UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CIS_2100_2007 (13 May 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is given under section 14(8)(b) of the Social Security Act 1998:

I SET ASIDE the decision of the Birmingham appeal tribunal, held on 1 December 2006 under reference 024/06/02931, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. In particular:

The appeal tribunal must investigate and determine the extent to which the claimant was dependent on her son at the time between her claim for income support and the Secretary of State's refusal of that claim.

REASONS

The claimant's personal circumstances

The claimant was born on 1 July 1955. She is a widow. Although she is Somali in origin, she has Dutch nationality. She first came to the United Kingdom in June 2001 and received benefit until she left in June 2003. She returned to the United Kingdom in January 2006 and claimed income support. Her date of claim was 12 May 2006. She has children here. I do not know all their circumstances, but one works, a second is a housewife and a third is at college.

The adjudication

On 11 July 2006, a decision-maker determined that the claimant did not have a right to reside in the United Kingdom. This must have later been translated into a decision on her entitlement to income support, which could only have been that she was not entitled. The claimant exercised her right of appeal to an appeal tribunal, with the assistance of the Birmingham Tribunal Unit. The tribunal found that the claimant had a son who was a worker and went on the consider if the claimant had a derived right of residence. It decided that she had not.

Why I must set the tribunal's decision aside

I have to set aside the tribunal's decision, because it did not make relevant findings on the issue whether the claimant was a dependent relative of her son. This was an issue raised by the evidence. The tribunal should have made relevant findings and then given reasons to explain its conclusion.

Income support 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.

Section 124(1) of the 1992 Act provides:

'(1) A person in Great Britain is entitled to income support if-

…

(b) he has no income or his income does not exceed the 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 21AA. This has been the governing provision since 30 April 2006. The current version provides:

'Special cases: supplemental – persons from abroad

21AA.—(1) "Person from abroad" means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).

(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—

(a) regulation 13 of the Immigration (European Economic Area) Regulations 2006;

(b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is—

(i) a jobseeker for the purpose of the definition of "qualified person" in regulation 6(1) of those Regulations, or

(ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;

(d) Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).

(4) A claimant is not a person from abroad if he is—

(a) a worker for the purposes of Council Directive No. 2004/38/EC;

(b) a self-employed person for the purposes of that Directive;

(c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive;

(d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;

(e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;

(f) a person who is treated as a worker for the purpose of the definition of "qualified person" in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—

(i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an "accession State worker requiring registration"), or

(ii) regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006 (right of residence of a Bulgarian or Romanian who is an "accession State national subject to worker authorisation");

(g) 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;

(h) a person who has exceptional leave to enter or remain in the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971;

(hh) a person who has humanitarian protection granted under those rules;

(i) a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; or

(j) a person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.'

Those complex provisions can be distilled into the following propositions:

• Claimants who come within regulation 21AA(4) are not persons from abroad. They will all have the right to reside and do not have to be habitually resident.

• In order to be entitled to income support, anyone else must be habitually resident (regulation 21AA(1)). If they are not, they are persons from abroad, whose applicable amount is nil.

• In order to be habitually resident, they must have a right to reside (regulation 21AA(2)). If they do not, they are persons from abroad, whose applicable amount is nil.

• But persons who come within regulation 21AA(3) cannot have a right to reside and cannot, therefore, be habitually resident, As a result, they are persons from abroad, whose applicable amount is nil.

Right to reside

The tribunal found, and the Secretary of State accepts, that her son is a worker. The only basis on which she can have a right to reside is as his family member.

Regulation 21AA(4)(d) covers a family member of a worker within the meaning of Article 2 of Directive 2004/38, which provides:

'2) "Family member" means:

...

(d) the dependent direct relatives in the ascending line'

The claimant is a direct relative in her son's ascending line, but is she dependent?

What does 'dependent' mean?

The European Court of Justice has discussed the meaning of 'dependent' in three decisions, each given in respect of different provisions of EC law. I gave detailed directions on those decisions. At that stage, I believed that there might be a conflict between the decisions. I received detailed observations in response from the Secretary of State. The claimant's representation has now passed to the Child Poverty Action Group, who instructed Helen Mountfield of counsel to make detailed observations. I am grateful for both those observations.

I have considered those observations and, having re-read the authorities, I have come to the conclusion that there is no conflict between the decisions of the European Court of Justice when they are considered in their proper contexts. I now set out my analysis of each decision.

Lebon

The Court's decision and reasoning

In Centre Public D'Aide Sociale de Courcelles v Lebon (Case 316/85) [1987] ECR 2811, the Court was concerned with the meaning of 'descendants who ... are dependants' and 'dependent on the worker' in article 10(l)(a) and (2) of Council Regulation 1612/68. The Directive contained no rules on proof of dependence. Article 10 has been repealed by Council Directive 2004/3 8/EC.

The claimant was French, but lived in Belgium with her father and depended on him for support. She claimed benefit in Belgium. One of the questions (the third) referred to the Court was:

'… does the status of a "dependent member of a worker's family" result from a factual situation, to be assessed in each specific case, or from objective circumstances independent of the will of the person concerned which make it necessary for him to have recourse to the support of the worker?'

The Court's reasoning and answer must be read in the light of the question referred.

The Court first rejected two arguments put by the Netherlands and Germany. Paragraph 20 rejected the Dutch argument, saying that a claim for benefit could not affect the issue whether a person was dependent on another. Otherwise, the right to equal treatment would be undermined. Paragraph 21 rejected the German argument, saying that it is irrelevant whether the person had a right to maintenance. Otherwise, the issue would be determined by national legislation.

The Court then reasoned:

'22. Article 10(1) and (2) of Regulation No 1612/68 must be interpreted as meaning that the status of dependent member of a worker's family is the result of a factual situation. The person having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker's support or to raise the question whether the person concerned is able to support himself by taking up paid employment.'

The Court then answered the question referred:

'24. The answer to the third question must therefore be that the status of dependent member of a worker's family, to which Article 10(1) and (2) of Regulation No 1612/68 refers, is the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker's support.'

Analysis

The focus in this case was on the need for the claimant to rely on her father for support. The Court decided that the decisive factor was whether the claimant did so rely, not whether she needed to rely or had a right to rely. As proof of reliance was not in issue, it is not surprising that the need for this was not mentioned.

Chen

The Court's decision and reasoning

Lebon was followed in Chen v Secretary of State for the Home Department (Case C-200/02) [2005] QB 325. The Court was concerned with the meaning of 'dependent relatives in the ascending line' in article l(2)(b) of Council Directive 90/364. The Directive contained no rules on proof of dependence. The whole Directive has been repealed by Council Directive 2004/38/EC.

One issue was whether the Chinese mother of a child with Irish nationality had a right to reside in the United Kingdom as her child's dependent relative in the ascending line. The mother had come to the United Kingdom when she was pregnant. She moved to Ireland and gave birth there in order that the child would have Irish nationality. She then moved to Wales with her child. The Court first decided:

'42. Article l(2)(b) of Directive 90/364 ... cannot confer a right of residence on a national of a non-member country in Mrs Chen's situation either by reason of the emotional bonds between mother and child or on the ground that the mother's right to enter and reside in the United Kingdom is dependent on her child's right of residence.'

It then cited Lebon as authority for this proposition:

'43. According to the case law of the court, the status of "dependent" member of the family of a holder of a right of residence is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence ...'

The Secretary of State's argument

The Secretary of State's representative argued that this case introduced two new elements: (i) actual dependency; and (ii) an element of necessity.

'I submit that here the ECJ has started to narrow the approach taken in Lebon by introducing the notion of material support. This may suggest that the support needed to be provided has to be significant before a family member could be said to be a dependent on the worker/resident, this in turn could mean that there needs to be an "actual" dependency on the worker.'

He then went on to refer to the fact that the Court found a right of residence for the mother in order to give effect to her child's right, saying:

'It suggests that it was necessary for the mother to be with the child.'

The claimant's argument

Ms Mountfield argued that the addition of 'material' 'may have been intended, in the context of the facts of that unusual case, to have been to distinguish mere emotional attachment from "dependence", in the context of that case.' She also argued that there might be cases where a child's dependence on a parent or a parent's dependence on an adult child 'is emotional, but of such a character, and giving rise to such consequences, in terms of a need to live in a particular place, as to amount to material dependence, such as to amount to a factor which would inhibit the Union citizen in exercise of his own primary free movement rights if thwarted.'

Analysis

The Court decided two points on the meaning of dependency. First, emotional bonds between a mother and a young child were not sufficient to make the mother dependent on the child. Second, the mother's dependency on the child's right to reside was not sufficient either. In that context, it was natural and appropriate to emphasise that the support had to be material in contrast to the forms of dependence relied on by the mother and rejected by the Court. There is no conflict with Lebon, because the support in that case was material and the Court did not need to deal with the form that it took.

Although support must be 'material' it need not necessarily be financial. It could, for example, take the form of the provision of housing, clothing and food. I express no view, as it does not arise in this case, on Ms Mountfield's suggestion that emotional dependence might be sufficient in some circumstances.

As to the Secretary of State's argument on necessity, this depends on a part of the Court's judgment that was not dealing with the meaning of dependence. It cannot be read across to the part of the judgment that dealt with that issue. It would be surprising if the Court intended to introduce an additional element into its analysis of dependence in this way. All the more so, because it was an unnecessary factor having rejected the mother's argument for any dependence at all.

The Court did not cast any doubt on Lebon or suggest that it was distinguishable. However, given the lack of any dependence by the mother on her child, that issue did not arise.

Jia

The Court's decision and reasoning

In Jia v Migrationsverket (Case C-l/05) [2007] QB 545, the Court was concerned with the meaning of 'relatives in the ascending line ..., which relatives are dependent on them' in article l(l)(d) of Council Directive 73/148/EEC. Article 6 authorised Member States to require proof of dependence. The whole Directive has been repealed by Council Directive 2004/38/EC.

The issue arose in Sweden when the Chinese husband of a German national wished his mother to join them. She obtained a visitor's visa, but her application for a residence permit was refused. A number of issues arose including: (i) in what country must the relative be dependent; (ii) what standard of need must the relative have; and (iii) how could that be proved? The relevant question referred to the Court was:

'Is article l(d) of Directive 73/148/EEC to be interpreted as meaning that "dependence" means that a relative of a citizen of the Union is economically dependent on the citizen of the Union to attain the lowest acceptable standard of living in his country of origin or country where is normally resident?'

The Court cited Lebon and Chen:

'35. According to the case-law of the Court, the status of "dependent" family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national who has exercised his right of free movement or by his spouse (see, in relation to Article 10 of Regulation No 1612/68 and Article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26), Lebon, paragraph 22, and Case C-200/02 Zhu and Chen [2004] ECR I-9925, paragraph 43, respectively).

'36. The Court has also held that the status of dependent family member does not presuppose the existence of a right to maintenance, otherwise that status would depend on national legislation, which varies from one State to another (Lebon, paragraph 21). According to the Court, there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly (Lebon, paragraphs 22 and 23).'

It then dealt with the three issues identified above:

'37. In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.

'38. That is the conclusion that must be drawn having regard to Article 4(3) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition, 1968(11), p. 485), according to which proof of the status of dependent relative in the ascending line of a worker or his spouse within the meaning of Article 10 of Regulation No 1612/68 is to be provided by a document issued by the competent authority of the "State of origin or the State whence they came", testifying that the relative concerned is dependent on the worker or his spouse. Despite the lack of precision as to the means of acceptable proof by which the individual concerned can establish that he falls within one of the classes of persons referred to in Articles 1 and 4 of Directive 73/148, there is nothing to justify the status of dependent relative in the ascending line being assessed differently according to whether the relative is a member of the family of a worker or of a self-employed worker.

'39. In accordance with Article 6(b) of Directive 73/148, the host Member State may require proof that the applicant comes within one of the classes of person referred to in particular in Article 1 of that directive.'

In accordance with that analysis, the Court answered the question posed on the reference:

'43. ... article l(l)(d) of Directive 73/148 is to be interpreted to the effect that "dependent on them" means that members of the family of a Community national established in another member state within the meaning of article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the state of origin of those family members or the state from which they have come at the time when they apply to join the Community national. ... proof of the need for material support may be adduced by any appropriate means ....'

The Advocate General had cited Lebon and Chen, but considered that they should be distinguished:

'95. That being said, in a case such as that in the main proceedings, where dependency is a criterion for establishing the right of a third-country national to reside with a Community citizen in a member state, it does seem necessary for it to be established that there is indeed an actual need for financial support and that that is attested to by adequate documentary evidence.'

Unlike the Advocate General, the Court did not cast any doubt on either of those cases and set out the propositions for which they were authority without any indication that it was either narrowing or extending their scope.

The Secretary of State's argument

The Secretary of State's representative argued that Jia has continued the progressive narrowing of the scope of Lebon. He quoted paragraph 37 of the Court's judgment in which the Court repeated that 'the need for material support must exist' and added that 'the host Member State must assess whether, having regard to their financial and social conditions, they are in a position to support themselves'. He also quoted the German text, which he said indicates that the dependants must be unable to provide for their own basic needs. This is, as he also said, effectively what the Court said in paragraph 43.

The claimant's argument

Ms Mountfield argued that paragraphs 37 and 43 contained 'seemingly internally contradictory statements'. She argued that Lebon was to be preferred to Jia in so far as they conflicted, because it was more in keeping with the spirit of Directive 2004/38.

Analysis

I can see no way in which the Court in Jia changed the scope of the propositions for which Lebon and Chen had previously been authority. The Court dealt with other issues that had not arisen in those cases.

It referred to the standard of need that the dependant must have. However, that had not expressly arisen before. It is, though, surely inherent or implied in the nature of dependency that it should ensure the basic needs of everyday life. It is permissible to say that a person is self-sufficient in respect of the necessities of life, but dependent on another for the luxuries of life. However, when the word is used without qualification, it refers to the former. And in the context of freedom of movement of workers within the European Union, it is the former that are alone sufficient to justify the extension of that freedom to dependent members of their families. Likewise, neither the normal meaning nor the context requires that the person be wholly dependent. That would narrow the scope impermissibly.

Jia also referred to proof of dependence for the first time. However, both its relevance in Jia and its irrelevance in Lebon and Chen are easily explained. It was relevant in this case, because consistency and the terms of the provisions requiring proof assisted in deciding the country in which the dependant must have been dependent. It was irrelevant in the other cases, because matters of proof were relevant only to matters of fact, which are outside the jurisdiction of the European Court of Justice on a reference. They are matters for the national court to determine.

Conclusion on the case law of the European Court of Justice

In summary, the case law is authority for these propositions:

• A person is only dependent who actually receives support from another.

• There need be no right to that support and it is irrelevant that there are alternative sources of support available.

• That support must be material, although not necessarily financial, and must provide for, or contribute towards, the basic necessities of life.

The context of Directive 2004/38/EC

All three cases were decided on provisions that have been repealed by this Directive. I must, therefore, consider whether the propositions I have set out remain applicable in the new context. That context was set out by the European Court of Justice in Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (Case C-184/99) [2001] ECR I-6193:

'31. Union citizenship is destined to be the fundamental status of nationals of the Member States ….'

The context of the case law was the subject of detailed submissions by Ms Mountfield. I broadly accept her analysis.

The preambles set out the context in which the Directive was made and indicate the purposes it was designed to achieve. A key preamble is the third, which adopts the opinion that I have quoted from Grzelczyk and adds that the Directive codifies and reviews the existing law 'in order to simplify and strengthen the right of free movement and residence of all Union citizens.' The fifth preamble says that the right to move and reside freely must be granted to family members 'if it is to be exercised under objective conditions of freedom and dignity'.

The content of the Directive is also relevant in that it draws a distinction between family members as defined in Article 2 and the broader family. Family members have more extensive rights than the broader family. The latter have to have a closer connection of dependence that the former. Any restriction on the definition of the former must not be inconsistent with the more restricted definition of the latter.

Taking the preamble and the substantive content of the Directive into account, I can see no basis for treating Directive as limiting the scope of the previous case law.

The Immigration (European Economic Area) Regulations 2006

Ms Mountfield has referred to these Regulations in her observations. They implement the Directive. In view of the way that regulation 21AA is drafted, it is not necessary to refer to them. Regulation 21AA(4) prescribes persons who are not persons from abroad. The claimant has an arguable case that she falls within paragraph (4)(d). That provision, like most of paragraph (4), is drafted in terms of the Directive rather than the Regulations. It is only necessary to refer to the Regulations if the claimant does not fall within paragraph (4). My decision in CIS/4304/2007 contains a detailed analysis of circumstances in which that occurred.

Disposal

I have to set aside the tribunal's decision for the reason I have given. Ms Mountfield has provided witness statements from the claimant and her son. It is right that the Secretary of State should have the chance to question them on the contents of those statements. That is best undertaken at an oral hearing before a local tribunal. I have, therefore, directed a rehearing.

Signed on original
on 13 May 2008

Edward Jacobs
Commissioner