UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CJSA_968_2008 (03 July 2008)

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

I SET ASIDE the decision of the Lincoln appeal tribunal, held on 4 December 2007 under reference 040/07/00948, because it is erroneous in point of law.

I make findings of fact and give the decision appropriate in the light of them.

I FIND as fact the matters set out in paragraphs 17 and 18.

My DECISION is that, on his claim made on 19 January 2007 and refused on 12 April 2007, the claimant was not entitled to a jobseeker's allowance, because he was a person from abroad whose applicable amount was nil.

REASONS

Jobseeker's allowance

2. The claimant is Polish. He claimed a jobseeker's allowance on 19 January 2007.
3. Jobseeker's allowance was established by the Jobseekers Act 1995.
4. Section 3(1) allows for entitlement to an income-based jobseeker's allowance if the claimant:

'(a) has an income which does not exceed the applicable amount (determined in accordance with regulations under section 4) or has no income'.

5. Section 4 provides:

'(5) The applicable amount shall be such amount or the aggregate of such amounts as may be determined in accordance with regulations.

…

'(12) Regulations under subsection (5) may provide that, in prescribed cases, an applicable amount is to be nil.'

6. The Jobseeker's Allowance Regulations 1996 are made, in part, under that authority. Paragraph 14 of Schedule 5 to those Regulations prescribes that the applicable amount for a 'person from abroad' is nil. Whether the claimant was a 'person from abroad' depends on the application of the Accession (Immigration and Worker Registration) Regulations 2004.
7. The Secretary of State decided that the claimant was person from abroad. That meant that his applicable amount was nil and, accordingly, he did not satisfy section 3(1)(a).

The appeals

8. The claimant exercised his right of appeal. The tribunal allowed the appeal and directed the Secretary of State to calculate his entitlement to a jobseeker's allowance. A district chairman gave the Secretary of State leave to appeal to the Commissioner. The claimant has been represented before the Commissioner by his local CAB.

Accession State workers

9. The claimant is Polish. Poland acceded to the EU on 1 May 2004. Its accession, like 7 of the other 9 countries that acceded on that date, was subject to transitional arrangements within the Treaty of Accession. Those arrangements were analysed and explained by the Court of Appeal in R (D) v Secretary of State for Work and Pensions [2004] EWCA Civ 1468. In summary, they allow the United Kingdom to derogate from EC law in respect of a right to reside for workers.
10. The derogation is effected by the Accession (Immigration and Worker Registration) Regulations 2004. They impose requirements on anyone who is an 'accession State worker requiring registration'. However, those requirements only apply for a limited period. The duration of that period is set by regulation 2(4):

'(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 30th April 2004 shall cease to be an accession State worker requiring registration at the end of that period of 12 months.'

Regulation 2(8) allows for interruptions to that period of 12 months:

'(8) For the purpose of paragraph (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 in the United Kingdom 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.'

The first ground of appeal

11. The appeal tribunal found that the claimant had worked legally from 13 September 2004 to 19 August 2005 and from 30 August 2005 to at least 12 September 2005. On those findings, it decided that the claimant had worked for a period of 12 months with an interruption of no more than 30 days and, accordingly, was no longer an accession State worker requiring registration.
12. The Secretary of State applied for leave to appeal on the ground that the tribunal had misdirected itself on the interpretation of regulation 2(8). The representative argued that the period of interruption (a maximum of 30 days) could not count towards the 12 months. He argued that, in order to satisfy regulation 2(4) and (8), the claimant had to work for a total of 12 months, but there could be interspersed within those 12 months, provided they did not amount to more than 30 days. The CAB supported the tribunal's interpretation.
13. I record the Secretary of State's argument without deciding it, because it is unnecessary to deal with it in view of the other ground of appeal.

The second ground of appeal

14. This ground of appeal concerns the calculation of the time for which the claimant was legally working. This is defined by regulation 2(7)(b):

'(7) For the purpose of this regulation-

…

(b) a person working in the United Kingdom on or after 1st May 2004 is legally working during any period in which he is working in the United Kingdom for an authorised employer'.

15. Whether a person is working for an authorised employer is governed by regulation 7. This requires the person to register for particular work. In summary, the rules are as follows:

•    An employer is authorised for the first month of work: see regulation 7(3).

•    Thereafter the employer is authorised once a certificate has been issued: see regulation 7(2)(c).

•    However, if the person applied for a certificate within one month of starting work, the employer is treated as authorised until a certificate is issued: see regulation 7(2)(b).

16. I will now explain how those rules apply to the work undertaken by the claimant. In doing so, I rely on the contemporaneous documentary evidence that proves the relevant dates.
17. The claimant began work for employer A on 13 September 2004. A was an authorised employer for one month from that date. The claimant signed his application for a certificate on 5 November 2004. It was received on 11 November 2004 and the certificate was issued on 17 November 2004. As the application was made after the first month, A was only authorised from 17 November 2004. This authorisation continued until the work finished on 19 August 2005.
18. The claimant began work for employer B on 30 August 2005. B was an authorised employer for one month from that date. The claimant signed his application for a certificate on 17 October 2005. It was received on 1 November 2005 and the certificate was issued on 8 November 2005. As the application was made after the first month, B was only authorised from 8 November 2005. This authorisation continued until the work finished on 20 March 2006.
19. It follows that the claimant did not satisfy regulation 2(4) and (8) regardless of whether or not he must actually have worked for 12 months.

How the tribunal went wrong in law

20. I have left this to last and I say straightaway that I make no personal criticism of the chairman who heard the appeal. She investigated the issues as thoroughly as she could on the information before her and undertook a carefully reasoned analysis of the evidence. That led her to make findings of fact that, on evidence now produced by the Secretary of State, are indisputably wrong.
21. Her error arose from the fact that she had only the claimant's oral evidence and the certificates. She did not have the application forms or any details about their date of signing or receipt. My findings have been made on the basis of the relevant details taken from the forms and provided by the Secretary of State. It is unfortunate that the decision-maker or the officer who wrote the submission for the tribunal were not as assiduous in obtaining relevant evidence as the Secretary of State's representative before the Commissioner.
22. Despite the tribunal's error in its findings, I have no power to set the tribunal's decision aside unless there has been an error of law. The claimant's representative argues that the tribunal was entitled to make the finding it did on the evidence before it. That is correct. It would not, however, assist the claimant. The reason is that, if I were to dismiss the appeal, the Secretary of State has power to supersede the tribunal's decision for error of fact.
23. However, I have been able to identify an error of law in the tribunal's decision. The precise number of days for which the claimant had worked for authorised employers were the key findings that the tribunal had to make. It had the contemporaneous documentary evidence of the certificates and was right to find that they were not entirely reliable. That left only the claimant's recollection. He was asked to recall, with the help of an interpreter, precise details of when he had taken particular steps two and three years before the hearing. Those details were not ones that would have been significant to him at the time. Given that fact, together with the time scale, it was inevitable that his evidence would not be reliable. However, there was documentary evidence available to the tribunal, using the good offices of the Secretary of State to obtain it, that would have allowed it to make, as I have done, precise findings. In those circumstances, the tribunal should have called for that evidence and not relied on the claimant's oral evidence.

Disposal

24. I set aside the tribunal's decision, make my own findings of fact and substitute the decision that the tribunal should have given.

Signed on original on 03 July 2008

Edward Jacobs Commissioner