Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 25 (AAC) (28 January 2009)

 


Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the Bexleyheath appeal tribunal (held on 15 June 2007 under reference 168/07/01497) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: on her claim for income support, made on 16 November 2006 and refused on 16 January 2007, the claimant was a person from abroad with an applicable amount of nil. She was, therefore, not entitled to income support.

Reasons for Decision

1. This case began as an appeal by the claimant to an appeal tribunal followed by an appeal by the Secretary of State to a Social Security Commissioner. The jurisdiction of the appeal tribunal and the Commissioner has now been transferred to the First-tier Tribunal and the Upper Tribunal respectively under the Transfer of Tribunal Functions Order 2008 (SI No 2833). This has not affected the outcome.

A. History and background

2. The claimant is Somali in origin and Dutch by nationality; she came to the United Kingdom on 15 July 2005. She worked at a Somali Development Centre from 1 April 2006 to 31 October 2006, when her employer told her that her job had ended. The Secretary of State has not argued that this was other than genuine and effective work. I therefore proceed on the basis that the claimant became a worker in EC law.
3. The claimant claimed income support on 16 November 2006, but this was refused on 16 January 2007 on the ground that, as she was a person from abroad, her applicable amount was nil. The claimant's children joined her and entered education on 17 January 2007.
4. The claimant exercised her right of appeal to an appeal tribunal and succeeded. The tribunal decided that she could retain her status as a worker notwithstanding that she had claimed income support rather than jobseeker's allowance. It also decided that, as she was the primary carer of her children who were in education, 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.

B. The appeal to the Commissioner

5. The Secretary of State obtained leave to appeal on two grounds. One ground was that the claimant was no longer a worker when her children entered education in this country. Accordingly, Baumbast did not apply. The other ground was that the appeal tribunal had applied the Immigration (European Economic Area) Regulations 2000 instead of the Immigration (European Economic Area) Regulations 2006.

C. Oral hearing

6. I directed an oral hearing of the appeal. It was held on 25 September 2008. The Secretary of State was represented by Ms Carine Patry-Hoskins, of counsel. The claimant was too unwell to attend, but was represented by Mr James Medhurst of the Free Representation Unit. I am grateful to them for their arguments at the hearing. I am also grateful to Mr Medhurst for his further written argument following the hearing.

D. The Baumbast ground

7. I can deal with this point very briefly, not least because before the hearing Mr Medhurst had conceded that that case did not apply.
8. The tribunal was wrong in law to apply Baumbast. The claimant's children did not enter education until after the Secretary of State had refused the claim for income support. It was a change of circumstances after the date of the decision and the tribunal was precluded from taking it into account by virtue of section 12(8)(b) of the Social Security Act 1998:

'In deciding an appeal under this section, an appeal tribunal-

…

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.'

E. The workseeker ground

9. As this developed, the issue became whether participation in a work-focused interview was or involved registration sufficient to satisfy Article 7(3)(b) and (c) of Directive 2004/38/EC and regulation 6(2)(b) of the Immigration (European Economic Area) Regulations 2006.

F. The arguments at the hearing

The argument for the Secretary of State

10. The Secretary of State's written argument had criticised the appeal tribunal for applying the Immigration (European Economic Area) Regulations 2000 instead of the Immigration (European Economic Area) Regulations 2006. I told Ms Patry-Hoskins that I was not persuaded of that. The tribunal had nowhere said that it was applying the 2000 Regulations. It may have referred to authorities relevant to those Regulations and wrongly applied them to the 2006 Regulations, but that was not the same thing. I suggested that the argument should focus on whether the tribunal had come to the right decision.
11. Ms Patry-Hoskins first argued that the tribunal had not considered whether the claimant had 'registered as a job-seeker with the relevant employment office.' It had mentioned recording her involuntary employment, but had not dealt with the separate issue of registration.
12. Ms Patry-Hoskins second argued that the purpose of the work-focused interview was to elicit information from the claimant and then to offer information and advice on training and work possibilities. There was a sanction for failing to attend the interview and provide the required information. But there was no further sanction if the claimant took no action on the advice given. In particular, there was no obligation to seek work.
13. Ms Patry-Hoskins also argued that the appeal tribunal did not have enough information on which to find that the interview had involved registration as a jobseeker and that I should remit the case for rehearing in order for evidence to be considered. I was never entirely sure how this submission fitted with her second argument on the nature and purpose of the interview.

The argument for the claimant

14. Mr Medhurst argued that the Directive required that a State provide a means by which a person could register as a jobseeker. A jobseeker meant someone who was looking for work and that must mean work as defined by the European Court of Justice. That work could include part-time work. Claiming jobseeker's allowance was not possible for the claimant in this case because she not able to seek work for 40 hours a week. I should interpret the interview as compliance with the Directive as that was the only way in which a breach could be avoided.
15. Mr Medhurst also argued that the tribunal had made relevant findings of fact on the issue of registration. Despite my pressing him, I was unable to find the relevant findings in the tribunal's decision notice or in the full statement of the tribunal's decision. Nor could I find any evidence on which they could have been based.

G. Directions following the hearing

16. The issue turns on the effect of a work-focused interview for a claimant for income support. Those interviews are governed by the Social Security (Jobcentre Plus Interviews) Regulations 2002 (SI No 1703). Regulation 11(2)(b) provides for information that the claimant must provide in order for the interview to have taken place and to avoid the claimant being barred from entitlement. However, Ms Patry-Hoskins accepted that the purpose of the interview was not simply to obtain information from a claimant. It was also to impart information and advice. The Regulations are silent on this aspect of the interview. I, therefore, told the parties that I wanted the Secretary of State to produce information about the nature of the interviews, specifically:

•    any information relating to the form and contents of the interview. This might include instructions to the claimant on what to expect and what documents to bring to the interview, as well as any instructions given to the staff who conduct these interviews;

•    any records that are kept of the interview. Ideally, this should include, or consist of, the record kept in the case of the claimant's interview at Woolwich Arsenal Jobcentre on 28 November 2006 at 2.30.

H. Response to the Directions

17. The Secretary of State response was provided by Mr Andrew Jones and I am grateful to him for his detailed explanation of the process of a work-focused interview. He emphasised that the purpose of the interview was twofold: (i) to identify and remove any barriers to work for lone parents; and (ii) to support and encourage those who may wish to work but who are not yet ready to do so. This supported Ms Patry-Hoskins' argument that the interview was to gather information and to provide information and advice. Mr Jones contrasted this with the procedure for obtaining a jobseeker's allowance with its sanctions and 'intensive job-matching and skills assessment regime.'
18. Mr Jones has also provided the record of the claimant's actual interview on 9 May 2008. At that interview, her English was identified as a barrier to work and she was advised to attend an English language course.
19. Mr Medhurst made written arguments in reply. In summary: (i) he repeated his arguments from the hearing; (ii) he referred to the tribunal's findings on the claimant's attempts to find work; and (iii) noted that the Secretary of State had not produced the record of the 2006 interview. As to (ii), I repeat that I cannot find them or the evidence on which they were based. As to (iii), this is correct, but it is unlikely that the claimant's position was different in 2006 from 2008.

I. Conclusion

20. The European Court of Justice recognised early on that a person may remain a worker even when out of work. It derived this conclusion from close analysis of the wording of the Treaty and other Community instruments. The earliest example I know is Hoekstra v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (Case 75/63) [1964] ECR 177. The Court referred to provisions of the Treaty and of Regulation No 3 before concluding (page 185):

'The Treaty and Regulation No 3 thus did not intend to restrict protection only to worker in employment but tend logically to protect also the worker who, having left his job, is capable of taking another.'

Now the language has changed to distinguish between a worker and some who, having been a worker, retains that status: see the wording of Article 7(3) of Directive 2004/38. Neither the Court nor the democratic organs have ever defined precisely what a former worker must do in order to retain that status. The Directive merely provides in Article 7(3)(b) and (c) that a person must be in 'duly recorded unemployment' and 'registered as a jobseeker with the relevant employment office'. This language is repeated in regulation 6(2)(b) of the Immigration (European Economic Area) Regulations 2006.

21. It is clear from the reasoning of the Court's case law that the key consideration is whether the person remain in contact with the labour market: see the analysis by Mr Commissioner Mesher in R(IS) 12/98. It is not sufficient to be able to work or to register as available. There must be a desire to work and an effort to find work. Only in that way can claimants show that they retain a connection with the labour market sufficient to remain workers or to retain worker status. Registering for work must be interpreted accordingly.
22. Work in the Court's case law includes part-time, short-term, low paid work for a few hours: see Levin v Staatssecretaris van Justitie (Case 53/81) [1982] ECR 1035 and Kempf v Staatssecretaris van Justitie (Case 139/85) [1986] ECR 1741. That sort of work is more likely to be found informally than through a State-organised register. If the Directive requires that a register for this work be established, it would be a new feature in this country and probably in all the Member States. If the Directive does establish that requirement, it does so implicitly without referring to it in the Preamble and without any substantive article making any provision for it. This is in contrast to the detailed provisions on other administrative matters.
23. Moreover, registration for employment is likely to be linked to entitlement to a benefit. It would be a departure for the EC to interfere in the content of social assistance provision. Again, if that is what the Directive provides, it does so only implicitly without any reference in the Preamble or any substantive article.
24. My conclusion is that the requirement for registration is not a European concept with an autonomous meaning. What it requires is that the Union citizen register in accordance with the particular arrangements in the host State.
25. This does mean that employment necessary to make a person a worker is different from the employment that must be sought in order to retain that status. However, I do not find that necessarily inconsistent. 'Work' for the former purpose can be defined in terms that are independent of a particular State. However, it is not possible to retain contact with a labour market in so broad and abstract a sense. It is only possible to maintain contact with a particular market. And that, for the reasons I have given, must depend on the mechanism provided in a particular State.
26. It follows that I reject Mr Medhurst's attempt to align the employment for which the claimant must be registered with the EC meaning of 'work', which can include part-time work and work for earnings that are below subsistence level.
27. I am satisfied by the material produced by the Secretary of State that the work-focused interview does not provide an opportunity for claimants to register for work. Its purpose is to facilitate the exchange of information and, no doubt, to provide an opportunity for claimants to realise that they employment may be an option. The information provided may include details of particular vacancies and registration may or may not follow after the interview. But the interview is not itself registration nor does it involve registration. It is at best a preliminary stage.

J. Disposal

28. I allow the Secretary of State's appeal and restore the decision refusing the claim for income support.

Signed on original on 28 January 2009

Edward Jacobs Upper Tribunal Judge