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[2008] UKSSCSC CIS_4237_2007 (28 August 2008)

CIS/4237/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal. I set aside the decision of the Bristol appeal tribunal dated 26 July 2007 and I substitute my own decision: the claimant had a right of residence in the United Kingdom and was habitually resident in the United Kingdom from the date of her claim for income support on 17 November 2006. Other issues arising on her claim for income support must be determined by the Secretary of State.

REASONS

Regulation 2(1), (4) and (8) of the Accession (Immigration and Worker Registration) Regulations 2004 (S.I. 2004/1219) provides –

"(1) Subject to the following paragraphs of this regulation, "accession State worker requiring registration" means a national of a relevant accession State working in the United Kingdom during the accession period."

"(4) A national of a relevant accession State who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 30^th April 2004 shall cease to be an accession State worker requiring registration at the end of that period of 12 months."

"(8) For the purposes of paragraphs (3) and (4), a person shall be treated as having worked in the United Kingdom without interruption for a period of 12 months if he was legally working at the beginning and end of that period and any intervening periods in which he was not legally working in the United Kingdom do not, in total, exceed 30 days."

Poland is a relevant accession State. An accession State worker requiring registration has no right of residence in the United Kingdom as a worker under the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003), due to the United Kingdom's derogation from Article 39 of the EC Treaty and Articles 1 to 6 of Council Regulation (EEC) 1612/68 (see regulation 7 of the 2004 Regulations), permitted by the Treaty of Accession under which Poland joined the European Union. A person who does not have a right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland cannot be treated as habitually resident in any of those territories and so is a "person from abroad" with an applicable amount of nil and therefore no entitlement to income support (see section 124(1)(b) of the Social Security Contributions and Benefits Act 1992 and regulations 21 and 21AA of the Income Support (General) Regulations 1987 (S.I. 1987/1967, as amended).

The claimant is a Polish national who came to the United Kingdom on 30 October 2004. She quickly obtained work and was registered under the 2004 Regulations but there was a gap in her employment exceeding 30 days before she started new employment on 10 November 2005, in respect of which she was again registered. She discovered she was pregnant and she ceased work on 13 May 2006. Her child was born on 18 June 2006 and she was paid maternity pay until 18 November 2006. On 17 November 2006, she claimed income support as a single parent. Her claim was disallowed by the Secretary of State on 21 February 2007 on the ground that she had no relevant right of residence. On 2 March 2007, the claimant appealed, contending that she had a right of residence in the United Kingdom under the 2006 Regulations as a worker. She returned to work on 28 March 2007, her employer acknowledging that there had been continuity of employment. On 26 July 2007, the Bristol appeal tribunal dismissed her appeal against the Secretary of State's decision on the ground that she had not been "working" for the purposes of regulation 2(4) of the 2004 Regulations while she was on maternity leave and so remained an "accession State worker requiring registration" because she had not worked in authorised employment for 12 months without a break exceeding 30 days. The claimant now appeals against the tribunal's decision with the leave of a tribunal chairman.

This appeal raises a short point on the construction of the 2004 Regulations. The tribunal, whose reasoning is supported by the Secretary of State, said –

"The regulations use the expression 'legally working'; they do not refer to a person having the status of a worker."

However, the Secretary of State's representative, Mr David Scholefield, very properly draws my attention to the definition of "worker" in regulation 1(2)(k) of the 2004 Regulations, which provides –

""worker" means a worker within the meaning of Article 39 of the Treaty establishing the European Community and "work" and "working" shall be construed accordingly."

He seeks to avoid the obvious implication of that provision by submitting that "[a]n EEA national may be a worker in accordance with Article 39 of the Treaty whilst not actually working but these Regulations are a derogation from the Treaty and should be seen in this context".

The terms "work" and "working" are ambiguous: sometimes a person is to be regarded as "working" only when actually working and sometimes it is enough that he or she should have a subsisting contract of employment. The context usually determines the meaning, but in these Regulations one must have regard to regulation 1(2)(k). The difficulty with Mr Scholefield's argument, based on the derogation from the Treaty in regulation 7, is that the terms "work" and "working", having been given a specific meaning by regulation 1(2)(k), are used in regulation 2 when referring to an accession State worker requiring registration, who is the very person in respect of whom there is the derogation from the Treaty. In regulation 2, therefore, that term must plainly encompass whatever would be "working" in the case of a person falling within the scope of Article 39 of the Treaty. A person who is on maternity leave is still a "worker" for the purposes of Article 39 of the Treaty – the Secretary of State conceded as much in CIS/185/2008 – and it follows that such a person is to be regarded as "working" for the purposes of the 2004 Regulations. The tribunal expressed a concern that such a construction might be unduly favourable to women but, given the purpose of maternity leave and the qualifying conditions for additional maternity leave (at least under the legislation then in force), I do not agree. I am satisfied that the tribunal erred in law and that the claimant had been legally working in the United Kingdom without interruption for a period of 12 months and had therefore ceased to be an accession State worker requiring registration by the time of her claim for income support.

When issuing case management directions, the Legal Officer raised the question whether the claimant still had a right of residence as a worker when she claimed income support, or at any rate, when payment of maternity pay ceased a day or two later. However, on the undisputed facts of this case, the claimant would have qualified under the Maternity and Parental Leave Etc. Regulations 1999 (S.I. 1999/3312, as amended by S.I. 2002/2789) for additional maternity leave for 26 weeks after her ordinary maternity leave and her entitlement to maternity pay ended and so it is clear that she was on such leave during the period material to this claim, which is no doubt one reason why she was subsequently able to return to work and her employer accepted that she had continuity of employment. An EEA citizen who is on maternity leave is a worker with a right of residence but at the same time is not in remunerative work for income support purposes (see regulation 5(3A) of the 1987 Regulations) and therefore, if a single parent, is potentially entitled to income support.

The claimant's representative, Mr Andy King of Avon and Bristol Law Centre, has drawn attention to the fact that a registration certificate was issued to the claimant on 23 May 2007, presumably under regulation 16 of the 2006 Regulations. I accept that she would not have been entitled to such a certificate if she had still been an accession State worker requiring registration and so the fact that it was issued may suggest that the Secretary of State for the Home Department shares my view as to the construction of the 2004 Regulations. However, I have not relied upon the certificate because I do not know what material was before that Secretary of State when it was issued or what consideration was given by that Secretary of State to the issue raised on this appeal. I do not accept Mr King's submission that the certificate has any binding effect relevant to this case. Even if it amounted to a residence permit, which I doubt, it would not have retrospective effect.

(signed on the original) MARK ROWLAND

Commissioner

28 August 2008