CIS/1854/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The Secretary of State’s appeal is allowed.  The decision of the Fox Court tribunal given on 5 March 2007 (the tribunal) is erroneous in point of law and I set its decision aside.  In exercise of the powers conferred by Section 14(8)(a)(ii) Social Security Act 1998, I give the decision that the tribunal should have given.  I make my own finding of fact that the claimant was not a worker, nor a person with retained worker status.  I substitute for the decision given by the tribunal my decision that the claimant was a person from abroad whose applicable amount was nil.  He was not, accordingly, entitled to payment of income support from 1 June 2006, the date of his claim to income support.

2.	The claimant is a lone parent of two children, one of whom is said to be severely autistic and to require 24 hour care.  Although the income support claim, and the interview carried out to establish the claimant’s right to reside, have both since gone missing, they were available to the decision maker who on 17 September 2006 decided that the claimant was not a person with a right to reside in the United Kingdom.  The information available at that time appears to have suggested that the claimant first came to the United Kingdom on 3 November 2004.  The refusal of benefit was made on the basis that the claimant was ‘a person from abroad’.  This was based on a finding that he had not worked since coming to the United Kingdom, was not registered as a jobseeker, was not a student or self‑sufficient person and not otherwise a qualified person.  The claimant appealed against this decision.  He agreed he was not available for work, and said this was because he had a child who needed 24 hour care.  Were that not the case, he said, he would have applied for jobseeker’s allowance (JSA).

3.	It has to be said that the factual background to this case is shrouded in ambiguity, and it is unfortunate that the Secretary of State was not able to retrieve the claim form, and in particular, the interview conducted to decide the right to reside question.  When the claimant attended the oral hearing of his appeal, he told the tribunal that he had first come to the United Kingdom in 1987.  He indicated that he became a Portuguese citizen in 1991.  He told the tribunal that he paid tax, presumably in the United Kingdom, between 1991 and 1993.  He said he was self-employed between 1993 and 1995.  He told the tribunal that he then moved to Angola (his country of origin, and possibly therefore the source of his entitlement to Portuguese citizenship, though this is speculation on my part) and closed his business in the UK.  He said he stayed in Angola for two years, returning to the UK in August 1997.  He did not work at this time and told the tribunal he had supported himself on his savings.  From 1998 he said he worked in a Portuguese restaurant for two years (whether full or part time is not recorded), leaving in 2000 when he went to Portugal for one year where he started an export company.  He said he returned to London on 24 December 2001 and stayed until the middle of 2002, at which point he went to Angola and stayed there until October 2004.  He says he sold his import/export business in Portugal in September 2004 and told the tribunal that he had supported himself on the proceeds of this for about a year.  He also added:

	“I did handyman work for the local community … it was paid in cash.  This work was not declared.  I was doing this for about 9 months.”

He told the tribunal that he and his wife had separated in 2002 and in May 2006, his former wife, who was finding it difficult to cope with the children, brought the children to him and left them with him.  He said he was not able to work because of his son’s needs and that is why the claim for income support was made on 1 June 2006.  The implication of his evidence to the tribunal was that in the 20 months preceding this claim he had initially been self‑supporting because of the sale of his business, and thereafter did sufficient cash in hand work to support himself.  I see no indication that this assertion was supported by evidence of funds available to the claimant.  The Secretary of State did not provide any further information about the claimant to the tribunal, though the Secretary of State has since obtained evidence which shows that the claimant was in receipt of JSA from 23 January 1999 until 15 September 2000.  I note this is consistent with what the claimant said about leaving the UK to go to Portugal in 2000, though it does not support his account of working in a Portuguese restaurant at this time.  There are inconsistencies in the claimant’s account which lead me to reject it as implausible.  Notwithstanding the frequent changes of location, evidence of bank deposits, money transfers etc could have been obtained to support his account, and without too much difficulty.

4.	The tribunal adopted the invariably unsatisfactory device of combining its decision notice and statement of reasons in a single document.  It accepted that the claimant was a worker until the end of May 2006, and therefore could be treated as habitually resident in the UK because he had a right to reside derived from his previous work history in the UK.  This single page document does not set out adequate findings of fact, or show that the tribunal considered whether or how the claimant might satisfy the relevant legal tests.  The Secretary of State applied for leave to appeal which was granted by a district chairman.

5.	The issues to be determined are complex for a lawyer, let alone a lay person, and the claimant’s ability to respond to directions issued by the Commissioner and by the legal officer has been predictably limited.  In essence, the claimant simply reiterates his belief that he has a right to reside because of his long residence in the United Kingdom and the fact that he is unable to take up work because of the needs of his son.

6.	There are four issues which I must consider in deciding whether the tribunal’s conclusions are sustainable:

		(i)	Was the claimant a worker?

		(ii)	If he was not, did he have retained worker status?

		(iii)	Did the claimant have a permanent right to reside in the United Kingdom?

		(iv)	Does Article 18 EC Treaty or Baumbast assist the claimant?

7.	The answer to (i) above is straightforward.  A person who is not working is no longer a worker.  However, that person may have retained worker status.  To decide whether that is the case for the claimant requires consideration of regulation 21AA Income Support (General) Regulations (regulation 21AA):

		(1)	‘Person from abroad’ means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.  

		(2)	No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).  

		(3)	The right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following –

				(a)	regulation 13 of the Immigration (European Economic Area) Regulations 2006; 

				(b)	Regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is – 

						(i)	A jobseeker for the purpose of the definition of ‘qualified person’ in regulation 6(1) of those Regulations, or 

						(ii)	A family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker; 

				(c)	Article 6 of Council Directive No. 2004/38/EC; or 

				(d)	Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).

		(4)	A claimant is not a person from abroad if he is –

				(a)	a worker for the purposes of Council Directive No. 2004/38/EC; 

				(b)	…

				(c)	a person who retains a status referred to in sub‑paragraph (a) or (b) pursuant to Article 7(3) of that Directive; 

				…

8.	Regulation 21AA has a very complicated structure, but with the double negatives removed, the effect of this provision is clearer.  It falls into two parts.  The first part, regulation 21AA(2) and (3), sets out those who will not be treated as habitually resident, and they will not have a right to reside.  The second part, regulation 21AA(4), sets out those who will have a right to reside.  The claimant does not have a right to reside under regulation 21AA(2) or (3).  Although he is not a jobseeker, nor is he a ‘qualified person’ as defined by regulation 6 Immigration (European Economic Area) Regulations 2006 (the EEA Regulations), because he is not a worker, self employed person, self-sufficient person, or a student.  But does paragraph 21AA(4) assist the claimant?  He is not a worker for the purposes of Directive 2004/38/EC.  This distinguishes between a worker and a person with “retained worker status”.  A worker is a person who is actually working.  But is the claimant a person with retained status pursuant to Article 7(3)(a) or (b)?

9.	Article 7(3) Directive 2004/38/EC:

	For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self‑employed person shall retain the status of worker or self‑employed person in the following circumstances:

		(a)	he/she is temporarily unable to work as a result of an illness or accident 

		(b)	he/she is in duly recorded involuntary unemployment after having been employed for more than one year and is registered as a jobseeker with the relevant employment office.

The claimant here cannot take advantage of this.  There is no evidence that his inability to work is in fact temporary, given the permanent nature of his son’s disability, he will be unable to work for as long as the care of his son remains his sole responsibility.  Further, the illness or accident must be that of the worker, not of the worker’s dependant.  Accordingly sub‑paragraph (a) does not assist him.  Nor does sub‑paragraph (b) because he is not in duly recorded involuntary unemployment.  The claimant himself recognises that he will not be able to work because of his caring responsibilities for his disabled son.

10.	This means that the tribunal should have found that the claimant did not satisfy the provisions of regulation 21AA and therefore was a person from abroad whose applicable amount is nil, unless there is some other provision of European law which could help the claimant.

11.	The tribunal did not consider whether or not the claimant had a permanent right to reside under regulation 15, Immigration (European Economic Area) Regulations 2006 (the EEA Regulations).  This brings into force in domestic law Article 16 of Directive 2004/38/EC.  Article 16 provides as follows:

		1.	Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there.  This right shall not be subject to the conditions provided for in Chapter III [Articles 6 to 15 inclusive].

		2.	Paragraph 1 shall apply also to family members …

		3.	Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and child birth, serious illness, study or vocational training, or a posting in another Member State or a third country.  

		4.	Once acquired, the right of permanence residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

Does this assist the claimant?  A right of permanent residence in another Member State has existed only from 2 October 2000, the date on which the Immigration (EEA) Regulations 2000 came into force.  Therefore the claimant’s residence in the United Kingdom for some years before that date cannot assist him.  It is known that from late 2000 to the end of 2001 he was not in the United Kingdom, and it is also known that he was out of the United Kingdom between the middle of 2002 and November 2004.  The decision maker certainly thought that the claimant had left the UK again after that date, but that does not seem to be borne out in the information recorded by the tribunal.  However, it is clear that the claimant cannot establish five years continuous residence and so does not have the right of permanent residence conferred by Article 16 and regulation 15 of the EEA Regulations.

12.	Is there any other provision of European Law which could assist the claimant?  In CIS/408/2006 the Commissioner, dealing with a case which fell to be determined under the Immigration (EEA) Regulations 2000, noted that regulation 5(7) of the Immigration (EEA) 2006 Regulations provided in sub‑paragraph (a) that for the purposes of this regulation periods of inactivity for reasons not of the person’s own making should be treated as periods of activity of the worker or self‑employed person.  This is set out in Article 17(1) of Directive 2004/38/EC.  In summary, this provides that a right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years by workers or self‑employed persons who, when they stop working, had reached retirement age.  It also applies to workers and self‑employed persons who have resided in the host Member State for more than two years and stopped working as a result of permanent incapacity to work.  In deciding whether the necessary time periods relevant to these two categories have been satisfied, Article 17(1) provides that periods of involuntary unemployment, and periods not worked for reasons not of the person’s own making, shall be regarded as periods of employment.  Taken at face value, the claimant’s commitment to caring for his severely disabled son is a limitation on his availability for work which ‘is not of his own making’.  But it does not, in fact, help him.  This provision is restricted to those who have either reached retirement age, or whose incapacity for work is because of their own permanent incapacity for work. 

13.	That leaves only as a final possibility the question of whether the claimant is assisted by Article 18 of the European Communities Treaty.  This provides:

		1.	Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

However, the right of residence under Article 18 is conditional on a person who is not economically active having sufficient resources to avoid becoming an unreasonable burden on the social assistance system of the Member State in which he/she is residing, and having comprehensive sickness insurance cover in that State: Article 7(1)(b) Directive 2004/38/EC.  Because his children are of school age, the claimant was directed to make a submission on whether he thought it arguable that he fell within the circumstances dealt with in the case of Baumbast v. Secretary of State for the Home Department (Case - 413/99 [2002] E.C.R. I‑7091.  However the claimant has not responded to the direction, which required him to give details of the periods when he resided in, or visited, the United Kingdom from the date when he acquired Portuguese nationality.  He was also asked for the dates when he, and his wife and children, had resided in the United Kingdom and to identify their nationality.  He has not provided any such information.  The parent in Baumbast was self‑sufficient, and the circumstances are so different that I do not think it worth embarking on a detailed examination of that case.  As the Court of Appeal noted in its judgement in Ali v. Secretary of State for the Home Department [2006] EWCA Civ 484, the European Court of Justice has nowhere suggested that a child citizen of the Union has a right of residence simply by virtue of Article 18 EC Treaty.  

14.	For the reasons set out above, the claimant was not a person with a right to reside in the United Kingdom.  The Secretary of State’s appeal is allowed and my decision that the claimant was a person from abroad with an applicable amount of nil is given in place of the decision given by the tribunal. 

				(Signed on the Original)	Mrs A Ramsay
								Deputy Commissioner
                                                                                                 1 August 2008