Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case Nos. CIS/1998/2012

ADMINISTRATIVE APPEALS CHAMBER CH/2186/2013

 

 

BEFORE UPPER TRIBUNAL JUDGE WARD

 

 

Attendances:

 

For the Appellant claimant: Mr Adrian Berry, Counsel, acting pro bono, instructed by Ms Eleanor Sibley, the AIRE Centre

 

For the Secretary of State: Mr James Cornwell, Counsel, instructed by DWP Legal Services

 

The local authority First Respondent in the housing benefit/council tax benefit appeal did not attend and was not represented:  it had indicated that it was content to rely on the submissions to be made on behalf of the Secretary of State.

 

Decision:

 

1. The appeals are dismissed.

 

2. The claimant was not a worker or self‑employed for the purposes of Article 7(1)(a) of Directive 2004/38/EC by reason of having received carer’s allowance in respect of care provided to Ms G and the decisions of the First-tier Tribunal were not in error of law by failing to consider the point (which was not argued before it)

 

3. The tribunal did not make a material error of law in relation to whether the claimant was self-sufficient within Article 7(1)(b) of the Directive.

 

4. In view of [2] and [3] above, the assertion of a right of permanent residence under Article 16 of the Directive likewise fails.

 

REASONS FOR DECISION

 

1. The claimant is a Dutch national who arrived in the United Kingdom on 6 February 2005.  On 19 September 2005 he began caring for Ms G, the mother of his children.  She receives the middle rate of the care component of disability living allowance, which qualifies for carer’s allowance purposes.  On 23 July 2007 the claimant was awarded carer’s allowance with effect from 19 September 2005.  In the period 2006 to 2010 he undertook various short educational courses.  Save for the matters which are the subject of this appeal he had not on any view had any paid employment between his arrival in the United Kingdom and the dates of the relevant decisions on his benefit claims. 

 

2. On 2 December 2010 the claimant applied for housing benefit and council tax benefit.  On 3 December 2010 he claimed income support.  His claim for income support was, after some prevarication, allowed by a decision of 28 January 2011, but this was subsequently revised by a decision communicated by a letter dated 11 March 2011.  His housing benefit claim was initially refused by a decision dated 17 December 2010 but following the initial decision by the DWP, the local authority reversed its decision and then subsequently, following the change of heart on revision by the DWP, on 16 March 2011 changed it back again, writing to the claimant informing him that his housing benefit and council tax benefit were to be cancelled from 21 March 2011.  Thus, by a convoluted decision-making process all three claims for means‑tested benefits which the claimant had made were rejected on the grounds that he lacked the right to reside.  The statutory provisions principally relevant in that regard, which it is not necessary to set out, are regulation 21AA of the Income Support (General) Regulations 1987 No. 1967, regulation 10 of the Housing Benefit Regulations 2006 No. 213 and regulation 7 of the Council Tax Benefit Regulations 2006 No. 215.  On the facts of this case the claimant could only succeed in the face of those provisions if he could show that he was a “worker”, or self‑employed, or was self‑sufficient, or had acquired a right of permanent residence based on a five year period of residence when he fell within one or more of those categories.

 

3. It is to those matters which I now turn, the First‑tier Tribunal having rejected the claimant’s appeals, in relation to which it gave a combined statement of reasons.  The claimant appeals to the Upper Tribunal with my permission.  There is a short series of cases in the Upper Tribunal which raise similar arguments.  I stayed argument on the self‑sufficiency issue to await the decision in VP v Secretary of State for Work and Pensions (JSA) [2014] UKUT 0032 (AAC) which, for the reasons in [31] and [32] below, effectively determine that aspect against him, subject to any appeal in VP there may be.

 

4. Carer’s allowance was originally created by section 37 of the Social Security Act 1975.  It has undergone a number of significant changes.  Originally it excluded married or cohabiting women from entitlement, an exclusion held to be unlawfully discriminatory and subsequently removed.  It used to be the case that those over pensionable age were excluded.  Following a series of challenges that rule was first modified and then, from 1 April 2003, removed.  It is now the case that it is only those who are under the age of 16 who are disentitled on age grounds.  I mention these changes (and there are others) to illustrate that the conditions attaching to the benefit evolve, as they continue to do, for instance by now bringing it within the scope of the “benefits cap”.  With such changes in conditions of entitlement comes a risk that the intended purposes of the benefit may have subtly changed and therefore some caution is necessary in relying on earlier policy statements or the previous – or subsequent - state of the law.

 

5. However, in the period with which we are concerned, i.e. 2005 to 2010, the framework was relatively stable.  By section 70(1) of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”) (as in force at the material time):

“(1) A person shall be entitled to a carer's allowance for any day on which he is engaged in caring for a severely disabled person if—

(a) he is regularly and substantially engaged in caring for that person;

(b) he is not gainfully employed; and

(c) the severely disabled person is either such relative of his as may be prescribed or a person of any such other description as may be prescribed.”

 

The expression “severely disabled person” is defined in section 70(2) to include persons in respect of whom one of a number of specified disability benefits is payable, including for present purposes, the care component of disability living allowance at the highest or middle rate.  It is also necessary to note that under section 70(7) no person is entitled to more than one carer’s allowance i.e. even if they are providing care to the requisite extent in respect of two or more people.  Nor are two persons entitled for the same day to carer’s allowance in respect of the same person, i.e. even though they might both, separately, be providing care to the requisite extent.

 

6. Some of the concepts used in the section are fleshed out by the Social Security (Carers Allowance) Regulations 1976 No. 409.  Regulation 4(1) provides a definition for the purposes of section 70(1)(a) and reads as follows:

 

“(1) Subject to paragraph (1A) of this regulation, a person shall be treated as engaged and as regularly and substantially engaged in caring for a severely disabled person on every day in a week if, and shall not be treated as engaged or regularly and substantially engaged in caring for a severely disabled person on any day in a week unless, as at that week he is, or is likely to be, engaged and regularly engaged for at least 35 hours a week in caring for that severely disabled person.”

 

The condition in section 70(1)(b) of being not gainfully employed is dealt with in regulation 8 by imposing an earnings limit, which in 2013/14 stands at £100.00 per week and which, as it has been subject to annual increases, would have been a little less in each of the years with which we are concerned.  The condition in section 70(1)(c) is dealt with by regulation 6 which effectively removes the distinction contemplated by section 70(1)(c) between relatives of the severely disabled person and other persons. 

 

7. There are rules providing for a degree of respite for carers:  see 1976 Regulations, regulation 4(1A). 

 

8. What there is not, whether in the 1992 Act, the 1976 Regulations or in case law, is any definition of what “caring” for the purposes of section 70(1) means. 

 

9. Claiming carer’s allowance involves filling in a claim form which, in the case of the form currently in use, runs to 26 pages.  As regards care there is a question “Do you spend 35 hours or more each week caring for the person you look after?” with boxes to tick for no and yes. The form then goes on to ask about breaks in care in some detail.  It does not ask, at all, about what care is actually being provided.  The recipient of care is required, again through ticking the relevant box, to confirm – or otherwise – that the carer looks after him/her for at least 35 hours a week.  Internal DWP guidance (Volume 10, para 60040) indicates that:

 

 “the claimant’s statement that the required number of hours are spent in   caring should be accepted without further enquiry unless there is good reason to doubt it” (emphasis in original).

 

10. For the year 2013/14 carer’s allowance is paid at a weekly rate of £59.75.  It used to be possible to qualify for an increase in carer’s allowance for a spouse or civil partner or for someone who cares for a claimant’s child and that remains the case for those who were entitled before 6 April 2010.  I mention this not because it necessarily has any application in this case (the claimant and the mother of his children, though living in the same house, are said not to be a couple) but as indicating something of the nature of carer’s allowance in the period with which we need to be concerned.  While it is not inconceivable  - although possibly constrained by equalities legislation - that a person’s remuneration could be structured to reflect their personal circumstances, it is far from usual in the context of employment and  very odd in the context of payment for services. It is far more common in the context of a benefit or allowance paid by the State to those who meet qualifying conditions.

 

11. There is a complex potential interaction between carer’s allowance and the means‑tested benefits of the carer and person cared for, principally in that the carer’s receipt of carer’s allowance may have disadvantageous consequences for the benefit awarded to the person cared for as the result of consequential adjustment to the premiums taken into account.  It is also important to note, in relation to non-means‑tested benefits, the existence of the Social Security (Overlapping Benefits) Regulations 1979 No.597, which effectively prescribe a list of benefits of which it is not possible to receive more than one at a time and under which non‑contributory benefits, such as carer’s allowance, will take a lower priority for payment than contributory benefits.  The consequence is that a person who provides the caring to the necessary extent and who otherwise meets the conditions for carer’s allowance may not actually receive the allowance. 

 

12. Though much of the case law concerns freedom of movement for workers, I proceed on the basis that a similar approach must be applied to the claimant’s alternative claim based on being self-employed.  It is not disputed that the concept of worker has an autonomous EU meaning and must be interpreted broadly:  see case C66/85 Lawrie‑Blum v Land Baden‑Württemberg [1986] ECR I‑0212 at [16] referring in turn to Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035.  However, the concept is not without limits and in particular only covers those who “pursue or are desirous of pursuing an economic activity”: Levin at [17].  What is required is the application of “objective criteria which distinguish the employment relationship  by reference to the rights and duties of the persons concerned.”  As Judge Jacobs put it in JA v SSWP [2012] UKUT 122 (AAC):

 

“The focus is on the factual position, or the nature of the services, not on the legal relationship within which they are performed.”

 

13. In C-268/99 Jany v Staatssecretaris van Justitie association agreements between the European Community and neighbouring states conferred upon nationals of those states the right to take up and pursue economic activities as self‑employed persons but not to seek or take employment.  The applicants sought to rely on such a right in relation to their activities as prostitutes.  The Court of Justice held that: 

 

“  33. According to settled case law, the pursuit of an activity as an employed person or the provision of services for remuneration must be regarded as an economic activity within the meaning of Art.2 of the EEC Treaty (now, after amendments, Art.2 EC), provided that the work performed is genuine and effective and not such as to be regarded as purely marginal and ancillary.

 

34. Since the essential characteristic of an employment relationship within the meaning of Art.48 of the EEC Treaty (now, after amendments, Art.39 EC) is the fact that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration, any activity which a person performs outside a relationship of subordination must be classified as an activity pursued in a self‑employed capacity for the purposes of Art.52 of the Treaty.”

 

14. It follows that the question of subordination, which was critical in Jany because of the terms of the relevant association agreements, is not the primary issue in the present case.  Leaving aside for the moment the alternative argument of self-sufficiency, for the appeal to get home one way or the other, Mr Berry needs to demonstrate that the claimant was “a person perform[ing] services … in return for which he receives remuneration”.  If he can, then one could go on to consider (if anything were to turn on it) whether it was on an employed or self‑employed basis.  Mr Berry accepts that the “services” have to be performed for the person paying for them, albeit that service might consist of providing care to a third party.

 

15. If one looks at what is involved in qualifying for carer’s allowance and to what one is then entitled, I do not consider the words quoted above to be met.  While one can break down the quoted words into sub‑headings:  “Is a person performing the services?  If so do they receive remuneration in return?”, in reality the relevant considerations overlap and the question is close to being a composite one.  The Secretary of State does not ask a person to provide care in a particular case to a person who needs it.  The Secretary of State does not define the “caring” to be provided, whether in statute, delegated legislation or through administrative mechanism in the claiming process.  “Caring” is an elastic term which both takes its colour from its context and is open to subjective interpretation.  Although to be eligible for carer’s allowance the person being cared for must be in receipt of a qualifying benefit, there is no requirement that the carer attend to those needs which triggered the award of the qualifying benefit in the first place.  Nor is it in any event the case that every person in receipt of a qualifying benefit has needs which it would take 35 hours a week to attend to:  an example would be a person who receives middle‑rate care on the grounds in section 72(1)(c)(i) of the 1992 Act, that, at night, he “requires from another person prolonged or repeated attention in connection with his bodily functions”, as to the relatively limited requirements for which see eg Sweet and Maxwell’s Social Security Legislation 2013/14, vol1 at para 1.258, and also CDLA/4024/2003.  Thus it is not possible reliably to infer any requirement by the Secretary of State to do anything in particular by way of caring, nor, given the very “light touch” (in this respect) claim form is the claimant of carer’s allowance required to say what he actually does.  There is no control over where, when or how the caring is done nor (in the absence of any reason to doubt that it is being done), that it is being done at all, nor, if it is being done, of its quality or its utility to the person being cared for.  None of these is in my view consistent with the notion of a “service”. Nor in my view is the fact that under regulation 4(1) of the 1976 Regulations a person is entitled if “he is, or is likely to be, engaged and regularly engaged … in caring” (emphasis added).  While I take Mr Berry’s point that the practical likelihood of a person being able to rely on the “likely to be engaged” provision diminishes, the greater the extent to which it is sought to rely upon it, the fact that it exists at all is a further indicator that what it involved is not the provision of a service.  People who pay for a service do not do so on the basis that it is likely to be provided but that it is provided.

 

16. Nor do I see anything amounting to the provision of services in the other conditions of entitlement to carer’s allowance.  The earnings limit created by regulation 8 of the 1976 Regulations is, at best, a very blunt instrument if its purpose is to ensure that a person accepts a limitation on outside activity so as to retain maximum availability for caring.  Indeed, I do not consider that that is its purpose.  The limitation is expressed as a monetary sum which could be earned on the one hand in a short period of time by a person in well-paid work but which might not be reached even from a full week’s work by a person who is self‑employed, for instance in running a small shop (as to self-employment see section 3 and the definition of “employment” in section 122 of the 1992 Act).  While I accept that the provision may impose restrictions on individual claimants (someone on the national minimum wage for adults, for example, would only be able to work around 16 hours) the formulation of the limit in financial terms (breach of which, by even the smallest amount, leads to loss of the benefit for that week) is in my view more consistent with the notion that what is involved is a state benefit, providing, on conditions, additional financial support to those who most need it rather than with the provision of a service to the Secretary of State. 

 

17. Nor do I consider that what a carer receives can be regarded as remuneration received in return for what is done.  The mismatch between the amount of carer’s allowance (£59.75 per week in 2013/14), equating to £1.71 per hour if 35 hours of caring is done (and the number of hours could be greater than that) is such as to provide an indicator that the payment is not a remuneration for services.  (It is instructive to contrast the £1.71 hourly rate derived from the calculation above with the national minimum wage rate for adults, which from 1 October 2013 stands at £6.31 per hour.)  Further pointers can be derived from the fact that 35 hours of care must be provided in order to secure carer’s allowance.  34¾ hours would not, although it is fanciful to suggest that the advantage to the person cared for would be more than marginally less (and might equally be sufficient to fulfil the actual needs reflected in the award of the qualifying benefit).  The fact that 35 hours of caring can be provided to two or more people taken together but this does not count also points against the payment being for services rendered, as does the prohibition in section 70(7) of the 1992 Act from being entitled to more than one carer’s allowance for the same day, even though it is perfectly possible to provide sufficient care to meet the conditions in respect of two or even more people.  While I accept that, hypothetically, a person requiring services to be performed for them in return for payment could so formulate the services and terms of payment so as to say, for example, “I require 35 hours of care to be provided and will only pay you if you do that amount, with no payment for any lesser amount of care”, it would be an unusual stipulation and that possibility does not in my view detract from the more natural inference to be drawn from the aspects of carer’s allowance under discussion.

 

18. A further point indicating that carer’s allowance is not in the nature of remuneration for services rendered is to be found in the provisions made by the Social Security (Overlapping Benefits) Regulations 1979, in particular regulations 4(1) and 4(5), the effects of which are summarised at [11] above.  It seems to me to be wholly inconsistent with the notion of “remuneration” for the right to payment of it to be defeated by the mere fact of receipt of one of a stipulated number of other state benefits, to which entitlement might arise for wholly unconnected reasons.

 

19. As my view therefore, looking at the factual position and the nature of what is being done, is that the person providing care does not perform services in return for which he receives remuneration, that is sufficient to defeat the claimant’s claim, whether it is put on the basis of having been a worker or having been self‑employed. 

 

20. I have taken into account the authorities to which Mr Berry referred me, but find them not to support his case to any significant degree. 

 

21. C – 1/97 Birden v Stadtgemeinde Bremen concerned the rights of a Turkish national under the EC – Turkey Association Council, but the relevant questions as to whether he was a “worker” were the same.  Mr Birden had been unemployed and in receipt of social assistance but was then engaged as a semi‑skilled odd job man with a local cultural centre under a contract funded by the City of Bremen under a programme aimed at helping recipients of social assistance to enter the labour market.  Mr Birden had a contract of employment for a fixed term, subsequently extended, under which he was paid at a rate determined in accordance with the relevant public sector collective pay agreement, rather than under the alternative basis available under German law of maintenance assistance plus expenses.  The typical deductions from an employee’s pay were made.  Put shortly, the normal incidents of employment were patently present and, in the light of Community authorities, but for certain special features, there would have been no question but that he was a “worker”.  The debate in the case focused on those special features and as the Court held:

 

“  26. A Turkish national such as Mr Birden, who was employed on the basis of a law such as the [German Federal Law on social assistance], performs, as a subordinate, services for his employer in return for which he receives remuneration, thus satisfying the essential criteria of the employment relationship. 

 

27. Since Mr Birden worked 38.5 hours per week and received net pay of 2,155.70 DM per month, in keeping, moreover, with the collective agreement applicable to workers in the Member State concerned, it cannot be argued that he pursued an activity which was purely marginal and ancillary.

 

28. That interpretation is not altered by the fact that the remuneration of the person concerned is provided using public funds since, by analogy with the case law relating to Article 48 of the Treaty, neither the origin of the funds from which the remuneration is paid, nor the ‘sui generis’ nature of the employment relationship under national law and the level of productivity of the person concerned can have any consequence in regard to whether or not the person is to be regarded as a worker …”

 

22. In my view what the Court of Justice was saying here is:

 

(a) Where a person is otherwise a “worker”, that status is not affected by the fact that his employer is provided with the funds to pay him by the state. 

 

It does not follow that because the state provides funds in other contexts the status of “worker” (or indeed of being self‑employed) applies, if it otherwise would not. 

 

(b) The reference to the “sui generis” nature of the employment relationship is to the statutory power conferred by the relevant German legislation with a view to integrating a person into working life to engage them to perform ancillary public utility work either on “the usual remuneration” (as was done in Mr Birden’s case) or on the basis of maintenance assistance plus appropriate expenses.  Mr Birden’s contract may have been entered into in order to achieve a particular social good envisaged by the legislation which authorised it, but a relatively conventional contract of employment it remained.  Although, were it to be established that a person in receipt of a social security benefit satisfying the conditions attaching to that benefit was either a “worker” or self‑employed, that would undoubtedly be such a relationship “sui generis”, in my view Birden is authority for no more than saying that the somewhat unusual, non‑open market, context of Mr Birden’s contract of employment did not affect his status.  It does not require the fundamental boundaries of “worker” or self‑employed status to be extended. 

 

(c) The reference to the “level of productivity of the person concerned” presumably reflects that Mr Birden evidently needed some help to join the conventional labour market.  However, provided the work was essentially “under normal conditions” rather than consisting of “activities adapted to [the worker’s] physical and mental possibilities” (the former was the case here but – by way of comparison - not in the case of 344/87 Bettray, when the person concerned could not work normally by reason of his addiction to drugs) then “worker status” is maintained.  This in reality appears to add little to point (b) above.

 

23. Lawrie-Blum concerned a British national who wished to qualify as a teacher in Germany.  To do this she had to complete a period of preparatory service during which she might be called upon to give lessons for up to 11 hours a week, initially under supervision and subsequently on her own.  Candidates admitted to such preparatory service enjoyed the status of temporary civil servant under German law and received remuneration based on the starting salary of a duly appointed teacher.  The ECJ held:

 

“  17. [The concept of ‘worker’] must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned.  The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. 

 

18. In the present case, it is clear that during the entire period of preparatory service a trainee teacher is under the direction and supervision of the school to which he is assigned.  It is the school that determines the services to be performed by him and his working hours and it is the school’s instructions that he must carry out and its rules that he must observe. During a substantial part of the preparatory service he is required to give lessons to the school’s pupils and thus provides a service of some economic value to the school.  The amounts which he receives may be regarded as remuneration for the services provided and for the duties involved in completing the period of preparatory service.  Consequently, the three criteria for the existence of an employment relationship are fulfilled in this case.”

 

It mattered not (para 19) that the contract was similar to those of apprenticeship in providing practical preparation directly related to the actual pursuit of the occupation, nor (para 20) that education is not of an economic nature, as all that is required is that “the activity should be in the nature of the work performed for remuneration”.   The court held that a trainee teacher “provides a service of some economic value to the school” by giving lessons to the school’s pupils.  Nor did it matter that, as is the case in Germany, a trainee teacher’s status is governed by public rather than private law.

 

24. While it sufficed in Lawrie-Blum that the services performed were in connection with the activity which the school carried out,  that element is absent here.  The Secretary of State for Work and Pensions does not have responsibilities which extends to the provision of care and I accept Mr Cornwell’s submission that it would be wrong, not least in view of the multitude of public sector agencies involved in the delivery of care, to rely on the constitutional notion that there is only one Secretary of State and thus that the responsibilities of the Secretary of State who does have ultimate responsibility for the provision of adult social care (I believe the Secretary of State for Health) can in this context be attributed to the Secretary of State for Work and Pensions.  Not merely therefore is a person in receipt of carer’s allowance not providing services to the Secretary of State at all but the activities which they do carry out are not for the purposes of anything in respect of which the Secretary of State for Work and Pensions has any responsibility, other than the payment of appropriate benefits. 

 

25. Case 196/87 Steymann v Staatssecretaris van Justitie [1989] 1 CMLR 449 is the authority which is perhaps furthest from a conventional employment relationship and requires careful examination.  Mr Steymann, a German, settled in the Netherlands as a member of the Bhagwan community which, as the court found “supplies its material needs by means of commercial activities, which include running a discothèque, a bar and a launderette.” 

 

26. The Court went on to note (at [4]) that:

 

“Mr Steymann’s contribution to the life of the Bhagwan Community consists in the performance of plumbing work on the community’s premises and general household duties.  He also takes part in the community’s commercial activity.  The community provides for the material needs of its members in any event, irrespective of the nature and extent of their activities”. 

 

27. The Court went on to note:

 

 “11. As regards the activities in question in this case, it appears from the documents before the Court that they consist of work carried out within and on behalf of the Bhagwan Community in connection with the Bhagwan Community’s commercial activities.  It appears that such work plays a relatively important role in the way of life of the Bhagwan Community and that only in special circumstances can the members of the community avoid taking part therein.  In turn, the Bhagwan community provides for the material needs of its members, including pocket money, irrespective of the nature and the extent of the work which they do.

 

12.  In a case such as the one before the national court it is impossible to rule out a priori the possibility that work carried on by members of the community in question constitutes an economic activity within the meaning of Article 2 of the Treaty.  In so far as the work, which aims to ensure a measure of self‑sufficiency for the Bhagwan Community, constitutes an essential part of participation in that community, the services which the latter provides to its members may be regarded as being an indirect quid pro quo for their work.”

 

28. After reciting the need for work to be “genuine and effective” the Court concluded at [14]:

 

 “Accordingly, the answer given to the first question must be that Article 2 of the EEC Treaty must be interpreted as meaning that activities performed by members of a community based on religion or another form of philosophy as part of the commercial activities of that community constitute economic activities in so far as the services which the community provides to its members may be regarded as the indirect quid pro quo for genuine and effective work.”

 

Although, as paragraph 4 of the Court’s judgment acknowledged, Mr Steymann was involved both in, as it were, internal, or domestic, activities of the community and the community’s commercial activity, I conclude that it was Mr Steymann’s participation in the community’s commercial activities rather than the internal, domestic ones on which the Court relied.  This is evident both from what is said within paragraphs 11 and 14 of the Court’s judgment and also by comparison of paragraph 14 with the original answer proposed by Advocate General Darmon at paragraph 16 of his Opinion, which was more widely stated and made no reference to the commercial activities of the community, something which I infer therefore the Court decided deliberately to include.  Such a view is also consistent with Case 36/74 Walrave and Koch v Association Union Cycliste Internationale [1975] 1 CMLR 320.  The question was whether a particular practice in cycle racing was unlawfully discriminatory on the grounds of nationality.  The Court pointed out that:

 

“4. Having regard to the objectives of the Community, the practice of sport is subject to Community law only insofar as it constitutes an economic activity within the meaning of Article 2 of the Treaty.

 

5. When such activity has the character of gainful employment or remunerated service it comes more particularly within the scope, according to the case, of Articles 48 to 51 or 59 to 66 of the Treaty.”

 

This thus acknowledges that there are areas of human activity which fall outside the scope of EU law, such as, for example, participation in sport amounting neither to gainful employment or remunerated service.  There was thus a potential reason for the Court in Steymann to make the distinction which it appears to have done between the commercial activities of the Bhagwan Community and the remainder. To reach the conclusion it did, it sufficed to refer to the commercial activities.  It did not deal with the internal or domestic activities, or with the situation of those who “in special circumstances” did not work, but in not dealing with them, the Court provided no warrant for extending the field of activities subject to EU law beyond gainful employment or remunerated service to other fields of human activity. 

 

29. Rather as in Secretary of State for Work and Pensions v SY [2012] UKUT 233 (AAC) Judge Jacobs rejected the notion that fostering amounted to an economic activity, I similarly conclude that the provision of care to someone in receipt of a qualifying benefit for the sort of reasons mentioned above is likewise not an economic activity.  In my view, for the reasons I have given, Steymann provides no warrant for expanding the concept of economic activity for EU law purposes. 

 

30. In view of the conclusions I have reached, it is not necessary to dwell on whether there is sufficient “subordination” to make a carer a worker rather than self‑employed, as the question does not arise.  If I were to be wrong in any of the foregoing, I would conclude that there was no element of subordination.  I have noted above the lack of prescription by and control exercisable by the Secretary of State over the recipients of carer’s allowance. 

 

31. Turning to self sufficiency, the relevant grounds of appeal on self-sufficiency in the present case appear at pp543-544 of the bundle.  As regards sufficiency of resources, the grounds appear to suggest that the tribunal erred by taking into account reliance on carer’s allowance as constituting social assistance.  But even if that be so, the question is not to be determined by the mere question of whether there was any reliance on social assistance (more narrowly understood) during the relevant period: see [66]-[97] of VP, especially [84].  I note that no other point is being taken in relation to sufficiency of resources and see no reason not to apply VP. 

 

32. On comprehensive sickness insurance, the argument relies on access to NHS treatment.  Again, no other point is being taken. In VP at [98] –[105] I dismissed the argument that access to NHS treatment fulfilled the requirement and see no reason to do otherwise here.  I am aware that the point is shortly to be considered by the Court of Appeal in SA(Pakistan) v Secretary of State for the Home Department (case C5/2013/1651) but do not regard it on balance as necessary or desirable to await that decision.  The conditions for self-sufficiency are cumulative and even if the claimant were to be in with a chance of success on comprehensive sickness insurance, the lack of resources would still defeat his claim.

 

33. As the self-sufficiency ground had been stayed behind VP I invited submissions as to the appropriate course of action for me to adopt, bearing in mind that as regards carer’s allowance, the present case was the lead case on which the progress of a number of others depended, so that it was desirable that a decision be in the public domain without avoidable delay.  The Secretary of State invited me to adopt the course of action I have done.  Those advising the claimant wished to preserve the ability to benefit from any challenge there may be to the decision in VP but did not submit any objection to the course proposed, albeit they were not (because of difficulty in obtaining instructions from their client despite an extension of time for the purpose having been given) in a position to consent to it.

 

 

(Signed on the Original)

 

 

C G Ward

Judge of the Upper Tribunal

1 April 2014