IN THE UPPER TRIBUNAL                                 Case No  CH/3194/2014

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Attendances:             

For the Appellant:                            In person

For the First Respondent               Ms Suzanne Adroba, LB Islington

For the Second Respondent         Ms Joanne Clement, instructed by DWP                                                               solicitor

Interim Decision: 

1. The appeal is to proceed on the basis that between the ending of her employment with the M Hotel on 10 June 2012 and her claim for jobseeker’s allowance on 24 August 2012, the appellant retained worker status under Article 7(3) of Directive 2004/38/EC and/or reg 6(2) of the Immigration (European Economic Area) Regulations 2006.

2. Further steps in the appeal are stayed until after the Upper Tribunal shall have given its decision in the cases set for oral hearing on 19 March 2015 to explore the effects of the decision of the Court of Justice of the European Union in C-507/12 Saint-Prix, namely CIS/204/2013, CIS/1288/2012, CH/1312/2013 and CH/1440/2013, or until further order.

3. Though an interim decision, a copy is to be placed on this Chamber’s website.

REASONS FOR DECISION

1.From a practitioner’s point of view, this interim decision, while laying down no new proposition of law, may be of some interest in its examination of the requirement that, in order to retain worker status, a person is required (among other things) to have “registered with the relevant unemployment office” and that (per SSWP v MK (IS) [2013] UKUT 163) it must have been done without “undue delay”.

2. The appellant appealed, with my permission, against a decision of the First-tier-Tribunal (“the tribunal”) which had dismissed her appeal against a decision of the first respondent (“the council”) dated 12 June 2013 that she was not entitled to housing benefit (“HB”) and council tax benefit (“CTB”) from 7 December 2012 on the grounds that she lacked the right to reside.  The second respondent (“SSWP”) was joined as a party in the Upper Tribunal proceedings.

3. It was around 7 December 2012 (this is not to be understood as a finding) that the appellant ceased to claim jobseekers allowance (JSA) and began to receive maternity allowance.  It is her contention that in those circumstances the decision in C-507/12 Saint-Prix entitled her to retain worker status going forward from 7 December 2012 .  The logically prior question was whether she had retained worker status down to 7 December 2012 in any event.  The position of the council and SSWP prior to the oral hearing was that she had not and that accordingly the implications of the Saint-Prix judgment did not need to be considered.

4. Although there had been some initial confusion before the SSWP had access to full records, by the time of the oral hearing it was not in dispute that the appellant had left her employment at the M Hotel on 10 June 2012 and had claimed jobseekers allowance on 24 August 2012.  She had made a claim for it to be backdated, which was refused.  No sanction was applied to her claim.  The question accordingly, was whether she retained worker status between the above dates.

5. Regulation 6(2)(b) of the Immigration (European Economic Area) Regulations 2006/1003 provided at the relevant time that subject to an immaterial proviso:

            “(2) … a person who is no longer working shall not cease to be treated       as a worker for the purpose of paragraph (1)(b) if—…] ¹

             (b) he is in duly recorded involuntary unemployment after having been     employed in the United Kingdom, provided that he has registered as a             jobseeker with the relevant employment office and—

            (i) he was employed for one year or more before becoming    unemployed;

            (ii) he has been unemployed for no more than six months; or

            (iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged.”

6. In SSWP v Elmi [2011] EWCA Civ 1403 the Court of Appeal held that Directive 2004/38, which the above regulations implement, imposes two requirements, both being in duly recorded involuntary employment and registration as a job seeker.  Following MK, it was necessary to consider whether there had been undue delay in this case.

7. The appellant is a Greek national.  In Greece she had begun training as a nurse but had had to interrupt her studies when her father died.  She had however been able to secure a job as PA to one of the doctors who had taught in the school of nursing, for whom she worked for some five years.  She has impressive English and has been able to cope with both the written and oral aspects of an Upper Tribunal appeal on complex issues with some distinction.  She had come to the UK on 15 March 2011 and on 6 April 2011 commenced employment with the G Hotel as a receptionist.  She had found that job through online searching.  She resigned on 5 July 2011 as she was unhappy with the working conditions and obtained similar work with the M Hotel starting on 10 August 2011.  Again she had recourse to internet searching, but it appears from the tribunal’s statement of reasons that she became aware of the particular opening via a friend.  She had been promised a pay increase at the M Hotel but none was in the event forthcoming and she gave in her notice, ceasing work on 10 June 2012.  She again resorted to internet searches, looking for receptionist jobs in hotels and elsewhere and for waitressing jobs.  It is a feature of this case that, because she had made a claim for her JSA to be backdated, there is a form with near-contemporaneous evidence of contacts which the appellant had with various agencies, with specific dates, and of posts and companies in respect of which she made inquiry, with dates, during the period with which we are concerned.  There is also evidence that an officer of the DWP had considered that evidence at the time and had endorsed the case as “straightforward”, that is to say, that there was no reason to doubt the accuracy of what the appellant had put on the form.  She did not have any dealings with the jobcentre during the period prior to her claim.  She was able to manage during the period by a combination of her savings and the support of her then partner who had a room in the same house as she did and who was working.

8. It was her contention that there had not been undue delay.  She had been able to manage during the period in question and had good reason to suppose that she would readily find a job, as she had done before (with hindsight she attributes her unexpected difficulty on the occasion in question to businesses having staffed up for the Olympics which had occurred a short while before and thus needing to recruit fewer additional staff thereafter). The undue delay requirement should not be interpreted so as to dissuade people from standing on their own two feet.

9. Ms Clement sought a brief adjournment in which to obtain instructions.  On resuming, she was able to confirm that the SSWP did not continue to maintain that there had been undue delay in the circumstances of this case.

10. She prefaced her remarks by reiterating the SSWP’s view that registering with the jobcentre is not just a matter of claiming benefit but also provides an opportunity to broaden out a claimant’s job search.  Such would indeed be appear to me to be the logic of the additional requirement to have registered with the relevant unemployment office in order to retain worker status.

11. I suspect it may not be as widely understood by EU nationals as it might be that failing promptly to contact the jobcentre may not only have the expected logical consequence that one cannot claim jobseekers allowance then (a consequence which if they can manage for a while, they may be prepared to contemplate), but may also have adverse consequences at a later stage.

12. Nonetheless, in the circumstances of the present case, Ms Clement indicated the SSWP, having regard to the following considerations, would not seek to contend there was undue delay :

            (a) the appellant’s history of looking for, and speedily obtaining, jobs          previously;

            (b) the availability of existing savings to tide her over; and

            (c) the evidence provided by the backdating claim form, containing very specific details of the steps which this appellant had taken at the             time to look for work  and confirmation of the SSWP’s view at the time    that what she had said was reliable.

13. Ms Adroba queried whether the fact that the backdating claim had failed called into question the evidence at [12(c)].  It does not, as Ms Clement accepts, because the backdating claim could only be allowed if one of the circumstances within regulation 19 of the Social Security (Claims and Payments) Regulations 1987 applied to it.  Regulation 19 is not concerned with the sufficiency or otherwise of a person’s job search; it is rather that the appellant had been unable to bring the situation within any of the limited categories which do (on other grounds) permit backdating, so the backdating application had failed.  Reassured as to that, Ms Androba indicated that the council was prepared to take the same line as SSWP.

14. Whether the appellant can bring herself within the scope of Saint-Prix remains entirely at large.  While one of the lead cases on Saint-Prix does concern a person who received maternity allowance, it is not possible to say at this stage whether that case will provide a definitive answer on the appellant’s appeal.  Further directions will be given after the lead cases have been decided.

15. I add a note about evidence in this case.  A key bit of evidence on this (HB) case was in papers relating a (non-HB) claim to the DWP.  At the First-tier Tribunal, there had been a parallel income support appeal heard at the same time, but the backdating form which provides the evidence which has proved an integral part of the material on which the respondents’ concession before me was based, was not in the bundle (perhaps unsurprisingly, since it was not an appeal against the backdating decision).  On the appeal to the Upper Tribunal, the Secretary of State was joined as a party: that does not always happen in housing benefit cases. The backdating claim form was only produced because of a wide-ranging order for the production of documents, not targeted at the form,  that was only made by the Upper Tribunal because the two respondents had initially been unable to agree whether the appellant’s claim had been made in June, then a sanction imposed, or in August, accompanied by a backdating application.  I am not seeking to criticise the preparation of the submissions to the tribunal in this case (or the linked income support case) or the tribunal’s failure to obtain the document, but merely to draw to the attention of submission writers in other cases, claimants and those who advise them and First-tier Tribunals a perhaps unexpected source where relevant evidence might be found in cases of this type.

CG Ward

Judge of the Upper Tribunal

6 March 2015