UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CIS_2911_2007 (23 January 2008)

CIS/2911/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Watford tribunal (the tribunal) given on 30 April 2007 is erroneous in point of law. Accordingly I set it aside. Many points which may have been thought to be contentious were settled by the decision of the Court of Appeal in Abdirahman [2007] EWCA Civ 657, which confirmed the decision of a Tribunal of Commissioners in CIS 3573/2005. This enables me to deal with the points of law arising more briefly than otherwise might have been the case, and the facts in this appeal are sufficiently clear for me to be able to substitute my own decision without making any further findings of fact. I therefore give the decision which the tribunal should have given. This is that the claimant was not a person with a right to reside in the United Kingdom either at the date of her claim to income support on 24 July 2006 or by the time of the Secretary of State's decision given on 15 September 2006. Accordingly her applicable amount is nil.

The claimant is a Portuguese national who entered the United Kingdom over two years before the date of her claim to income support. She has worked since entering the United Kingdom, though periods of work have been interspersed with awards of jobseeker's allowance. However on 24 July 2006, being within 11 weeks of the expected date of delivery of her second child, she ceased to claim jobseeker's allowance and instead claimed income support. Shortly before she made this claim her 14 year old daughter joined her in the United Kingdom.

The claim to income support was refused on 15 September 2006 on the ground that the claimant was not a person with a right to reside in the United Kingdom. She appealed against that decision arguing that she had an established employment history in the United Kingdom and also arguing that her 14 year old daughter was entitled to remain in the United Kingdom to complete her education and that she had a right to reside derived from her role as the child's carer.

The claimant was not present at the tribunal hearing and indeed, unfortunately, it appeared that she had been admitted to hospital. However her representative, who had previously made a written submission, was present, and argued her case on the ground that she was a worker and that her pregnancy represented a period of temporary incapacity for work, after which she would be again seeking work. Her representative also argued that her child had a right to pursue her education in the United Kingdom and that the claimant had rights derived from this.

The tribunal allowed the claimant's appeal, though on grounds which are unclear. The Secretary of State has noted the reasons for the decision are expressed as a series of scenarios and in conditional terms. I agree with this criticism, and note that throughout the tribunal fails to make any reference to the Immigration (European Economic Area) Regulations 2006. These Regulations have been in force since 30 April 2006, and therefore the tribunal's decision, relating to a claim made 24 July 2006, and a decision given 15 September 2006, needed to be explained in terms of those Regulations.

Before I turn to the fundamental reason why the claim could not succeed, I deal first with the argument that the claimant was a worker temporarily incapable of work through illness or accident. The tribunal itself recognised that ceasing work in this case was not because of illness or accident, but it thought that advanced pregnancy might somehow be analogous. As the Commissioner recognised in CIS/3182/05, illness which occurs in pregnancy may satisfy this description, but pregnancy of itself is not an illness, and a parent who is caring for a child too young to look after itself cannot be said to be temporarily incapable of work as a result of the parent's illness. The Commissioner rejected an argument that the fact that a parent has to care for her child after its birth meant that the claimant herself was temporarily incapable of work. The temporary incapacity for work in such a situation had to be that of the worker, not of the worker's dependant.

Nor can the claimant succeed on the argument that she has a right of residence because her 14 year old child was in school. It has not, in fact, been established that her child was in school at the relevant time, as the child arrived in the UK only very shortly before the claim to income support was made, and right at the end of the school year. However, even if the child was in school (which she could have been by the date of the decision under appeal), Baumbast and R v. Secretary of State for the Home Department (Case – 413/99) [2002] ECR I-7091 does not assist the claimant. The two families involved in Baumbast and R were each self-sufficient and had rights of residence under different provisions of European Law. That alone is a factual difference of some significance, and both parties in Baumbast and R had been resident in the United Kingdom for five years or more. Further, as the Commissioner says in CIS/1121/2007 (paragraph 8):

….. Baumbast and R was decided at a time when the Advocate General was able to say that community legislation had not kept pace with social and economic developments. Since the decision was made, the Council has adopted Directive 2004/38/EC, which came into force on 30 April 2006 … that Directive addresses the issues raised by the facts of Baumbast and R but it does not assist people in the position of the present claimant and his family. It is clear that that is deliberate. The Directive provides that a person may acquire a right of permanent residence which is not conditional on any member of the family continuing to exercise a community right to freedom of movement or being self-sufficient but only after a certain length of time, which varies according to the circumstances of the case … the claimant in the present case had not lived or worked in the United Kingdom for long enough to qualify for a right of permanent residence and the other provisions do not apply to his situation….

8. As the Secretary of State notes, while Article 12 of Directive 2004/38/EC makes provision for the situation where members of a worker's family are left in the host state when the EU citizen leaves that state, it does not make provision for a former worker who remains in the host state with the child of whom she is the primary carer. Accordingly, neither Directive 2004/38/EC or Baumbast assist this claimant.

I return to the main reason why the claimant's appeal cannot succeed, and why it should not have been allowed by the tribunal. The Immigration (European Economic Area) Regulations 2006 (the Regulations) govern the claimant's situation from 30 April 2006, the date the Regulations came into force. Regulation 5 defines "worker or self-employed person who has ceased activity". The claimant here cannot satisfy this provision. She is not a person of State pension age. She had not been a worker for at least 12 months prior to the termination of work, and had not resided in the United Kingdom continuously for more than three years prior to the termination. I then move on to consider the definition of a "qualified person" for the purpose of regulation 6(1). This provides that "a qualified person" means a person who is an EEA national and in the United Kingdom as either a jobseeker, a worker, a self-employed person or a self-sufficient person. Regulation 6(2) provides that a person who is no longer working shall not cease to be treated as a worker for the purpose of the above provision if he or she is temporarily unable to work as the result of an illness or accident, or is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office. As can be seen from paragraph 6 above, the claimant here could not be described as 'temporarily unable to work through illness or accident'. She was not in duly recorded involuntary unemployment. This is fatal to her appeal.

9. For the reasons set out above the claimant's appeal must fail. The provision of social assistance to a person who is not a worker, or in any other way a qualified person in terms of the Regulations, is primarily the responsibility of the Member State of which the claimant is a national. The freedom of movement of workers created by Article 39 of the EC Treaty applies to workers and members of their family who have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence. The claimant, as a non economically active EU citizen who was not self sufficient, was lawfully refused social assistance.

(Signed on the Original) Mrs A Ramsay

Deputy Commissioner

Date 23 January 2008