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[2008] UKSSCSC CIS_3032_2007 (19 February 2008)

CIS/3032/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the Claimant, brought with my permission, against a decision of an appeal tribunal sitting at Birmingham on 16 February 2007. For the reasons set out below I dismiss the appeal.

The Claimant is a man who was born on 5 March 1985 and who is therefore now aged 22. He is of Somali origin. He has been profoundly deaf since the age of 1. Further, according to the evidence of his mother (Mrs H) he suffered brain damage in a road traffic accident in 1996 which has left him mentally disabled. He has no speech. Mrs H's evidence to the Tribunal was that he will not be able to work.

In 1998 Mrs H left Somalia with her children (the Claimant, his two brothers and a sister) and sought asylum in Holland. The family were admitted to Holland as refugees and obtained Dutch nationality. According to Mrs H's evidence to the Tribunal she worked part time as a cleaner in Holland and was also on state benefits there.

On 27 June 2005 Mrs H and her four children came to England. The children were then aged between 10 and 20. On 15 July 2005 she made initial contact with the Benefits Agency with a view to claiming benefits for herself, and was advised to claim income support. A completed income support claim form in respect of Mrs H was received on 27 July 2005. The claim was presumably on the basis that she was a lone parent.

On 3 August 2005 initial contact was made by Mrs H with the relevant office about an income support claim by the Claimant.

On 17 August 2005 a decision was made refusing Mrs H's income support claim on the ground that she did not have a "right to reside" in the UK and therefore was a "person from abroad" with an applicable amount of nil. Mrs H appealed against that decision.

On 19 August 2005 a completed income support claim form in respect of the Claimant was received. The claim was on the ground of incapacity for work.

On 20 September 2005 a decision was made refusing the Claimant's claim for income support on the ground that he did not have a "right to reside" in the UK and therefore was also a "person from abroad" with an applicable amount of nil.

On 8 November 2005 the Claimant appealed against that decision, and the late appeal was accepted.

On 3 July 2006 an appeal tribunal dismissed the Claimant's appeal, after an oral hearing at which the Mrs H gave evidence. The Secretary of State's written submission to the Tribunal had submitted simply that as the Claimant himself was not a "qualified person" he did not have a right to reside in the UK. It had not mentioned the possibility that the Claimant might have a right to reside as a "family member of a qualified person" (i.e. his mother). That tribunal's Statement of Reasons was simply to the effect that the Claimant did not have a right to reside because he was not a qualified person.

On 10 July 2006 an appeal tribunal ("Mrs. H's Tribunal") allowed Mrs H's appeal. The Decision Notice reads as follows:

"Appeal is allowed.

The decision of the Secretary of State issued on 17 August 2005 is revised.

Appellant entitled to income support from 15 July 2005. At date of decision she was a worker and therefore a qualified person under Reg. 51 Immigration (European Economic Area) Regulations 2000. She has a right of residence in the United Kingdom under Regulation 14(1) 2000 Regulations."

The Statement of Reasons found as follows:

"Immediately after arrival in the UK Appellant started to look for a job. She initially obtained employment as cleaner in a General Practitioners surgery on 1 August 2005 and continued to work there until September 2005. She obtained a further job as a Qur'an teacher from 8 February 2006 until May 2006 at [ ] Community College."

The crux of that tribunal's reasoning was as follows:

"On 17 August 2005, which was the date of decision, Appellant was working as a cleaner at a local General Practitioners' surgery albeit on a part-time basis as per the letter from Dr. Cheema ….. dated 13 June 2006. She was therefore a "worker" as referred to in Regulation 5(1)(a) Immigration (European Economic Area) Regulations 2000 and therefore is a "qualified person".

On 28 September 2006 the chairman refused the Secretary of State's application for leave to appeal to a Commissioner against the decision by Mrs. H's Tribunal. That application was not renewed directly to a Commissioner.

On 4 October 2006 Birmingham CAB wrote to the Appeals Service requesting leave to appeal to a Commissioner against the tribunal's decision of 3 July 2006. On 9 October 2006 that decision was set aside by a legally qualified panel member as erroneous in law on the ground that the tribunal had not make findings on whether the Claimant was a family member of a "worker." The panel member gave directions as follows:

"(1) Please ask both parties for a submission. CAB are to produce an account of the parent on whom the claimant is said to be a dependant and evidence of that person's status as a worker for EU purposes……..

(2) DWP to have 21 days from receipt of the above to produce a response."

On 7 November 2006 Birmingham CAB made a written submission in response to that Direction. It stated, among other things: "[Mrs H] has further worked for various employers in the UK and again has submitted proof of this to the Tribunal." It enclosed a copy of the Decision Notice of Mrs H's Tribunal.

On 15 January 2007 the Secretary of State sent to the Tribunals Service a further written submission, in response to the Directions of 9 October 2006. It stated as follows:

"The representative argues that as the claimant's mother is a qualified person and the claimant is dependent on her, he benefits from that status. However, the decision in respect of her being a qualified person was made by a tribunal. The tribunal found that [Mrs H] having at the date of the decision before the tribunal worked for less than two weeks as a supposedly self-employed cleaner for six hours a week at an hourly rate below the minimum wage, had acquired "worker" status in the UK. The case law does not support a view that worker status can be acquired in 12 hours. The tribunal also had regard to work – much of it apparently unpaid – done after the date of the decision before the tribunal.

I submit that this tribunal should not follow the errors of the previous tribunal, and should conclude that because [Mrs H] does not have a right to reside in the UK, nor does the claimant."

That submission in fact repeated what had been submitted in an earlier written submission which had been received by the Tribunals Service on 21 December 2006.

The rehearing of the Claimant's income support appeal took place on 16 February 2007. The Claimant was present, as was Mrs. H. The Tribunal ("the Claimant's Tribunal") was of the view that Mrs. H spoke excellent English. She communicated with the Claimant at the hearing, in so far as necessary, by means of Dutch sign language.

The Record of Proceedings records the following evidence as having been given by Mrs. H about her work;

"When Mrs H entered UK worked as a cleaner in her GP's offices for 45 days, from Aug 2005 until 10 Sept – whole of August and first 10 days in Sept.

After that worked as a teacher part-time. Worked two hours a week.

Her work as a cleaner was also part-time, two hours per week.

Stopped working the 2 hours pw as a teacher in May 2006. Has not found any work since. Has 4 children between 21 and 11 yrs old.

When in the Netherlands worked PT as a cleaner. Was also on state benefits there."

The Claimant's Tribunal dismissed the appeal, holding that the Claimant did not have a right to reside in the UK. The essence of the Tribunal's reasoning is in paras. 11 and 12 of its Statement of Reasons. The Tribunal held that the Claimant could only have a right to reside if he was a family member of a "qualified person", and that the issue was therefore whether Mrs H was a qualified person. The Tribunal held that it was not bound by the decision of Mrs. H's Tribunal, and must decide that issue for itself. The Tribunal continued:

"It is not suggested that she could be a qualified person in any other way than by means of qualifying as a worker under EU law. I do not know how much information was available to the tribunal on 10 July 2006 or how closely it enquired into [Mrs H's] employment status. However, the evidence she gave me is that she worked as a cleaner in her GP's office for the whole of August 2005 and continued until 10 September in that year. This work was for 2 hours per week. After that work stopped she obtained part time work as a teacher and this also was for 2 hours a week. When this work ceased in May 2006 she had not found any work since. I enquired about her work in the Netherlands. She said she had worked there only part time and was dependent on state benefits.

The Commissioner considered in CH3314/2005 and CIS/3315/2005 whether a person seeking only part time work is a "worker" for the purpose of EU law. In this decision the Commissioner considers the link between the requirement that work should be genuine and effective and the need to be self sufficient. The Commissioner notes that the 2000 Regulations echo the language of directive 90/364/EEC where the definition of self-sufficient person in Regulation 3(1)(e) requires such a person to have sufficient resources to avoid his become (sic) a burden on the social assistance scheme of the UK. In [Mrs. H's] case I am unable to accept that work for only 2 hours a week was anything other than marginal."

The grounds for this appeal

The Claimant's grounds of appeal are now in effect set out in the submission in reply on behalf of the Claimant (pages 142-145), and can be summarised as follows:

(1) The Tribunal should not have reconsidered whether Mrs. H was a qualified person, but should have accepted the finding of Mrs. H's Tribunal that she was.

(2) If the Tribunal was right to reconsider Mrs. H's status, it should have adjourned the hearing because there was insufficient evidence before it as to Mrs. H's employment history to make a fully informed decision; this was at least in part because it had been assumed on behalf of Mrs. H that it was sufficient to show that it had already been decided by Mrs. H's Tribunal that she was a qualified person. Had it been appreciated that the Tribunal would reconsider Mrs. H's status, fuller details as to her employment history would have been provided. It is suggested that the Tribunal was "ignorant of material facts, mainly all the work [Mrs H] had done." It is said that Mrs. H's evidence to the Tribunal was either given incorrectly or was recorded incorrectly.

The legislation

By reg. 21(1) of and Schedule 7 to the Income Support (General) Regulations 1987 the applicable amount in respect of a "person from abroad" is nil. By reg. 21(3) a "person from abroad" means a claimant who is not habitually resident in the UK. By reg. 21(3G) no person shall be treated as habitually resident in the UK who does not have a "right to reside" in the UK. By reg. 14(1) of the Immigration (European Economic Area) Regulations 2000 ("the 2000 Regulations")(being the regulations in force at the material time) a "qualified person" is entitled to reside in the UK for as long as he remains a qualified person. By reg. 14(2) a family member of a qualified person is similarly entitled to reside in the UK.

As the Claimant was at all times material to the Tribunal's decision under the age of 21, he was a "family member" of Mrs. H: reg. 6(4)(b) of the 2000 Regulations. By Reg. 5(1) of the 2000 Regulations a "qualified person" included "(a) a worker"; "(b) a self-employed person and "(e) a self-sufficient person". By reg. 3(1) of the 2000 Regulations "worker" means "a worker within the meaning of Article 39 of the EC Treaty", and "self-employed person" means "a person who established himself in order to pursue activity as a self-employed person in accordance with Article 43 of the EC Treaty, or who seeks to do so." By reg. 3(1)(e) "self-sufficient person" means "a person who (i) has sufficient resources to avoid his becoming a burden on the social assistance system of the UK and (ii) is covered by sickness insurance in respect of all risks in the UK."

By s.17 of the Social Security Act 1998:

"(1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.

(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of –

(a) further such decisions;

(b) …………"

Analysis and conclusions

It is in my judgment implicit in s.17(2) of the 1998 Act that a finding of fact embodied in one decision (Decision A) is not conclusive for the purpose of a later decision (Decision B) unless regulations so provide. Commissioners have consistently so held: see, for example, CIS/1330/2002. By contrast, Decision A itself is final in the sense that it cannot be challenged or altered save on appeal, revision or supersession.

In the present case, for example, the decision by Mrs. H's Tribunal that she was entitled to income support was final, subject only to an appeal or to being altered by way of supersession (revision not being applicable to decisions of appeal tribunals). Thus, given that that decision was not appealed to a Commissioner by the Secretary of State, the latter was bound to pay income support to Mrs. H unless and until the decision was superseded for change of circumstances or mistake or ignorance of fact by the tribunal. The Secretary of State could not therefore subsequently refuse to pay income support to Mrs. H on the ground that she was not a "qualified person" unless the decision by Mrs. H's Tribunal were to be superseded on the ground that that tribunal was mistaken or ignorant as to a material fact, or (possibly) on the ground that she had ceased to be a "qualified person".

However, the decision by Mrs. H's Tribunal was in my judgment only final as regards the outcome decision by that Tribunal – i.e. that Mrs. H was entitled to income support. As regards a decision on the Claimant's claim to income support, the finding by Mrs H's Tribunal that she was a qualified person could not be "final" under s.17(1), and by s.17(2) it could not be conclusive unless regulations so provided. No regulations providing for findings to be conclusive in such a situation have been made. It in my judgment follows that the Claimant's Tribunal was right in the present case to take the view that it was entitled to reconsider whether Mrs. H was in fact a qualified person. (It would of course have been different if there had been a decision as to Mrs. H's immigration status by a person or body having power to make such decisions under the legislation governing immigration adjudication).

I turn therefore to the submission that the Claimant's Tribunal ought to have adjourned the hearing so that further details as to Mrs. H's employment history could be provided. That submission is in my judgment unsustainable, at any rate when put in that simple form. It was clear from the Secretary of State's written submission (see para. 14 above), and had been since 21 December 2006, that the Secretary of State was contending that the finding by Mrs. H's Tribunal that Mrs. H was a qualified person ought to be revisited by the Claimant's Tribunal. Mrs. H and her representative therefore had ample opportunity to place before the Claimant's Tribunal all the evidence which they wished as to Mrs. H's employment history. Further, on the face of it the Tribunal could expect Mrs. H to be familiar with, and therefore to be able to answer accurately questions as to what was on any view a fairly simple and recent history as to her employment position, and her oral evidence did indeed appear to be clear as to that history.

However, it is true that there was information before the Claimant's Tribunal which arguably gave some grounds for doubting whether Mrs. H's answers were accurate. Her oral evidence was that she had worked as a cleaner at her GP's offices from the beginning of August until 10 September 2005, for 2 hours a week, and then as a teacher for 2 hours a week until May 2006. She had not found any work between May 2006 and the hearing date in February 2007.

However, the Secretary of State's submission dated 15 January 2007 (see para. 14 above), which was clearly written with a knowledge of the documentation and evidence which had been before Mrs. H's Tribunal, referred to the work as a cleaner being for six hours a week. (That submission further stated that the work was at an hourly rate below minimum wage, but there was no information before the Claimant's Tribunal as to the amount which Mrs H had been paid for the cleaning work). The Statement of Reasons of Mrs. H's Tribunal (para. 11 above), which was before the Claimant's Tribunal, stated that the job as a Qu'ran teacher had started only in 8 February 2006, but the impression given by the oral evidence was that it started more or less as soon as the cleaning work finished. The Statement of Reasons of Mrs. H's Tribunal referred to a letter from Dr. Cheema dated 13 June 2006. Dr. Cheema was the Claimant's own GP (see p.32). That letter was not before the Claimant's Tribunal. It has been put in evidence in this appeal and stated as follows:

"I am writing to confirm that [Mrs H] was temporarily engaged as a cleaner in my surgery from 1 August 2005 to 10 September 2005. She worked 6 hours/week and was paid £25/week. She had undertaken this job as self employed and therefore tax or national insurance contributions were not deducted from her wage."

Further, the Secretary of State's submission of 15 January 2007 referred to "work – much of it apparently unpaid – done after the date of the decision before the tribunal."

Did those indications that Mrs. H's oral evidence to the Claimant's Tribunal might be an inaccurate or incomplete statement of her employment history mean that the Tribunal erred in law in not either questioning Mrs H further, or alternatively adjourning the hearing so that further information could be provided? A claimant who seeks to have an appeal tribunal's decision set aside as erroneous in law on the ground that further evidence should have been sought by the tribunal must (at any rate if that evidence is within his knowledge, or can easily be obtained by him) show what evidence would have been obtained had it been sought, and that it could have made a difference to the outcome. In my judgment that has not been shown in the present case.

The date of the decision under appeal to the Claimant's Tribunal was 20 September 2005. By that date Mrs. H had been in the country for nearly 3 months. She had claimed income support on 15 July 2005. She had worked from 1 August to 10 September 2005 for either 2 (her oral evidence) or 6 (the letter from Dr. Cheema) hours a week at a wage of (according to the letter) £25 per week. She then worked as a teacher for 2 hours a week, although that work may not have started until much later (February 2006). It is asserted in the representative's submission in reply in this appeal that "only two of [Mrs H's] jobs were recorded in the written notes of the Tribunal. She had by this time [i.e. February 2007] worked three jobs. The first was for 6 hours per week, the second for two hours and the third for 6 hours per week. Had the Tribunal had the proof of employment in front of it, it may have reached a different decision."

In order to qualify as a "worker" within the definition in reg. 3(1)(a) of the 2000 Regulations (i.e. "a worker within the meaning of Article 39 of the EC Treaty") the work must be "effective and genuine ….to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary": judgment in the Levin case, [1982] ECR 1035, para. 17. There has in my judgment been no concrete suggestion that Mrs. H could have produced evidence that her work, or work which she was genuinely seeking and had a realistic prospect of obtaining, satisfied that test. At most she worked for 6 hours a week and for an amount which on any view was well below the level which would render her self-sufficient. I follow the view of Mr. Commissioner Rowland in para. 26 of CH/3314/2005 that in this context work can be regarded as "effective" only if it makes the worker self-sufficient having regard to other resources the claimant may have or to the claimant's willingness to "make do" without recourse to social assistance. It will be different in a case where a claimant either had not claimed income support or (despite actually claiming income support) in fact satisfied the conditions for claiming jobseeker's allowance (see para. 7 of CJSA/1475/2006). But in the present case Mrs. H had claimed, and continued after commencement of her cleaning work to maintain her claim for, income support (thus indicating dependence on state benefits). Following the decision by Mrs. H's Tribunal income support was awarded from 15 July 2006 and was paid down to and beyond 20 September 2005 (see letter of 14 February 2007 from Birmingham & Solihull District Managers Office to Tyseley CAB, handed to the Claimant's Tribunal on the day of the hearing). Further, there is no evidence that Mrs. H was sufficiently available for work so as to satisfy the conditions of entitlement to jobseeker's allowance. It in my judgment made no difference if the Claimant's work as a cleaner was (as the GP asserted) on a self-employed basis, rather than as an employee. "Activity as a self-employed person" within the definition in reg. 3(1)(b) of the 2000 Regulations must in my judgment also be "effective and genuine."

Even without regard to the view of Mr. Commissioner Rowland in para. 26 of CH/3314/2005, it seems to me clear that Mrs H's work in the present case was on such a small scale as to be regarded as purely marginal and ancillary within the Levin test. There has, even now, been no concrete suggestion that she could have produced evidence that she worked at any time for more than 6 hours a week, or that she was looking for and had a realistic prospect of obtaining work which would bring her above the "marginal and ancillary" level.

In my judgment, therefore, there is no sufficient material before me to indicate that either further questioning of Mrs. H by the Tribunal or an adjournment could have led to any different outcome. I must therefore dismiss the appeal.

(signed on the original) Charles Turnbull

Commissioner

19 February 2008