[2006] UKSSCSC CIS_2680_2005 (12 May 2006)

 DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

				          12/13 January, 23/24 February 2006

CIS/2680/2005

Representation:

Mr Jason Coppel of Counsel for the Secretary of State

Mr Gary Edwards of Southampton Advice and Representation Centre for the claimant

1.	Our decision is that the decision of the tribunal given on 5 May 2005 is erroneous upon a point of law.  We set it aside.  We make the decision we consider appropriate.  It is that there was no valid appealable decision made by the Secretary of State on the claimant’s claim for income support.  The purported decision of the Secretary of State at pages 69 of the bundle is set aside.  The case is remitted to the Secretary of State to make a decision on the claimant’s claim.

2.	This is an appeal by the Secretary of State, with the leave of the chairman, from the decision of an appeal tribunal dated 5 May 2005.  As the Chief Commissioner considered that this appeal and the appeals CIS/3573/2005, CH/2484/2005, CPC/2920/2005 and CIS/2559/2005 involved questions of law of special difficulty, he directed that the appeals be dealt with by a Tribunal of Commissioners, in accordance with the provisions of section 16(7) of the Social Security Act 1998.  The Tribunal of Commissioners held oral hearings on 12 and 13 January 2006, and 23 and 24 February 2006.  These hearings covered the first four appeals while the hearing in CIS/2559/2005 was held on 29 March 2006.

3.	The claimant is a Polish national.  He arrived in the United Kingdom on 8 April 2000 and claimed political asylum.  He claimed incapacity benefit in July 2004 and was informed on 5 April 2005 that the claim was successful.  Because he lacked contributions he also claimed income support on 27 July 2004.  On 23 August 2004 the Secretary of State issued what was described as a decision.  It was in the following terms:

	“The customer’s asylum application is still outstanding.

	He entered the UK on 7.4.00 (NU) and as the rules changed from 3.4.00, he should be supported by NASS as an asylum seeker.

	The new EU Enlargement rules apply to those people who entered the UK within the past 2 years, and will not apply to [the claimant].

	IS will not be payable to him as his status has not yet been determined.

	His claim should be nilled, Bo3B.

	You could advise him to pursue his asylum claim.”

He appealed to an appeal tribunal which allowed his appeal on 5 May 2005.

4.	The tribunal made the following findings of fact:

“The appellant is a polish (sic) national, born on 13.05.1980.  He holds a polish (sic) passport.  He came to Gt Britain on 08.04.2000 and claimed political asylum. The application was not resolved by the 1st May 2004 when Poland joined the EU as one of the A8 countries.  It may well be that the appellant should not initially have worked given his status but he did so, working for agencies.  His entitlement to work was later confirmed by the Home Office.

The tribunal accepts his evidence of regular and intermittent work, some pay slips have been made available and are accepted.  The appellant suffers from mental health problems which affected his ability to work for sustained periods and there were interruptions.

On 01.05.2004 he was contracted to an agency and available for work but no finding is made as to whether or not he was actually working on that date.

He claimed incapacity benefit in July 2004 and was advised on 05.04.2005 that it was successful.  Because he lacked contributions he also claimed Income Support on 27.07.2004 and the refusal of that application is the decision under appeal.”

5.	The tribunal came to the following conclusions:

“The issue that this the (sic) tribunal has to resolve is whether or not the appellant can be regarded as a ‘worker’ and so have social security benefits available to him in the same way as UK nationals.  It is his case that he can and that the restrictions imposed by the Accession (Immigration and Worker Registration) Regs 2004 cannot be applied to him as limiting his ability to apply for Income Support in the circumstances in which he did so when he became ill last July.

I am satisfied that the appellant is a ‘worker’ for the purposes of EC Reg 1612/68 and EC Reg 1408/71.  Since his arrival in this country until his illness overtook him he has been economically active in a meaningful and significant way.  Levin & Kempf (1986) ECR 1741.  R(IS) 12/98.

The Accession treaty permits derogation in respect of Articles 1-6 of EC Reg 1612/68 but not Article 7(2).  This article gives a ‘worker’ the rights to the same ‘tax and social advantage’ as nationals.  The appellant had worked in the UK at the date of his claim for Income Support and can be described as a ‘worker’.  On this basis he has a right to non discrimination in terms of access to social security benefits in the same way as fall worker EU nationals even though he is an A8 national.  In his particular circumstances the restrictions applied to A8 nationals cannot be applied to him.

The appellant is also assisted by the terms of EU Reg 1408/71, Articles 2, 3 & 4, in respect of his Income Support claim.  He has worked in the UK, he is as entitled to claim as a UK national or a national from another EU state.

Neither of the above EC Regs provides for a qualification period of working for 12 months.

The tribunal concludes that the appellant was habitually resident in Gt Britain under the old provisions of residence, intention and appreciable period when he made his claim for Income Support.  Accordingly he was actually habitually resident in this country at the date of claim.  Income Support (Gen) Reg 1987, Reg 21(3) as amended provides that a person shall not ‘be treated’ as habitually resident unless they have a right to reside.  Accordingly this appellant being actually habitually resident is not affected by the right to reside test as he does not need to be ‘treated’ as habitually resident.  Arguably this wording makes the test meaningless.

The tribunal is satisfied that the appellant is entitled to claim Income Support and should be assessed on the usual basis.  Any decision made accordingly will carry fresh appeal rights.”

6.	The decision of the tribunal was in the following terms:

	“Appeal is Allowed

	The decision of the Secretary of State issued on 26.08.2004 is Revised

	Applications for Income Support should now be processed.”

7.	At the hearing of this appeal the Secretary of State was represented by Mr Jason Coppel, of Counsel, instructed by the Office of the Solicitor for the Department for Work and Pensions while the claimant was represented by Mr Gary Edwards of the Southampton Advice and Representation Centre.  

8.	A preliminary issue was ventilated before the Commissioners, namely, whether there was an appealable decision for the Tribunal of Commissioners to adjudicate upon.  Mr Coppel and Mr Edwards submitted that there was.  However, we are not convinced by these submissions.  We have quoted the terms of the Secretary of State’s purported decision above.  In the first two paragraphs the Secretary of State appears to have taken a negative view on the claimant’s entitlement to income support and is suggesting that he should be supported by some other means.  However, in the fourth paragraph of the purported decision the Secretary of State appears to accept entitlement as he has taken a view in respect of the payability of income support which presumes entitlement.  There is a suggestion that the claim should be “nilled” rather than refused.  However, it remains a suggestion as the terms of the decision do not set out a decision on these lines.  He is also advised within the terms of the decision to pursue his asylum claim which advice was presumably given because the Secretary of State considered that this was a prerequisite for a potential claim.  The terms of the purported decision are a muddle and are such that it is not clear whether any decision under section 8 of the Social Security Act 1998 was made and, if it was made, what its terms were.  In these circumstances we have reached the conclusion that there was no valid appealable decision before the tribunal and that it erred in law by not holding so.  

9.	We are fortified in the view we have taken by what was said by a Tribunal of Commissioners in R(IB) 2/04.  They said in relation to decisions made under section 10 of the 1998 Act in relation to supersession:

	“72.	We agree with the proposition implicit in the submissions of all parties that there may be some decisions made by the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions under section 10 at all.”

In our view that proposition applies equally to decisions under section 8.  It is our view that in this case what is contained at page 69 of the bundle is such a decision.  In these circumstances we also hold that the tribunal erred in law in attempting to make a decision on the merits of the case itself when there was no valid appealable decision.

10.	Having taken the course we have, it would not be appropriate for us to give directions to the Secretary of State as to how he should determine the claimant’s claim for income support.  However, we should perhaps briefly state that, if there had been a valid appealable decision before the tribunal, we would have reached the conclusion that the tribunal had erred in law.  It was accepted by both parties to the appeal that the tribunal erred in law in determining that the claimant was a worker for the purposes of EC Regulation No 1612/68.  That concession, in our view, was properly made in respect that his circumstances were such as to exclude him from being such a worker.  Thus he would not have the advantage of the qualifications to the phrase “persons from abroad” set out in regulation 21(3) of the Income Support  (General) Regulations 1987 (SI 1987/1967).  His representative, as we understood his submission attempted to argue that there was another definition of the word “worker”.  No other definition of worker would have assisted him for the purposes of regulation 21(3).  The tribunal also made a further error in law that as the claimant was actually habitually resident in Great Britain at the material time the provisions of regulation 21(3G) did not apply and he was not a person from abroad.  Our reasoning as to why that is erroneous can be found in our decision in CIS/3573/2005.

(Signed)
D J MAY QC
Commissioner

(Signed)
J M HENTY
Commissioner

(Signed)
HIS HONOUR JUDGE MARTIN QC
Chief Commissioner, Northern Ireland
Sitting as a Deputy Commissioner in Great Britain

Date:  12 May 2006