UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CIS_3960_2007 (14 May 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 Manchester appeal tribunal, held on 3 August 2007 under reference 946/07/02007, 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, on her claim for income support made on 20 November 2006 and refused on 29 January 2007, the claimant was a person from abroad such that her applicable amount was nil, conferring no entitlement to payment of income support.

REASONS

The claimant's personal circumstances

The claimant is Polish. She arrived in the United Kingdom on 16 May 2004 with her son, who was born on 8 January 2003. She worked as a waitress from 18 May 2004. Her son has autism and special needs. He attended a nursery for two and half days a week and was looked after by a childminder for the rest of the time. However, the childminder found that she was no longer able to cope with his behaviour. That caused the claimant to give up work on 17 November 2006, in order to devote herself to his care and to a part-time NVQ course in Children, Learning, care and Development. The course began in mid-January 2007.

The claim for benefit

The claimant claimed income support on 20 November 2006 and, on 29 January 2007, the Secretary of State decided that the claimant was a person from abroad. As a result, her applicable amount was nil and she was not entitled to income support.

The appeal to the appeal tribunal

The claimant exercised her right of appeal with the assistance of an adviser from the Community Services team of her local authority. Her representative put three arguments to the appeal tribunal:

• First, the claimant had been a worker and had retained worker status by reason of embarking on vocational training. As she had given up work involuntarily as a result of pressure of circumstances, that training did not have to relate to her previous employment.

• Second, she had a right to reside under the decision of the European Court of Justice in Baumbast and R v Secretary of State for the Home Department Case C-413/99 [2002] ECR I-7091.

• Third, it would be disproportionate to hold that the claimant did not have a right to reside, as she had worked for about 18 months, was forced to give up work on account of her child's disability, intended to return to work when he attended full-time school, and had begun a vocational course to help her find work.

The tribunal rejected the first argument. It found that the claimant had not given up work involuntarily regardless of how powerful the reasons for doing so were. Consequently, the vocational course had to relate to her previous employment, which it did not.

The tribunal accepted the second argument. It found that the claimant's son had special needs and attended a nursery at a mainstream school. It noted that nurseries are often attached to infant schools and frequently have a programme of activities to help children develop skills they will need in mainstream school later.

Having allowed the appeal on this ground, the tribunal did not need to consider the third argument.

The appeal to the Commissioner

The Secretary of State obtained leave to appeal to a Commissioner from a district chairman. The claimant's representative has made observations on the appeal. In the circumstances, I do not consider that it is necessary to hear further from the Secretary of State.

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.

An assessment of the claimant's arguments

The first argument

This argument relies on regulation 21AA(4)(c), which in turn relies on Article 7(3)(d) of the Directive:

'(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:

…

(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.'

The tribunal was right to reject this argument, but it did so for the wrong reason. It relied on the normal meaning of 'involuntary'. However, it overlooked the case law that gives this word a particular meaning. In its normal meaning, what matters are the circumstances that cause a person to become unemployed. Under the case law, what matters is whether the claimant remains in contact with the labour market: see R(IS) 12/98. In this case, the claimant withdrew from the labour market in order to care for her son. In those circumstances, her employment was voluntary.

The second argument

This argument relies on regulation 21AA(2) and the Baumbast decision.

There are a number of issues that arise on the scope of that decision and its relevance under Directive 2004/38. They have been referred to the European Court of Justice by the Court of Appeal in London Borough of Harrow v Ibrahim [2008] EWCA Civ 386. None of the questions addresses the issue on which the tribunal went wrong in this case. That issue is whether the claimant's son entered education while she was a worker. Accordingly, I have not stayed this case to await the answers from the European Court.

The question asked of the European Court of Justice in Baumbast concerned a child who entered primary education. The Court's answer was framed in those terms. In this case, the claimant's son had not entered primary education while she was a worker. He had started at nursery. That nursery was attached to a mainstream school, but he was not entered into that school. He had not started education. In those circumstances, Baumbast does not apply.

I have considered whether, apart from the precise wording of the questions and answers in that case, the principle applied by the Court applies here. I consider that it does not. The Court was concerned to preserve the continuity of education that is the child's right under Article 12 of Regulation 1612/68. Disruption of education can be detrimental to a child's development and future career. However, the same is not true of nurseries. They may be attached to schools, but they often are not and the child has to be moved to enter primary education, with inevitable disturbance to the continuity that can be provided between nurseries and schools that are linked.

I note the tribunal's comment that a nursery can help a child to develop skills that will make the most of education. However, that merely emphasises that the child is not yet in education.

Accordingly, the tribunal was wrong to apply Baumbast in the circumstances of this case, even assuming that the case continues to apply under the Directive.

The third argument

This argument is based on proportionality. I do not consider that the argument put for the claimant shows that it would be disproportionate to apply EC law as it stands to the claimant's circumstances. The points made by her representative may show that the law operates harshly in her circumstances, which are not of her own making. They may make a case for sympathetic treatment. However, these considerations do not necessarily make it disproportionate to apply the law as it stands. The requirement of proportionality does not confer a general discretion to disregard EC legislation whenever it appears inappropriate in the circumstances of a particular case. It focuses on the purpose of the legislation and asks whether in the circumstances it would further those purposes to apply the legislation. One obvious purpose is to limit access to a State's social assistance budget and it is a legitimate approach to have general rules rather than allow free discretion that depends on the individual circumstances of every case. Moreover, the purposes identified must take account of the content of that legislation. In the case of Directive 2004/38, it is clear that more favourable treatment is given to those who are economically active and their families than to those who are not. Whatever the reasons and however compelling they were, the claimant was not economically active when she claimed income support. It is to be expected that the law will apply less favourably to her.

Disposal

I allow the appeal and give the decision that the tribunal should have given.

Signed on original
on 14 May 2008

Edward Jacobs
Commissioner