Upper Tribunal (Administrative Appeals Chamber)

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Cite as: [2009] UKUT 75 (AAC)

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[2009] UKUT 75 (AAC)(08 April 2009)
European Union law
Council regulation 1408/71/EEC

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before: Douglas J May QC

Attendances:

For the Appellant: Mr Clark, Inverclyde Council

For the Respondent: Mr Brodie, Advocate instructed by Miss McCurry, Solicitor of the Office of the Solicitor to the Advocate General

The appeal is allowed.

The decision of the tribunal given at Greenock on 3 July 2008 is set aside.

The Judge of the Upper Tribunal remakes the decision of the Tribunal in light of the findings in fact set out in the Reasons.

The claimant is not entitled to contributions based Jobseekers Allowance in respect of his claim made on 5 October 2006.

REASONS FOR DECISION

The claimant in this case is an Italian National, who was born in Italy and resided there. It was not disputed that his employment in Italy terminated on 18 September 2006. He was paid three months wages in lieu of notice. He came to the United Kingdom on 20 September 2006 and made a claim for Jobseeker's Allowance on 5 October 2006. Mr Clark submitted that he had made Social Security contributions in Italy under the insurance scheme in operation in that country. A record of his contributions for the years 2005 and 2006 is recorded at pages 18 and 19 of the bundle. At the time of the claim, the claimant had made no contributions to the UK scheme. It was not in dispute that he came to the United Kingdom to reside with a woman with whom he had a relationship. Mr Clark told me that they married in 2008. I find the evidence and submissions set out above as facts for the purposes of this appeal

The claimant's claim for Jobseekers Allowance was unsuccessful as can be seen from the decision made on the claim from 6 July 2007. It is recorded at pages 66 and 67. The claimant appealed against that decision. His appeal was unsuccessful. The basis for the tribunal's decision on appeal is set out in their decision notice where they said:

"By virtue of the fact that the appellant's claim for Jobseekers Allowance was made during a period covered by payment in lieu of notice, he is not entitled to Jobseekers Allowance in respect of that claim."

Mr Clark submitted that the claimant was entitled to Jobseekers Allowance from 5 January 2007. His position was that whilst Jobseekers Allowance was not payable from the date of the claim, the claim should have been accepted as an advance claim under Regulation 13 of the Social Security (Claims and Payments) Regulations 1987. It was his submission that he was entitled to Jobseekers Allowance from 5 January 2007 by virtue of falling within the provisions of Article 71(1)(b)(ii) of Council Regulation (EEC) No. 1408/71. It was Mr Clark's submission that for the purposes of the Regulation the "Member State" was Italy and the "competent State" was the United Kingdom. It was his submission that the instant case was an all fours with the decision of the European Court of Justice in Case 236/87 Anna Bergemann v Bundesanstalt fur Arbeit [1988] ECR 5125. In that regard he made reference to the answers to the questions posed to the court, and which were relevant in his submission to this case. It was in the following terms:

"…

(2) Article 71(1)(b)(ii) of the aforesaid regulation is not applicable exclusively to the categories of workers referred in Decision No 94 of the Administrative Commission on Social Security for Migrant Workers;

(3) Article 71(1)(b)(ii) of that regulation is applicable to a worker who, in the course of his last employment, transfers his residence to another Member State for family reasons and who, after that transfer, no longer returns to the State of employment in order to pursue an occupation there."

Mr Brodie's submission was that the tribunal erred in law by virtue of approaching the case on the erroneous basis that as the claimant's claim for Jobseekers Allowance was made during a period covered by the payment in lieu of notice he was not entitled to Jobseekers Allowance. He referred me in that connection to the conditions for entitlement as set out in Section 1(2) and Schedule 1 of the Jobseekers Act 1995 and Regulations 51, 52, 53 and 98 of the Jobseekers Allowance Regulations 1996. It was Mr Brodie's submission that the claimant's employment terminated on 18 September 2006 and at that time he was resident in Italy. Mr Clark, whilst indicating that he did not accept the Secretary of State's submission that the claimant's employment was terminated at that date, did not offer a persuasive argument in response to that submission. I find myself in agreement with Mr Brodie's submission. I am satisfied that the tribunal erred in law for the reasons set out by Mr Brodie. I was not directed to any statutory provision by either Mr Brodie or Mr Clark, nor did the tribunal seek to set out any statutory basis which would demonstrate that a payment in lieu of notice affects the issue of entitlement to Jobseekers Allowance. In these circumstances I hold the tribunal's decision erroneous in law and I set it aside. I will deal with the claimant's grounds of appeal when considering how to dispose of the appeal.

In that regard, it was Mr Clark's submission that I could dispose of it by making a finding that the claimant was entitled to make an advanced claim for Jobseekers Allowance and that I should allow his appeal by awarding him contribution based Jobseekers Allowance from 5 January 2006.

Mr Brodie on the other hand submitted that the claimant's claim must fail upon the basis that he was, on the facts, unable to bring himself within the provisions for the receipt of benefit set out in Article 71 of regulation 1408/71. Mr Clark accepted in his submission he had to bring the claimant within the compass of them for the claimant's appeal to succeed.

Mr Brodie said that the provision for the receipt of benefit set out in Article 71(a)(i), (ii), (b)(i) and (ii) were dependent upon the claimant falling within the category of a person as set out at the commencement of the article.

The relevant parts of the article are as follows:

"1. An unemployed person who was formerly employed and who, during his last employment was residing in the territory of a Member State other than the competent State shall receive benefits in accordance with the following provisions:

(a) …

(b) (i) An employed person, other than a frontier worker, who is partially, intermittently or wholly unemployed and who remains available to his employer or to the employment services in the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State as though he were residing in its territory; these benefits shall be provided by the competent institution.

(ii) An employed person, other than a frontier worker, who is wholly unemployed and who makes himself available for work to the employment services in the territory of the Member State in which he resides, or who returns to that territory, shall receive benefits in accordance with the legislation of that State as if he had last been employed there; the institution of the place of residence shall provide such benefits at its own expense. However, if such an employed person has become entitled to benefits at the expense of the competent institution of the Member State to whose legislation he was last subject, he shall receive benefits under the provisions of Article 69. Receipt of benefits under the legislation of the State in which he resides shall be suspended for any period during which the unemployed person may, under the provisions of Article 69, make a claim for benefits under the legislation to which he was last subject."

For the purposes of applying the facts of the case to the article, it is necessary to read it in the context of the definitions set out in Article 1. The relevant definitions are as follows:

"(l) competent authority means, in respect of each Member State, the Minister, Ministers or other equivalent authority responsible for social security schemes throughout or in any part of the territory of the State in question;

(n) institution means, in respect of each Member State, the body or authority responsible for administering all or part of the legislation;

(o) competent institution means:

(i) the institution with which the person concerned is insured at the time of the application for benefit; or

(ii) the institution from which the person concerned is entitled or would be entitled to benefits if he or a member or members of his family were resident in the territory of the Member State in which the institution is situated; or

(iii) the institution designated by the competent authority of the member State concerned; or

(iv) in the case of a scheme relating to an employer's liability in respect of the benefits set out in Article 4(1), either the employer or the insurer involved or, in default thereof, a body or authority designated by the competent authority of the Member State concerned;

(p) competent State means the Member State in whose territory the competent institution is situated;"

It was Mr Brodie's submission that, by applying the definition article of the regulations to the facts of this case, "the competent State" was Italy. The definition "competent State" means the Member State on whose territory the "competent institution" is situated. During his last employment the claimant was living in Italy and not in the territory of another Member State. It was only after his employment terminated that the claimant moved to the United Kingdom. In these circumstances, Mr Brodie submitted, the claimant did not come within the scope of the essential pre-requisite upon which the article proceeds. I consider that this submission is correct.

Article 71 proceeds upon the basis that during the claimant's last employment, the claimant was living in the territory of a member state other than the competent state. On the facts of this case, the claimant's last employment was in Italy. He resided in Italy during the subsistence of that employment and it had terminated, as a matter of both fact and law, whilst he was resident in Italy. His insurance contributions were made in Italy under the scheme operating in that country. It is clear to me that "the competent state", in accordance with the definitions in Article 1, including Article 1(o)(i), which is directly applicable to the claimant, is Italy. Thus, as both "the competent state" and his place of residence during his last employment was Italy, Article 71 can have no application.

Mr Brodie indicated to me that Bergemann illustrated why he was correct to resist Mr Clark's submission. I consider that he is right in this. In paragraph 19 of that case, the Court said:

"19. To this end, Article 71(1)(b)(ii) provides that an employed person other than a frontier worker, who is wholly unemployed, who, in the course of his last employment, resided on the territory of a Member State other than the State of employment, and makes himself available to the employment services in the territory of the Member State in which he resides, or who returns to that territory, is to receive unemployment benefit in accordance with the legislation of that State as if he had last been employed there."

In Bergemann, the claimant was a Dutch National who in the course of her employment in the Netherlands, albeit on leave of absence, moved to Germany for the reasons set out by the Court in paragraph 21 of their decision. It can thus readily be seen why she fell within the arrangements specified Article 71. It also serves as an illustration as to why the claimant in this case falls outside. The claimant in this case did not, during the course of his last employment, transfer his residence to the UK. He did so after its termination. Thus, the instant case is not on all fours with Bergemann, as submitted by Mr Clark. The manner in which the Court answered the question put to it, which is set out in paragraph 3 above, makes the scope of the Article quite clear. Article 71(1)(b)(ii), when it applies, switches the obligation for payment of benefit to the country of residence, rather than the country of employment. Thus, it is apparent why the Article is framed in such a way that the obligation to pay benefit should not switch to the country of residence when that residence commenced after the termination of employment in another member state.

(signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 8 April 2009