freedom of movement. Directive 90/364/EEC is the only Directive that might be relevant. Article 1 confers a residual right of residence on 'nationals of Member States who do not enjoy this right under other provisions of Community law'. This right is subject to the conditions that those relying on it

'are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.

'The resources referred to in the first subparagraph shall be deemed sufficient when they are higher than the level of resources below which the host Member State may grant social assistance to its nationals, taking into account the personal circumstances of the applicant …'

The European Court of Justice has held, in the context of a different Directive, that resort to social assistance by a Union citizen does not automatically result in the loss of the right of residence. That right can survive if the need for assistance is temporary. See Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (Case C-184/99) [2001] ECR I-6193 at paragraph 42-44. In this case, the claimant has never had sufficient resources for the purposes of the Directive and there is no evidence that he will ever acquire them unless he finds work.

The Court of Appeal considered article 18 and this Directive in Abdirahman v the Secretary of State for Work and Pensions, reported as R(IS) 8/07. Lloyd LJ set out the Court's conclusion:

'33. … article 18 does not create a right of residence for an EU citizen in another Member State, in a case in which the limitations imposed under Directive 90/364 are not satisfied, and that those limitations are proportionate to the legitimate objective in protecting the public finances of the host Member State.'

Transitional protection

The right to reside requirement was introduced into domestic benefit law by the Social Security (Habitual Residence) Amendment Regulations 2004, with effect from 1 May 2004. Regulation 6 contained transitional protection and savings. If it applies, the claimant is not subject to the right to reside test. It provides:

'Transitional arrangements and savings

6.-(1) Paragraph (2) shall apply where a person-

(a) is entitled to a specified benefit in respect of a period which includes 30th April 2004;

(b) claims a specified benefit on or after 1st May 2004 and it is subsequently determined that he is entitled to that benefit in respect of a period which includes 30th April 2004;

(c) claims a specified benefit on or after 1st May 2004 and it is subsequently determined that he is entitled to such a benefit in respect of a period which is continuous with a period of entitlement to the same or another specified benefit which includes 30th April 2004;

(d) claims jobseeker's allowance on or after 1st May 2004 and it is subsequently determined that he is entitled to jobseeker's allowance in respect of a period of entitlement to that benefit which is linked to a previous period of entitlement which includes 30th April 2004 by virtue of regulations made under paragraph 3 of Schedule 1 to the Jobseekers Act 1995.'

Income support and housing benefit are specified benefits.

The tribunal decided that this protection did not apply to the claimant. It was right to do so. I will now explain why.

On 1 May 2004, the claimant satisfied regulation 6(1)(a) and his entitlement to income support was protected. However, the scope of the protection is limited by regulation 6(3):

'(3) The provisions saved by paragraph (2) shall continue to have effect until the date on which entitlement to a specified benefit for the purposes of paragraph (1) cease, and if there is more than one such benefit, until the last date on which such entitlement ends.'

Consequently, he lost the benefit of regulation 6(1)(a) and (2) when he left the United Kingdom. No other head of regulation 6(1) applies, with the result that the claimant cannot take advantage of the transitional protection on his new claim for income support.

Conclusion

Accordingly, the claimant did not have a right to reside under EC law.

Human rights and discrimination

How this issue started

The tribunal's chairman commented that the outcome would have been different if the claimant and his wife had made different decisions about which of them would be the claimant for benefit. If they had, the transitional protection would, on the same facts, have survived. She remarked:

'This clearly raises an issue about Article 8 ECHR, but as the UK law under the "right to reside" provisions has been found both at the level of the Social Security Commissioners and the Court of Appeal to be lawful both in terms of the EU and ECHR, I feel bound even in this case, with what I consider to be unusual facts, to follow precedent, and therefore reject [the claimant's] appeal.'

So prompted, the claimant's representative applied for leave to appeal in these terms:

'We are grateful to the tribunal for their suggestion that reg 6 of the Habitual Residence (Amendment) regulations of 2004 are not consistent with article 8 ECHR. Although we appreciate that the tribunal had no Jurisdiction to consider the lawfulness of the legislation as it stands, we would submit that their decision was erroneous.'

The chairman granted leave, commenting:

'I did not suggest that Reg 6 Hab Res (Amendment) Regs was inconsistent with Article 8 ECHR, but I think there is an argument here which should be considered at a higher level. It is for this reason that I grant leave.'

The European Convention on Human Rights and Fundamental Freedoms

The relevant provisions of the Convention read:

Article 8 - Right To Respect For Private And Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14 - Prohibition Of Discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The First Protocol

Article 1 - Protection Of Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The arguments

When lodging the appeal with the Commissioners' office, the claimant's representative provided a two page submission referring to the Human Rights Act 1998, supplemented by a copy of the House of Lords case of Ghaidan v Godin-Mendoza [2004] 2 AC 557. However, he did not identify the precise grounds on which there might be a violation of either Article 8 alone or of Article 8 when read in conjunction with Article 14.

Mr McIntyre, the legal officer charged with management of the right to reside cases, made detailed observations in an attempt to assist the representative to particularise his argument. He attached a copy of the European Court of Human Rights case of Petrovic v Austria (2001) 33 EHRR 14.

In response, the claimant's representative argued that the circumstances of this case were within the ambit of Article 8. He further argued that there was discrimination in that the claimant was denied transitional protection 'principally on the basis of his nationality, despite his residence here'. He also relied on Article 1 of Protocol 1 and the case of R (RJM) v Secretary of State for Work and Pensions.

The Secretary of State's representative did not support the appeal. He first argued that the case did not come within the scope of Article 8, because there was no lack of respect for or interference with the claimant's family life. The choice of claimant had been dictated not by chance but by the amounts of benefit available on different claims. Petrovic did not apply, because there were benefits in payment to the claimant's family that promoted family life. Moreover, the link between the transitional protection and the protection of the claimant's family life was too tenuous. Any discrimination that had occurred is objectively justified. The length of the claimant's residence was not relevant, because he did not come to the United Kingdom to work or to seek work. As to Article 1 of Protocol 1, the Court of Appeal decided in Campbell v South Northamptonshire District Council (reported as R(H) 8/04) that housing benefit was not a possession and that this applied to income support, which was also an income-related benefit.

In final observations, the claimant's representative restated his arguments and argued that the ultimate decision of the House of Lords in the RJM case might benefit the claimant.

Analysis

Regulation 6 is a standard form of provision for transitional protection in social security cases. It preserves continuity of entitlement for those entitled to a specified benefit immediately before the date when the right to reside test was introduced, whether the award was made before or after that date. By preserving the position at a particular point of time, it inevitably preserves all aspects of the case, including the identity of the claimant. If I were to extend the protection to include spouses as future claimants, which is what the claimant's representative has suggested, I would change the nature of regulation 6 from a standard form of transitional protection to a provision creating a new right on a different claim for a different claimant. I have power under section 3(1) of the Human Rights Act 1998 to interpret legislation in a way that avoids a violation of a claimant's Convention right. However, that does not give me freedom to rewrite the legislation. I must respect the overall scheme of the legislation. Transforming a transitional protection into the creation of a new right would not do so. Accordingly, even if there has been a violation of the claimant's Convention rights, there is no remedy that I can give him by interpretation of regulation 6.

That is sufficient to dispose of the case. However, out of courtesy I comment on some of the arguments that have been put to me.

As to discrimination on the basis of nationality, the fact that the claimant is an EU citizen is the background but not the cause of his difference treatment. It is the background in that the right to reside test only applies to those who do not have British nationality. It is not the cause, because the claimant's treatment results from a choice of claims in order to maximise benefit entitlement. The claimant's solicitor admits this in a letter dated 29 September 2005: pages 54-56. Moreover, there has been a difference of treatment on the basis of the claimant's nationality, but that difference is to be found in the right to reside requirement itself, not in the transitional protection afforded by regulation 6. The claimant's representative has not put that argument. It was rejected in respect of EC law by the Court of Appeal in Abdirahman v the Secretary of State for Work and Pensions, reported as R(IS) 8/07. I cannot imagine that the position would be different under the European Convention, especially as that Convention is taken into account under EC law.

Finally as to Article 1 of Protocol 1, ultimately this also dissolves into a challenge to the right to reside requirement rather than the transitional protection. The claimant was not deprived of his entitlement by regulation 6. Quite the reverse: his entitlement was preserved. His representative has sought to show that the protection should have extended to his wife. She had the advantage of being included in the claimant's claims, but she was not deprived of that. Again the reverse is true: she retained that advantage by virtue of regulation 6. I cannot envisage that the House of Lords in RJM will decide that the right of the claimant's wife to become a claimant in the future is the type of possession protected by Article 1 of Protocol 1. In short, any attempt to show that regulation 6 deprived either the claimant or his wife of a possession fails because the regulation 6 does the precise opposite – it preserves, not deprives. I also note that Article 1 of Protocol 1 is qualified and allows the State the right to deprive people of their possessions in the public interest. There is an argument that this would authorise changes in benefit entitlement such as those that accompanied the increase in the membership of the EU in 2004.

However as I have said, these points are not the essence of my reasoning, which is that I have no power under section 3 to remedy any violation of a Convention right that has occurred by reason of regulation 6.

Disposal

I dismiss the appeal.

Signed on original
on 18 February 2008

Edward Jacobs
Commissioner