[2007] UKSSCSC CJSA_1475_2006 (16 May 2007)
CJSA/1475/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Nottingham appeal tribunal dated 22 February 2006 and I substitute my own decisions.  There are no grounds for revising or superseding the award of jobseeker’s allowance to the claimant from 14 April 2005 to 17 August 2005.  The claimant also had a right of residence, and was habitually resident, in the United Kingdom from 9 September 2005 when she made a further claim.  I leave other questions as to her entitlement to jobseeker’s allowance from 9 September 2005 to be determined by the Secretary of State.

REASONS

2.	I held an oral hearing of this appeal.  The claimant was represented by Ms Victoria Seifert of counsel, acting through the Bar Pro Bono Unit and instructed by Nottingham Law Centre, and the Secretary of State was represented by Mr Daniel Kolinsky of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.  I am grateful to both counsel for their helpful submissions.

3.	The claimant is a Portuguese national who came to the United Kingdom on 14 March 2004.  She had two young children of school age but managed to obtain employment as a waitress from July (or possibly April, as there is some evidence that she had casual employment before obtaining a proper contract) until September 2004.  Unfortunately, she was made homeless and was offered hostel accommodation some distance from where her children were at school.  The need to accompany the children on complicated journeys to and from school led her to give up her employment.  Happily she was rehoused but, in December 2004, her younger child was involved in a road traffic accident and suffered a complicated fracture of his left femur.  He was still suffering severe pain in April 2005 and he underwent a further operation in August 2005.  By September 2005, he was walking well and was allowed to start swimming although it was only in December 2005 that he had “returned to full activity” and was permitted to start playing football and other contact sports.

4.	The claimant made unsuccessful claims for income support on 18 August 2004, 11 October 2004 and 10 February 2005.  Those claims are not before me.  However, she made claims for income-based jobseeker’s allowance on 14 April 2005 and again on 9 September 2005.  The first was allowed on 6 May 2005 and the claimant received jobseeker’s allowance until 17 August 2005.  It appears that it was then suggested that she should be claiming income support but her claim for income support was rejected and that led to her claiming jobseeker’s allowance again.  This time, the claim for jobseeker’s allowance was rejected on the ground that the claimant had no right of residence in the United Kingdom and consequently could not be treated as habitually resident in the United Kingdom, with the result that she was a “person from abroad” whose “applicable amount” was nil by virtue of regulation 85 of, and Schedule 5 to, the Jobseeker’s Allowance Regulations 1996 (SI 1996/207) so that she was not to entitled to income-based jobseeker’s allowance having regard to section 4(3) of the Jobseekers Act 1995.  When giving his decision on 30 September 2005, the Secretary of State also decided that the claimant had not been entitled to jobseeker’s allowance from 14 April to 17 August 2005.  The claimant took up classes in English in October 2005 and eventually found employment in May 2006.

5.	The claimant appealed on the ground that she was a “worker” and so had a right of residence in the United Kingdom under European Community law.  The Secretary of State argued that she did not have a right of residence because she was, at best, a mere workseeker and the tribunal accepted that submission and found the claimant not to be entitled to jobseeker’s allowance from 9 September 2005.  It said nothing about entitlement from 14 April to 17 August 2005.  The claimant now appeals with the leave of the tribunal chairman.  The Secretary of State supports the appeal in respect of the period from 9 September 2005 but not in respect of the earlier period.

6.	So far as is relevant, regulation 85 of the 1996 Regulations provides –

“ (4)	Subject to paragraphs (4A) and (4B), in this regulation and Schedule 5 –
    …;
    ‘person from abroad’ means a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is –
    (a)	a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC …
  (4A)	…
  (4B)	in paragraph (4), for the purposes of the definition of a person from abroad no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.”
 
7.	It is not in dispute that the claimant had acquired the status of “worker” by the time her employment terminated in September 2004 and I accept that she did have that status for the purpose of Council Regulation (EEC) No. 1612/68 at that time.  It is true that the work was part-time and for not very high wages, but there is no reason to doubt that it was genuine and effective.  (It is not necessary to engage in as detailed an analysis as I did in.CH/3314/2005 if a person has actually been in work without claiming income support or is clearly available for work.  The analysis was required in that case only because it was necessary to determine, in respect of a period when the claimant was not actually in employment, what would be effective employment when the restrictions the claimant had placed on her availability raised the question whether she was looking for, and had reasonable prospects of securing, such employment.)

8.	Ms Seifert submitted that the claimant retained her status as a worker when she lost her employment through no fault of her own.  Mr Kolinsky, however, submitted that she lost the status with her employment.  Both counsel relied upon the decision of the European Court of Justice in Martinez Sala v. Freistaat Bayern (Case C-85/96) [1998] E.C.R. I-2691 in support of their respective positions.  However, what that case makes clear is that whether or not a person in a particular set of circumstances is a worker depends on the legal context in which the question arises.

“31.	It must also be pointed out that there is no single definition of worker in Community law: it varies according to the area in which the definition is to be applied.  For instance, the definition of worker used in the context of Article 48 [now Article 39] of the EC Treaty and Regulation no. 1612/68 does not necessarily coincide with the definition applied in relation to Article 51 [now Article 42] of the EC Treaty and Regulation No. 1408/71. 

The status of worker within the meaning of Article 48 of the Treaty and Regulation No. 1612/68

32.	In the context of Article 48 of the Treaty and Regulation No. 1612/68, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker.  Once the employment relationship has ended, the person concerned as a rule loses his status of worker, although that status may produce certain effects after the relationship has ended, and a person who is genuinely seeking work must also be classified as a worker (see, in that connection, Case 66/85 Lawrie-Blum [1986] E.C.R. 2121, paragraph 17, Case 39/86 Lair [1988] E.C.R. 3161, paragraphs 31 to 36, and case C-292/89 Antonissen [1991] E.C.R. I-745, paragraphs 12 and 13).”

9.	Indeed, the meaning of “worker” may even vary within one piece of legislation.  In Collins v. Secretary of State for Work and Pensions (Case C-138/02) [2005] Q.B. 145 (also reported as R(JSA) 3/06), the Court observed –

“32.	The concept of 'worker' is … not used in Regulation No. 1612/68 in a uniform manner.  While in Title II of Part I of the regulation this term covers only persons who have already entered the employment market, in other parts of the same regulation the concept of 'worker' must be understood in a broader sense.

33.	Accordingly, the answer to the first question must be that a person in the circumstances of the appellant in the main proceedings is not a worker for the purposes of Title II of Part I of Regulation No 1612/68.  It is, however, for the national court or tribunal to establish whether the term 'worker' as referred to by the national legislation at issue is to be understood in that sense.”

10.	It is apparent from Martinez Sala that there is a distinction to be drawn between actually being a worker and deriving advantages from having been a worker in the past and there may also be a subtle distinction between actually being a worker and being classified as, or treated as, a worker.  These distinctions may be largely linguistic but if they are not recognised there is a substantial risk of lawyers talking at cross-purposes and, indeed, there is some inconsistency of usage both in judicial decisions and in legislation.  A purposive approach to construction of Community legislation is often necessary.  This is recognised in Collins, as are the consequent problems that arise when the concept of “worker” is borrowed for use in domestic legislation.  Construing the phrase “worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70” in regulation 85(4) of the 1996 Regulations may not be entirely straightforward.  Happily, that point does not arise in this case.  This is because the Secretary of State concedes that, if the claimant has a right of residence under regulation 85(4B), she was in fact habitually resident in the United Kingdom without needing to rely on the regulations or directives mentioned in regulation 85(4).

11.	The Secretary of State further concedes that a person who provides evidence that he or she is continuing to seek employment and has genuine chances of being engaged in the United Kingdom has a right of residence in the United Kingdom under section 7(1) of the Immigration Act 1988 in the light of Regina v. Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) [1991] E.C.R. I-745, where the European Court of Justice held that the freedom of movement for workers guaranteed by Article 48 (now Article 39) of the Treaty entailed the right for nationals of Member States to move freely within the territory of other Member States and to stay there for the purpose of seeking employment.

12.	In drawing a clear distinction between workers and workseekers, Mr Kolinsky relied on the first sentence in paragraph 32 of Martinez Sala, whereas Ms Seifert, taking the opposite approach, relied on the concluding words of the second sentence.  However, as one might expect, the two sentences are not irreconcilable and both counsel are right up to a point.  Contrary to Mr Kolinsky’s principal submission, the Secretary of State’s concession seems to me to imply an acceptance that a workseeker is classified as a worker for the purposes, or some of the purposes, of what is now Article 39, which is what the Court stated in Martinez Sala.  However, that does not undermine the main point of Mr Kolinsky’s arguments.  In the light of Collins and the subsequent decisions of the Commissioner (CJSA/4065/1999) and the Court of Appeal (Collins v. Secretary of State for Work and Pensions [2006] EWCA Civ 376 (reported with the ECJ’s decision as R(JSA) 3/06)), it does not necessarily follow from the fact that a workseeker is a worker for the purposes, or some of the purposes, of Article 39 of the Treaty that such a workseeker is a worker for the purposes, or all of the purposes, of Council Regulation (EEC) No. 1612/68 and it also does not follow that such a workseeker always has a right of residence under Council Directive No. 68/360/EEC.  Mr Kolinsky was anxious to assert that neither of those things followed because, if either of them did, any workseeker in the United Kingdom seeking work here would be deemed to be habitually resident in the United Kingdom.  In the circumstances of this case, I need only accept the Secretary of State’s concession.  I need not express any view as to whether the claimant might have been a worker for any purposes under the Regulation or the Directive. 

13.	The Secretary of State also concedes that a claimant who satisfies the conditions of entitlement to jobseeker’s allowance set out in section 1(1) of the Jobseekers Act 1995, which include being available for employment, entering into a jobseeker’s agreement and actively seeking employment, will satisfy the Antonissen test of seeking employment and having genuine chances of being engaged in employment.  Moreover, in this particular case, Mr Kolinsky conceded that the Antonissen test was satisfied in respect of the period from 9 September 2005 and he supported the claimant’s appeal in respect of that period.

14.	I accept the Secretary of State’s concessions.  The “right to reside” test imposed by regulation 85(4B) does not, in practice, provide an additional hurdle for citizens of the European Union claiming jobseeker’s allowance, save where there is a derogation from the usual rules.  The tribunal’s decision was plainly erroneous in point of law.  In respect of the period from 9 September 2005, I accept that the claimant had a right of residence in the United Kingdom.

15.	In respect of the period from 14 April 2005, the Secretary of State submits that the tribunal erred in overlooking the fact that the decision under appeal had amounted to a revision or supersession of the award dated 6 May 2005 so that the period from 14 April 2005 to 17 August 2005 was in issue before the tribunal.  I accept that submission.  However, the Secretary of State does not support the claimant’s appeal in respect of that period because he does not concede that the Antonissen test was satisfied then.  Mr Kolinsky pointed to the claimant’s evidence that she was unable to seek employment while her son was immobilised and to her representative’s submission to the tribunal that, from December 2004 to August 2005, her son “could not manage for himself, the Appellant had to help him with everything.  It would not be reasonable to expect that she could either work or seek work during that time”.

16.	In my view, acceptance of the Secretary of State’s concessions on the law means that there are no grounds for revision of the decision of 6 May 2005.  The question whether the Antonissen test was in fact satisfied between April and August 2005 raises the question whether that decision should be superseded on the grounds of mistake of, or ignorance as to, a material fact or a change of circumstances and, more particularly, whether the Secretary of State was wrong to find the claimant to be available for, and actively seeking, employment or whether she ceased to satisfy those conditions.  It seems to me to be necessary to weigh against the claimant’s representative’s assertion to the tribunal the fact that the claimant was signing on during the material period and had presumably been interviewed and entered into a jobseeker’s agreement.  Indeed, the claim appears to have been brought to an end because she had agreed with the Jobcentre that she would undertake a course to improve her English and she was then required to attend the course two days after her son was due to undergo surgery, which she was unable to do.  I am not convinced that the claimant’s son was so disabled throughout the period between April and August as to prevent the claimant from making herself available for work.  There is, for instance, no evidence to suggest that he was not at school until the end of July or that the Jobcentre had not discussed childcare arrangements with the claimant.  Before I were to find grounds for supersession, I would require considerably more investigation of the facts.  I am not currently satisfied that there are grounds for supersession and I am not minded to refer the case to another tribunal when the Secretary of State himself has not conducted any sort of investigation.  It is open to the Secretary of State to look at the matter afresh if he wishes to do so and then make a new decision in terms of supersession, against which the claimant would be able to appeal.  However, unless he wishes to show that there has been a recoverable overpayment, he need not pursue the point.

17.	No-one has suggested that the decision terminating the award of jobseeker’s allowance in August 2005 was also in issue before the tribunal and that is presumably because the claimant has no complaint about that decision.  There was plainly a period immediately following her son’s operation at the end of August when she was not available for work and she may have been equally unavailable just before the operation.

18.	I allow the claimant’s appeal and give the decisions set out in paragraph 1 above.

	(signed on the original)	MARK ROWLAND
		Commissioner
		16 May 2007