UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CIS_865_2008 (04 July 2008)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(a)(i) of the Social Security Act 1998:

I SET ASIDE the decision of the Brighton appeal tribunal, held on 9 November 2007 under reference 177/07/01736, 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 22 March 2007 and refused on 12 June 2007, the claimant was not entitled to benefit as she was a person from abroad whose applicable amount was nil.

REASONS

Introduction

2. This is an appeal by the Secretary of State, brought with my leave.
3. The claimant has not understood the significance of this appeal being brought by the Secretary of State. She has sought to withdraw the case on the ground that she is now back in work. However, it is not her case to withdraw; it is the Secretary of State's and I have to decide it.
4. The Secretary of State's representative has criticised the tribunal's decision, but has never ruled out the possibility that the claimant may be able to show that she has a right to reside. The representative set out the evidence that the claimant needed to provide in order to show that she has a right to reside. That evidence is either within the claimant's knowledge or within her ability to obtain. She has provided some further evidence, but not the evidence required. She is adamant that she wants nothing further to do with the proceedings. In those circumstances, I have confined my decision to the issue raised by the Secretary of State. I have not remitted the case for rehearing, as I would otherwise have done, in view of the claimant's unwillingness to produce the evidence needed to prove her case.

Background

5. The claimant has Latvian nationality and came to the United Kingdom on 16 May 2005. She worked in a number of jobs before claiming income support when the birth of her child was due. The Secretary of State refused that claim on the ground that the claimant was a person from abroad. That meant that the applicable amount, used to work out her entitlement to income support, was nil. That in turn meant that she was not entitled to income support.

Income support legislation

6. 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.
7. 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.'

8. 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.'

9. 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.
10. '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;

(c) Article 6 of Council Directive No. 2004/38/EC; or

(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.'

11. 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.

Accession States

12. As Latvia was one of the States that acceded to the EU on 1 May 2004, the claimant is subject to the Accession (Immigration and Worker Registration) Regulations 2004. That provides that only work undertaken for an authorised employer for an uninterrupted period of 12 months can confer worker status. The claimant has produced some evidence of registration, but not sufficient details to show whether she satisfies the conditions to be a worker. As I have explained, there is no realistic prospect of the claimant providing that evidence.

The tribunal's decision

13. The claimant exercised her right of appeal to an appeal tribunal. The tribunal allowed her appeal. It decided that she had a right to reside and was actually habitually resident. The chairman explained his decision on the right to reside issue in a single paragraph:

'On 4 September 2006, [the claimant] was issued with residence permit no. … by the Home Office. That permit is valid indefinitely. It confirms [the claimant's] right to reside in the UK as a national of a member state of the EEC. That right continues unless and until the residence permit is revoked. As there is no evidence of revocation, [the claimant] had a right to reside in the UK both at the date of her claim for income support and at the date of the Secretary of State's decision to refuse that claim.'

14. The chairman refused leave saying: 'See the decision of the ECJ in Trojani.'

The Trojani case

15. The chairman was referring to the decision of the European Court of Justice in Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) (Case C-456/02), [2004] ECR I-7573. The issue for the Court was whether the claimant was entitled to a social assistance benefit. The claimant was French and had gone to Belgium where he had been housed in a Salvation Army hostel. He was given a residence permit by Belgium. The Court decided (paragraph 36) that the claimant did not have a right to reside under Article 18 of the EC Treaty, but (paragraphs 39-46) that he was entitled to entitled to the protection of Article 12 of the EC Treaty:

'Within the scope of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on the grounds of nationality shall be prohibited.'

As the claimant was a Frenchman with a right to reside in Belgium he had to be treated equally in matters within the scope of the Treaty with anyone else with a right to reside in Belgium.

16. The chairman was wrong to rely on Trojani. The claimant there had a right to reside in domestic law. In this case, the claimant had a residence permit. However, that permit does not confer a right to reside. It is merely evidence of a right: see my analysis in CPC/3588/2006. The evidence in this case does not, as I have said, show that the claimant had a right to reside in EC law and there is no evidence that she has been given a right to reside under domestic immigration law. In those circumstances, Trojani did not apply. The tribunal went wrong in law and I must set its decision aside.

Disposal

17. I allow the appeal and confirm the Secretary of State's decision to refuse the claim for income support.

Signed on original on 04 July 2008

Edward Jacobs Commissioner