[2007] UKSSCSC CIS_731_2007 (02 November 2007)

CIS/731/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the Secretary of State’s appeal against the decision of the Sutton appeal tribunal dated 20 July 2006.  

REASONS

2.	The claimant is a French national who came to the United Kingdom on 22 March 2004, was employed from 29 April 2004 to 30 April 2005 and was then made redundant.  She claimed and was awarded jobseeker’s allowance from May 2005.  She became pregnant but continued to seek work.  In October 2005 she was admitted to hospital due to ill health resulting from her pregnancy.  In November 2005, she went to make another claim for jobseeker’s allowance, despite feeling unwell, but was advised to claim income support instead because she was within 11 weeks of her expected date of confinement, her baby being due on 7 February 2006.  She duly claimed income support on 24 November 2005 but her claim was disallowed on 22 January 2006 on the ground that she had no right of residence in the United Kingdom and so could not be treated as habitually resident in the United Kingdom, with the result that her applicable amount was nil (see regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967 as then in force)).

3.	The claimant appealed.  The tribunal found as facts that working at the late stage of pregnancy the claimant had reached whilst having complications in her pregnancy would have been dangerous both for the claimant and her child and that the claimant intended to work as soon as she was well enough to do so and as soon as she could after her confinement.  It found that the claimant was a worker within the scope of Council Regulation (EEC) No, 1612/68 and held that she fell to be treated as incapable of work under regulation 14 of the Social Security (Incapacity for Work) (General) Regulations 1995 (S.I. 1995/311) and that, as her incapacity was only temporary, she had a right of residence in the United Kingdom.  Although the tribunal did not refer to article 7(2) of Council Directive 69/360/EEC or regulations 5(1)(a) and (2)(a) and 14 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) which gave effect to that Directive and the Regulation, the tribunal plainly had in mind that those provisions had the effect that a worker within the scope of Article 39 of the EC Treaty had a right of residence in the United Kingdom and did not cease to do so solely because he or she was temporarily incapable of work as a result of illness or accident.

4.	The Secretary of State now appeals with my leave, arguing that pregnancy is not per se an illness and that there did not appear to be any evidence of a pregnancy-related illness.  I granted leave because the application seemed to raise an issue of some importance but I commented that –

“… I have some doubts about the merits of the appeal.  I accept that a woman may not retain the status of ‘worker’ while unemployed merely due to pregnancy but it seems to me to be arguable that she does retain that status if she is unemployed due to illness, even if the illness is related to her pregnancy.  It may be that the claimant in this case had to show that she was actually unable to work rather than being deemed to be incapable of work but, once she passed that hurdle, as the tribunal appears to have accepted she did, it is arguable that she qualified for income support under paragraph 14(b) of Schedule 1B of the Income Support (General) Regulations 1987 without needing to satisfy any technical requirements of paragraph 7 of that Schedule, particularly as the Secretary of State failed to ask her for any particular form of medical evidence.”

The Secretary of State broadly accepts that point, save that it is submitted that the claimant’s entitlement arises under paragraph 14(a) of Schedule 1B to the 1987 Regulations rather than paragraph 14(b).  

5.	The categories of people potentially entitled to income support are set out in Schedule 1B to the 1987 Regulations.  Paragraphs 7 and 14 are relevant to the present case –

“Persons incapable of work
    7.    A person who— 
(a) is incapable of work in accordance with the provisions of Part XIIA of the Contributions and Benefits Act and the regulations made thereunder (incapacity for work); or
(b) is treated as incapable of work by virtue of regulations made under section 171D of that Act (persons to be treated as incapable or capable of work); or
(c) is treated as capable of work by virtue of regulations made under section 171E(1) of that Act (disqualification etc.); or
(d) is entitled to statutory sick pay.

…

Pregnancy
    14.    A woman who— 
(a) is incapable of work by reason of pregnancy; or
(b) is or has been pregnant but only for the period commencing 11 weeks before her expected week of confinement and ending … fifteen weeks after the date on which her pregnancy ends …”

6.	Regulation 14 of the 1995 Regulations, upon which the tribunal relied, provides –

“ A pregnant woman shall be treated as being incapable of work –
    (a) 	on any day on which, because of her pregnancy, there is a serious risk of damage to her health or to the health of her unborn child if … she does not refrain from work …; or
    (b)	in the case of a woman whose expected or actual date of confinement has been certified in accordance with the Social Security (Medical Evidence) Regulations 1976, on any day in the period –
    (i) 	beginning with the first day of the 6th week before the expected week of her confinement or the actual date of her confinement, whichever is earlier; and
    (ii)	ending on the 14th day after the actual date of confinement,
…”

That provision falls within the scope of paragraph 7(b) of Schedule 1B of the 1987 Regulations, but a claimant does not need to rely upon paragraph 7 if she, in any event, falls within the scope of paragraph 14 of that Schedule.

7.	I agree with the Secretary of State that pregnancy is not per se an illness and that a woman who satisfies the conditions either of regulation 14(b) of the 1995 Regulations taken with paragraph 7(b) of Schedule 1B to the 1987 Regulations or of paragraph 14(b) of Schedule 1B to the 1987 Regulations but who is not incapable of work as a result of illness or accident does not retain a right of residence in the United Kingdom by virtue of regulation 5(2)(a) of the 2000 Regulations.  I am also prepared to accept for the purpose of this decision that not everyone who satisfies the condition of regulation 14(a) of the 1995 Regulations would be suffering from illness, since a woman might fall within the scope of regulation 14(a) having been advised to refrain from work purely for precautionary reasons in the light of her history, rather than because any complications in her present pregnancy had arisen.

8.	The Secretary of State refers me to CIS/542/2001, in which Mr Commissioner Levenson held that a woman could be found to be incapable of work for the purposes of paragraph 14(a) of Schedule 1B to the 1987 Regulations even if she would not be found to be, or treated as, incapable of work under the provisions mentioned in paragraph 7.  In that case the tribunal had found that the claimant did not fall within the scope of regulation 14 of the 1995 Regulations but the Commissioner held the tribunal to have erred in law in failing to consider her case under the wider terms of paragraph 14(a) of Schedule 1B to the 1987 Regulations and he found that the claimant was in fact incapable of work for the purposes of paragraph 14(a).

9.	In the light of that decision and my observations about the tribunal’s findings of fact in the present case, the Secretary of State now concedes that in this case the claimant was incapable of work and so fell within the scope of paragraph 14(a) and, moreover, I understand him to concede that the claimant was incapable of work by reason of illness up to the date of the Secretary of State’s decision, so that she retained a right of residence in the United Kingdom by virtue of regulation 5(2)(a) of the 2000 Regulations.  

10.	However, I do not agree that the tribunal erred in law in this case, which still appears to be the Secretary of State’s position.  There is plainly some overlap between, on one hand, regulation 14 of the 1995 Regulations taken with paragraph 7(b) of Schedule 1B to the 1987 Regulations and, on the other hand, paragraph 14 of that Schedule.  It seems to me that the claimant in this case qualified for income support under both approaches and the tribunal did not err in referring to regulation 14 of the 1995 Regulations rather than paragraph 14(a) of the Schedule to the 1987 Regulations.  There is nothing in CIS/542/2001 to suggest that a woman cannot fall within the scope of both those provisions.

11.	What is important is that the tribunal’s findings were sufficient to show that the claimant was suffering from illness within the scope of regulation 5(2)(a) of the 2000 Regulations and was incapable of work as a result of that illness.  That would have been a necessary ingredient of the tribunal’s decision even if it had relied on paragraph 14(a) of Schedule 1B to the 1987 Regulations, which no more refers to illness than does regulation 14(a) of the 1995 Regulations.	

12.	Thus, I accept the main point that the Secretary of State seeks to have established, which is that, where a woman needs to rely on regulation 5(2)(a) of the 2000 Regulations in order to show that she has a right of residence in the United Kingdom, it is not sufficient to show that she would qualify for income support on the ground of pregnancy if she did have a right of residence.  It is necessary for her also to show that she is incapable of work as a result of illness or accident, although any illness arising out of the pregnancy will be relevant. 

	(signed on the original)	MARK ROWLAND
		Commissioner
		2 November 2007