[2008] UKSSCSC CIS_2036_2006 (08 January 2008)

CIS/2036/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Southampton appeal tribunal dated 25 January 2006 and I give the decision that the tribunal should have given which is that the claimant is not entitled to income support from 30 March 2005 because she had no right to reside in the United Kingdom.

REASONS

2.	The claimant is a Swedish national who came to the United Kingdom on 28 October 2004 to look for work.  She had worked in Sweden and was in receipt of Swedish unemployment benefit until 26 January 2005 and then British jobseeker’s allowance until 28 March 2005.  She claimed income support from 30 March 2005 on the ground that she had become incapable of work.  The precise nature of her incapacity is not revealed in the papers before me but it persisted and the claimant was receiving physiotherapy and the Secretary of State viewed it as a long-term condition.  The Secretary of State rejected the claim for income support on the ground that the claimant had no right to reside in the United Kingdom and so could not be treated as habitually resident in the United Kingdom with the result that she was a “person from abroad” with an applicable amount of nil (see regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967) as then in force).  The claimant appealed and the appeal tribunal allowed her appeal, relying on two articles of Council Regulation (EEC) 1408/71.  The Secretary of State now appeals against the tribunal’s decision with my leave.  The claimant has resisted the appeal but has not advanced any argument and has not responded to an invitation to suggest a ground why the tribunal’s decision should be upheld despite the decision of the Court of Appeal in Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657.

3.	The tribunal failed to refer by number to the first of the two articles of Council Regulation (EEC) 1408/71 that it had in mind but the language of its decision suggests that it was Article 71, which is concerned with unemployed persons who, during their last employment, were residing in a Member State other than the competent state.  However, Article 71(1)(a) is concerned with frontier workers and Article 71(1)(b) is concerned only with people who are available for work.  Thus, Article 71(1)(b)(ii) might have been relevant to the claimant’s entitlement to jobseeker’s allowance once her entitlement to Swedish unemployment benefit, guaranteed for three months under Article 69, ran out, but it could not assist the claimant once she ceased to be available for work due to incapacity.  This is not surprising, as Article 71 falls within Chapter 6 of Title III (Unemployment Benefits).  The Regulation makes provision under which the claimant might have had entitlement to Swedish sickness benefits or under which she might have been able to have periods of insurance in Sweden taken into account on a claim for British incapacity benefit, but I can see no provision in Chapter I of Title III (Sickness and Maternity) that might have had any bearing on her entitlement to income support.

4.	However, the Regulation does contain certain general provisions in Title I and the second article the tribunal considered was Article 3, which guarantees equality of treatment between all those resident in the territory of one of the Member States and the nationals of that state.  The tribunal took the view that the requirement that the claimant have a right of residence was discriminatory.  In Abdirahman, however, the Court of Appeal rejected a similar argument based on Article 12 of the EC Treaty, which also guarantees equal treatment.  The Court took the view, with which I respectfully agree, that it was justified to treat those with rights of residence differently from those without rights of residence.  The same approach must be taken to Article 3 of Council Regulation (EEC) 1408/71.  European law draws a distinction between rights of presence and rights of residence and it makes sense that a general guarantee of equal treatment conferred on those resident in a state should be limited to those who have a right of residence.

5.	Accordingly, I am satisfied that the tribunal’s decision is erroneous in point of law.  Council Regulation (EEC) 1408/71 did not confer any right to benefit on the claimant and it does not itself confer rights of residence.  While she was not working or looking for work or in any other relevant category (e.g. a student), the claimant had no right of residence under any of the Council regulations or directives in force at the material time nor under Article 18(1) of the EC Treaty as that has been interpreted in the case law of the European Court of Justice and by Social Security Commissioners.  I am satisfied that the claimant had no right of residence in the United Kingdom, unless she was self-sufficient which would have been incompatible with receiving income support.  I therefore restore the Secretary of State’s decision, which was to the effect that the claimant was not entitled to income support.

	(signed on the original)	MARK ROWLAND
		Commissioner
		8 January 2008