UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CIS_3779_2007 (03 April 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

I SET ASIDE the decision of the Birmingham appeal tribunal, held on 4 July 2007 under reference 024/07/03192, because it is erroneous in point of law.

I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISION is that the claimant was not entitled to income support on her claim made on 3 October 2006 and decided on 4 January 2007. She was a person from abroad and her applicable amount was, therefore, nil.

REASONS

The issue in this case is whether the claimant was a 'person from abroad' as defined by regulation 21AA of the Income Support (General) Regulations 1987. It is governed by that regulation in conjunction with Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2006.

The history of the case

The claimant is Polish. She entered the United Kingdom on 15 April 2005 with her child in order to find work and settle. She obtained work in June 2005, but only registered under the Worker Registration Scheme for A8 nationals on 4 August 2005. She continued in employment until 29 September 2006. She then sought advice from the Jobcentre and was advised that income support would be better for her than jobseeker's allowance, as she would not have to sign on. She took that advice and claimed income support while continuing to look for work. The Secretary of State refused the claim on 4 January 2007, on the ground that the claimant was a person from abroad whose applicable amount was nil.

The claimant returned to the Jobcentre and this time claimed a jobseeker's allowance, which was awarded with effect from January 2007. This appeal therefore only concerns the period between October 2006 and January 2007.

The claimant exercised her right of appeal in respect of income support. The tribunal allowed the appeal on the ground that the claimant had registered as a jobseeker and, therefore, had a right to reside. A district chairman gave the Secretary of State leave to appeal against that decision. A legal officer directed the parties to comment on whether a jobseeker is entitled to income support as opposed to jobseeker's allowance. The claimant's representative has made observations on that issue. The Secretary of State has decided not to make any observations in response.

Person from abroad for income support

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.'

Applying regulation 21AA

This is a complex provision. It begins by defining a 'person from abroad'. Paragraph (1) does so negatively, as someone who is not habitually resident in the United Kingdom. Paragraph (2) then provides that, in order to be habitually resident, a person must have a right to reside. However, some bases of right to reside are not sufficient for the purposes of income support. They are excluded by paragraph (2) and specified in paragraph (3). Finally, paragraph (4) provides that those who come with various heads are not persons from abroad.

Logically, the starting point when applying regulation 21AA is paragraph (4). A claimant who comes within paragraph (4) is not a person from abroad and it is unnecessary to consider any issue of habitual residence or the right to reside. If the claimant does not come within paragraph (4), the next stage is to consider whether the person comes within paragraph (3). A person within that paragraph does not have a right to reside for the purposes of income support and it is unnecessary to consider any issue of habitual residence. In other cases, the claimant must have a right to reside and be habitually resident.

In applying paragraph (4), it is important to note that for the most part it refers to Directive 2004/38/EC and not the provisions of the Immigration (European Economic Area) Regulations 2006. In so far as the Regulations differ from the Directive, it is the latter that is relevant.

How should the tribunal have applied regulation 21AA?

Paragraph (4)

If the claimant was a worker for the purposes of Directive 2004/38/EC, she fell within regulation 21AA(4)(a). However, she was not in work and was not, therefore, a worker. The Directive distinguishes between workers and those who retain the status of worker. A comparison of Article 7(1) and (3) shows that. 'Worker' in the Directive must mean someone who is in work. The claimant was not in work when she claimed income support.

If the claimant retained the status of worker pursuant to Article 7(3), she fell within regulation 21AA(4)(c). The relevant provisions of Article 7(3) provide:

'(3) For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as a result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.'

There is no evidence that the claimant came within Article 7(3)(a) or (d). And she cannot come within Article 7(3)(b) or (c), because she had not 'registered as a job-seeker with the relevant employment office'. That may have been because she was wrongly advised, but the fact remains that she was not registered. It is irrelevant that she continued to seek work.

The claimant's representative has argued that (i) there is no definition of what is involved in registering as a jobseeker; (ii) there is no provision that a claim for jobseeker's allowance is essential; and (iii) the claimant had done sufficient.

I accept (i) and (ii), but not (iii). The claimant sought advice from the Jobcentre and was told that she could claim income support or a jobseeker's allowance. The latter involved registering as a jobseeker, while the former does not. She chose to claim the former after being told that this would not involve signing on. In those circumstances, the tribunal was not entitled to find that she had registered as a jobseeker.

Accordingly, the claimant did not come within regulation 21AA(4) and was only entitled to income support if she was habitually resident in the United Kingdom with a right to reside here. There is no doubt that she was habitually resident, but did she have a right to reside?

Paragraph (3)

The claimant might have a right to reside on the authority of the decision of the European Court of Justice in R v Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) [1991] ECR 1-745. The Court there decided that a person was entitled to move to another member State in order to look for employment. This right was derived directly from what is now Article 39 of the EC Treaty, which provides for freedom of movement of workers. The Court found support for its reasoning in Articles 1 and 5 of Regulation No 1612/68, which deals with freedom of movement for workers. The Court recognised a right to reside for those seeking work, provided that (paragraph 22) 'the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.' This is more generous to claimants than Article 7(3)(a) and (b) of the Directive, because it is not essential to be 'registered as a job-seeker with the relevant employment office'. Any evidence of seeking employment will do.

(This does not mean that a person who satisfies these conditions is a worker for all purposes. See the decision of the Court in Centre public d'aide sociale de Courcelles v Lebon (Case 316/85) [1987] ECR 2811, which held (paragraph 26) that persons seeking work were not workers for the purposes of Article 7(2) of the Regulation.)

However, the claimant cannot rely on Antonissen in order to claim income support, because it is excluded for that purpose by regulation 21AA(3)(d).

The claimant might also have a right to reside under regulation 14 of the 2006 Regulations. This provides:

'(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

Regulation 6 defines 'qualified person':

'(1) In these regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as-

(a) a jobseeker;

…

(4) For the purpose of paragraph (1)(a), "jobseeker" means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.'

That obviously enacts the decision in Antonissen. However, it is also excluded from the bases for a right to reside that are sufficient for the purposes of income support, this time under regulation 21AA(3)(b)(i).

Accordingly, the claimant had the right to reside as a jobseeker. However, she cannot rely on this in order to claim income support, because it is excluded by regulation 21AA(3)(b)(i) and (d). There is no equivalent to these exclusions in the jobseeker's allowance legislation. It follows that the proper course in the claimant's circumstances was to claim a jobseeker's allowance and not income support.

Paragraph (2)

The evidence does not disclose any other basis for a right to reside. Accordingly, the claimant was a person from abroad.

Conclusion

Given the time and circumstances of her presence in the United Kingdom, she was clearly habitually resident here. She had a right to reside, but only as someone seeking work without having registered at the relevant employment office. That is not sufficient for the

purpose of income support. The tribunal went wrong in law in deciding that the claimant was not a person from abroad for that purpose on the ground that she was a jobseeker and I have given the decision that it should have given.

Signed on original
on 03 April 2008

Edward Jacobs
Commissioner