[2007] UKSSCSC CIS_3568_2006 (18 May 2007)

CIS/3568/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of the Birmingham Income Support Appeal Tribunal given on 5th May 2006.  By its decision the tribunal confirmed the decision of the decision maker given on 21st September 2005 that the claimant could not be treated as habitually resident in the United Kingdom because she did not have a right to reside here.  She was therefore a person from abroad for income support purposes and had an applicable amount of nil.

2.	When the appeal first came to the Commissioners, Mr. Commissioner Powell directed that the Secretary of State should make a submission on the question whether leave to appeal should be granted.  The Secretary of State’s response was to support the application for leave and to agree that the decision of the tribunal was erroneous in point of law and ought to be set aside, but to invite the Commissioner dealing with the appeal to substitute a decision of his or her own to the same effect.  Mr. Commissioner Powell did indeed grant leave to appeal, but instead of acceding to the Secretary of State’s submission on the proper disposition of the appeal proposed a direction that the case should be remitted for a further hearing and then if necessary adjourned pending the outcome of an appeal on a similar case to the Court of Appeal

3.	The claimant and the Secretary of State have both consented to the proposed direction, which seems to me to offer a proper and sensible way forward and which I shall therefore give.	 In those circumstances, it is not necessary for me to go into the relevant legislation in any detail.

4.	In summary, the applicable amount of a person from abroad has been nil for some years.  Also for some years “person from abroad” has been defined to mean a claimant who is not habitually resident in (principally) the United Kingdom, but subject to a number of exceptions.  One of those exceptions is that a person who is a “worker” for the purposes of Council Regulation (EEC) No. 1612/68 is not to be treated as not habitually resident.  Since 1st May 2004, however, for the purposes of the definition of “person from abroad” no one is to be treated as habitually resident who does not have a right to reside in the United Kingdom.

5.	In CIS/3573/2005, a decision of a Tribunal of Commissioners, it was held that the requirement of a right to reside applies to people who are in fact habitually resident in the United Kingdom as well as to people who cannot be treated as not habitually resident, even if they are not habitually resident in fact.  (It is this case which is on its way to the Court of Appeal.)  The right to reside is a starting point for all cases involving persons from abroad.  It is not disputed that the claimant is a Swedish national who originally came to the United Kingdom on 16th December 2004.  Her first hurdle was therefore to establish such a right.

6.	The principal basis on which a national of another European Union state such as the claimant may show a right to reside is by bringing herself within regulation 14 of the Immigration (European Economic Area) Regulations 2000, S.I. 2000 No. 2326.  That regulation gives a right to reside to a qualified person.  Regulation 5 in turn includes in the definition of “qualified person” a person who is “a worker”.  It is not disputed that the claimant in this case worked from 1st January 2005 to 8th July 2005 in a supermarket.   Her employment, however, was temporary and she subsequently claimed income support as a lone parent, meaning that she did not have to register as available for employment, as she would have done if she had claimed jobseeker’s allowance.

7.	In front of the tribunal, the claimant’s representative argued her case on the footing that, although she was no longer a worker for the purposes of regulation 5, she retained a right to reside as a worker for the purposes of Article 12 of Council Regulation (EEC) 1612/68 because she was the primary carer for children who were at school here.  Again it is not disputed that the claimant had children at school in England.  The tribunal, however, simply stated that the claimant was not a worker for those purposes, without giving any reasons.  That was the error of law on the basis of which it has been agreed that the tribunal’s decision should be set aside.

8.	The concession by the claimant’s representative that she was not a worker for the purposes of regulation 5 was based on the fact that her employment had ceased and that, although her employment had ceased involuntarily, she was not registered as available for work and so, it was said by the Department of Work and Pensions and accepted by the representative, was not a work seeker.  In Commissioner’s decisions CH/3314/2005 and CIS/3315/2005, however, Mr. Commissioner Rowland considered this argument in the context of the practice of jobcentres in advising claimants and concluded that in appropriate circumstances, as there discussed, a lone parent who had claimed income support rather than jobseeker’s allowance but who was genuinely looking for work with reasonable prospects of obtaining effective employment might be a work seeker and within the definition of “worker” for the purposes of regulation 5.

9.	That decision was given some months after the decision in the present case but on facts of some similarity.  In those circumstances, it is clearly right that, as the claimant and the Secretary of State have agreed, this case should be remitted to a new tribunal to consider again the question of whether the claimant can show a right to reside in the light of the decision in those appeals.   

10.	It is additionally to be noted that the decision of the Tribunal of Commissioners in CIS/3573/2005 is adverse to the claimant on other possible issues, namely:

(1)	whether a right to reside must be shown by a person who is in fact habitually resident in the United Kingdom;

(2)	whether the apparently discriminatory effect of that requirement is objectively justified and is proportionate.

If, therefore, the new tribunal were to reach a decision adverse to the claimant on her status as a worker within regulation 5, it seems that it would be appropriate for the final determination of the appeal to be adjourned pending the outcome of the appeal to the Court of Appeal in that case, if it has not then been heard.

11.	It is for those reasons that I set aside the decision of the original tribunal and remit the matter for rehearing.  The new tribunal will need to make the findings necessary to determine the issue of the claimant’s status as a worker and may need to decide whether or not to adjourn a final determination in the light of that decision and such further circumstances as may appear relevant at that time.  I put it that way in order not to limit the tribunal’s power to exercise its discretion, but as matters stand a highly material factor will be the status of the appeal in the decision by the Tribunal of Commissioners.

12.	Finally, and for the avoidance of doubt, I add that nothing I have said is intended to limit the arguments which may be addressed by the claimant to the tribunal.  I have sought simply to give reasons for the decision and directions now being made.

	(signed on the original)	E. Ovey
		Deputy Commissioner
							           18th May 2007